United States of America, Plaintiff, vs. 1.
Stephen Kerr; 2. Michael Quiel; Defendants.
No. CR 11-2385-PHX-JAT-DKD-001-002
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
ARIZONA
2013 U.S. Dist. LEXIS 116327; 112 A.F.T.R.2d
(RIA) 5772
August 16, 2013, Decided
August 16, 2013, Filed
SUBSEQUENT HISTORY: Affirmed by
United States v. Quiel, 595 Fed. Appx. 692, 2014 U.S. App. LEXIS 24049 (9th
Cir. Ariz., 2014)
PRIOR HISTORY: United States
v. Kerr, 2012 U.S. Dist. LEXIS 98836 (D. Ariz., July 16, 2012)
CASE SUMMARY:
OVERVIEW: HOLDINGS:
[1]-In the context of post-trial Fed. R. Crim. P. 29 motions for judgment of
acquittal or, in the alternative, a new trial of defendants' tax-related crimes,
the court could find no error in the admission of testimony of defendants'
former attorney, and such testimony was not excluded when determining the
sufficiency of the evidence under Rule 29(c)(2) or Fed. R. Crim. P. 33(a).
Attorney-client privilege was waived and defendant did not cite to the record
indicating where the court allegedly admitted testimony under Fed. R. Evid.
801(d)(2)(E); [2]-The jury was properly instructed about the first defendant's
intent for the substantive counts; thus, by finding the first defendant guilty,
the jury found that he acted willfully; [3]-There was no prosecutorial
misconduct; [4]-The Government did not raise new matters on redirect
examination in violation of the Confrontation Clause.
OUTCOME: The
motions were denied.
CORE TERMS: new trial,
judgments of acquittal, recross-examination, jury instruction, tape,
cross-examination, accounting, new matter, stock, conspiracy, redirect,
prosecutorial misconduct, attorney-client, fax, legal duty, closing arguments,
crime-fraud, tax returns, advice of counsel, indictment, acquitted, hearsay,
recross, defraud, drive, report income, jury verdicts, redirect examination,
defense counsel, co-conspirator
LexisNexis(R)
Headnotes
Criminal Law &
Procedure > Trials > Motions for Acquittal
Evidence > Procedural
Considerations > Weight & Sufficiency
[HN1] A defendant may
move for a judgment of acquittal within 14 days after a guilty verdict or after
the court discharges the jury. Fed. R. Crim. P. 29(c)(1). The court may set
aside the jury verdict and enter an acquittal. Fed. R. Crim. P. 29(c)(2).
Courts review a motion for judgment of acquittal applying the same test as a
challenge to the sufficiency of the evidence. In considering whether there is
sufficient evidence to deny a motion for judgment of acquittal, courts review
the evidence presented in the light most favorable to the government to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
Criminal Law & Procedure
> Trials > Judicial Discretion
Criminal Law &
Procedure > Trials > Motions for Acquittal
Criminal Law &
Procedure > Postconviction Proceedings > Motions for New Trial
Evidence > Procedural
Considerations > Weight & Sufficiency
[HN2] With respect to a
motion for new trial, 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 district
court has greater discretion to grant a new trial than to grant a judgment of
acquittal. Thus, in considering a motion for new trial, the court is not
obliged to view the evidence in the light most favorable to the verdict, and it
is free to weigh the evidence and evaluate for itself the credibility of the witnesses.
More specifically, 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 issue for determination by another jury. However, the authority to grant a
new trial should be used only in exceptional cases.
Criminal Law &
Procedure > Verdicts > Inconsistent Verdicts
Evidence > Procedural
Considerations > Weight & Sufficiency
[HN3] Inconsistent
verdicts may stand, even when a conviction is rationally incompatible with an
acquittal, provided there is sufficient evidence to support a guilty verdict.
Criminal Law &
Procedure > Scienter > Willfulness
Tax Law > Federal Tax
Administration & Procedure > Burdens of Proof > Government
Tax Law > Federal Tax
Administration & Procedure > Criminal Procedure & Penalties (IRC
secs. 7201-7217, 7231-7232, 7261-7262, 7268-7273, 7375) > General Overview
[HN4] To prove
willfulness in the context of a tax-related crime, the Government must show the
voluntary, intentional violation of a known legal duty. Carrying this burden
requires negating a defendant's claim of ignorance of the law or a claim that
because of a misunderstanding of the law, he had a good-faith belief that he
was not violating any of the provisions of the tax law. This is so because one
cannot be aware that the law imposes a duty upon him and yet be ignorant of it,
misunderstand the law, or believe that the duty does not exist.
Criminal Law &
Procedure > Trials > Motions for Acquittal
Criminal Law &
Procedure > Postconviction Proceedings > Motions for New Trial
Evidence > Procedural
Considerations > Objections & Offers of Proof > Objections
[HN5] In the context of
a renewed Fed. R. Crim. P. 29 motion for judgment of acquittal or, in the
alternative, a new trial, where a defendant did not object at trial, the court
will review for plain error.
Criminal Law &
Procedure > Counsel > Prosecutors
Criminal Law &
Procedure > Trials > Motions for Acquittal
Criminal Law &
Procedure > Postconviction Proceedings > Motions for New Trial
[HN6] In the context of
a renewed Fed. R. Crim. P. 29 motion for judgment of acquittal or, in the
alternative, a new trial, a claim for prosecutorial misconduct is viewed in
context of the entire trial. Reversal on this basis is justified only if it
appears more probable than not that prosecutorial misconduct materially
affected the fairness of the trial.
Criminal Law & Procedure
> Jury Instructions > General Overview
[HN7] When reviewing a
claim of error relating to jury instructions, the instructions must be viewed
as a whole. A trial judge is given substantial latitude in tailoring jury
instructions so long as they fairly and adequately address the issues
presented.
Banking Law >
International Banking > General Overview
Tax Law > Federal Tax
Administration & Procedure > Effect of Regulations > Authority of
U.S. Secretary of the Treasury
[HN8] The Foreign Bank
and Financial Account (FBAR) filing requirements in effect during 2007
and 2008 are outlined in 31 C.F.R. § 103.24. The regulation incorporates the
definitions set forth in the general instructions prescribed by the Secretary
of the Treasury and included with the FBAR form. 31 C.F.R. § 103.24
states that each person shall provide such information as shall be specified in
a reporting form prescribed by the Secretary to be filed by such persons. In
addition, 31 C.F.R. § 103.27(c)-(d) provides further details for reports filed
pursuant to § 103.24, including the filing deadline date, the minimum account
balance, and the specific reports required.
