Free Order on Motion for Acquittal - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA : : : : : : :

v.

NO. 3:00CR217(EBB)

BEN F. ANDREWS

RULING ON DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND MOTION FOR NEW TRIAL On October 21, 2003, pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure, Defendant Ben F. Andrews ("Andrews") orally moved for judgment of acquittal on all counts of the Superseding Government's Indictment ("Indictment") at trial. at Tr. the close 6 of the

case-in-chief

Vol.

(Excerpt,

Remarks of Counsel) at 4.

After a hearing on the oral motion, Id. at 43. On October 29, 2003,

the Court reserved decision.

the jury found Defendant guilty on nine counts of the Indictment. Following the jury's verdict, Defendant orally renewed his motion for judgment of acquittal under Rule 29(a) and orally moved for a new trial under Rule 33 of the Federal Rules of Criminal At

Procedure.

Tr. Vol. 12 (Excerpt, Remarks of Counsel) at 4.

that time Defendant requested 30 days to brief his motion for judgment of acquittal and motion for new trial, and the Court granted the request. Id. Defendant filed his written memorandum

in support of his oral motion for judgment of acquittal on July

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7, 2004 [Doc. No. 884].

Defendant filed his written memorandum

in support of his oral motion for a new trial on July 9, 2004 [Doc. No. 890]. Defendant filed his Motion to Permit Late Filing

of Memoranda in Support of Motions for New Trial and Judgment of Acquittal and supporting memorandum on July 26, 2004 891 and Doc. No. 895]. [Doc. No.

This Court granted the Motion to Permit The motion was granted in error, forth below, this court lacks

Late Filing on August 5, 2004. and for the reasons set

jurisdiction over Defendant's claims. Court had jurisdiction, for the

However, even if this set out below,

reasons

Defendant's claims are without merit, and would be DENIED. BACKGROUND The Indictment The Indictment alleges that Defendant and others devised a scheme to defraud of the the citizens of Connecticut the purpose of of the honest

services

Treasurer,

with

enriching

themselves through the improper use of the Treasurer's official position. To accomplish this, the Indictment specifically

alleges the following: Count Three of the Indictment charged Andrews with aiding and abetting Connecticut State Treasurer Paul J. Silvester

("Silvester") to solicit, demand, accept and agree to accept a thing of value, namely a consulting contract for Andrews with 2

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Landmark Partners ("Landmark") for $1,000,000, with the intent to influence and reward Silvester in connection with the investment of $100,000,000 of state pension assets with Landmark, all in violation of 18 U.S.C. §§ 666(a)(1)(B) and 2. Counts Four, Five and Six of the Indictment charged that Andrews devised a scheme or artifice to defraud and deprive the citizens of Connecticut of their right to the Treasurer's honest services, and, for the purpose of executing that scheme,

knowingly caused a letter to be sent by a commercial interstate carrier on June 3, 1998, and knowingly caused a facsimile to be transmitted through interstate wires on August 4, 1998 and August 11, 1998, all in violation of 18 U.S.C. §§ 1341, 1343, 1346 and 2. The Indictment specifically alleged that Silvester solicited

a consulting contract for Andrews from Landmark at the same time that Silvester used his official position to benefit Landmark by investing $100,000,000 of state pension assets, that Andrews

provided support to the "Silvester for State Treasurer" Campaign in circumvention of state laws, and that Andrews agreed that onehalf of the corrupt payment from the investment of state pension assets in Landmark be paid to a company wholly owned by

Christopher A. Stack ("Stack"), with the knowledge that some of that money would be kicked back to Silvester.

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Count Seven of the Indictment charged Andrews with knowingly and corruptly giving, offering and agreeing to give a thing of value, namely money, to Stack and Silvester, with the intent to influence and reward Silvester in connection with a $50,000,000 increase in the investment of state pension assets with Landmark, all in violation of 18 U.S.C. §§ 666(a)(2) and 2. Counts Eight, Nine and Ten of the Indictment charged that Andrews devised a scheme or artifice to defraud and deprive the citizens of Connecticut of their right to the Treasurer's honest services, and for the purpose of executing that scheme, knowingly caused a letter to be sent by an interstate carrier on December 8, 1998, and knowingly caused a letter to be placed in an

authorized mail depository on December 12, 1998 and February 4, 1999, all in violation of 18 U.S.C. §§ 1341, 1346 and 2. Indictment specifically alleged that Andrews solicited The an

increase in the State's investment in Landmark before Silvester left office, which resulted in a financial benefit to him

(Andrews), with the understanding that one-half of the payment received by Andrews would be paid to a company wholly owned by Stack, and that Stack would kick back a portion of the payment to Silvester. Count conspiracy Eleven to of the Indictment alleging 4 charged Andrews Andrews conducted with and

money

launder,

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attempted to conduct a financial transaction, knowing that the property involved represented the proceeds of some form of

unlawful activity, namely solicitation and receipt of corrupt payments in violation of 18 U.S.C. § 666, receipt of a bribe in violation of Conn. Gen. Stat. § 53a-148, or mail/wire fraud in violation of 18 U.S.C. § 1341 and 1343, and knowing that the transaction was designed in whole or in part to conceal and disguise the nature, the location, the source, the ownership and the control of the proceeds of that unlawful activity, all in violation of 18 U.S.C. § 1956(a)(1)(B)(i). Specifically, the

Indictment charged that Andrews agreed that the monies paid to him from the investment of state pension assets with Landmark would be split among himself, the Silvester and was Stack, a means and to that make

Andrews

understood

that

arrangement

corrupt payments to Silvester. Count Twelve of the Indictment charged Andrews with

knowingly and willfully making a materially false, fictitious and fraudulent statement, in violation of 18 U.S.C. § 1001.

Specifically, the Indictment alleged that Andrews told special agents of the Federal Bureau of Investigation ("FBI") and

Internal Revenue Service Criminal Investigation Division ("IRSCID") that he had contacted Stack regarding an investment deal with Landmark, but that he had 5 not discussed a fee-sharing

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arrangement with Stack in front of Silvester, when, in truth and in fact, Andrews knew that, after he had offered to kick back a portion of the fees he would earn through the Landmark deal to Silvester, Silvester directed Defendant to take on Stack as a partner and split the fees that resulted from the Landmark

investment. Count witness Thirteen of by the Indictment and charged Andrews persuading with and

tampering,

knowingly

corruptly

attempting to persuade witnesses to provide false information to federal law enforcement agents regarding contributions to the "Silvester for State Treasurer" Campaign that were made at his direction, in violation of 18 U.S.C. § 1512(b)(1). Evidence adduced at trial1 The Government's case-in-chief consisted of extensive

documentary evidence, as well as testimony from Silvester and Stack. received The evidence established that the State of Connecticut numerous federal grants, including those for

transportation, education, and social services. further established that Silvester was the

The evidence State

Connecticut

Treasurer from July 22, 1997 until he left office in January of 1999. During his tenure, he had the final decision-making

1

This section was prepared from the Court's trial notes, and excerpts from the trial transcript, without aid of a full trial transcript, and without aid of any summary of the evidence put forth at trial from either the Defendant or the Government.

