United States District Court, D. Connecticut
RULING DENYING POST-TRIAL MOTIONS
JEFFREY ALKER MEYER, District Judge.
moves for judgment of acquittal pursuant to Fed. R. Crim. P.
29(c) and for a new trial pursuant to Fed. R. Crim. P. 33.
For the reasons set forth below, I will deny both motions.
was charged with multiple federal crimes arising from his
extensive financial dealings with friends and others whom he
persuaded to give him money in return for astronomically high
short-term rates of return. The core of the Government's
case was that defendant fraudulently misled people about the
purposes for which he was using the money and that he
perpetuated the fraud in a Ponzi-like fashion by repaying
people in order to encourage them to give him still more
funds under similar fraudulent pretenses. Following an
extended jury trial in November 2015, the jury convicted
defendant on many of the charges, including six counts of
federal wire fraud and one count of money laundering.
standard governing the Court's review of defendant's
motion for a judgment of acquittal pursuant to Fed. R. Crim.
P. 29 is well established. The Court must review the evidence
in the light most favorable to the prosecution and sustain
the jury's verdict if any rational trier of fact could
have found the evidence sufficient to establish the elements
of each crime beyond a reasonable doubt. See
United States v. Brock, 789 F.3d 60, 63 (2d Cir.
2015) ( citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). "The established safeguards of
the Anglo-American legal system leave the veracity of a
witness to be tested by cross-examination, and the
credibility of his testimony to be determined by a properly
instructed jury." Hoffa v. United States, 385
U.S. 293, 311 (1966).
defendant's motion for new trial pursuant to Fed. R.
Crim. P. 33, the Court may set aside a jury verdict and order
a new trial to avert a perceived miscarriage of justice.
See United States v. Truman, 688 F.3d 129,
141 (2d Cir. 2012). "Because the courts generally must
defer to the jury's resolution of conflicting evidence
and assessment of witness credibility, [i]t is only where
exceptional circumstances can be demonstrated that the trial
judge may intrude upon the jury function of credibility
assessment, " such as "where testimony is patently
incredible or defies physical realities." United
States v. McCourty, 562 F.3d 458, 475-76 (2d Cir. 2009).
advances five grounds for his motions. First, he contends
that the evidence was insufficient to support the jury
verdict on Count 14 for money laundering. Doc. #140 at 4-7.
This argument lacks merit for all the reasons advanced in the
Government's opposition memorandum. The money laundering
transaction at issue involved defendant's purchase of jet
skis for $21, 900. Although defendant claims that "the
jury could not have known what the form of the illegal
activity was, and [that] there was no prior finding of wire
fraud in the verdict, " Doc. #140 at 7, the evidence at
trial was clear beyond cavil that this transaction was almost
entirely funded by $50, 000 in funds that defendant received
from Rosemary Paccione-Burke in the course of a transaction
that was itself the subject of the wire fraud conviction
under Count 6 of the indictment. Doc. #152 at 24-27
(summarizing evidence). The evidence was clearly sufficient
to support the jury's verdict on the money laundering
charge set forth in Count 14.