Constitutional Law >
Bill of Rights > Fundamental Rights > Criminal Process > Right to
Confrontation
Evidence > Testimony
> Examination > General Overview
Evidence > Testimony
> Examination > Cross-Examination > General Overview
Evidence > Testimony
> Examination > Direct Examination
[HN9]
Recross-examination is not guaranteed under the Confrontation Clause. However,
when material new matters are brought out on redirect examination, the
Confrontation Clause of the Sixth Amendment mandates that the opposing party be
given the right of recross-examination on those new matters. If new matter is
defined broadly, then any question asked on redirect that had not already been
asked and answered would conceivably introduce new matter requiring the
opportunity for recross insofar as it expanded or elaborated on the witness'
previous testimony. Such an approach would conflict with the trial court's
discretion to impose reasonable limits on cross-examination. However, a new
matter is not limited to a new subject, but also applies to newly elicited
material testimony within a particular subject area. Accordingly, recross-examination is only
necessary when new matter is elicited on re-direct.
Criminal Law &
Procedure > Postconviction Proceedings > Motions for New Trial
Evidence > Testimony
> General Overview
[HN10] In the context of
a motion for a new trial, a conviction obtained by the knowing use of perjured
testimony is fundamentally unfair, and must be set aside if there is any
reasonable likelihood that the false testimony could have affected the judgment
of the jury. A new trial is required if the false evidence is material, and its
inclusion undermines the confidence in the judgment of the jury.
Criminal Law &
Procedure > Juries & Jurors > Province of Court & Jury >
Credibility of Witnesses
[HN11] It is the jury's
province to determine the credibility of witnesses.
COUNSEL: [*1] For Stephen M Kerr,
Defendant: Michael D Kimerer, LEAD ATTORNEY, Rhonda Elaine Neff, Kimerer &
Derrick PC, Phoenix, AZ.
For Michael Quiel,
Defendant: Joy Malby Bertrand, LEAD ATTORNEY, Joy Bertrand Esq LLC, Scottsdale,
AZ; Michael Louis Minns, LEAD ATTORNEY, Minns Law Firm PLC, Houston, TX; Ashley
Blair Arnett, Minns Law Firm, Houston, TX; Michael Ware, Michael Ware, Ft
Worth, TX.
For Christopher Martin
Rusch, also known as Christopher M Rusch, Defendant: Barbara Howe Murray,
Michael L Lipman, LEAD ATTORNEYS, Duane Morris LLP - San Diego, CA, San Diego,
CA.
For USA, Plaintiff:
Monica B Edelstein, LEAD ATTORNEY, US Attorneys Office - Phoenix, AZ, Phoenix,
AZ; Timothy J Stockwell, LEAD ATTORNEY, US Dept of Justice - Tax Division
Criminal Enforcement, Washington, DC.
JUDGES: James A.
Teilborg, Senior United States District Judge.
OPINION BY: James A.
Teilborg
OPINION
ORDER
Pending
before the Court are: Defendant Stephen Kerr's ("Kerr") Renewed
Motion for Rule 29 Judgment of Acquittal or, in the alternative, a New Trial
(Doc. 302), and Defendant Michael Quiel's ("Quiel") Motion for a
Judgment of Acquittal or for a New Trial (Doc. 301).1 The Court now
rules on these Motions.
1 Quiel
joined in Kerr's Renewed Motion for Rule 29 [*2] Judgment of Acquittal or, in
the alternative, a New Trial. (See Doc. 304). Therefore, the Court's
conclusions regarding Kerr's Motion apply to Quiel as well.
I. Background
In the
Indictment (Doc. 3), Kerr was charged with Conspiracy to Defraud the United
States (Count 1), Willful Subscription to False Individual Tax Returns for 2007
and 2008 (Counts 2 and 3), and Failure to File Foreign Bank and Financial
Accounts (FBARs) for 2007 and 2008 (Counts 6 and 7). Count 1 charged
Kerr, Quiel, and Christopher Rusch ("Rusch"), their former attorney,
with conspiring to establish companies and bank accounts in Switzerland to move
money out of the United States and defraud the IRS. Counts 2 and 3 charged Kerr
with intentionally omitting income from the foreign accounts on his 2007 and 2008
tax returns and intentionally failing to mark the box in Schedule B indicating
an interest in a foreign bank account. Counts 6 and 7 charged Kerr with
willfully failing to file FBARs to report his interest in the foreign
accounts. On April 11, 2013, a jury acquitted Kerr of Count 1, and convicted
him of Counts 2, 3, 6, and 7. Kerr now moves the Court to set aside the jury
verdicts and enter judgments of acquittal,
[*3] or, alternatively, grant a new trial.
Quiel was
charged with Conspiracy to Defraud the United States (Count 1), Willful
Subscription to False Individual Tax Returns for 2007 and 2008 (Counts 4 and
5), and Failure to File FBARs for 2007 and 2008 (Counts 8 and 9). Count
1 charged Kerr, Quiel, and Rusch with conspiring to establish companies and
bank accounts in Switzerland to move money out of the United States and defraud
the IRS. Counts 4 and 5 charged Quiel with intentionally omitting income from
the foreign accounts on his 2007 and 2008 tax returns and intentionally failing
to mark the box in Schedule B indicating an interest in a foreign bank account.
Counts 8 and 9 charged Quiel with willfully failing to file FBARs to
report his interest in the foreign accounts. On April 11, 2013, a jury
acquitted Quiel of Count 1, and convicted him of Counts 4 and 5. The jury was
unable to reach a verdict on Counts 8 and 9, which the Government later
dismissed. Quiel and Kerr now moves the Court to set aside the jury verdicts
and enter judgments of acquittal, or, alternatively, grant a new trial.
II. Legal Standards
A. Judgment of Acquittal
[HN1] "A defendant may move for a
judgment of acquittal . . . within [*4]
14 days after a guilty verdict or after the court discharges the jury."