6

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authority Connecticut witnesses involvement

regarding

the

allocation and

of

the Fund

assets

in

the The

Retirement and in

Plan

Trust

("CRPTF").

documentary the scheme to

evidence

established use the

Andrews's Treasurer's

improperly

official position and to deprive the citizens of Connecticut of the Treasurer's honest services. knowingly participated in the The evidence showed how Andrews scheme to improperly influence

Silvester's decisions regarding the allocation of state pension funds and to enrich himself, Stack and Silvester through an

elaborate arrangement to pay Andrews a fee for investments with Landmark, with Stack receiving half that fee and kicking it back to Silvester. to conceal The evidence also demonstrated Defendant's efforts this improper use of the Treasurer's position,

including kickbacks to Silvester and improper contributions to Silvester's election campaign, and his knowledge about the

arrangements for that improper use. The Jury Verdict On October 29, 2004, the jury unanimously found Andrews guilty as to Count Three, charging bribery concerning programs receiving federal funding/aiding and abetting under 18 U.S.C. §§ 666(a)(1)(B) and 2; Counts Four and Five, charging mail

fraud/theft of honest services under 18 U.S.C. §§ 1341, 1346 and 2; Count Six, charging wire fraud/theft of honest services under 7

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18 U.S.C. §§ 1343, 1346 and 2; Count Seven, charging bribery concerning programs receiving federal funds under 18 U.S.C. §§ 666(a)(2) and 2; Counts Eight and Nine, charging mail fraud/theft of honest services under 18 U.S.C. §§ 1341, 1346 and 2; Count 11, charging conspiracy to launder money in violation of 18 U.S.C. § 1956(h); and Count 12, charging Andrews with making a false

statement in violation of 18 U.S.C. § 1001.

The jury found

Andrews not guilty as to Count Ten, charging mail fraud/theft of honest services under 18 U.S.C. §§ 1341, 1346 and 2, and Count Thirteen, witness tampering, under 18 U.S.C. §1512(b)(1). LEGAL ANALYSIS I. Jurisdiction Federal Rule of Criminal Procedure 29 states in pertinent part, "[a] defendant may move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict or after the court discharges the jury, whichever is later, or

within any other time the court sets during the 7-day period." FED. R. CRIM . P. 29(c)(1). Federal Rule of Criminal Procedure 33

provides that "[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period." FED . R. CRIM. P. 33(b)(2). And, Rule 45 (b)(2) of the Federal Rules of 8

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Criminal Procedure provides the following:

"The court may not

extend the time to take any action under Rules 29, 33, 34, and 35, except as stated in those rules." FED . R. CRIM . P. 45(b)(2).

The Rules are "plain and unambiguous:" District courts have no discretion to entertain untimely Rule 29 motions. v. Carlisle, 517 U.S. 416, 421 (1996). United States

Furthermore, the time

limitations for filing motions for a new trial under Rule 33 are jurisdictional. United States v. Moreno, 181 F.3d 206, 212 (2d

Cir. 1999); United States v. Mayo, 14 F.3d 128, 132 (2d Cir. 1994); United States v. Dukes, 727 F.2d 34, 38 (2d Cir. 1984). Thus, under both Rule 29 and Rule 33, Defendant had seven days within which to file his motions, or alternatively, within which to request further time to file his motions. extension must be granted, if at all, within A motion for the seven-day

limitation of Rules 29 and 33. On evidence October at 21, 2003, at the close of the for Government's judgment of

trial,

Defendant

orally

moved

acquittal on all counts of the Indictment. decision.

This Court reserved He

On October 29, 2003, the jury convicted Andrews.

then had until November 7, 2003 to renew his motion for judgment of acquittal and file a motion for a new trial, or file a motion for extension of time to file his motions. On October 29, 2003,

following the jury verdict, Defendant orally moved for judgment 9

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of acquittal and orally moved for a new trial under Rule 33.2

At

that time Defendant requested he be given 30 days to file his written motion for judgment of acquittal and motion for new

trial, and the Court granted the request.

This Court's order,

therefore, extended the time to file under Rules 29 and 33 until November 28, 2003. As Defendant's initial request for an

extension was made within the 7-day limit of both Rules 29 and 33, this initial 30-day extension was proper. During the seven-

day period following the guilty verdict and discharge of the jury on October 29, 2003, Defendant did not make any additional

motions requesting an extension of time. written memorandum on July in 7, support 2004. of his

Defendant filed his for judgment his of

motion

acquittal

Defendant

filed

written

memorandum in support of his motion for a new trial on July 9, 2004.
2

Defendant

filed

his

Motion

to

Permit

Late

Filing

of

The exchange following the dismissal of the jury was as follows: MR. DONOVAN: Judge, I have within ten days to file a motion for judgment of acquittal or a motion for a new trial. Could I make those motions right now ­ I'm making those motions now ­ and could Your Honor give me the next 30 days in which to brief them? THE COURT: Does the Government have any objection to that request? MR. NARDINI: If I could just have a moment, Your Honor. (Attorneys Nardini and Ring confer) MR. NARDINI: I think ­ I think as long as Your Honor grants the extension of time within the ten days, that would be fine. We have no objection to a 30day extension. MR. DONOVAN: I guess ­ I'm ­ I'm making the motion ­ THE COURT: -- now. Yes. MR. DONOVAN: -- now. Maybe it'll save some time, and it may give me a little more time to brief. THE COURT: Yes. All right. You're granted, Mr. Donovan. Thank you. MR. DONOVAN: Thank you, Your Honor. (Court is adjourned: 5:00 p.m.) Tr. Vol. 12 (Excerpt, Remarks of Counsel, October 29, 2003) at 4-5.

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Memoranda in Support of Motions for New Trial and Judgment of Acquittal and supporting memorandum on July 26, 2004, detailing various burdens upon defense counsel. This Court granted the This extension

Motion to Permit Late Filing on August 5, 2004.

was ineffective because it was granted outside the seven-day limit of both Rule 29 and Rule 33. Thus, irrespective of

whatever burdens were upon Defense counsel, this Court had no jurisdiction to entertain any motions filed outside these time limitations. See e.g., Carlisle, 517 U.S. at 421 ("There is

simply no room in the text of Rules 29 and 45(b) for the granting of an untimely postverdict motion for judgment of acquittal, regardless of whether the motion is accompanied by a claim of legal innocence, is filed before sentencing, or was filed late because of attorney error."). Id.

