United States v. Godiksen

          MEMORANDUM OF DECISION ON DEFENDANT'S MOTIONS FOR ACQUITTAL AND NEW TRIAL PURSUANT TO RULES 29 AND 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE [ECF NOS. 151, 152]

          HON. VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE

         Before the Court are Defendant James Erik Godiksen's (“Defendant” or “Godiksen”) motion for acquittal and motion for a new trial under Rule 29 and Rule 33 of the Federal Rules of Criminal Procedure. Defendant was tried and convicted by a jury on one count of murder for hire in violation of 18 U.S.C. § 1958. Godiksen now requests that the Court set aside the jury's verdict and grant his motion for acquittal, or in the alternative grant his motion for a new trial. For the following reasons, these motions are DENIED.

         I. Background

         The court views the evidence in the light most favorable to the Government when considering a motion for acquittal brought under Rule 29. United States v. Cacace, 796 F.3d 176, 191 (2d Cir. 2015). On September 29, 2016, a grand jury returned an indictment charging the defendant with one count of murder for hire in violation of 18 U.S.C. § 1958. [ECF No. 9 (Indictment)]. The indictment was based on the results of a murder for hire investigation undertaken by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), which took place from September 9 to 14, 2016. Id. at 1. Godiksen was the object of that investigation. Id.

         Just prior to the ATF's investigation, Godiksen had served a thirty-day sentence at the New Haven Correctional Center (“NHCC”). [ECF No. 147 (Godiksen Trial Tr. Day 3) at 182:22-183:4, 193:7-12]. Testimony at trial indicated that Godiksen discussed killing his ex-wife with an inmate named ‘Josh', while serving his sentence at NHCC. [ECF No. 144 (Godiksen Trial Tr. Day 1) at 37:4-7, 55:12-23, 62:9-13]; [ECF No. 147 at 191:14-24]. Josh reported to then-Intelligence Lieutenant Craig Burnett that Godiksen was actively searching for someone in the corrections facility to help him have his ex-wife murdered. [ECF No. 144 at 37:4-7, 55:12-23, 62:9-13]; [ECF No. 147 at 191:14-24]. Lieutenant Burnett passed this information along to ATF. [ECF No. 144 at 30:5-17]. ATF began its investigation soon after being notified about Godiksen's alleged conduct. Special Agent Paul D'Angelo (“D'Angelo”) stationed in Manchester, New Hampshire contacted Godiksen via cellular phone from Salem, New Hampshire in order to install himself as the proposed hitman in Godiksen's murder for hire. [ECF No. 144 at 104:9-25]; see also Government Exhibit 24; Government Exhibit 25.

         During their initial phone conversation on September 10, 2016, Godiksen confirmed his identity by stating that he was ‘Fish'. See Government Exhibit 25. ‘Fish' was the nickname given to Godiksen by inmates at NHCC, and the moniker Josh told the investigators to use when contacting Godiksen about the murder for hire. [ECF No. 144 at 31:9-11; 51:14-19]. D'Angelo testified Godiksen was using coded language to discuss having his ex-wife murdered. [ECF No. 145 (Godiksen Trial Tr. Day 2) at 80:1-16]. Instead of discussing murder for hire directly, Godiksen told D'Angelo he was interested in having work done on his home. See Government Exhibit 25. The evidence showed that Godiksen was living out of motels, and therefore did not live in a home at the time of the phone call. [ECF No. 145 at 33:20-21]; Government Exhibit 25. Godiksen and D'Angelo had not discussed work on a home Godiksen's home previously. D'Angelo testified that he knew based on the context this was a code that Godiksen was using in order to avoid “us[ing] the word ‘murder' or ‘killing' or anything on a phone line, which would be common in these types of situations.” [ECF No. 145 at 80: 8-12]. Godiksen stated several times that he would pay D'Angelo for the “work on his house.” Government Exhibit 25. D'Angelo and Godiksen set up a meeting in Connecticut during the initial conversation. See Government Exhibit 25. After the conversation ended, D'Angelo left New Hampshire and traveled to Connecticut in order to meet with Godiksen. [ECF No. 144 at 109:16-22].

         Once in Connecticut, D'Angelo and Godiksen met in person several times to iron out the details of their deal. In each of these accounts, Godiksen is recorded stating that he wanted his ex-wife to be murdered. See Government Exhibit 25, 26, 30. During the meetings, Godiksen provided information to D'Angelo regarding his ex-wife's home address, her place of work, her vehicle and license plate number, and her appearance. See Government Exhibit 26; see also [ECF No. 144 at 122:23-123:16], [ECF No. 145 at 23:13-24:1; 96:9-15].