Fed. R. Crim. P. 29(c)(1). The Court may set aside the jury verdict and enter
an acquittal. Id. at 29(c)(2). Courts review a motion for judgment of
acquittal applying the same test as a challenge to the sufficiency of the
evidence. United States v. Ladum, 141 F.3d 1328, 1337 (9thCir. 1998). In
considering whether there is sufficient evidence to deny a motion for judgment
of acquittal, courts "review the evidence presented in the light most
favorable to the government to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt." Id.
B. New Trial
[HN2] With respect to a motion for new
trial, "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 district court
has greater discretion to grant a new trial than to grant a judgment of
acquittal. United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir.
2000). Thus, in considering a motion for new trial, "[t]he court is not
obliged to view the evidence in the light most favorable to the verdict, and it
is free to weigh the evidence and evaluate
[*5] for itself the credibility of the witnesses." Id.
More specifically, "[i]f 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 issue for determination by another jury." Id. (internal
quotations omitted). However, the authority to grant a new trial should be used
"only in exceptional cases." United States v. Rush, 749 F.2d
1369, 1371 (9th Cir. 1984).
III. Kerr's Motion for
Judgment of Acquittal and New Trial
Kerr claims
that the Government "failed to meet its burden as to willfulness on each
of the substantive counts." (Doc. 302 at 3). Kerr moves for judgment of
acquittal or new trial because: 1) Rusch's testimony should be excluded when
determining the sufficiency of the evidence; 2) Kerr was acquitted of
conspiracy, and the overt acts of the substantive offenses were required
elements of the conspiracy count; 3) the Government failed to prove Kerr had a
legal duty to report income from the foreign corporations; and 4) the
Government committed prosecutorial [*6]
misconduct by using the term "fraudulent" in closing arguments.
Furthermore, Kerr lists eight additional grounds for acquittal or for a new
trial without providing any factual support or legal authority for his
arguments, including: 1) the admission of Government exhibits on redirect
violates Kerr's Sixth Amendment right to confrontation;2 2) the
indictment erroneously indicated Kerr's Failure to File FBAR forms under
Schedule B, Section II, Line 7a; 3) the Court failed to provide Kerr's proposed
"theory of the case" jury instruction; 4) the Government misstated in
closing arguments that Kerr owed taxes; 5) the Government committed
prosecutorial misconduct by accusing defense counsel of tampering with the
impeachment tape of Rusch; 6) the Court improperly denied Kerr's request that
the Court order the Government to provide Special Agent Giovannelli's Report;
7) the Court failed to provide jury instructions about expenses rightfully
deductible from income; and 8) the Court erroneously allowed the Government to
use the definitions in the FBAR form in the jury instructions.
2 This
argument is addressed below in Quiel's Motion for a Judgment of Acquittal or
for a New Trial, which Kerr joined [*7]
in. (Doc. 314 at 15). Therefore, the Court's analysis of the issue applies
equally to Kerr.
A. Rusch's Testimony
Kerr argues
that Rusch's testimony should be excluded in determining the sufficiency of the
evidence on the substantive counts because it is inadmissible under the
crime-fraud exception to attorney-client privilege and under the co-conspirator
exception to hearsay.
1. Attorney-Client
Privilege
Kerr claims
that the Court admitted Rusch's testimony under the crime-fraud exception to
attorney-client privilege. (Doc. 302 at 4). Because Defendants were acquitted
of Count 1, Conspiracy to Defraud the United States, Kerr argues that the
crime-fraud exception does not apply; therefore, Rusch's testimony violates
attorney-client privilege and should be excluded when determining the
sufficiency of the evidence on the substantive counts. (Id.) However, in
its July 17, 2012 Order, the Court held that Defendants waived attorney-client
privilege by claiming that their failure to file FBARs and their filing
false tax returns was based on the advice of counsel. (Doc. 96 at 5).
Furthermore, the Court denied Kerr's Motion to Preclude Admission of Items
Protected by Attorney-Client Privilege (Doc. [*8] 118), and noted that
"the Court found that . . . implicit waiver had occurred for any
information relating to Kerr filing FBARs, and filing tax returns for
tax years 2007 and 2008." (Doc. 145 at 8 n.1). Therefore, the Court did
not permit Rusch's testimony under the crime-fraud exception.3
3 Kerr fails
to point to any part of the Record where the Court admitted Rusch's testimony
pursuant to the crime-fraud exception.
Kerr argues
that the advice of counsel defense may waive the privilege "as to
documents presented early on[,]" but does not waive the privilege
regarding Rusch's testimony because the advice of counsel defense did not
require Rusch to testify. (Doc. 302 at 4 n.2). Kerr does not cite any legal
authority in support of this argument. (Id.) The Government was entitled
to the specified privileged information because Kerr implicitly waived
attorney-client privilege. (Doc. 96). Kerr offers no cases suggesting that Kerr
may waive privilege as to the communications, but preserve privilege regarding
Rusch's testimony about the same information. Furthermore, Kerr never objected
to the testimony at trial.4 Kerr also claims that he was
"considering using [advice] of counsel as a possible [*9] defense," but instead
"put on no defense." (Doc. 314 at 4). This claim is inaccurate
because Kerr presented this defense in both opening and closing arguments and
requested and received a jury instruction encapsulating that defense. (See
e.g. Doc. 325 at 124) ("Now this is their lawyer. This is a tax
expert. They believe him. They rely upon this advice."); (Doc. 338 at 79)
("a very, very important jury instruction in the case . . . that's
basically the instruction regarding the reliance on counsel"); (Doc. 287
at 35) (jury instruction for advice of counsel defense). Accordingly, the Court
can find no error in the admission of Rusch's testimony, and such testimony
will not be excluded when determining the sufficiency of the evidence under
Rule 29(c)(2) or Rule 33(a).
4 Quiel
objected at trial that Rusch was testifying in violation of attorney-client
privilege; however, the Court overruled the objection based on its previous
rulings. (Doc. 331 at 36).
2. Co-Conspirator
Exception to Hearsay
Kerr argues
that Rusch's testimony should not be admitted under the co-conspirator
exception to hearsay (Fed. R. Evid. 801(d)(2)(E)). (Doc. 302 at 8-10). However,
Kerr fails to cite to any part of the
[*10] Record where such admission of evidence occurred. Kerr's
failure to indicate where in the Record error occurred prevents the Court from
making any meaningful analysis of this issue. In his Reply, Kerr asserts that
"the majority of statements" allegedly admitted under the
co-conspirator exception were "Rusch's [with regard to his] understanding
of the Defendants [sic] knowledge as to the legality of their actions[;]"
however, he does not cite any specific statements. (Doc. 314 at 6).
