U.S. v. AGNEW

3:03-CR-241(JCH)

2004 | Cited 0 times | D. Connecticut | May 25, 2004

RULING ON MOTION FOR JUDGMENT OF ACQUITTAL OR IN THE ALTERNATIVE FOR NEW TRIAL

Gary Agnew was indicted and convicted on fifteen counts of mail fraud,18 U.S.C. § 1341, and one count of federal employees compensation fraud,18 U.S.C. § 1920. He moves for judgment of acquittal or in thealternative for a new trial. For the following reasons, both motions aredenied.

I. FACTS

Mr. Agnew is a former U.S. Postal Service employee, who was classifiedas having a "total disability," and received monthly disabilitycompensation from the United States. In February 2001, the date in theindictment, Mr. Agnew had knee replacement surgery; he had additionalsurgeries in August 2001 and February 2002.

The government began conducting 215 days of video surveillance of Mr.Agnew's activities around the beginning of 2002. He was observed,videotaped, and audiotaped acting in what the jury could have reasonablyfound was a "sales" capacity at International Motorcars in Berlin,Connecticut. Mr. Agnew was observed and videotaped opening and closing the business, showing vehicles to customers, and taking them ontest drives.

Further, he also showed cars to undercover agents posing as customers.Mr. Agnew told these agents that he was "semi-retired," and that he hadbeen working with International Motorcars' owner, James Micca, "on andoff for eight years." [Ex. 61] He consistently used "we" to refer tohimself together with other International Motorcars workers. Forinstance, he was recorded as saying, "We took the place over and we aredoing about forty to fifty cars a month since August, we don't play, weput one, one price on the vehicles and we sell as low as we possibly can"[Ex. 52]; "before we took this over, we were strictly an internetcompany, we were buried in uh a industrial park in Hartford." [Ex. 56].

Further, Mr. Agnew said he worked for International Motorcars. He toldthe agents: "If they catch me lying to the customer, they'll can me" [Ex.56]; "there's like four of us who work here . . . we have one financeguy, one buyer. The lot guy and myself" [Ex. 57]; "We all work together,we all cover each other's back, but the four of us have been it. And we,we try not to interfere with the other guy's specialty's" [Ex. 57]; "Iget paid the same where (sic) I sell you this car, I sell you a Mercedes,or sell you the smallest car we got on the lot." [Ex. 56].

The government further presented evidence of checks made out to Mrs.Agnew that corresponded with the time in which the defendant wasperceived to be apparently working at International Motorcars. Thegovernment further presented a "washsheet," authored by Mr. Arnica andsegregated by year, indicating amounts associated with various vehiclesthat Micca identified as associated with Mr. Agnew. [Ex. 64]. The governmentalso presented evidence of checks from International Motorcars, made outto Mrs. Agnew, which the government argued were payments for Mr. Agnew'swork.

Finally, Mr. Agnew's physicians testified that they had no knowledge ofMr. Agnew's activities at International Motorcars. Instead, on February7, 2003, at the same time as videotapes showed Mr. Agnew performingvarious duties on the lot of International Motorcars, Mr. Agnew told onedoctor that he "walk[s] with his grandchild at home and performs errandsabout the house." [Ex. 45].

Further, the defendant did not inform his physicians of the nature ofthe limited duty copy room position which he had been offered by thePostal Service. Rather, Dr. Murray, who previously certified thedefendant as disabled, testified that he was under the impression thatMr. Agnew was a mail handler, and that if his position was actually towork in a copy room, the defendant would have been able to perform thattype of work.

Counts 1-15 of the indictment allege a scheme to defraud the UnitedStates, beginning on or about February 2001. The government contended,and the jury agreed, that Mr. Agnew made false representations to theUnited States Department of Labor and the Office of Workers'Compensation, and his own physicians, by concealing his ability to workand his activities at International Motorcars, Inc., a car dealership,and with concealing his receipt of compensation for his work atInternational Motorcars. In relation to Count 16, the jury convicted Mr.Agnew with making a material false statement in connection with an application for or receipt of federal workers' compensation benefitsby covering up his International Motorcars activities on an OWCPForm-1032.