         Godiksen further described where he felt a suitable location might be to carry out the murder. Government Exhibit 26; see also [ECF No. 145 at 99:25-100:13]. Godiksen was recorded suggesting that D'Angelo cut his ex-wife's head off and specifically asking that D'Angelo not harm Godiksen's ex-wife's dog. Government Exhibit 26; see also [ECF No. 145 at 59:25-60:1].

         Godiksen initially agreed to a $5000 price, explaining there would be a slight delay in accessing his funds. See Government Exhibit 26. In a later conversation he offered his vehicle as payment. Government Exhibit 30; see also [ECF No. 145 at 55:3-4]. During his final conversation with Godiksen on September 14, 2016, D'Angelo confirmed that Godiksen was hiring him to kill Godiksen's ex-wife. D'Angelo told Godiksen that when he left, he'd be going to kill Godiksen's ex-wife, he would be incommunicado and Godiksen would not have a chance to back out of the arrangement. Government Exhibit 30; see also [ECF No. 145 at 24:15-22]. Godiksen confirmed that he was hiring D'Angelo to kill his ex-wife responding, that he wanted the murder to take place and requested a promise from D'Angelo that the murder be carried out. Government Exhibit 30; see also [ECF No. 145 at 74:14-15]. Godiksen then promised one final time to pay for the murder in cash. See Government Exhibit 30; see also [ECF No. 145 at 71:22-72:3]. Godiksen was arrested moments later.

         II. Procedural History

         At trial, which ran for six days between July 10 and 19, 2018, the jury returned a verdict stating that Godiksen (1) used a facility of interstate commerce, while at the same time having (2) the intent that his ex-wife be murdered, and (3) that Godiksen made an agreement to pay for the murder. [ECF No. 133 (Jury Verdict) at 1-2]. Following the guilty verdict, on August 3, 2018, the defendant was granted a Motion to Continue for his Motions for Acquittal and for a New Trial, extending the deadline for those motions beyond the 14-day limit that Federal Rules of Criminal Procedure 29(c)(1) and 33(b)(2) set forth, until October 3, 2018. [ECF No. 137]. Defendant filed Motions for Acquittal and for a New Trial on October 3, 2018, [ECF Nos. 151, 152], which the Government opposed on October 24, 2018. [ECF No. 153].

         III. Motion for Acquittal

         Defendant argues that the evidence was insufficient to show beyond a reasonable doubt that he had the specific intent that his ex-wife be murdered when he spoke on the phone with D'Angelo, therefore the intent element of 18 U.S.C. § 1958 was not satisfied. See [ECF No. 151 (Defendant's Motion for Acquittal) at 1-2]. Defendant further argues that there was insufficient evidence to show that a pecuniary value had been settled upon; therefore, a rational jury could not find beyond a reasonable doubt that this element of 18 U.S.C. § 1958 had been satisfied. [ECF No. 151 at 2]. The evidence presented was sufficient that a rational jury could find all the elements of 18 U.S.C. § 1958 satisfied beyond a reasonable doubt.

         A. Standard of Review; Motion for Acquittal

         “On a defendant's postverdict motion, ‘the court ‘must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.'” Cacace, 796 F.3d at 191 (quoting Fed. R. Crim. P. 29(a)). “A defendant challenging the sufficiency of the evidence bears a heavy burden, because the reviewing court is required to draw all permissible inferences in favor of the government and resolve all issues of credibility in favor of the jury verdict.” United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011) (citation omitted). “The motion must be denied if, after viewing the evidence in the light most favorable to the prosecution, the court concludes that ‘any rational trier of fact could have found the essential elements of the crime established beyond a reasonable doubt.”' Cacace, 796 F.3d at 191 (quoting United States v. Moore, 54 F.2d 92, 100 (2d Cir. 1995). “In addition, we consider the evidence in its totality, not in isolation, and the government need not negate every theory of innocence.” United States v. Lee, 549 F.3d 84, 92 (2d Cir. 2008) (citation omitted; internal quotation marks omitted).

