United States District Court, S.D. Florida
ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL OR MOTION FOR NEW TRIAL
BLOOM, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendant Timothy
John Beverly's (“Defendant”) Motion for
Judgment of Acquittal Notwithstanding the Verdict or
Alternatively for a New Trial, ECF No. 
(“Motion”). The Court has reviewed the Motion,
all opposing and supporting filings, the record in the case,
and is otherwise fully advised. For the reasons that follow,
Defendant's Motion is denied.
conclusion of a two-week trial, a jury in Miami-Dade County
convicted Defendant of committing wire fraud in violation of
18 U.S.C. § 1343 (Counts 1 - 4); filing false income tax
returns for the years 2010, 2011, 2012, and 2013 in violation
of 26 U.S.C. § 7206(1) (Counts 5 -8), and making false
statements to the United States in violation of 18 U.S.C.
§ 1001 (Counts 9, II, 12, 14 and 15). See ECF
No. . Defendant now seeks a judgment of acquittal or a
new trial in the Motion on three separate grounds: (1) the
Court erred in allowing IRS Special Agent Moises Assael
(“Special Agent Assael”) to testify that certain
funds constitute “income” that Defendant should
have reported on his tax returns; (2) there was insufficient
evidence at trial to support a conviction; and (3) Defendant
was unduly prejudiced by the Government's argument that
his bankruptcy discharge affected his ability to continue
using a net operating loss on his income tax returns.
See ECF No. . The Government timely filed its
Response in Opposition, see ECF No. , but to
date, Defendant has not filed a Reply. Accordingly, the
Motion is now ripe for review.
Motion for a Judgment of Acquittal Notwithstanding the
the government closes its evidence or after the close of all
the evidence, the court on the defendant's motion must
enter a judgment of acquittal of any offense for which the
evidence is insufficient to sustain a conviction.” Fed.
R. Crim. P. 29(a). As Defendant has done here, “[a]
defendant may move for a judgment of acquittal, or renew such
a motion, within 14 days after a guilty verdict or after the
court discharges the jury, whichever is later.” Fed. R.
Crim. P. 29(c)(1). “If the jury has returned a
guilty verdict, the court may set aside the verdict and enter
an acquittal.” Fed. R. Crim. P. 29(c)(2).
deciding a motion under Rule 29, the district court must
determine “whether the evidence, examined in a light
most favorable to the Government, was sufficient to support
the jury's conclusion that the defendant was guilty
beyond a reasonable doubt.” United States v.
Williams, 390 F.3d 1319, 1323-24 (11th Cir. 2004)
(citing United States v. Varkonyi, 611 F.2d 84,
85-86 (5th Cir.1980)). Thus, the test is whether a reasonable
jury could find, beyond a reasonable doubt, that Defendant is
guilty of violating the crimes alleged in the indictment.
United States v. Macko, 994 F.2d 1526, 1532 (11th
Cir. 1993). Applying this test, “[a]ll credibility
choices must be made in support of the jury's
verdict.” Williams, 611 F.2d at 1323 (citing
United States v. Gianni, 678 F.2d 956, 958-59 (11th
Cir. 1982) and United States v. Burns, 597 F.2d 939,
941 (5th Cir. 1979)). Because a jury may choose among
reasonable constructions of the evidence, “[i]t is not
necessary that the evidence exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, provided a reasonable trier
of fact could find that the evidence establishes guilt beyond
a reasonable doubt.” Id. at 1324 (quoting
United States v. Young, 906 F.2d 615, 618 (11th Cir.
1990); United States v. Vera, 701 F.2d 1349, 1357
(11th Cir. 1983)). “A conviction must be upheld unless
the jury could not have found the defendant guilty under any
reasonable construction of the evidence.” United
States v. Merrill, 513 F.3d 1293, 1299 (11th Cir. 2008)
(citing United States v. Byrd, 403 F.3d 1278, 1288
(11th Cir. 2005)).
Motion for New Trial
33(a) provides that: “Upon the defendant's motion,
the court may vacate any judgment and grant a new trial if
the interest of justice so requires.” Fed. R. Crim. P.
33(a). A motion for a new trial is “addressed to the
sound discretion of the trial court.” United States
v. Champion, 813 F.2d 1154, 1170 (11th Cir. 1987). When
a motion for new trial is based on claims that the verdict is
contrary to the weight of the evidence, “the court need
not view the evidence in the light most favorable to the
verdict” but “may weigh the evidence and consider
the credibility of the witnesses.” United States v.
Martinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985)
(quoting United States v. Lincoln, 630 F.2d 1313,
1319 (8th Cir.1980) and United States v. Simms, 508
F.Supp. 1188, 1202 (W.D. La. 1980)). “If the court
concludes that, ‘despite the abstract sufficiency of
the evidence to sustain the verdict, the evidence
preponderates sufficiently heavily against the verdict that a
serious miscarriage of justice may have occurred, it may set
aside the verdict, grant a new trial, and submit the issues
for determination by another jury.'” Id.