II. DISCUSSION

A. Motion for Judgment of Acquittal

Rule 29(a) of the Federal Rules of Criminal Procedure provides thatdistrict courts "must enter a judgment of acquittal of any offense forwhich the evidence is insufficient to sustain a conviction."Fed.R.Crim.P. 29(a). "A defendant bears a heavy burden in challenging thesufficiency of the evidence." United States v. Henry, 325 F.3d 93, 103(2d Cir. 2003). In deciding such a motion, the court "view[s] theevidence in the light most favorable to the government and draw[s] allreasonable inferences in the government's favor." United States v.Johns, 324 F.3d 94, 97 (2d Cir. 2003). A jury's verdict must be sustainedunless "no rational trier of fact could have found the defendant guiltybeyond a reasonable doubt." United States v. Reyes, 302 F.3d 48, 52 (2dCir. 2002). However, a jury may not base its verdict on "purespeculation" or "guesswork." United States v. Thai, 29 F.3d 785, 818-19(2d Cir. 1994). The court "must determine whether upon the evidence,giving full play to the right of the jury to determine credibility, weighthe evidence, and draw justifiable inferences of fact, a reasonable mindmight fairly conclude guilt beyond a reasonable doubt." United States v.Autuori, 212 F.3d 105, 114 (2d Cir. 2000) (internal citations omitted).

B. Mail Fraud The essential elements of a mail fraud violation are " (1) a scheme todefraud, (2) money or property [as the object of the scheme], and (3) useof the mails [or wires] to further the scheme." Fountain v. UnitedStates, 357 F.3d 250, 256 (2004) (quoting Unit States v. Dinome,86 F.3d 277, 283 (2d Cir. 1996)). The jury could have reasonably foundall of these elements as to Mr. Agnew.

On the first element, Mr. Agnew argues that the defendant presented noevidence that Mr. Agnew "knowingly devised a scheme to defraud theGovernment." Def. Mem. at 3. A scheme to defraud may consist of numerouselements and can be supported by sufficient overall proof that a schemeexists. United States v. Amrep Corp., 560 F.2d 539 (2d Cir. 1977). Theterm is not intended to convey any technical meaning; it simply requiresa plan reasonably calculated to deceive persons of ordinary prudence andcomprehension. United States v. Goldman, 439 F. Supp. 337 (S.D.N.Y.1977).

The government's case included video and audiotape evidence of Mr.Agnew engaging in activities that the jury could reasonably have found tohave been "work" at International Motorcars; evidence of him receivingpayment through Mrs. Agnew from International Motorcars; and evidencethat he concealed his abilities and activities from his physicians inorder to continue to be classified as totally disabled. This and otherevidence was sufficient for the jury to conclude that Mr. Agnew knowinglydevised a scheme to defraud the United States government by continuing toreceive disability payments to which he was not entitled. The government also satisfied the other elements of the crime. Itpresented evidence that Mr. Agnew received 15 checks — each the subject ofa separate count — during the period of the indictment: one for$3185.49; five in the amount of $2071.28; and nine in the amount of$2081.16. This is sufficient to satisfy the "money or property"requirement. It also presented evidence that Mr. Agnew received thosechecks through the United States mail.

The government's evidence on all three elements was thus sufficient tosupport a reasonable determination that Mr. Agnew was guilty of mailfraud. The defendant's Motion for Judgment of Acquittal on Counts 1-15 isdenied.

C. False Statement

Count 16 charged Mr. Agnew with making a false statement to theDepartment of Labor when he submitted the OWCP Form 1032 on or about May15, 2002, and on that form concealed his ability to work and work andactivities at International Motorcars. The defendant argues that there isno evidence that he attempted to conceal his activities at InternationalMotorcars.

Mr. Agnew contends that he just "hung around" at InternationalMotorcars, and occasionally helped out for no pay. As discussed above,however, from the government's trial evidence, the jury could havereasonably inferred that Mr. Agnew was actually "working" atInternational Motorcars, and being compensated for that work; and,moreover, that he had misrepresented his condition to his physicians andwas capable of working and thus not "totally disabled." As the government arguedto the jury, the form provided Mr. Agnew with several opportunities todisclose his International Motorcars activities, regardless of whether hewas being compensated. The jury could have also concluded that Mr.Agnew's decision to list those activities on his 2003 form, after he hadlearned of the investigation, was evidence of an intent to conceal hisactivities by their omission on the 2002 form. In sum, there was ampleevidence from which the jury could have soundly concluded that Mr. Agnewwas able to work, and in fact worked at International Motorcars, and thathe concealed that fact on his OWCP form. As a result, the defendant'sMotion for Judgment of Acquittal on Count 16 is denied.