         “[A] conviction may be based entirely on circumstantial evidence.” Id. “So long as the inference is reasonable, ‘it is the task of the jury, not the court, to choose among competing inferences.'” United States v. Kim, 435 F.3d 182, 184 (2d Cir. 2006) (quoting United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995)). “[W]e may ‘enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.'” United States v. Francisco, 642 Fed.Appx. 40, 43 (2d Cir. 2016) (quoting United States v. Temple, 447 F.3d 130, 136 (2d Cir. 2006)). The jury's determination of guilt beyond reasonable doubt is to be accepted by the court, even in circumstances where the evidence may also have supported the jury not finding guilt beyond a reasonable doubt. United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008) (“[W]here ‘either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, the court must let the jury decide the matter.'” (quoting United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000)).

         B. Murder for Hire; 18 U.S.C. § 1958

         An individual is guilty of murder for hire if the government proves beyond a reasonable doubt that the individual:

travel[ed] in or cause[d] another (including the intended victim) to travel in interstate or foreign commerce, or use[d] or cause[d] another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspire[d] to do so.

18 U.S.C. § 1958(a). “When the defendant is the solicitor of the murder-for-hire, it is the defendant's intent that controls.” United States v. Hardwick, 523 F.3d 94, 100 (2d Cir. 2008) (citation omitted). “The nature of the solicitor's intent is especially important when the would-be murderer is an undercover agent who by definition never intends to commit the crime.” Id. (citation omitted). “[T]here must be some evidence to establish that at the time the agreement was formed, the consideration was something the ‘primary significance' of which lay in its ‘economic advantage.'” United States v. Frampton, 382 F.2d 213, 219 (2d Cir. 2004) (quoting 18 U.S.C. § 1958(b)(1)). “[T]here must be a quid-pro-quo (or at least the promise of such) between the parties to the transaction.” United States v. Babilonia, 854 F.3d. 163, 174 (2d Cir. 2017) (citations omitted; internal quotation marks omitted).

         C. A Rational Jury Could Have Concluded that Godiksen Used or Caused Another to Use a Facility of Interstate Commerce

         The use of a cell phone to discuss a murder for hire with the proposed hitman satisfies the facility of interstate commerce requirement of 18 U.S.C. § 1958. See United States v. Perez, 414 F.3d 302, 305 (2d Cir. 2005); see also United States v. Giordano, 442 F.3d 30, 39 (2d Cir. 2006) (“the national telephone network is a ‘facility of interstate . . . commerce' for purposes of the federal murder-for-hire statute.”) (citations omitted); 18 U.S.C. § 1958(b)(2) (‘“facility of interstate or foreign commerce' includes means of transportation and communication.”). The parties stipulated to certain facts, including a cell-phone call between Connecticut and New Hampshire would use cell towers outside of Connecticut. See generally [ECF No. 106 (Stipulation)]. The jury heard a recorded telephone conversations between Godiksen, who was in Connecticut and D'Angelo, who at times was in Rhode Island at one time and in Connecticut at other times, during which Godiksen commissioned D'Angelo to commit the murder. Godiksen did not argue that he did not speak about murder for hire while on the phone with D'Angelo. Based on the above-mentioned definition of interstate commerce, a rational jury could have concluded beyond a reasonable doubt that Godiksen used or caused D'Angelo to use a facility of interstate commerce in pursuing murder for hire by conversing about the murder for hire with D'Angelo using his cell phone.

         D. Godiksen Had the Requisite Intent to Satisfy 18 U.S.C. § 1958 When He Initially Spoke with D'Angelo Over the Phone

         1. The Specific Intent Requirement of 18 U.S.C. § 1958.

         For a rational jury to find that the defendant had the requisite intent to commit murder for hire, the government must show that the defendant not only conversed about a murder for hire through a facility of interstate commerce, but that “the accused intended for a murder to be committed.” United States v. Richeson, 338 F.3d 653, 656 (7th Cir. 2003). See also Hardwick, 523 F.3d at 100 (same).

         2. Godiksen Demonstrated His Intent to have His Ex-Wife Killed During the Initial Phone Call and in Later Face-to-Face Meetings.

         D'Angelo testified that during their initial phone conversation Godiksen spoke in code to him about killing Godiksen's ex-wife by saying he wanted work done on his house. D'Angelo knew this was code because they had never discussed work on a house. Further, the ‘Josh' connection drastically narrowed the possibilities down as to what the code meant, leading D'Angelo to infer that Godiksen was talking about murder for hire. Godiksen also did not own a home at the time the conversation took place. This evidence could lead a rational jury to conclude that Godiksen had the intent that his ex-wife be murdered during the initial phone conversation with D'Angelo.