Arguably, even if defense counsel's oral motion on October 29, 2003, the sum and substance of which was "I guess I am making the motions now," satisfied the time limitations of Rules 29 and 33, Defendant's motions would still be deemed inadequate because he failed to timely comply with the local rule. States v. Yeatts, 639 F.2d 1186, 1188-89 (5th See United Cir.), cert.

denied, 452 U.S. 964 (1981) (holding that, because Defendant "failed to accompany his motion with a memorandum of law citing supporting authorities and allegations of fact relied upon and 11

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required

by

the

local

rules

of

the Id.

district

court,"

he

effectively abandoned his motion). Procedure involving 7(a)(1) disputed provides, issues of in

Local Rule of Civil part: "Any motion by a

pertinent shall be

law

accompanied

written memorandum of law and shall indicate in the lower margin of the motion whether oral argument is requested. Failure to

submit a memorandum may be deemed sufficient cause to deny the motion." Defendant D. CONN . L. CIV . R. 7(a)(1); D. CONN . L. CR . R. 1(c). requested 30 days within which to brief his oral

motions, the Government did not object, and this Court granted his request for extension. However, more than 8 months passed On July 7,

before Defendant filed his supporting memoranda.

2004, 252 days after the jury's verdict, Defendant filed his written memorandum in support of his oral motion for judgment of acquittal. Defendant's written memorandum in support of his oral

motion for a new trial was filed on July 9, 2004, 254 days after the jury's verdict. And, finally, Defendant filed his Motion to

Permit Late Filing of Memoranda in Support of Motions for New Trial and Judgment of Acquittal on July 26, 2004, 271 days after the jury's verdict. the jury verdict, Defendant made no substantive argument after and waited over 8 months to file any

substantive argument.

Under the plain language of Federal Rules

of Criminal Procedure 29 and 33 this court lacks jurisdiction to 12

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hear Defendant's claims.

And under Rule 45(b) this court is

explicitly prohibited from granting an extension beyond those permitted in the Rules themselves. Therefore, this Court has no

jurisdiction to entertain Defendant's motions for judgment of acquittal and new trial. However, if this Court had jurisdiction

over Defendant's claims, his motions would be DENIED. II. Defendant's Motion for Judgment of Acquittal A. Legal Standard Rule 29(a) of the Federal Rules of Criminal Procedure

provides, in pertinent part, that the Court, on a defendant's motion, "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." FED. R. CRIM . P. 29(a). A district court can enter a judgment of

acquittal where the evidence is insufficient "only if, after viewing the evidence and in the all light most favorable inferences to in the the

prosecution

drawing

reasonable

government's favor, it concludes no rational trier of fact could have found the defendant guilty beyond a reasonable doubt."

United States v. Reyes, 302 F.3d 48, 52 (2d Cir. 2002) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). See also

United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999). When considering a motion for a judgment of acquittal, "the court must be careful to avoid usurping the role of the jury." 13 Id. at

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129.

The court must give "full play to the right of the jury to

determine credibility, weigh the evidence, and draw justifiable inferences of fact" in determining whether a reasonable mind might fairly conclude guilt beyond Id. a reasonable doubt was

established upon the evidence.

(quoting United States v. A Rule 29 motion

Mariani, 725 F.2d 862, 865 (2d Cir. 1984)).

does not give the trial court "an opportunity to substitute its own determination of the weight of the evidence and the

reasonable inferences to be drawn for that of the jury." Id. (internal quotations and citation omitted). The Court "consider[s] the evidence in its totality, not in isolation," United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) (internal citation omitted) and "the government need not `exclude every reasonable hypothesis other than that of guilt.'" Guadagna at 130 (quoting Holland v. United States, 348 U.S. 121, 139 (1954)). verdict based In addition, a jury is entitled to reach its "entirely on circumstantial evidence." United

States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995) (citations omitted). A defendant therefore "shoulders a heavy burden" in

bringing a challenge to the weight of the evidence supporting a conviction. Autuori, 212 F.3d at 114 (internal quotations and With these principles in mind, the Court now in Defendant's 14 Motion for Judgment of

citation omitted). turns to the

claims

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Acquittal. B. 18 U.S.C. § 666 ­ Counts Three and Seven In Defendant sufficient corrupt support asserts evidence of his motion the for judgment failed of to acquittal, put forth

that to

Government a

establish

nexus

between Counts

Silvester's Three and

activity

and

federal

funding

under

Seven,3 and Defendant mounts a facial challenge to 18 U.S.C. § 666 on the ground that section 666 is an unconstitutional See

exercise of Congress's powers under the Spending Clause.

Memorandum in Support of Ben Andrews's Motion for Judgment of Acquittal ("Defendant's Mem. Acq.") at 4-12. Title 18 U.S.C. § 666 proscribes, inter alia, bribery of state government officials where the thing of value involved in the bribe is $5,000 or more, and the state government receives federal funds in excess of $10,000 in any one-year period.4
3

Defendant argues for a nexus requirement with regard to Counts Four and Seven, see Defendant's Mem. Acq. at 4, but it is apparent Defendant means Counts Three and Seven, as Count Four does not charge Andrews under section 666. 4 18 U.S.C. § 666, entitled "Theft or bribery concerning programs receiving Federal funds," provides, in relevant part, that: (a) Whoever, if the circumstance described in subsection (b) of this section exists-(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof-- . . . (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $ 5,000 or more; or (2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $ 5,000 or

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Defendant's argument, that the Government had to prove a nexus between Silvester's corrupt activity and federal funding, is based on the holdings in United States v. Santopietro, 166 F.3d 88, 93 (2d Cir. 1999); and United States v. Zwick, 199 F.3d 672, 682 n.7 (3d Cir. 1999), which both required proof of a nexus between forbidden conduct and federal funds under 18 U.S.C. § 666. However, these holdings were abrogated by Sabri v. United Defendant did not

States, 541 U.S. 600, 124 S. Ct. 1941 (2004).

address the holding in Sabri in his memorandum in support of his motion for judgment of acquittal, even though the holding was announced on May 17, 2004, and Defendant did not file his

memorandum until July 7, 2004.5
more; shall be fined under this title, imprisoned not more than 10 years, or both. (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $ 10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. 18 U.S.C. § 666. 5 The Government argues that Sabri is dispositive of these issues in its Reply to Defendant's Motions for Judgment of Acquittal and New Trial [Doc. No. 897]. In his reply, Defendant argues that Sabri is distinguishable from the instant case because Sabri involved a straightforward bribe while here, 1) the situation is "far more complicated," because the giver of the bribe (Landmark) had no idea it was giving a bribe or receiving a benefit as a result of the bribe; and 2) it was unclear here whether the bribe was a) an offer to indirectly pay Silvester; b) the awarding of a consulting contract to Stack; c) Rogers & Wells's hiring of Andrews; or d) contributions to Silvester's campaign. Defendant further argues that Sabri can be distinguished from the instant case because, in Sabri, the Government asserted they could prove a nexus between the Defendant's conduct and the federal funds. Defendant's Reply to Government's Reply to His Motions for Judgment of Acquittal and New Trial ("Defendant's Reply") [Doc. No. 900] at 2-3. These arguments are unavailing. In Count Three, under 18 U.S.C. § 666(a)(1)(B) and 2, the issue was whether Andrews specifically intended and understood that the thing of value, the consulting contract he received with Landmark, was intended to influence Silvester's official action, the investment of $100 million in state pension assets with Landmark. Whether Landmark knew it was giving a bribe is immaterial.