Without any
specific statements that were allegedly admitted pursuant to the exception, the
Court is skeptical of Kerr's arguments for the following reasons. First,
Rusch's knowledge is not hearsay. Second, the Court can envision circumstances
in which the testimony would be admissible. For example, if Rusch testified to
statements made by Kerr, the testimony is admissible under Fed. R. Evid.
801(d)(2), an opposing party's statement. Furthermore, if the statements were
not asserted for the truth of the matter, but to establish the effect on the
listener or basis in fact for the Rusch's subsequent actions, then the
statements would be allowed based on Fed. R. Evid. 801(c). See United States
v. Payne, 944 F.2d 1458, 1472 (9th Cir. 1991) [*11] (holding that out-of-court
statements introduced to show the effect on the listener are not hearsay); United
States v. Walling, 486 F.2d 229, 234 (9th Cir. 1973) (holding that
statement was not hearsay because it was offered to demonstrate the
"circumstances which served as a foundation for [witness's] own
observations and actions"). Because Kerr does not cite to the record
indicating where the Court admitted the testimony under Rule 801(d)(2)(E), and
does not cite to the specific statements in Rusch's testimony that he allegedly
objected to at trial (Doc. 314 at 7), the Court will not exclude Rusch's
testimony in determining the sufficiency of the evidence under Rule 29(c)(2) or
Rule 33(a).
B. Willful Intent
Kerr argues
that the "overt acts of the substantive offenses were required elements of
the conspiracy count." (Doc. 314 at 10). Kerr claims that the Government
failed to prove "any other knowledge or intent of illegality except for
that required to prove the conspiracy-that the Defendants did this to defraud
the IRS." (Id. at 11). Because the jury acquitted Kerr of
conspiracy, he alleges that the elements of the substantive counts cannot be
proven; therefore, the government "failed [*12] to prove the required
illegal intent." (Id. at 10).
"[I]t is
well-established that [HN3]
'inconsistent verdicts may stand, even when a conviction is rationally
incompatible with an acquittal, provided there is sufficient evidence to
support a guilty verdict.'" United States v. Suarez, 682 F.3d 1214,
1218 (9th Cir. 2012) (internal citations omitted). In this case, the jury was
instructed that they must find Kerr acted "willfully" to be guilty of
the substantive counts. (Doc. 287 at 25, 28). The jury could have acquitted
Kerr of conspiracy for reasons unrelated to Kerr's intent. For example, the
jury could have determined that the Government did not prove there was an
agreement between the co-conspirators. The jury was properly instructed about
Kerr's intent for the substantive counts; thus, by finding Kerr guilty, the
jury found that Kerr acted willfully. Therefore, the Court denies Kerr's motion
for judgment of acquittal or a new trial under this theory.
C. Legal Duty to Report
Income
Kerr claims
that the Government failed to prove a legal duty to report income and foreign
accounts; therefore, the Government did not prove willfulness. (Doc. 314 at
11). [HN4] To prove willfulness,
the Government must [*13]
show the "voluntary, intentional violation of a known legal duty." Cheek
v. United States, 498 U.S. 192, 201, 111 S. Ct. 604, 112 L. Ed. 2d 617 (1991).
In Cheek, the United States Supreme Court held:
Carrying this
burden requires negating a defendant's claim of ignorance of the law or a claim
that because of a misunderstanding of the law, he had a good-faith belief that
he was not violating any of the provisions of the tax law. This is so because
one cannot be aware that the law imposes a duty upon him and yet be ignorant of
it, misunderstand the law, or believe that the duty does not exist.
Id.
Kerr argues
that the Government did not meet their burden because there was "no expert
testimony or evidence" that proved the income was reportable on Kerr's
personal tax return. (Doc. 302 at 16). Kerr does not cite to any legal authority
requiring expert testimony to prove a legal duty to report. Furthermore, the
Government presented evidence at trial from which the jury could conclude that
Defendants had a legal duty to report income and foreign accounts.
In addition,
during the settling conference for jury instructions, Defendants objected that
the FBAR instruction "presuppose[s] that the defendants did have a
legal obligation [*14] to
file an FBAR." (Doc. 337 at 15). The Government responded that the
instructions require that the jury first determine that Defendants had an
obligation to file the FBAR based on the evidence, and the Court agreed
and overruled Kerr's objection. (Id. at 18). Viewing the evidence in the
light most favorable to the Government, the Government met its burden in
proving that Kerr had a legal duty to report income and foreign accounts, and
knew of the duty. Therefore, a jury could have found that Kerr acted willfully
beyond reasonable doubt. Furthermore, the evidence does not preponderate
heavily against the verdict and there was no miscarriage of justice.
Accordingly, the Court denies Kerr's motion for judgment of acquittal or a new
trial under this theory.
D. Prosecutorial
Misconduct
Kerr asserts
that the Government committed prosecutorial misconduct by continually referring
to stock transactions as "fraudulent." (Doc. 302 at 25). The Court
ordered the Government not to describe the securities transactions in terms of
"SEC violations" or "violations of security laws." (Doc.
337 at 19). The Court permitted the Government to describe particular conduct
as "fraudulent" under Fed. R. Evid. 404(b)(2) [*15] because "that conduct
helps establish a motive on [Defendants'] part to violate the tax laws." (Id.
at 22-23). The Government complied with the Court's ruling; therefore, there
was no prosecutorial misconduct. Accordingly, the Court denies Kerr's motion
for judgment of acquittal or a new trial under this theory.
E. Erroneous Indictment
Kerr argues
that the Indictment erroneously indicated that Kerr failed to file FBAR
forms under Schedule B, Section II, instead of Schedule B, Section III. (Doc.
302 at 29). The Court overruled Kerr's objection to correcting this typographical
error during the jury instructions conference. (Doc. 337 at 15). Kerr has not
presented any argument that would cause the Court to reconsider its prior
decision. Thus, the Court denies Kerr's motion for judgment of acquittal or a
new trial under this theory.