         Circumstantial evidence from later encounters (still prior to Godiksen's arrest) between D'Angelo and Godiksen could also lead a rational jury to conclude beyond a reasonable doubt that Godiksen was not discussing work on his house during that initial conversation and was instead communicating in code about a murder for hire. The evidence shows that over the course of the investigation, Godiksen stated his desire to have his ex-wife murdered on several occasions. Godiksen is recorded suggesting a method of killing his ex-wife and giving a detailed description of her. Government Exhibit 26. He then described a secluded location that his ex-wife frequented, believing it to be an ideal place for D'Angelo to strike. Id.

         In his final conversation pre-arrest with D'Angelo, Godiksen stated that he wanted his ex-wife to be murdered and added that he was ready to pay D'Angelo to do it. Government Exhibit 30. These statements indicate that Godiksen had the specific intent that his ex-wife be murdered throughout the ATF's investigation, and therefore a rational jury could find beyond a reasonable doubt that the defendant had the specific intent to have his ex-wife murdered during the initial phone call with D'Angelo.

         3. Godiksen's Motive for Killing his Ex-wife Supports Finding Godiksen had the Requisite Specific Intent

         The Government argues that Godiksen's reason for seeking murder for hire against his ex-wife was that she took everything from him in their divorce, and therefore ruined his life. [ECF No. 153 at 10]; see also Government Exhibit 26 (“She took my house, my dog, my Corvette. She took everything.”). Godiksen argues that he did not have motive to kill his ex-wife because she did not take everything from him in the divorce as the government contends, and as he stated following his arrest. Godiksen argues that although he previously stated that his ex-wife took everything from him, see Government Exhibit 26, the reality was that he retained the rights to several items, including his retirement account and his Corvette. [ECF No. 151 (Defendant's Motion for Acquittal) at 19]. Therefore, according to the defendant, the motive that the Government is citing to support Godiksen's specific intent to have his ex-wife murdered does not exist. Neither characterization of the events is entirely accurate, but what matters is what Godiksen believed the situation was.

         A rational jury could find that based on the circumstance, Godiksen's stated belief that his ex-wife had taken everything from him in the divorce represented his true belief, and that he therefore had motive to have her killed. The assertion that Godiksen lost everything in the divorce is not an entirely accurate portrayal of the terms of Godiksen's divorce from his ex-wife and the circumstance that resulted from it. The defendant had ownership rights of certain pieces of property following the divorce but did not retain actual possession of said property. For example, the defendant retained the rights to his Corvette after the divorce, but it was located at his ex-wife's home. [ECF No. 145 at 95:4-6]. The defendant was unable to retrieve the Corvette because he was not allowed on his ex-wife's property due to a protection order. See Id. at 93:2-7, 94:8-15. Therefore, although Godiksen did have ownership rights to his Corvette, he did not have access to it due to a condition imposed upon him by the Court and his ex-wife. This jury could find that Godiksen's stated belief that his ex-wife took everything from him was his true belief, based on the circumstances. This, in turn, supports a rational jury finding beyond a reasonable doubt that Godiksen had the specific intent to have his ex-wife murdered during the initial phone call.

         4. Evidence of Godiksen's Diminished Capacity's Role in Determining his Intent.

         One of Defendant's principal arguments is that a rational jury could not have found that the defendant had the requisite intent to engage in murder for hire when he spoke with D'Angelo over the phone in the initial phone call, given the nature of the cognitive deficits he suffers. The Court disagrees. The evidence presented was sufficient that a rational jury could find beyond a reasonable doubt that the defendant had the specific intent to have his ex-wife murdered at the time of the initial conversation with D'Angelo.

         At trial, Godiksen testified that he was “intoxicated” during the first phone call with D'Angelo and was generally an alcoholic. [ECF No. 147 at 196:2-12]. Defendant's witness Dr. Madelon Baranoski, a psychologist, testified that she noted in the defendant several “deficits” associated with Godiksen's “alcohol-type decline in cognitive ability.” [ECF No. 147 at 79:10-11]. Dr. Baranoski reported diminished judgment and increased impulsivity, id. at 79:21, difficulty sequencing, id. at 81:3, difficulty staying on target and recalling events in organized way, id. at 81:4-5, difficulty putting together a plan and following through, id. at 79:21-22, and “confabulation, ” meaning that he fills in cognitive gaps with inaccurate information. Id. at 71:10-15.