16

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In indicted

Sabri, under

the

defendant,

a

real for

estate offering

developer, three

was

section

666(a)(2)

separate

bribes in connection with a proposed hotel development in the city of Minneapolis. to section of a Like 666, Andrews, Sabri mounted it a facial not and

challenge require

arguing

that the

because

does

evidence

nexus

between

alleged

bribes

federal funds paid to the city of Minneapolis and the Minneapolis Community Development Agency, the statute exceeds Congress's 124 S. Ct.

reach under Article I, Section 8 of the Constitution. at 1944-46.

Sabri argued that the existence of such a nexus

should have been an element of the offense, to be charged in the indictment and proved at trial beyond a reasonable doubt. Id.

The Supreme Court dismissed this argument, holding that, contrary to Andrews's assertions, the Government is not required to

demonstrate a nexus between the federal funds and acts charged under 18 U.S.C. § 666, and the Court held that section 666 was a legitimate exercise of Congress's authority under the Spending Clause. Id. at 1946-47. As the Court stated in Sabri:

Congress has authority under the Spending Clause to appropriate federal monies to promote the general welfare, Art. 1, § 8, cl. 1, and it has corresponding authority under the Necessary and Proper Clause, Art. 1, § 8, cl. 18, to see to it that taxpayer dollars appropriated under that power are in fact spent for the general welfare, and not frittered away in graft or on projects undetermined when funds are siphoned off or corrupt public officers are derelict about demanding value for dollars. 17

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Id. at 1946. Therefore, when it comes to a legitimate interest under Article I, Congress can do more than simply "sit by" and accept the risk that federal appropriations for the general welfare might be "thwarted by local and state improbity." enact laws such as section 666(a)(2), which Id. It can the

"addresses

problem at the sources of bribes, by rational means, to safeguard the integrity of the Id. at trial State established of and that the with of federal grants, financial state, local and tribal recipients of

federal dollars." The government contracts, evidence

provides loans,

the

Connecticut other forms

subsidies,

assistance in excess of $10,000.

Additionally, the evidence

established that 50,000 Connecticut state employees are paid by federal grants, which include fringe benefits, such as As

contributions to the CRPTF administered by the Treasurer.

Andrews notes in his brief, the Government did not determine the number of dollars included in the $150 million Landmark

investment that had been federal funds earmarked for pension fund contributions. be "traceably It need not have. skimmed from Every bribe or kickback cannot federal payments." Id.

specific

"Money is fungible, . . . [and] can be drained off here because a federal grant is pouring in there." 18 Id. Here, as in Sabri,

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"[i]t is certainly enough that [section 666] condition[s] the offense on a threshold amount of federal dollars defining the federal interest, such as that provided here, and on a bribe that goes well beyond liquor and cigars." Id. at 1946. The evidence

was therefore sufficient for a reasonable jury to find that the weight of the evidence went in the Government's favor on Counts Three and Seven, and Defendant's jurisdictional challenge fails. If Defendant's motion were properly before this Court,

Defendant's motion for judgment of acquittal on this ground would be DENIED. C. Constructive Amendment or Prejudicial Variance of the

Indictment ­ Counts 3, 4-6, 7-9 In further support of his motion for judgment of acquittal, Defendant argues that the Indictment was constructively amended, or alternatively, that there was a prejudicial variance between the charges in the Indictment and the proof at trial. 1. Legal Standard A constructive amendment arises where the terms of an

indictment "are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.'" United States v. Rioux, 97 F.3d 19

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648, 661 (2d Cir. 1996) (quoting United States v. Mollica, 849 F.2d 723, 729 (2d Cir. 1988) (citation omitted)). Such an

amendment is a per se violation of the grand jury clause of the Fifth Amendment. Cir. 1998). However, constructively narrowing amend the scope "Where of an indictment are does not United States v. Frank, 156 F.3d 332, 338 (2d

it.

charges

`constructively

narrowed' or where a generally framed indictment encompasses the specific legal theory or evidence used at trial, no constructive amendment occurs." (2d Cir. 1995). United States v. Wallace, 59 F.3d 333, 337

"As long as the crime and the elements of the

offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime" than that proved at trial. (1985)). Id. (quoting United States v. Miller, 471 U.S. 130, 136 Cf. United States v. Jesperson, 65 F.3d 993, 1002 (2d

Cir. 1995). Alternatively, a variance occurs where the terms of the indictment proves are unaltered, but the evidence from offered at trial the

facts

materially

different

those

alleged

in

indictment.

United States v. Mucciante, 21 F.3d 1228, 1236 (2d Since "a variance does not

Cir. 1994); Wallace, 59 F.3d at 338. 20

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broaden the possible basis for conviction beyond that contained in the indictment, []a defendant must demonstrate substantial prejudice to prevail on a claim of variance." United States v.

LaSpina, 299 F.3d 165, 183 (2d Cir. 2002) (internal quotations and citations omitted). The evidence at trial, however, "need not, indeed cannot, be a precise replica of the charges contained in an indictment." United States v. Heimann, 705 F.2d 662, 666 (2d Cir. 1983). Provided that a to defendant be proven was at given trial, notice the of the "core of has

criminality" "consistently

Second

Circuit in

permitted

significant

flexibility

proof."