III. Motion for a New Trial

A. Standard

Rule 33 provides that the court may grant a new trial "if the interestof justice so requires." Fed.R.Crim.P. 33. The rule gives the trial court"broad discretion . . . to set aside a jury verdict and order a new trialto avert a perceived miscarriage of justice." United States v. Ferguson,246 F.3d 129, 133 (2d Cir. 2001) (internal citation omitted). Thedistrict court, when examining the entire case, must make an objectiveevaluation of the evidence and determine whether "competent, satisfactoryand sufficient evidence' in the trial record" supports the jury'sverdict. Id. Unlike in a Rule 29 motion, where the court must draw everyinference in favor of the government, in a Rule 33 motion the court isentitled to "weigh the evidence and in doing so evaluate for itself thecredibility of the witnesses." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992) (internalcitation omitted). Although a trial court has substantially morediscretion to grant a new trial under Rule 33 than it does to grant amotion for acquittal under Rule 29, the authority should be exercised"sparingly" and only in "the most extraordinary circumstances."Ferguson, 246 F.3d at 133. "The ultimate test on a Rule 33 motion iswhether letting a guilty verdict stand would be a manifest injustice."Id. A manifest injustice is found where the court has "a real concernthat an innocent person may have been convicted." Sanchez, 969 F.2d at1414.

B. Discussion

Mr. Agnew argues that he should be granted a new trial because thegovernment's proof was "weak at best," and because the jury deliberatedfor only ninety minutes. However, as discussed above, there wassufficient evidence from which the jury could have inferred that Mr.Agnew was able to work, in fact working at International Motorcars, andconcealing that work from the Department of Labor and from his doctors,thus constituting a "scheme to defraud" in violation of the mail fraudstatute, and that he further concealed that work on an OWCP form, thusmaking a false statement to the Department of Labor in violation of18 U.S.C. § 1920. Thus, the court does not agree that the government'sproof was "weak at best" and declines to award a new trial on thatground.

Nor does the fact that the jury reached a verdict quickly suggest thatthe verdict was hasty or reached without adequate review of the evidencesubmitted. This simple fraud case involved a limited number of exhibits,all of which were published to the jury during trial, some at considerable length. The jury viewed several hours of videotapealone during trial, both as part of the government's case-in-chief and asduring the defendant's rebuttal case. Further, the jury had more thanadequate time to review the limited number of paper exhibits beforereaching its verdict. Though the defendant disputes the inference drawnfrom the evidence and the conclusion reached, there is no indication thatthe verdict was anything other than thoughtfully rendered. This is not an"extraordinary case" where letting the verdict stand would be a manifestinjustice. Sanchez, 969 F.2d at 1414.

III. CONCLUSION

For the reasons stated above, the Motion for a New Trial and the Motionfor Judgment of Acquittal [Dkt. No. 60] are DENIED.

SO ORDERED.

RULING ON MOTION FOR JUDGMENT OF ACQUITTAL OR IN THE ALTERNATIVE FOR NEW TRIAL

Gary Agnew was indicted and convicted on fifteen counts of mail fraud,18 U.S.C. § 1341, and one count of federal employees compensation fraud,18 U.S.C. § 1920. He moves for judgment of acquittal or in thealternative for a new trial. For the following reasons, both motions aredenied.

I. FACTS

Mr. Agnew is a former U.S. Postal Service employee, who was classifiedas having a "total disability," and received monthly disabilitycompensation from the United States. In February 2001, the date in theindictment, Mr. Agnew had knee replacement surgery; he had additionalsurgeries in August 2001 and February 2002.

The government began conducting 215 days of video surveillance of Mr.Agnew's activities around the beginning of 2002. He was observed,videotaped, and audiotaped acting in what the jury could have reasonablyfound was a "sales" capacity at International Motorcars in Berlin,Connecticut. Mr. Agnew was observed and videotaped opening and closing the business, showing vehicles to customers, and taking them ontest drives.

Further, he also showed cars to undercover agents posing as customers.Mr. Agnew told these agents that he was "semi-retired," and that he hadbeen working with International Motorcars' owner, James Micca, "on andoff for eight years." [Ex. 61] He consistently used "we" to refer tohimself together with other International Motorcars workers. Forinstance, he was recorded as saying, "We took the place over and we aredoing about forty to fifty cars a month since August, we don't play, weput one, one price on the vehicles and we sell as low as we possibly can"[Ex. 52]; "before we took this over, we were strictly an internetcompany, we were buried in uh a industrial park in Hartford." [Ex. 56].

Further, Mr. Agnew said he worked for International Motorcars. He toldthe agents: "If they catch me lying to the customer, they'll can me" [Ex.56]; "there's like four of us who work here . . . we have one financeguy, one buyer. The lot guy and myself" [Ex. 57]; "We all work together,we all cover each other's back, but the four of us have been it. And we,we try not to interfere with the other guy's specialty's" [Ex. 57]; "Iget paid the same where (sic) I sell you this car, I sell you a Mercedes,or sell you the smallest car we got on the lot." [Ex. 56].