         On the other hand, Dr. Baranoski saw no signs of a psychiatric disorder or delusional thinking. Id. at 81:20-21. Dr. Baranoski explained that alcoholics are sometimes capable of high functioning. According to her testimony, some alcoholics can get themselves to work and conduct bank transactions. Id. at 107:9-19. Dr. Baranoski further testified that alcoholics can form the desire to commit a crime. Id. at 108:7-10. She testified that Godiksen did not receive special accommodations while in prison, id. at 108:11-109:3, and that there was no reason to doubt that Godiksen was competent to stand trial, understood what was going on, and retained the ability to communicate with his attorney regarding their course of action. Id. at 136:6-16.

         Moreover, Dr. Baranoski described Godiksen's condition as a mild impairment. Id. at 136:17-137:2. She further testified that even with his minor impairment, Godiksen is capable of rational thought, knows right from wrong, id. at 137:15-21, and can form a plan to commit a crime, although it may not be a realistic plan. Id. at 138:8-16. Notably, Dr. Baranoski stated that Godiksen can form the desire to commit a criminal act. Id. at 108:7-10; 137:22-138:7; 139:2-8. For example, she agreed that Godiksen can form the desire to rob a bank. Id. at 138:17-22. In sum, she testified that Godiksen had the capacity to form the intent to kill his wife but not the ability to carry out a good plan, making his decision to hire D'Angelo more credible. Moreover, the jury heard him advising D'Angelo when, where and how to murder his ex-wife further demonstrating his ability not only to harbor the intent but to compose a plan to murder.

         The testimony of Dr. Baranoski, Godiksen's expert, leaves open the possibility that Godiksen's statements and actions were representative of his specific intent to have his ex-wife murdered and were not a product or manifestation of his diminished capacity as Godiksen argues. A rational jury could conclude beyond a reasonable doubt that based on Dr. Baranoski's testimony, Godiksen's statements in the initial phone call with D'Angelo were an accurate representation of Godiksen's specific intent to have his ex-wife murdered, despite his claimed alcoholism.

         In addition to Dr. Baranoski's testimony, Godiksen testified that he was intoxicated when he made incriminating statements about killing his ex-wife, and that due to his intoxication he could not fully appreciate the gravity of the conversation he had with D'Angelo. [ECF No. 145 at 195:22-196:18, 197:5-6]. But the Government presented testimony of D'Angelo and Special Agent Ross (“Ross”), D'Angelo's supervising ATF case agent, that countered this argument. Both men stated that they had the proper training to detect intoxication but did not detect intoxication in Godiksen during the investigation. See Id. at 26:4-11, 67:14-15, 111:13-22, 114:4-7]. Moreover, Godiksen does not appear intoxicated in the surveillance video post-arrest. Government Exhibits 32. A rational jury could have concluded beyond a reasonable doubt, based on the Government agents' testimony, that Godiksen was not intoxicated, and therefore intoxication was not a factor in deciding whether Godiksen had the specific intent that his ex-wife be murdered as a result of his conversation with D'Angelo.

         In addition, the jury heard Godiksen's own words and was in a position to decide for themselves whether he had the mental capacity to formulate the intent to hire someone to kill his ex-wife based on the tenor as well as the content of his words. Moreover, to the extent his speech pattern was aberrant, Dr. Baranowski's explanation of the effects of alcoholism in general, and on Mr. Godiksen in particular, enabled them to formulate an informed decision as to his intent.

         In sum, Dr. Baranoski's testimony, the Government agents' testimony, the circumstances surrounding Godiksen's divorce, and Godiksen's statements and the actions he took after the initial phone call with D'Angelo are such that a rational jury could find beyond a reasonable doubt that Godiksen's statements during the initial phone call were an accurate representation of his specific intent to have his ex-wife murdered.

         E. There was Sufficient Evidence for the Jury to Find Beyond a Reasonable Doubt that the Pecuniary Value Element of 18 U.S.C. § 1958 was Satisfied

         Actual payment for the murder-for-hire need not occur to satisfy the pecuniary value element of the murder for hire statute. Babilonia, 854 F.3d at 174 (“As the wording of the statute makes clear, there must be the intent that a murder be committed as ‘consideration' for the payment of, or promise or agreement to pay, something of ‘pecuniary value.'”) (quoting 18 U.S.C. § 1958(a) (emphasis added)). Thus, a promise to exchange a pecuniary value for the murder suffices to satisfy the statutory pecuniary value requirement.