F. Instructions on
Defendant's Theory of the Case
Kerr argues
that the Court failed to provide a jury instruction on Kerr's theory of the
case. (Doc. 302 at 29). Kerr raised this issue during the jury instructions
conference, and the Court rejected it. (Doc. 337 at 18-19). The jury was
properly instructed on Kerr's theory of the case regarding "advice of
counsel" [*16] and
"good faith misunderstanding of the law." (Doc. 287 at 33-35).
Accordingly, the Court denies Kerr's motion for judgment of acquittal or a new
trial under this theory.
G. Misstated Evidence in
Closing Argument
Kerr claims
that the Government misstated evidence that Kerr owed taxes during the closing
argument. (Doc. 302 at 29). [HN5]
Kerr did not object at trial, so the Court will review for plain error. See
United States v. Cabrera, 201 F.3d 1243, 1246 (9th Cir. 2000). In Response
to Kerr's argument, the Government argues that no evidence was misstated
because the Government presented evidence that Kerr "failed to report
significant income" in 2007 and 2008, that Kerr had a "tax liability
even though [he] failed to report this income," that the Government stated
in closing arguments that the jury did not need to find a tax liability in
order to convict Kerr on the false returns, and that a jury instruction was
given in relation to this matter. (Doc. 311 at 23); (Doc. 303 at 47); (Doc. 287
at 27). Because Kerr presents no legal support for his arguments, Kerr's motion
for judgment of acquittal or a new trial under this theory is denied.
H. Accusation of
Evidence Tampering
Kerr asserts
that [*17] the Government
committed prosecutorial misconduct by accusing defense counsel of engaging in
evidence tampering. Kerr argues that the Government prejudiced the jury by
accusing counsel of doctoring the impeachment tape of Rusch, and suborning
perjury by Rusch. (Doc. 302 at 29). However, Kerr does not provide any factual
support or legal authority to support this argument. Furthermore, Kerr did not
object at trial; therefore, the claim is subject to plain error review. United
States v. Cabrera, 201 F.3d at 1246.
[HN6] A claim for prosecutorial misconduct is viewed in context of the
entire trial. Id. "Reversal on this basis is justified only if it
appears more probable than not that prosecutorial misconduct materially
affected the fairness of the trial." United States v. Sayakhom, 186
F.3d 928, 943 (9th Cir. 1999).
The
Government responds that it did not claim that Defendants tampered with or
doctored the tape. (Doc. 311 at 24). The Government merely stated that the tape
was edited and did not capture the entire meeting. (Id.) During
cross-examination by Quiel's counsel, Rusch stated that Quiel "played a
clearly and obviously edited tape, which I also believe to be completely
misleading." (Doc. [*18]
334 at 208). He continued on by saying, "I know for a fact that you edited
the beginning of the tape." (Id. at 209). In closing arguments, the
Government referred to the tape as being "blatantly edited" because
it does not "include anything from the very beginning of this
meeting." (Doc. 303 at 61). This statement does not rise to the level of
prosecutorial misconduct. Accordingly, the Court denies Kerr's motion for judgment
of acquittal or a new trial under this theory.
I. IRS Special Agent's
Report
Kerr claims
that his right to a fair trial was violated because the Court did not order the
Government to provide the Special Agent's Report ("SAR"), which he
alleges may contain Brady material. (Doc. 302 at 29). In its October 2,
2012 Order, the Court held that Kerr failed to show that the Government is
withholding Brady material; therefore, in accordance with the Federal
Rules of Criminal Procedure, the SAR only had to be disclosed if the Special
Agent testified. (Doc. 107 at 4). Kerr has not presented any argument that
would cause the Court to reconsider its prior decision. The Special Agent did
not testify at trial, and thus the Government was not required to disclose the
SAR. Accordingly, [*19] the
Court denies Kerr's motion for judgment of acquittal or a new trial under this
theory.
J. Instruction on Deductible
Expenses
Kerr claims
that the Court failed to include the required jury instruction on deductible
expenses. (Doc. 302 at 29). [HN7]
When reviewing a claim of error relating to jury instructions, the instructions
must be viewed as a whole. United States v. Abushi, 682 F.2d 1289, 1299
(9th Cir. 1982). A trial judge is given substantial latitude in tailoring jury
instructions so long as they fairly and adequately address the issues
presented. United States v. James, 576 F.2d 223, 226 (9th Cir. 1978). In
United States v. Marabelles, the Court addressed the issue of whether
the defendant was entitled to an instruction regarding deductible expenses in a
tax evasion and false return case. 724 F.2d 1374, 1382 (9th Cir. 1984). The
defendant in that case requested an instruction related to unsubstantiated
expenses that he claimed reduced his tax liability. Id. The Ninth
Circuit Court of Appeals held that the district court's refusal to provide the
defendant's instruction was not error because it would not have "materially
affected the §7206(1) conviction since a tax deficiency is not [*20] an element of that
crime." Id.
In the
present case, Kerr does not cite to a specific instruction requested, or
provide any factual or legal support for his argument. Looking at the
instructions as a whole, the jury was instructed that they could consider a
lack of tax due when determining willfulness. (Doc. 287 at 27). Furthermore,
the gross income instruction defines gross income as "all income received
before making any deductions allowed by law," which indicates that
Defendants may be entitled to deduct expenses. (Id. at 38). These
instructions fairly and adequately address the issue presented. Accordingly,
the Court denies Kerr's motion for judgment of acquittal or a new trial under
this theory.
K. FBAR Definitions
Kerr argues
that the Court erred in giving the Government's proposed jury instructions,
which included definitions from the FBAR instructions because no
regulation addressed these definitions. (Doc. 302 at 30). [HN8] The FBAR filing
requirements in effect during 2007 and 2008 are outlined in 31 C.F.R. § 103.24.
The regulation incorporates the definitions set forth in the general instructions
prescribed by the Secretary of the Treasury and included with the FBAR
form. See 31 C.F.R. § 103.24
[*21] ("each person . . . shall provide such information as
shall be specified in a reporting form prescribed by the Secretary to be filed
by such persons"). In addition, 31 C.F.R. § 103.27(c)-(d) provides further
details for reports filed pursuant to section 103.24, including the filing
deadline date, the minimum account balance, and the specific reports required.
The FBAR form and the instructions were modified in 2008, and the jury
was properly instructed about the modified definitions for the 2008 count.
Accordingly, Kerr's claim that there is no regulation addressing the FBAR
definitions is incorrect. Therefore, the Court denies Kerr's motion for
judgment of acquittal or a new trial under this theory.