The government further presented evidence of checks made out to Mrs.Agnew that corresponded with the time in which the defendant wasperceived to be apparently working at International Motorcars. Thegovernment further presented a "washsheet," authored by Mr. Arnica andsegregated by year, indicating amounts associated with various vehiclesthat Micca identified as associated with Mr. Agnew. [Ex. 64]. The governmentalso presented evidence of checks from International Motorcars, made outto Mrs. Agnew, which the government argued were payments for Mr. Agnew'swork.

Finally, Mr. Agnew's physicians testified that they had no knowledge ofMr. Agnew's activities at International Motorcars. Instead, on February7, 2003, at the same time as videotapes showed Mr. Agnew performingvarious duties on the lot of International Motorcars, Mr. Agnew told onedoctor that he "walk[s] with his grandchild at home and performs errandsabout the house." [Ex. 45].

Further, the defendant did not inform his physicians of the nature ofthe limited duty copy room position which he had been offered by thePostal Service. Rather, Dr. Murray, who previously certified thedefendant as disabled, testified that he was under the impression thatMr. Agnew was a mail handler, and that if his position was actually towork in a copy room, the defendant would have been able to perform thattype of work.

Counts 1-15 of the indictment allege a scheme to defraud the UnitedStates, beginning on or about February 2001. The government contended,and the jury agreed, that Mr. Agnew made false representations to theUnited States Department of Labor and the Office of Workers'Compensation, and his own physicians, by concealing his ability to workand his activities at International Motorcars, Inc., a car dealership,and with concealing his receipt of compensation for his work atInternational Motorcars. In relation to Count 16, the jury convicted Mr.Agnew with making a material false statement in connection with an application for or receipt of federal workers' compensation benefitsby covering up his International Motorcars activities on an OWCPForm-1032.

II. DISCUSSION

A. Motion for Judgment of Acquittal

Rule 29(a) of the Federal Rules of Criminal Procedure provides thatdistrict courts "must enter a judgment of acquittal of any offense forwhich the evidence is insufficient to sustain a conviction."Fed.R.Crim.P. 29(a). "A defendant bears a heavy burden in challenging thesufficiency of the evidence." United States v. Henry, 325 F.3d 93, 103(2d Cir. 2003). In deciding such a motion, the court "view[s] theevidence in the light most favorable to the government and draw[s] allreasonable inferences in the government's favor." United States v.Johns, 324 F.3d 94, 97 (2d Cir. 2003). A jury's verdict must be sustainedunless "no rational trier of fact could have found the defendant guiltybeyond a reasonable doubt." United States v. Reyes, 302 F.3d 48, 52 (2dCir. 2002). However, a jury may not base its verdict on "purespeculation" or "guesswork." United States v. Thai, 29 F.3d 785, 818-19(2d Cir. 1994). The court "must determine whether upon the evidence,giving full play to the right of the jury to determine credibility, weighthe evidence, and draw justifiable inferences of fact, a reasonable mindmight fairly conclude guilt beyond a reasonable doubt." United States v.Autuori, 212 F.3d 105, 114 (2d Cir. 2000) (internal citations omitted).

B. Mail Fraud The essential elements of a mail fraud violation are " (1) a scheme todefraud, (2) money or property [as the object of the scheme], and (3) useof the mails [or wires] to further the scheme." Fountain v. UnitedStates, 357 F.3d 250, 256 (2004) (quoting Unit States v. Dinome,86 F.3d 277, 283 (2d Cir. 1996)). The jury could have reasonably foundall of these elements as to Mr. Agnew.

On the first element, Mr. Agnew argues that the defendant presented noevidence that Mr. Agnew "knowingly devised a scheme to defraud theGovernment." Def. Mem. at 3. A scheme to defraud may consist of numerouselements and can be supported by sufficient overall proof that a schemeexists. United States v. Amrep Corp., 560 F.2d 539 (2d Cir. 1977). Theterm is not intended to convey any technical meaning; it simply requiresa plan reasonably calculated to deceive persons of ordinary prudence andcomprehension. United States v. Goldman, 439 F. Supp. 337 (S.D.N.Y.1977).

The government's case included video and audiotape evidence of Mr.Agnew engaging in activities that the jury could reasonably have found tohave been "work" at International Motorcars; evidence of him receivingpayment through Mrs. Agnew from International Motorcars; and evidencethat he concealed his abilities and activities from his physicians inorder to continue to be classified as totally disabled. This and otherevidence was sufficient for the jury to conclude that Mr. Agnew knowinglydevised a scheme to defraud the United States government by continuing toreceive disability payments to which he was not entitled. The government also satisfied the other elements of the crime. Itpresented evidence that Mr. Agnew received 15 checks — each the subject ofa separate count — during the period of the indictment: one for$3185.49; five in the amount of $2071.28; and nine in the amount of$2081.16. This is sufficient to satisfy the "money or property"requirement. It also presented evidence that Mr. Agnew received thosechecks through the United States mail.