Jesperson, 65 F.3d at 1001 (citations omitted). It is well established that a variance is "immaterial ­ and hence not prejudicial ­ `where where the the allegation variance is and not proof of a

substantially

correspond,

character that could have misled the defendant at the trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense.'" omitted). 2. Counts Three and Seven Mucciante, 21 F.3d at 1236 (citation and quotations

Defendant argues that, with respect to Count Three, the Indictment charged that he aided 21 and abetted Silvester to

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solicit, demand, accept and agree to accept . . . a consulting contract valued at approximately of the case $1 was million," that either while the

Government's

theory

Silvester

obtained monies, Defendant received a contract, Stack received a contract, or that Silvester obtained political contributions.6 Defendant's Mem. Acq. at 16. Defendant makes no specific

argument with regard to Count Seven.7 Andrews was charged under Counts Three and Seven with

bribery concerning programs receiving federal funds in violation of Title 18, U.S.C. § 666. under §§ 666(a)(1)(B) and 2. In Count Three, Andrews was charged Count Three alleged, in part:

Between in or about April, 1998 and July, 1999, in the District of Connecticut and elsewhere, defendant BEN F. ANDREWS, Christopher Stack and others, known and unknown to the Grand Jury, did aid and abet Paul J. Silvester, knowingly, willfully and corruptly to solicit, demand, accept and agree to accept a thing of value, that is a consulting contract valued at

approximately $1 million, intending to be influenced and rewarded

6

Defendant's argument that the Indictment was constructively amended by an alternate theory presented by the Government with respect to the thing of value in Count Three, that Silvester had obtained political contributions, is unavailing here. The Government did not argue that such a finding would have satisfied an element of section 666, and the Court did not charge the jury that they could find against the Defendant under Count Three if the thing of value had been proven to be political contributions. 7 Defendant makes an argument with regard to counts seven, eight and nine at page 17 of his motion for acquittal, but this Court believes he means to argue with regard to counts eight and nine, which charged a common mail/wire fraud scheme.

22

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in

connection

with of

the

business, Connecticut

transaction, State or

and

series

of

transactions involving a

the of

Treasurer's more, that

Office is the

thing

value

of

$5,000

investment of $100 million of state pension assets with Fund A [Landmark]. This Court's instruction to the jury on the second element of Count Three read in pertinent part, that: In Count 3, the Indictment alleges that the thing of value was a consulting contract to the defendant worth $1 million. In order to find this element satisfied for Count 3, you must find beyond a reasonable doubt that Paul Silvester solicited or demanded the $1 million contract for the benefit of any person, including the defendant, Christopher Stack, or Silvester himself, or that Silvester accepted or agreed to accept that contract.8 Jury Instructions, United States v. Andrews, 3:00CR217(EBB) at 33. Count Three charged Andrews with aiding and abetting

Silvester's corrupt acceptance of a consulting contract valued at
8

The Court's instruction to the Jury on the second element of Count Three was as follows: Count 3 ­ § 666 ­ Second Element ­ "A thing of value" The second element that the government must prove beyond a reasonable doubt is that Paul Silvester solicited or demanded for the benefit of any person, or accepted or agreed to accept, a thing of value from any person. "A thing of value" means any money, property or other thing which Paul Silvester subjectively believed had value. In Count 3, the Indictment alleges that the thing of value was a consulting contract to the defendant worth $1 million. In order to find this element satisfied for Count 3, you must find beyond a reasonable doubt that Paul Silvester solicited or demanded the $1 million contract for the benefit of any person, including the defendant, Christopher Stack, or Silvester himself, or that Silvester accepted or agreed to accept that contract. Jury Instructions, United States v. Andrews, 3:00CR217(EBB) at 33. These excerpts are from the final written charge. No transcript of the charge has been prepared.

23

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approximately $1 million.

The Indictment does not specify the

party who benefited from that contract, and it need not, as under the statute, the bribe can be given "for the benefit of any person." 18 U.S.C. § 666(a)(1)(B). The Government need only

have proven, as the jury was charged, that Silvester solicited or demanded the $1 million contract "for the benefit of any person, including the defendant, Christopher Stack, or Silvester himself, or that Silvester accepted or agreed to accept that contract." Silvester testified that he solicited the consulting contract to take care of his friends, Andrews and Stack, and that he "was feathering [his] own nest in the process." Tr. Vol. 5 (Excerpt,

Testimony of Paul Silvester 10/20/2003) at 123. This Court's instruction, along with the proof at trial, permissibly narrowed the general language of the Indictment.

Wallace, 59 F.3d at 337.

Thus, the Indictment was framed in

general terms which encompassed the specific legal theory used at trial, that Silvester corruptly solicited, demanded, accepted and agreed to accept a thing and of value, namely, was the no $1 million

consulting

contract,

therefore

there

constructive Id. U.S.C. §§

amendment of the Indictment with regard to Count Three. In Count Seven, Andrews was charged under 18

666(a)(2) and 2.

Count Seven alleged, in part:

Beginning in or about November, 1998 and continuing through in or about July, 1999, in the District of 24

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Connecticut and elsewhere, defendant BEN F. ANDREWS, Christopher Stack and others, known and unknown to the Grand Jury, knowingly, willfully and corruptly gave, offered, and agreed to give a thing of value, that is money to Christopher A. Stack and Paul J. Silvester, with the intent to influence and reward an agent of a State government, Paul J. Silvester, in connection with the business, transaction or series of transactions of the Connecticut State Treasurer's Office involving a thing of value of $5,000 or more, that is a $50 million increase in the investment of state pension assets with Fund A [Landmark]. This Court's instruction on Count Seven stated, in part, that "Count 7 of the indictment alleges that the thing of value was money to Christopher Stack and Paul Silvester." Jury

Instructions, United States v. Andrews, 3:00CR217(EBB) at 43. This instruction directly tracks the language of the Indictment, and testimony at trial from Stack and Silvester corresponds to the charging language in the Indictment, and thus there was no constructive amendment with respect to Count Seven. 3. Counts Four through Six

Defendant argues that, with respect to Counts Four through Six, the Indictment encompassed only three "theories of the thing of value," while the Government argued a fourth theory:

Defendant's agreement to make Christopher Stack a partner in the Rogers & Wells consulting contract. Defendant argues that

therefore, "the jury could have found that [he] did not know that Christopher Stack agreed to provide moneys [sic] to Sylvester [sic], and that [he] had obtained the Rogers & Wells contract on 25

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his own merits, but that the fraudulent payoff was the payment to Sylvester's [sic] friend Stack ­ a theory not set forth in the indictment." Defendant's Mem. Acq. at 16-17.

Andrews was charged under Counts Four through Six with a scheme to defraud in violation of Title 18 U.S.C. §§ 1341, 1343, 1346 and 2.9 "[¶3] The Indictment alleged, inter alia, that: Beginning in or about April, 1998 and continuing

through in or about July, 1999, defendant BEN F. ANDREWS, along with Paul J. Silvester, Christopher Stack and others" devised "a scheme and artifice of their to defraud to and the deprive State the citizenry Paul of J.