Based on the
foregoing, Kerr's Renewed Motion for Rule 29 Judgment of Acquittal or, in the
alternative, a New Trial is denied.
III. Quiel's Motion for
Judgment of Acquittal and New Trial
Quiel moves
for judgment of acquittal based on four claims: 1) the admission of new
exhibits on redirect without the opportunity to cross-examine violated the
Confrontation Clause of the Sixth Amendment; 2) the conviction was based on an
erroneous indictment;5 3) Rusch's testimony should have been
stricken [*22] because Rusch
committed perjury and the Government never linked his testimony to the alleged
conspiracy; and 4) the Court erred in admitting redacted documents. (Doc. 301).
5 The issue
regarding the erroneous indictment has already been addressed above;
accordingly, that analysis applies equally to Quiel.
A. Confrontation Clause
Quiel asserts
that the Court erred in issuing a "complete ban on
recross-examination" in violation of the Confrontation Clause of the Sixth
Amendment. (Doc. 301 at 4). On day 3 of the trial, Quiel's counsel attempted to
recross-examine a witness, Cheryl Bradley. (Doc. 326 at 264). At that time,
Quiel's counsel stated "I . . . do have three follow-up, please Your
Honor." (Id.). The Court responded, "Well, that's called
recross, which we don't permit. You had three follow-up." (Id.).
Quiel's counsel, responded "Yes, Your Honor, in relationship to her
questions." (Id.). In reply, the Court stated, "There's no
such thing as recross examination. That will be denied." (Id.)
Quiel now
argues that, later in the trial, during the testimony of Chris Rusch, he was
chilled from recross-examination based on the Court's earlier admonition. (Doc.
312 at 6). Quiel specifically [*23]
argues that limiting recross-examination regarding Exhibits 44, 51, and 52,
which were admitted during the Government's redirect examination of Mr. Rusch,
violated the Confrontation Clause. (Id. at 3). Quiel did not attempt to
recross-examine Rusch at the time of the testimony and did not make any
reference to the Court's earlier admonition regarding re-cross examination at
the time of Rusch's testimony. Defense counsel did object that the admission of
Exhibits 44, 51, and 52 was outside the scope of cross-examination, but the
Court was unpersuaded that those Exhibits were new matter and, thus, overruled
those objections. Quiel now appears to argue that, pursuant to the Ninth
Circuit Court of Appeals decision in United States v. Jones, 982 F.2d
380, 383-84 (9th Cir. 1992), recross-examination must be permitted.
[HN9] Recross-examination is not
guaranteed under the Confrontation Clause. See United States v. Baker,
10 F.3d 1374, 1404 (9th Cir. 1993), overruled on other grounds by United
States v. Nordby, 225 F.3d 1053 (9th Cir. 2000) ("Allowing recross is
within the sound discretion of the trial court"); United States v.
Riggi, 951 F.2d 1368, 1374 (3rd Cir. 1991) ("As a general rule, a
trial [*24] court has wide
discretion to restrict recross-examination"). However, "[w]hen
material new matters are brought out on redirect examination, the Confrontation
Clause of the Sixth Amendment mandates that the opposing party be given the
right of recross-examination on those new matters." United States v.
Jones, 982 F.2d 380, 384 (9th Cir. 1992) (quoting United States v.
Riggi, 951 F.2d 1368, 1375 (3rd Cir. 1991)).
"If 'new
matter' is defined broadly, then any question asked on redirect that had not
already been asked and answered would conceivably introduce 'new matter'
requiring the opportunity for recross insofar as it expanded or elaborated on
the witness' previous testimony. Such an approach would conflict with the trial
court's discretion to impose reasonable limits on cross-examination" Baker,
10 F.3d at 1405. However, a "new matter" is not limited to a
"new subject," but also applies to newly elicited material testimony
within a particular subject area. Id. Accordingly, recross-examination
is only necessary when "new matter" is elicited on re-direct.
Defendants
did not argue during trial that they should be entitled to recross-examination
because a new matter was being elicited during [*25] redirect. Although, during
the testimony of Ms. Bradley, defense counsel requested re-cross, defense
counsel gave no reason as to why he was entitled to recross-examination of that
witness or any other witness. Further, it is of concern to the Court that,
after receiving an unfavorable jury verdict, Defendants now seek reconsideration
of the "alleged" "blanket ban" on recross-examination, such
"ban" having occurred on day 3 of a 19-day trial, based on
Defendants' argument that they were "chilled" from previously seeking
such reconsideration from the Court. The Court does not see how the Defendants
were chilled from seeking reconsideration during trial, but now feel completely
free to seek such reconsideration. The Court's concerns about the timing of
Defendants' claimed "chilling effect" is highlight by the fact that,
although Defendants argue that there is a binding Ninth Circuit Court of
Appeals case on point, which allows for recross-examination under certain
circumstances, and Defendants believe that they are within those circumstances
where recross-examination is appropriate, Defendants waited to bring that
binding case to the Court's attention until after receiving an unfavorable [*26] jury verdict.
Despite these
substantial concerns, the Court will assume, for the purposes of this Order,
that Defendants were chilled from seeking recross-examination for witnesses
that followed Ms. Bradley. Accordingly, the Court must determine whether new
matter was elicited on redirect examination in violation of Defendants' Sixth Amendment
right to confrontation.
In his
argument, Quiel relies heavily on United States v. Jones, in which the
defendant was convicted of drug violations. 982 F.2d at 382. In Jones,
the defendant believed the district court imposed a blanket prohibition on recross-examination.
Id. at 384. On redirect, the Government's witness, Alex Vasilieff,
identified the defendant for the first time and placed him at the scene of the
crime, corroborating the damaging testimony made by other witnesses. Id.
The Ninth Circuit Court of Appeals held that "the district court's ban on
recross examination prevented Jones from probing Vasilief's [sic] incriminating
testimony." Id. In Jones, the ban on recross-examination
violated the defendant's Confrontation Clause rights because he was
"unable to subject the prosecution's case to the rigorous adversarial
testing that is the [*27]
norm of Anglo-American criminal proceedings." Id. at 384-85
(internal quotations omitted).
In the
present case, Quiel asserts that the Government's Exhibits 44, 51, and 52 were
new matters presented on redirect. (Doc. 301 at 3). Exhibit 44 is a fax from
Rusch to Pierre Gabris, a private banker who opened foreign bank accounts (Doc.