defendant faults the Court for failing to make a
Bourjaily/Geaney finding to support the
admissibility of co-conspirator statements adduced through
the testimony of John Wrobel. Doc. #140 at 7-9; see
also Bourjaily v. United States, 483 U.S. 171
(1987); United States v. Geaney, 417 F.2d 1116 (2d
Cir. 1969). This argument also lacks merit for all the
reasons advanced by the Government in its opposition
memorandum. Defendant fails to identify any particular
statement by Wrobel that would only have been admissible for
its truth as a co-conspirator statement pursuant to
Fed.R.Evid. 801(d)(2)(E). Although defendant complains that
"the government offered the testimony of John Wrobel who
testified to numerous hearsay statements from Ian Bick,
" Doc. #140 at 9, this contention misses the point that
any statements by defendant Ian Bick would have been
independently admissible as statements of a party opponent
pursuant to Fed.R.Evid. 801(d)(2)(A), apart from any
requirements under Bourjaily/Geaney for the
admissibility of co-conspirator statements pursuant to
Fed.R.Evid. 801(d)(2)(E). Nor did defendant object
contemporaneously at trial on grounds of Rule 801(d)(2)(E) or
Bourjaily/Geaney to any particular statement of
Wrobel. Even assuming there were error and that defendant
timely objected, I would doubtlessly have concluded at trial
on the basis of Wrobel's testimony as well as other
corroborating evidence that a preponderance of the evidence
established that a conspiracy existed between defendant and
Wrobel to allow the admission of any co-conspirator
defendant contends that his Sixth Amendment rights under the
Confrontation Clause were violated by the admission of
contracts involving the defendant and third parties that were
obtained by subpoena from defendant's companies or by
subpoena from defendant's email communications using his
Yahoo email account. Doc. #140 at 9-10. Defendant raised the
same objection at trial, and I overruled the objection on the
ground that these contracts did not contain
"testimonial" statements within the meaning of
Crawford v. Washington, 541 U.S. 36 (2004).
Defendant's post-trial memorandum does not cite any cases
to cast doubt on the correctness of the Court's prior
ruling, and I agree with the reasons set forth at length by
the Government for why the contract documents are not
testimonial for purposes of the Confrontation Clause. Doc.
#152 at 32-35; see also United States v. Tischler,
572 Fed.App'x. 63 (2d Cir. 2014) (discussing Crawford and
progeny and noting in relevant part that "[a]n item of
evidence is testimonial' if its primary purpose... is to
establish or prove past events potentially relevant to later
criminal prosecution" and that "[b]usiness records
are not testimonial when they are created for the
administration of an entity's affairs and not for the
purpose of establishing or proving some fact at trial")
(internal quotation marks and citations omitted).
defendant contends that "the victims in this case
executed loan agreements" with defendant's companies
and that the transactions at issue "were not investments
and thus not evidence of a scheme to defraud." Doc. #142
at 1. This argument also lacks merit for the reasons set
forth in the Government's opposition memorandum. Whether
the defendant's relationship with the persons who gave
him money is classified as a "lending" or
"investing" relationship, a reasonable jury could
have credited the evidence at trial that showed that
defendant made misrepresentations to induce these persons to
give their money to defendant. The evidence of these
misrepresentations was sufficient to support defendant's
convictions for wire fraud. Despite the fact that these
misrepresentations were oral and not set forth in the
parties' written agreements with defendant, the parol
evidence is not a bar to showing the existence of fraud.
See, e.g., Arnold v. Nat'l Aniline & Chem.
Co., 20 F.2d 364, 370 (2d Cir. 1927); Chace v.
Bankers Trust Co., 1990 WL 250181, at *3 (S.D.N.Y.
defendant contends that the evidence of wire fraud was
insufficient in light of the Second Circuit's recent
decision in U.S. ex rel. O'Donnell v. Countrywide
Home Loans, Inc., 2016 WL 2956743 (2d Cir. 2016), and
its conclusion that "where allegedly fraudulent
misrepresentations are promises made in a contract, a party
claiming fraud must prove fraudulent intent at the time of
contract execution" and that "evidence of a
subsequent, willful breach cannot sustain the claim."
Id. at *6. The principles set forth in
Countrywide are not new and cast no doubt on the
jury's verdict in this case. For the reasons set forth in
the Government's opposition memorandum (Doc. #152 at
4-21, 38-41), the trial evidence was amply sufficient to
allow a reasonable jury to conclude that defendant acted with
intent to defraud from the outset and made misrepresentations
that in turn resulted in each of the wire fraud transactions
for which the jury convicted defendant. The fact that
defendant continued to make misrepresentations to victims
after they had parted with their money does not vitiate the
additional evidence that he also engaged in fraudulent
conduct with intent to defraud at an earlier time.
reasons set forth above, the motions for judgment of
acquittal and for a new trial are DENIED.