Connecticut
9

right

Treasurer

Counts Four through Six charged, in relevant part: 3. Beginning in or about April, 1998 and continuing through in or about July, 1999, defendant BEN F. ANDREWS, along with Paul J. Silvester, Christopher Stack and others, known and unknown to the Grand Jury, in the District of Connecticut and elsewhere, devised and intended to devise a scheme and artifice to defraud and deprive the citizenry of Connecticut of their right to the State Treasurer Paul J. Silvester's honest services, performed free from deceit, favoritism, bias, conflict of interest and self-enrichment. 4. The purpose of the scheme was for defendant BEN F. ANDREWS, together with Paul J. Silvester and Christopher A. Stack, to use the Connecticut State Treasurer's Office to enrich themselves through the improper exercise of Paul J. Silvester's official position and with the intent to deceive the citizenry of Connecticut. 5. It was part of the scheme and artifice to defraud that Paul J. Silvester solicited a consulting contract for defendant BEN F. ANDREWS from Fund A [Landmark] while at the same time Paul J. Silvester used his official position to benefit Fund A through the investment of $100 million of state pension assets. 6. It was further part of the scheme and artifice to defraud that defendant BEN F. ANDREWS provided financial support to the "Silvester for State Treasurer" Campaign, in circumvention of state laws, when Paul J. Silvester used his official position to the advantage of defendant BEN F. ANDREWS. 7. It was further part of the scheme and artifice to defraud that defendant BEN F. ANDREWS agreed that one-half of the corrupt payment from the investment of state pension assets with Fund A be paid to KCATS, LLC, a company wholly owned by Christopher A. Stack, with the knowledge that a portion of the money would be kicked back to Paul J. Silvester.

26

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Silvester's

honest

services";

"[¶5]

that

Paul

J.

Silvester

solicited a consulting contract for defendant BEN F. ANDREWS from Fund A [Landmark]"; "[¶6] that defendant BEN F. ANDREWS provided financial Campaign, support in to the "Silvester of state for laws"; State and Treasurer" "[¶7] that

circumvention

defendant BEN F. ANDREWS agreed that one-half of the corrupt payment from the investment of state pension assets with Fund A be paid to KCATS, LLC, a company wholly owned by Christopher A. Stack, with the knowledge that a portion of the money would be kicked back to Paul J. Silvester." Part of this Court's instructions to the jury on the first element of mail and wire fraud, the existence of a scheme or artifice, under Counts Four through Six and Eight through Ten, referred follows: Counts 4, 5, and 6 involve a consulting contract between Defendant and Landmark. Specifically, the Indictment alleges that Silvester solicited a consulting contract for the defendant from Landmark in exchange for a $100 million investment of state pension assets and that defendant knowingly agreed that onehalf of the money he received from Landmark would be paid to Stack who would kick back a portion to Silvester. As I have already instructed you, in order to find that the consulting contract constitutes a corrupt payment, you must find that the defendant aided and abetted Paul Silvester in soliciting, demanding, accepting, or agreeing to accept the benefit and that the defendant knew and intended that Silvester was acting with the corrupt intent to be influenced or 27 specifically to Counts Four through Six in part as

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rewarded in connection with the investment of state pension funds with Landmark. This Court also instructed the jury with regard to Counts Four through Six (and Eight through Ten) as follows: In regards to all of these counts, the government must prove that the defendant knew that Silvester had an undisclosed and improper motivation to invest or increase the investment of state pension assets with Landmark, that is, to enrich the defendant, Christopher Stack, or Paul Silvester. The government need not prove that the defendant was aware of all of Silvester's unlawful purposes. The government only needs to prove that the defendant knew of one of these unlawful purposes. Jury Instructions, United States v. Andrews, 3:00CR217(EBB) at 50-52. This Court's instructions to the jury required a finding that Andrews "knew and intended that Silvester was acting with the corrupt intent to be influenced or rewarded" in connection with the Landmark investment, and that Andrews "knew that

Silvester had an undisclosed and improper motivation to invest or increase the investment of state pension assets with Landmark, that is, to enrich the defendant, Christopher Stack, or Paul Silvester." Id. And, the Indictment charged that "[t]he purpose

of the scheme and artifice to defraud was for BEN F. ANDREWS, together with Paul J. Silvester and Christopher A. Stack, to use the Connecticut State Treasurer's Office to enrich themselves." See Counts Four through Six, ¶4, Indictment. 28 Thus, contrary to

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Defendant's assertions, the jury, given those instructions, could not have found him guilty based upon his receipt of a consulting contract on his own merits which resulted in an innocent and unknowing extension of a benefit to Stack. Furthermore,

Silvester testified that he, Andrews and Stack discussed the Landmark consulting deal at a clam bar the night of the Prescott Bush dinner, and he told Andrews and Stack that he wanted them to work out a way for them both to get paid on the deal. at 148-53. Tr. Vol. 4

Silvester also testified that he spoke with Andrews

after this initial meeting, and that Andrews told him that Stack was being difficult, and having Stack in the deal would cost Silvester more than it otherwise would. Tr. Vol. 4 at 157-60. A

reasonable jury could infer that Andrews's role in the deal did not result in an innocent, unknowing benefit to Stack, but

rather, that Andrews knew Silvester was acting with the corrupt intent to be influenced or rewarded, and that Silvester had an undisclosed, investment of improper state motivation pension to invest with or increase the

assets

Landmark.

Because

neither the Court's instructions to the jury nor the evidence at trial modified the Indictment with regard to Counts Four through Six, Defendant was not "convicted of an offense other than that charged in the indictment," and therefore, there was no

constructive amendment of Counts Four through Six. 29

Rioux, 97

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F.3d at 661. 4. Counts Eight and Nine

In further support of his motion for judgment of acquittal, Defendant argues that, with respect to Counts Eight and Nine, the Indictment did not set forth the Government's theory that "the corrupt payment was the awarding of the contract to Mr. Andrews himself." Defendant's Mem. Acq. at 17.10

Andrews was charged under Counts Eight through Ten with a scheme and artifice to defraud in violation of Title 18, U.S.C. §§ 1341, 1346 and 2.11 The Indictment alleged, inter alia: "[¶2]