         Godiksen argues that the pecuniary value element is not satisfied because he bounced back and forth between different methods of paying for D'Angelo's services, and that the two therefore did not reach a mutual agreement on the murder for hire. [ECF No. 151 at 29-31]. Godiksen cites Hardwick, 523 F.3d at 100, where the Second Circuit held that “[t]he promise of a future, unspecified favor- in the absence of any evidence suggesting that either party to the agreement had an understanding of what form such a favor would take-does not constitute pecuniary value under Section 1958.” Section 1958(b)(1) defines pecuniary value as “anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage.” 18 U.S.C. § 1958(b)(1). The question is whether there was “any evidence” that D'Angelo and Godiksen ever reached a mutual agreement to exchange a pecuniary value for murder for hire. There was.

         The evidence indicates that the promise of payment required by § 1958 could have been satisfied in the first conversation between Godiksen and D'Angelo. See Government Exhibit 25, 26, 30. In that initial phone conversation, D'Angelo and Godiksen loosely discussed the prospect of payment with money, but do not discuss an amount. Government Exhibit 25. Godiksen stated that he would have money put in his account in order to make funds available to pay for the job he and D'Angelo were talking about. Id. Godiksen then said he didn't want to keep in contact with D'Angelo unless he had the funds to pay for the murder, then reassured D'Angelo that he did in fact have the money to pay. Id. A rational jury could have arrived at a conclusion beyond a reasonable doubt that in this conversation the promise of future payment in monetary form was enough that the promise of a pecuniary value element was satisfied.

         The face-to-face meetings between Godiksen and D'Angelo provide support for the jury's finding that the pecuniary value element of 18 U.S.C. § 1958 was satisfied. In their first face-to-face meeting, D'Angelo and Godiksen are recorded discussing a $5000 price for the murder, as proposed by D'Angelo. See Government Exhibit 26. Godiksen said the $5000 price was fair. Id. Godiksen later offered more money than the $5000, and D'Angelo declined, opting to stick with the agreed upon price. Id. To be sure, later in that conversation Godiksen offered his vehicle as payment for the murder, but he then reverted to the cash offer he and D'Angelo had previously discussed. Id. After listening to this conversation, a rational jury could have found beyond a reasonable doubt that D'Angelo and Godiksen had confirmed the murder-for-hire scheme in return for a promise of payment of money made in their first phone call.

         In his final conversation with D'Angelo, Godiksen reaffirmed that he and D'Angelo had a deal in place: murder in exchange for money. Government Exhibit 30. Godiksen was clear that the deal was not murder in exchange for his car, stating once more that he had changed his mind about offering the car. Id. In response to D'Angelo telling him that their conversation would be his final chance to cancel their murder for hire, Godiksen fully guaranteed his promise of payment. Id. The conversation D'Angelo and Godiksen had in their final encounter could lead a rational jury to conclude that there had been a formalization of the arrangement between the two parties, and that therefore a mutual agreement that the two parties would exchange money for murder was established in their first telephone call and confirmed in their last telephone call.

         In sum, the conversations between Godiksen and D'Angelo could lead a rational jury to conclude beyond a reasonable doubt that there was a mutual agreement between the parties for the murder-for-hire of Godiksen's ex-wife in exchange for the promise of the payment of money. A reasonable jury could have found that the promise to pay money was agreed upon at the initial phone call between D'Angelo and Godiksen, and that although Godiksen attempted to change the terms as the conspiracy moved forward, the arrangement's agreed upon monetary payment remained unchanged.

         F. Conclusion

         Based on the testimony presented at trial, a rational jury could have concluded beyond a reasonable doubt that the defendant used or caused D'Angelo to use a facility of interstate commerce, with the intent that his ex-wife's murder take place. A rational jury could also find beyond a reasonable doubt that the defendant promised a pecuniary value, i.e. money, in exchange for the murder-for-hire. For this reason, Godiksen's Motion for Acquittal under Rule 29 is DENIED.

         IV. Motion for a New Trial

         Separate from the Rule 29 Motion for Acquittal, Godiksen moved for a new trial, see Federal Rule of Criminal Procedure 33, for eight reasons. Godiksen argues that: (1) the weight of the evidence did not support the jury's verdict; (2) the Court's supplemental jury instruction regarding the definition of intent was incorrect, and therefore lowered the Government's burden of proof; (3) the Court mishandled a jury note that requested replay of Dr. Baranoski's cross-examination and rebuttal testimony; (4) the Court improperly constructively amended the indictment to permit the jury to convict on elements not alleged in the indictment; (5) the Court improperly instructed the jury that it could convict Godiksen despite their potential finding that he was ‘mentally incapacitated'; (6) prosecutorial misconduct caused unfair prejudice to Godiksen; (7) the Court's denial of Godiksen's motion ...