331 at 32) containing written instructions regarding stock transactions. (Doc.
335 at 91-92). Exhibits 51 and 52 are emails that Rusch received from Gabris
that provide accounting statements for the foreign accounts. (Id. at
101). On direct examination, the Government asked Rusch how stock transactions
occurred. (Doc. 331 at 145). Rusch responded, "The vast majority of the
time Mr. Quiel would phone me and give me an instruction to sell or buy or make
a transfer. I would write that down. I would type it up into a fax and fax it
over to Mr. Gabris." (Id.) When the Government questioned Rusch
about the activity in the foreign accounts, Rusch stated that he received
"[a]n accounting typed up in Excel and sent to [him] by e-mail from Pierre
Gabris," which Rusch would then fax to Mr. Quiel. (Id. at 152).
Rusch further elaborated that he never emailed Kerr or Quiel [*28] regarding their foreign
accounts because he was "given instruction not to have any e-mail trail
for these accounts, and to send everything by fax." (Id. at 153).
On
cross-examination, both Defendants questioned Rusch's credibility regarding his
testimony on the instructions for stock transactions and the accountings he
forwarded to Defendants. During cross-examination, Kerr addressed the lack of
written records for stock transactions:
Q: When those
stocks are eventually sold, the whole activity of selling those stocks, getting
those stocks into management companies, the mechanical process of doing that
was done ply [sic] by Mr. Gabris or by you. You're the only ones that could control
these. Right?
A: Well, the
mechanical process was Mr. Quiel would give me instructions, I would write them
down, I would type up a fax, I would send that fax to Mr. Gabris and he would
act upon it.
Q: You say
those were instructions Mr. Quiel would give you but I don't see any record of
that in anything in writing. There's nothing in writing where he gave you
instructions, is there?
A: No. He was
very specific not to keep any written-
Q: There are
no instructions, are there, that he put in writing to tell you [*29] to sell any stock or
anything?
A: No,
there's not.
(Doc. 334 at 71-72).
Kerr also discussed the accountings with Rusch:
Q: Well, Mr.
Kerr wasn't getting any bank records. Who was getting them?
A: Mr.
Gabris.
Q: So Mr.
Gabris got all these records. Did he send copies to you?
A: Not of the
bank statements.
Q: So the
knowledge of the money and what was going in the account was Mr. Gabris and you
didn't have any knowledge about it?
A: Well, no,
that's not what I said. You asked me if the bank statements were sent to me.
They were not. Mr. Gabris would send accountings of transactions, investments,
positions in Excel format, send them to me by email and I would forward them on
to Mr. Kerr and Mr. Quiel by fax.
(Doc. 334 at 58-59).
Furthermore, Kerr questioned Rusch about whether there are records to show that
Defendants knew what Rusch was doing:
Q: I'm asking
you at this point in time, did you have documents in the file that are copies
of the documents that you sent to Mr. Kerr or Mr. Quiel, which would show how
you were basically handling all this money and transferring it from account to
account?
A: I had them
on computer file, yes. I did not have them in printed files, no.
Q: Okay. And
where is [*30] that computer
file?
A: I haven't
had it for a number of years. Before this-before this occurred I'd lost the
computer.
Q: You lost
the computer before this occurred?
A: Yes. The
hard drive was damaged.
Q: So you
don't really have any records that would show that you had been giving them
reports about how all of this money was getting spent, correct?
A: If I
recall the discovery, I think there was some accounting in there. I mean, we're
talking 20,000 pages. I don't recall it all, but-
Q: You're
talking about bank records. I'm talking about a report where you said you
apprised them of what you were doing.
A: I believe
there is an Excel file in the documents, yes.
Q: There's an
actual file that you have broken down that shows how you're spending money all
during this period of time from 2006 clear up to 2008?
A: No. I'm
saying there's an accounting from Mr. Gabris related to their transactions.
Q: But you
said you did have something that was on your computer, now it's lost?
A: No. I'm
saying there's an accounting from Mr. Gabris related to their transactions.
Q: But you
said you did have something that was on your computer, now it's lost?
A: I had a
number of files, and I believe I only had one or [*31] two at the time of this
case coming about.
Q: So in
effect we just don't have any records from your computer.
A: Other than
what I have already produced, correct.
(Doc. 334 at 135-36).
During cross-examination by Quiel, Rusch also discussed the lack of records and
missing computer:
Q: And you
weren't able to-as you've been cooperating and working and helping with the
Government, you weren't able to give them all of your own records because many
of them were destroyed when your computer disappeared.
A: I gave
them all of the records that I had of myself and Mr. Kerr and Mr. Quiel.
Q: When did
your computer disappear?
A: My
computer didn't disappear. I had a-lost a hard drive, which means it had become
damaged, I'm thinking 2009 maybe when I moved to Switzerland.
Q: Where is
the hard drive now?
A: I haven't
had it for years.
Q: What did
you do with it?
A: I just
replaced the computer.
Q: Did you
throw the hard drive away?
A: Yes, I got
rid of the entire computer.
Q: So it's
gone. If anybody wanted to check it out or try to reconstruct it or fix it,
it's gone.
A: Yes.
Q: You never
gave your clients an opportunity to try to have someone check out that hard
drive to see if it could be salvaged, correct?
A: [*32] That's correct.
Q: You never
gave the Government an opportunity to check the hard drive to see if any of it
could be salvaged, correct?
A: Correct.
(Doc. 335 at 42-43).
Throughout cross-examination, Defendants raised questions about whether the
documents Rusch described exist or if Rusch and Gabris were acting without
Defendants' knowledge.
The
Government argues that the exhibits were "introduced on redirect for the
limited purpose of rehabilitating Rusch's testimony and establishing that the
documents indeed existed." (Doc. 310 at 7). On redirect, Rusch testified
that "on each and every transaction Mr. Quiel would give me very specific
instructions." (Doc. 335 at 89). In describing Exhibit 44, Rusch reiterated
that Quiel provided information on the desired stock transaction, and then
Rusch "wrote up the document" and "faxed it to Mr. Gabris."
(Id. at 92, 95). When discussing Exhibits 51 and 52, Rusch described
them as "e-mails that [he] received from Mr. Gabris that are accounting
statements that [he] forwarded on to Messrs. Kerr and Mr. Quiel." (Id.
at 101). The Government further questioned him:
Q: And why
did [Gabris] provide [Exhibit 51] to you?
