United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
The Court has before it three post-trial motions filed by the defense and a motion to strike filed by the Government. The motions are fully briefed and at issue. For the reasons expressed below, the Court will deny the motions filed by the defense and grant the motion to strike filed by the Government.
Motion for Acquittal
The defendants have filed a motion for acquittal under Rule 29. To resolve this motion, the Court "must consider the evidence presented at trial in the light most favorable to the prosecution." U.S. v. Grasso, 724 F.3d 1077, 1085 (9th Cir. 2013). The Court "must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved... conflicts in favor of the prosecution, and must defer to that resolution." Id. at 1085-86. The Court must determine whether the evidence, viewed in that manner, "is adequate to allow any rational trier of fact to find the essential elements of a crime beyond a reasonable doubt." Id.
Defendants first argue that the conviction for obstructing a pending proceeding should be set aside, because the investigation by the United States Attorney's Office does not qualify as a proceeding under 18 U.S.C. § 1505. The Court earlier rejected this argument and finds no reason to reconsider that decision. See Trial Tr. at 5249.
The defendants also argue that there is insufficient evidence that they were aware of the investigations. The Court disagrees. There was evidence from Revenue Agent Charlie Becker and Special Agent Josh Culbertson that indicated defendants knew of the investigations. Moreover, Exhibit 1909 is evidence that as early as 2008, both defendants knew of the IRS investigation.
The defendants argue that the Government improperly vouched for their investigation by describing it as the "ultimate" investigation in an attempt to persuade the jury that their own investigation was of high quality and had integrity. By describing the investigation using this adjective, the defendants argue, the Government placed the prestige of the U.S. Attorney's Office behind the investigation and therefore improperly vouched for its own investigation.
The defendants cite U.S. v. Hermanek, 289 F.3d 1076 (9th Cir. 2002) for the proposition that the Government cannot place its prestige behind the credibility of the investigation. In that case, prosecutors "portrayed themselves as part of the team conducting the criminal investigation" and described how they adhered to the law and maintained the integrity of the investigation. The Circuit found this to be improper vouching. Id. at 1098-99. Nothing of the sort happened in this case. In context, the adjective "ultimate" was used to describe how it came at the end of a process, and was not used to heap praise upon it or vouch for its worthiness. The Court can find no improper vouching here.
The defendants argue that there was insufficient evidence of a conspiracy to obstruct. The Court disagrees. The evidence consists of the testimony of Christina Mendez, along with the gift and loan documents - Exhibits 1905 and 1906 - and Martin's note - Exhibit 1909. The defendants challenge the credibility of Mendez but it is not so inherently unbelievable that it must be ignored. In a Rule 29 motion, "credibility of witnesses is a question for the jury, " not for the Court. U.S. v. Delgado, 357 F.3d 1061, 1068 (9th Cir. 2004).
Motion for New Trial
Defendants have filed a motion for a new trial. Rule 33 states that "[u]pon the defendant's motion, the Court may vacate any judgment and grant a new trial if the interest of justice so requires." See Fed. R. Crim. P. 33(a). This Court's power to grant a motion for a new trial "is much broader than its power to grant a motion for judgment of acquittal." U.S. v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992). "The district court need not view the evidence in the light most favorable to the verdict; it may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses." Id. "If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury." Id. at 1211-12.
Defendants argue that a new trial is warranted because the prosecution violated its duty to disclose exculpatory information, as required by Brady v. Maryland, 373 U.S. 83 (1963). Specifically, defendants argue that the Government failed to produce two different trial exhibits: (1) a facsimile from Martin to Trevor Gunstream, which was offered by defense and admitted at trial as Exhibit 2095; (2) two pages of screenshots showing metadata related to the creation and modification dates ...