The government's evidence on all three elements was thus sufficient tosupport a reasonable determination that Mr. Agnew was guilty of mailfraud. The defendant's Motion for Judgment of Acquittal on Counts 1-15 isdenied.

C. False Statement

Count 16 charged Mr. Agnew with making a false statement to theDepartment of Labor when he submitted the OWCP Form 1032 on or about May15, 2002, and on that form concealed his ability to work and work andactivities at International Motorcars. The defendant argues that there isno evidence that he attempted to conceal his activities at InternationalMotorcars.

Mr. Agnew contends that he just "hung around" at InternationalMotorcars, and occasionally helped out for no pay. As discussed above,however, from the government's trial evidence, the jury could havereasonably inferred that Mr. Agnew was actually "working" atInternational Motorcars, and being compensated for that work; and,moreover, that he had misrepresented his condition to his physicians andwas capable of working and thus not "totally disabled." As the government arguedto the jury, the form provided Mr. Agnew with several opportunities todisclose his International Motorcars activities, regardless of whether hewas being compensated. The jury could have also concluded that Mr.Agnew's decision to list those activities on his 2003 form, after he hadlearned of the investigation, was evidence of an intent to conceal hisactivities by their omission on the 2002 form. In sum, there was ampleevidence from which the jury could have soundly concluded that Mr. Agnewwas able to work, and in fact worked at International Motorcars, and thathe concealed that fact on his OWCP form. As a result, the defendant'sMotion for Judgment of Acquittal on Count 16 is denied.

III. Motion for a New Trial

A. Standard

Rule 33 provides that the court may grant a new trial "if the interestof justice so requires." Fed.R.Crim.P. 33. The rule gives the trial court"broad discretion . . . to set aside a jury verdict and order a new trialto avert a perceived miscarriage of justice." United States v. Ferguson,246 F.3d 129, 133 (2d Cir. 2001) (internal citation omitted). Thedistrict court, when examining the entire case, must make an objectiveevaluation of the evidence and determine whether "competent, satisfactoryand sufficient evidence' in the trial record" supports the jury'sverdict. Id. Unlike in a Rule 29 motion, where the court must draw everyinference in favor of the government, in a Rule 33 motion the court isentitled to "weigh the evidence and in doing so evaluate for itself thecredibility of the witnesses." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992) (internalcitation omitted). Although a trial court has substantially morediscretion to grant a new trial under Rule 33 than it does to grant amotion for acquittal under Rule 29, the authority should be exercised"sparingly" and only in "the most extraordinary circumstances."Ferguson, 246 F.3d at 133. "The ultimate test on a Rule 33 motion iswhether letting a guilty verdict stand would be a manifest injustice."Id. A manifest injustice is found where the court has "a real concernthat an innocent person may have been convicted." Sanchez, 969 F.2d at1414.

B. Discussion

Mr. Agnew argues that he should be granted a new trial because thegovernment's proof was "weak at best," and because the jury deliberatedfor only ninety minutes. However, as discussed above, there wassufficient evidence from which the jury could have inferred that Mr.Agnew was able to work, in fact working at International Motorcars, andconcealing that work from the Department of Labor and from his doctors,thus constituting a "scheme to defraud" in violation of the mail fraudstatute, and that he further concealed that work on an OWCP form, thusmaking a false statement to the Department of Labor in violation of18 U.S.C. § 1920. Thus, the court does not agree that the government'sproof was "weak at best" and declines to award a new trial on thatground.

Nor does the fact that the jury reached a verdict quickly suggest thatthe verdict was hasty or reached without adequate review of the evidencesubmitted. This simple fraud case involved a limited number of exhibits,all of which were published to the jury during trial, some at considerable length. The jury viewed several hours of videotapealone during trial, both as part of the government's case-in-chief and asduring the defendant's rebuttal case. Further, the jury had more thanadequate time to review the limited number of paper exhibits beforereaching its verdict. Though the defendant disputes the inference drawnfrom the evidence and the conclusion reached, there is no indication thatthe verdict was anything other than thoughtfully rendered. This is not an"extraordinary case" where letting the verdict stand would be a manifestinjustice. Sanchez, 969 F.2d at 1414.

III. CONCLUSION

For the reasons stated above, the Motion for a New Trial and the Motionfor Judgment of Acquittal [Dkt. No. 60] are DENIED.

SO ORDERED.

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