(quoting Lincoln, 630 F.2d at 1319). With that said,
a district court “may not reweigh the evidence and set
aside the verdict simply because it feels some other result
would be more reasonable.” Id. at 1313 (citing
Simms, 508 F.Supp. at 1202). Instead, it must let
the verdict stand unless it finds the evidence preponderates
heavily against the verdict so much so that it would cause a
miscarriage of justice. Id. (internal citations
omitted). Because motions for new trial based on the
weight of the evidence are disfavored, they are granted
sparingly, with caution and only in “really
‘exceptional cases.'” Id.
support of his Motion, Defendant advances three arguments:
(1) the Court erred when it allowed Special Agent Assael, a
lay witness, to testify whether certain funds constituted
“income;” (2) there was insufficient evidence to
support his conviction, and (3) Defendant was unduly
prejudiced when the Government argued that his bankruptcy
discharge affected his ability to use a net operating loss on
his income tax returns. See ECF No. . Defendant
makes these arguments without differentiating whether they
are grounds for a judgment of acquittal notwithstanding the
verdict under Rule 29 or grounds for a new trial under Rule
33. The Court interprets the second argument challenging the
sufficiency of the evidence as the basis for the renewed
request for a judgment of acquittal. As to the request for a
new trial, the Court considers whether any of the three
grounds listed above warrant trying this case anew.
Motion for a Judgment of Acquittal Notwithstanding the
Motion challenges the sufficiency of the evidence as to all
counts of which the jury found him guilty. Specifically,
Defendant “readopts and restates the arguments in
support of his motion for judgment of acquittal at the close
of the Government's case.” ECF No.  at 2.
Consistent with those points, Defendant argues there was
insufficient evidence to prove he intended to defraud Matthew
Franzak (“Mr. Franzak”) or Majestic Jet, Inc.
(“Majestic Jet”) (collectively the
“victims”) to convict him of wire fraud in Counts
1 through 4. Compare ECF No.  at 50-51
with ECF No.  at 2. As to Counts 5 through 8
charging Defendant with filing false income tax returns for
the years 2010 through 2013, the Motion states there was
insufficient evidence to demonstrate Defendant knew he had a
legal duty to report the funds as income because his
unfamiliarity with federal tax laws remained uncontroverted.
See ECF No.  at 2. This is the same argument he
made during trial at the close of the Government's case.
See ECF No.  at 47-49. Finally, as to Counts 9,
11, 12, 14 and 15, Defendant argues there was no evidence to
establish his knowledge of a duty to report funds from
aircraft transactions as earnings on his monthly supervision
reports to the United States Probation Office (“U.S.
Probation”). See ECF No.  at 2. During
trial, Defendant also raised this identical argument.
See ECF No.  at 49-50.
close of the Government's case, this Court heard oral
argument on Defendant's Motion for Judgment of Acquittal
and denied it as to all counts with the exception of Counts
10 and 13. In this post-trial Motion, Defendant fails to
raise any new arguments for the Court's consideration,
relying upon and repeating the same contentions previously
considered and rejected. See United States v.
Mulherin, 529 F.Supp. 916, 923 (S.D. Ga. 1981),
aff'd, 710 F.2d 731 (11th Cir. 1983) (holding
that post-verdict renewed motion for judgment of acquittal
raising the same arguments made during the ore tenus
motion at trial “would not cause the Court to
reconsider its prior rulings.”). Finding that Defendant
has not raised any new arguments that warrant reconsideration
of the prior ruling, the Court denies Defendant's renewed
request for a judgment of acquittal for the same reasons
announced on the record during trial. See ECF No.
 at 60-63.
Motion for New Trial
explained above, Defendant raises three arguments in support
of a new trial. The Court will address each of these
arguments in turn to determine whether this is one of those
truly exceptional cases in which this rare remedy should be
Testimony of Special Agent Assael
support of his request for a new trial, Defendant first
renews the arguments raised in his Amended Motion to Exclude
Witness Testimony Regarding Income. See ECF Nos.
 and . In essence, he argues that Special Agent
Assael should have been precluded from testifying that
certain financial transactions constituted
“income” for purposes of proving Counts 5 through
8 of the Superseding Indictment. Id. It is
Defendant's position that the question of whether certain
transactions qualified as “income” was the
“ultimate legal issue” for the jury to decide.
Id. Ruling on this Motion during trial, the Court
stated as follows:
THE COURT: I had an opportunity to review the motion and the
response, as well as the reply. Is there any further argument
or do you want to stand on the motion? Because I think, when
the Court reviews the jury instructions, it appears that the
issue with regard to the definition of income is going to
require that either the parties come up with an agreement as
to what constitutes income, but certainly the question in
this case is not taxable income. And I believe that much is
being made with regard to the definition of tax income and
the Department of Justice's Criminal Tax Manual. And I
believe that the definition should be along the line of an
ordinary definition of the money or other form of payment
that one receives periodically from employment, business,
investment, royalties, gifts and the like. And that's a
standard definition, not what the tax code considers to be
And with that understanding, and with regard to the motion in
limine, it would appear that this witness certainly can
testify as to what he believes was received by Mr. Beverley.
And I do not believe that that invades the province of the
jury because it focuses on facts that may or may not be known
to this witness. So with regard to whether transactions are
income is ultimately not a legal issue that the jury must
resolve, but a factual one. And I believe that it relates
directly to whether false statements or written declarations
were false, ...