10 As stated supra, although Defendant argues that there was a constructive amendment with respect to "counts seven, eight and nine," Defendant seems to mean Counts Eight, Nine and Ten. Defendant was acquitted on Count Ten, so this Court does not address that count except as encompassed in the charge. 11 Counts Eight through Ten instructed the jury, in relevant part: 2. Beginning in or about November, 1998 and continuing through in or about July, 1999, defendant BEN F. ANDREWS, along with Paul J. Silvester, Christopher Stack and others, known and unknown to the Grand Jury, in the District of Connecticut and elsewhere, devised and intended to devise a scheme and artifice to defraud and deprive the citizenry of Connecticut of their right to the incumbent Connecticut State Treasurer Paul J. Silvester's honest services, performed free from deceit, favoritism, bias, conflict of interest and self-enrichment. 3. The purpose of the scheme and artifice to defraud was for BEN F. ANDREWS, together with Paul J. Silvester and Christopher A. Stack, to use the Connecticut State Treasurer's Office to enrich themselves through the improper exercise of Paul J. Silvester's official position and with the intent to deceive the citizenry of Connecticut. 4. It was part of the scheme and artifice to defraud that, after Paul J. Silvester's November 3, 1998 defeat for State Treasurer, defendant BEN F. ANDREWS came to Paul J. Silvester and asked him to invest more money in Fund A [Landmark] before Paul J. Silvester left office. 5. It was further part of the scheme and artifice to defraud that the increase of state pension assets with Fund A would result in a financial benefit to defendant BEN F. ANDREWS. 6. It was further part of the scheme and artifice to defraud that defendant BEN F. ANDREWS agreed that one-half of the payment that he would receive from the increase in the investment of state pension assets with Fund A would be paid to KCATS, LLC, a company wholly owned by Christopher A. Stack, with the understanding that Christopher A. Stack was to kick back a portion of that money to Paul J. Silvester. As a result of the scheme and artifice to defraud, the citizens of Connecticut were deprived of the honest services of

30

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Beginning in or about November, 1998 and continuing through in or about July, 1999, defendant BEN F. ANDREWS, along with Paul J. Silvester, Christopher Stack and others," "devised and intended to devise a of scheme and artifice of to defraud right and deprive the

citizenry

Connecticut

their

to

the

incumbent

Connecticut State Treasurer Paul J. Silvester's honest services"; "[¶3] [t]he purpose of the scheme and artifice to defraud was for BEN F. ANDREWS, together with Paul J. Silvester and Christopher A. Stack, to use the Connecticut State Treasurer's Office to enrich themselves through the improper exercise of Paul J.

Silvester's official position"; ""[¶4] after Paul J. Silvester's November 3, 1998 defeat for State Treasurer, defendant BEN F. ANDREWS came to Paul J. Silvester and asked him to invest more money in Fund A [Landmark]"; "[¶5] that the increase of state pension assets with Fund A would result in a financial benefit to defendant BEN F. ANDREWS"; "[¶6] that defendant BEN F. ANDREWS agreed that one-half of the payment that he would receive from the increase in the investment of state pension assets with Fund A would be paid to KCATS, LLC, a company wholly owned by

Paul J. Silvester in that Silvester had an undisclosed and improper motivation to increase the state pension assets invested with Fund A, that is to enrich ANDREWS, Christopher A. Stack and himself. 7. After reaching an agreement with defendant BEN F. ANDREWS that Christopher A. Stack would be paid because of the increase in the investment of state pension assets with Fund A, and on or about December, 11, 1998, Paul J. Silvester authorized a $50 million increase of state pension assets with Fund A.

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Christopher A. Stack, with the understanding that Christopher A. Stack was to kick back a portion of that money an to Paul J.

Silvester";

and

"[¶7]

[a]fter

reaching

agreement

with

defendant BEN F. ANDREWS that Christopher A. Stack would be paid because of the increase in the investment of state pension assets with Fund A, and on or about December, 11, 1998, Paul J.

Silvester authorized a $50 million increase of state pension assets with Fund A." This Court's instruction to the jury contained the same language that pertained to Counts Four through Six, and

specifically, in regard to Counts Eight through Ten, provided that: With respect to the payments charged in Counts 8, 9 and 10, which relate to the $50 million increase of state pension assets with Landmark, you must find that the defendant offered, gave, or agreed to give a benefit knowingly, and with the intent to influence the public official in the performance of his official duties. In other words, that the defendant intended and understood that the benefit was in exchange for an official act to be performed by Silvester. Jury Instructions, United States v. Andrews, 3:00CR217(EBB) at 51. Defendant argues that the Government put forth a new theory at trial which constructively amended the Indictment: that the corrupt payment under Counts Eight and Nine was the Landmark consulting contract awarded to Defendant himself. 32 This argument

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is

unpersuasive

here,

since

this

theory,

that

the

largesse

received by Defendant was one of the means by which Silvester was to receive a benefit, is encompassed in the plain language of Counts Eight through Ten of the Indictment. Paragraph Three

states that Defendant, Stack and Silvester sought to "enrich themselves" through the improper exercise of Silvester's official position. Counts Eight through Ten, ¶3, Indictment.

Furthermore, the Indictment charged that "the increase of state pension assets" with Landmark "would result in a financial

benefit to defendant BEN F. ANDREWS," and that Silvester had an improper motive to increase the state pension funds invested with Landmark, "to enrich ANDREWS, Christopher A. Stack and himself." Counts Eight through Ten, ¶¶ 5 and 6, Indictment. Defendant's final argument with regard to Counts Three,

Four, Five, Six, Eight and Nine is that, even if a constructive amendment did not occur, prejudicial variance did, because "the four different manners in which the jury might find that

Sylvester [sic] had received a thing of value are not all set forth in the [Indictment]." Defendant's Mem. Acq. at 17-18.

Defendant further argues that the Government's suggestion that "Silvester's corrupt action may have been placing the investment with Smith While [sic]" led to a substantial variance between the

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allegations set forth in the Indictment and the proof at trial. Id. Defendant prevail on a must claim demonstrate of variance. "substantial LaSpina, 299 prejudice" F.3d at to 183.

Defendant has offered no proof that the evidence at trial proved facts materially different from those alleged in the Indictment. Mucciante, 21 F.3d at 1236. Furthermore, the Government did not

argue, and this Court did not instruct the jury, that the Smith Whiley deal was the corrupt action by Silvester that gave rise to criminal liability. Defendant was given notice of the "core of criminality" to be proven at trial. Defendant's arguments, Jesperson, 65 F.3d at 1001. that the Indictment was Therefore,

constructively

amended or that the proof at trial led to a prejudicial variance, are unavailing. If Defendant's motion were properly before this

Court, his motion for judgment of acquittal on these grounds would be DENIED. D. False statement ­ Count Twelve12 Defendant's final argument for judgment of acquittal is that the wording of the Indictment pertaining to the arrangement made with Stack regarding the Landmark deal was vague, and that

12 In Defendant's oral motion for judgment of acquittal, made at the close of the Government's case-in-chief, he moved for acquittal on Count 11, charging him with money laundering. Defendant has not moved for judgment of acquittal on this count in his written motion, so this Court deems the claim abandoned.