A: Mr. Quiel
phoned me and asked me to [*33]
get an accounting. I telephoned Mr. Gabris, obtained that accounting.
Q: And what
did you do once you received this e-mail?
A: I printed
it out and faxed it to Mr. Quiel and to Mr. Kerr, and then placed it in my
file.
(Doc. 335 at 102).
Rusch's
testimony on redirect examination was consistent with his testimony on direct
and cross-examination. See United States v. Croft, 124 F.3d 1109, 1121
(9th Cir. 1997) (holding that no recross is required when defendant sought to
use sworn affidavits to establish "inconsistencies that could have been
and were covered on cross-examination"). Unlike in Jones, where the
witness identified the defendant and placed him at the scene of the crime for
the first time on redirect, here Rusch repeated testimony that had already been
covered. On cross-examination, Defendants had the opportunity to impeach Rusch
regarding the stock transactions and accountings. That was not the case in Jones,
where the Court found that the witness's testimony was not subject to the
"rigorous adversarial testing" in the criminal proceedings. 982 F.2d
at 384. Therefore, the present case is distinguishable from Jones.
In addition,
the Court did not release Rusch from the subpoena; [*34] thus, he remained
"subject to recall." (Doc. 335 at 159). Defendants could have
recalled Rusch in their case-in-chief to further question him on direct
examination.6 See United States v. Ross, 33 F.3d 1507, 1518
(11th Cir. 1994) ("prevention of recross-examination 'would not have prevented
appellant from confronting his accusers; it would only have affected the order
of confrontation. All the witnesses were equally available to the appellant and
could have been called to the witness stand by him and questioned on direct
examination as to any point he desired.'") (quoting Hale v. United
States, 435 F.2d 737, 752 n.22 (5th Cir. 1970)). Therefore, the Government
did not raise new matters on redirect examination in violation of the
Confrontation Clause. Accordingly, the Court denies Quiel's motion for judgment
of acquittal or a new trial under this theory.
6
Furthermore, Rusch could be classified as a hostile witness or a witness
identified as an adverse party under Federal Rule of Evidence 611(c)(2),
allowing Defendants to use leading questions on direct examination.
B. Rusch's Testimony
Quiel claims
that the Court should have stricken Rusch's testimony because he "is a
known perjurer," and [*35]
the Government never established that the crime-fraud exception to
attorney-client privilege applied.7 (Doc. 301 at 5). The Supreme
Court has held that [HN10] "a
conviction obtained by the knowing use of perjured testimony is fundamentally
unfair, and must be set aside if there is any reasonable likelihood that the
false testimony could have affected the judgment of the jury." United
States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).
A new trial is required if the false evidence is material, and its inclusion
undermines the confidence in the judgment of the jury. Maxwell v. Roe,
628 F.3d 486, 499 (9th Cir. 2010). Quiel alleges that Rusch committed perjury
by: 1) denying on cross-examination that he told Defendants and their defense
counsel in a January 2011 meeting that he had followed the law, but after
hearing a secret tape recording of the meeting, admitted making the statements
and claimed that it was "spin;" and 2) testifying that the
"bathroom scene" on the secret tape recording was inserted into the
tape to cover up something. (Doc. 301 at 5 n.1).
7 The Court
addressed the crime-fraud exception issue in Kerr's Motion above. Accordingly,
the Court will not readdress that issue here.
First,
Rusch [*36] did deny on
cross-examination that he told Defendants and their counsel that everything was
legal. (Doc. 332 at 50). However, he stated that, during the meeting, he was
talking about possible lines of defense. (Id. at 51). On the audio
recording, Rusch described proposed lines of defense as his "spin" on
the matter. (Doc. 310 at 12). This statement was confirmed on redirect. (Doc.
335 at 141-42). Second, Rusch testified that he believed that other statements
he made in the meeting were omitted from the tape during the "bathroom
scene." (Doc. 334 at 210). Rusch testified that he knew the beginning of
the meeting was taken out of the tape, and that he was just speculating on why
his other comments regarding viable defenses are not on the tape. (Id.
at 211). [HN11] It is the jury's
province to determine the credibility of witnesses. United States v.
Sanchez-Lima, 161 F.3d 545, 548 (9th Cir. 1998). The tape and Rusch's statements
were presented to the jury, who found Defendants guilty. Quiel has presented no
evidence that proves Rusch committed perjury. Therefore, the Court denies
Quiel's motion for judgment of acquittal or a new trial under this theory.
C. Redacted Documents
Quiel claims
that [*37] the Court should
have refused to admit redacted documents that the defense was unable to review.
(Doc. 301 at 8). Quiel does not specify which exhibits he is referring to.
Quiel does specifically object, however, to the Government's use of portions of
the Individual Master File (IMF) without providing defense counsel the complete
record. (Id.) Providing the relevant parts of the IMF to the defendant
may be sufficient. United States v. Fusero, 106 F.Supp.2d 921, 925 (E.D.
Mich. 2000). The Government avows that it turned over all relevant portions of
the IMF record. (Doc. 310 at 17). Quiel claims that there may be exculpatory
evidence in the IMF, but he does not point to any specific evidence that may be
in the file. (Doc. 301 at 9). Although not mentioned in Quiel's Motion, the
Court notes that Quiel objected to the admission of IRS Form 4340 (Exhibit 263)
and sought that the entire IMF file be disclosed at trial. (Doc. 258 at 102).
This objection was overruled, and Quiel fails to establish evidence that would
cause the Court to reconsider its prior decision. (Id. at 113).
Accordingly, the Court denies Quiel's motion for judgment of acquittal or a new
trial under this theory.
Based on [*38] the foregoing, Quiel's
Motion for a Judgment of Acquittal or for a New Trial is denied.
IV. Conclusion
Accordingly,
IT IS ORDERED that Kerr's
Renewed Motion for Rule 29 Judgment of Acquittal or, in the alternative, a New
Trial (Doc. 302) is denied.
IT IS FURTHER
ORDERED
that Quiel's Motion for a Judgment of Acquittal or for a New Trial (Doc. 301)
is denied.
DATED this
16th day of August, 2013.
/s/ James A.
Teilborg
James A.
Teilborg
Senior United
States District Judge