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Defendant's

statement

to

special

agents

of

the

FBI

and

IRS

related to the Landmark deal "was not false and certainly was not willfully so." The Defendant's Mem. Acq. at 22. charged that Andrews "did knowingly and

Indictment

willfully make a materially false, fictitious, and fraudulent statement and representation, in that defendant BEN F. ANDREWS told special agents of the FBI and of the IRS-CID . . . that he (ANDREWS) had contacted Christopher Stack to become involved in an investment deal by he the felt State that of Connecticut would be with Fund A in

[Landmark]

because

Stack

helpful

finalizing the deal with the Treasurer, but that he (ANDREWS) had not discussed this arrangement with Stack in front of Paul J. Silvester, when in truth and in fact, as the defendant BEN F. ANDREWS there and then well knew, . . . Paul Silvester directed ANDREWS to take on Christopher Stack as a partner and split the payment resulting from the investment with Fund A."
13

13

Count Twelve of the Indictment charged, in pertinent part, as follows: 2. On or about July 16, 1999, in the District of Connecticut, defendant, BEN F. ANDREWS, in a matter within the jurisdiction of the Federal Bureau of Investigation ("F.B.I.") and the Internal Revenue Service Criminal Investigative Division ("IRS-CID"), both agencies of the executive branch of the Government of the United States, did knowingly and willfully make a materially false, fictitious, and fraudulent statement and representation, in that defendant BEN F. ANDREWS told special agents of the FBI and of the IRSCID who were then investigating the actions of Paul J. Silvester, the former Treasurer for the State of Connecticut, that he (ANDREWS) had contacted Christopher Stack to become involved in an investment deal by the State of Connecticut with Fund A because he felt that Stack would be helpful in finalizing the deal with the Treasurer, but that he (ANDREWS) had not discussed this arrangement with Stack in front of Paul J. Silvester, when in truth and in fact, as the defendant BEN F. ANDREWS there and then well knew, after defendant BEN F. ANDREWS had offered to kickback to Paul Silvester a portion of the fees that ANDREWS would earn from the investment of state

35

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In his reply to the Government's response to his motions for judgment of acquittal and new trial, Defendant states that "it seems undisputed that [he] never discussed with Sylvester [sic] the precise nature of the arrangements by which Rogers and Wells transmitted one-half of his consulting payments to him, and the other half to Stack." Defendant Ben Andrews's Reply to

Government's Reply to his Motions for Judgment of Acquittal and New Trial [Doc. No. 900] at 4. this Court agrees. After reviewing the testimony,

Silvester testified that he told Andrews to

put Stack into the deal, and he left it to them to work out the "precise nature" of the arrangements. However, this Court does

not agree that Count Twelve required the Government to prove that Silvester and Andrews discussed "the precise nature of the

arrangements."

Rather, the Government had only to prove that

Andrews had discussed the arrangement to include Stack in the deal in front of Silvester, and then had knowingly and willfully told the special agents of the FBI and IRS-CID that he had not. In considering Defendant's arguments, this Court "must be careful to avoid usurping the role of the jury." Guadagna, 183 F.3d at 129. A Rule 29 motion does not give this Court "an

opportunity to substitute its own determination of the weight of the evidence and the reasonable inferences to be drawn for that
pension assets with Fund A, Paul Silvester directed ANDREWS to take on Christopher Stack as a partner and split the payment resulting from the investment with Fund A.

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of the jury."

Id.

Agent McTague testified that Andrews told him

he had never discussed "his arrangement with Stack for splitting fees" in front of Silvester. Silvester testified that when he

discussed the state's $100 million investment in Landmark with Andrews, Andrews inquired as to how Silvester might want his share, and whether or not "[his] boy" in New York should be taken care of. Silvester further testified that he met with Andrews

and Stack at the clam bar after the Prescott Bush dinner, and discussed the fee-splitting arrangement. Stack testified that

Silvester told Andrews to split the fee in the Landmark deal with Stack at the meeting at the clam bar, and that this was the first time Andrews had discussed the fee-splitting deal with Stack. However, Andrews testified that Silvester did not demand Stack be cut into the Landmark deal at that meeting at the clam bar, and that the only reference he (Andrews) made to Stack with Silvester present was that as the meeting was breaking up, Andrews reminded Stack that they would be meeting the following day. This Court

cannot say that a reasonable jury could not have weighed the testimony from Agent McTague, Silvester, Stack and Andrews and concluded materially that Defendant knowingly and and willfully made a and

false,

fictitious,

fraudulent

statement

representation to the special agents of the FBI and IRS-CID.

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Consequently, were Defendant's motion properly before this Court, it would be DENIED as to this ground.

III. Defendant's Motion for New Trial A. Legal Standard Upon a defendant's motion, a "court may vacate any judgment and grant a new trial if the interest of justice so requires" pursuant to Rule 33 of the Federal Rules of Criminal Procedure. FED. R. CRIM . P. 33(a). A district court has broad discretion to

"set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." F.2d 1409, 1413 (2d Cir. 1992). United States v. Sanchez, 969

The Second Circuit has set forth

the standard for courts to follow in deciding a Rule 33 motion: The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice. The trial court must be satisfied that competent, satisfactory and sufficient evidence in the record supports the jury verdict. The district court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation. There must be a real concern that an innocent person may have been convicted. Generally, the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise the Rule 33 authority sparingly and in the most extraordinary circumstances. United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (internal citations and quotations omitted).

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B. Grants of witness immunity to compel testimony14 In support of his motion for a new trial, Defendant asserts that the Court improperly failed to compel the Government to grant statutory immunity to Jerome Wilson and Stanley Alfeld, two potential defense witnesses who both stated their intention to invoke their Fifth Amendment right against self-incrimination if called to testify. 18 U.S.C. §6003(a) gives district courts the power to compel testimony from individuals who would otherwise invoke the

privilege against self-incrimination "upon the request of the United States attorney for such district." An appeal to fairness

alone under the Fifth Amendment is unavailing, as "a criminal prosecution, unlike a civil trial, is in no sense a symmetrical proceeding." Cir. 1980). United States v. Turkish, 623 F.2d 769, 774 (2d In Turkish, the Second Circuit explained that, while

the fairness required by the Fifth Amendment protected defendants against prosecutorial overreaching, it "does not create general obligations for prosecutors or courts to obtain evidence

protected by lawful privileges."

Id. at 777.

Rather, the Second

Circuit has repeatedly held that the decision to grant immunity is "preeminently a function of the Executive Branch," and only in
Defendant's language, reasoning and citations in two paragraphs on page 6 of his brief closely track the language, reasoning and citations in two paragraphs from page 826 of United States v. Bahadar, 954 F.2d 821, 826 (2d Cir. 1995). Defendant has not cited Bahadar, so the Court assumes it is mere coincidence.
14

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rare instances will a court intervene. 954 F.2d 821, 825 (2d Cir. 1995)

United States v. Bahadar, (internal citations and

quotations omitted).

"[A]bsent extraordinary ci