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September 23, 1986


The opinion of the court was delivered by: SWEET


Defendant Kenneth Valentine ("Valentine") has moved this court pursuant to Fed.R.Cr.P. 29(c) to set aside the verdict of guilty rendered at trial and to enter a judgment of acquittal. Alternatively, Valentine has moved for a new trial under Fed.R.Cr. P. 33. For the reasons given below, the motions are denied.

 Prior Proceedings

 Valentine, a former securities broker with First Jersey Securities, Inc. ("First Jersey"), was indicted for committing perjury during questioning by a federal grand jury in violation of 18 U.S.C. § 1623. *fn1" The grand jury was investigating improper campaign contributions to the 1982 Jeffrey Bell for Senate Campaign (the "Campaign"). Approximately fifteen securities brokers employed by First Jersey were subpoenaed to testify regarding their contributions of $1,000 each to the Campaign. Valentine was questioned on two occasions regarding his contribution. Three of his answers were later attacked as perjurious and each answer constituted the basis for one count of a three-count indictment. Valentine's answers were as follows:

 Q. And the money that you gave to the Jeffrey Bell for Senate Campaign was your personal funds?

 A. Yes, it was.

 Q. Did your branch manage give you the thousand dollars to make that contribution to the Bell for Senate Campaign?

 A. No.

 Q. Did he loan you the thousand dollars to make the contribution to the Jeffrey Bell for Senate Campaign?

 A. No, he did not.

 By pretrial motion, Valentine objected to testimony anticipated to be given by five of his fellow brokers from First Jersey, that each broker was called into the office of the branch manager, Jamie Spangler ("Spangler") asked to contribute $1,000 to the Campaign, and told that Spangler would "loan" him the $1,000. Despite the hearsay objection, this court ruled that the evidence was admissible as a "verbal act" and as an exception under Fed.R.Evid. 803(3) to show Spangler's "intent, plan [and] motive" in transferring the money to each broker.

 At trial, in addition to this evidence, there was testimony by the director of the Campaign as to the records kept of contributions, and by an investigator with the Federal Bureau of Investigation who testified as to the course of the investigation into Valentine's involvement with the Campaign. Copies of Valentine's check to the Campaign, Spangler's check to Valentine, and checks and letters documenting all five of the testifying brokers' and nine non-testifying brokers' transactions with Spangler and the Campaign were admitted.

 At the close of the prosecution's case, Valentine made a motion pursuant to Fed.R.Cr.P. 29(a) for a judgment of acquittal. A judgment of acquittal was entered by the court on Count Two of the indictment only. The court's decision was based on the insufficiency of the evidence presented to prove that Valentine was "given" the money to make his contribution.

 The defense presented no evidence. Valentine was acquitted on Count One and found guilty of perjury on the Third Count of the indictment.

 The Issues

 Valentine's motions under Fed.R.Cr.P. 29(c) and 33 raise five major issues: 1) whether the brokers' hearsay testimony was properly admitted under Fed.R.Evid.803(3); 2) whether the admission of the brokers' testimony was so prejudicial as to outweigh its probative value under Fed.R.Evid.403; 3) whether the answer for which Valentine was convicted was literally true; 4) whether the entry of a judgment of acquittal on Count Two of the indictment and submission of Counts One and Three alone to the jury violated Valentine's constitutional or other rights; and 5) sufficiency of the evidence.

 The court must abide by very strict standards in determining both motions before it. On a motion to acquit, the court must give "full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (quoting Curley v. United States, 81 U.S. App. D.C. 389, 160 F.2d 229, 232-33 (D.C.Cir.), cert. denied, 331 U.S. 837, 91 L. Ed. 1850, 67 S. Ct. 1511 (1947)). All inferences must be resolved in favor of the prosecution, and the evidence must be viewed in a similarly favorable light. Id. On a motion for a new trial, the court has broader powers and may weigh the evidence and consider the credibility of witnesses. Wright, Federal Practice and Procedure: Criminal 2d § 553 (1982). Nevertheless, motions for a new trial are "not favored and should be granted only with great caution." United States v. Lombardozzi, 343 F.2d 127 (2d Cir.), cert. denied, 381 U.S. 938, 14 L. Ed. 2d 702, 85 S. Ct. 1771 (1965) (quoting United States v. Costello, 255 F.2d 876 (2d Cir.), cert. denied, 357 U.S. 937, 2 L. Ed. 2d 1551, 78 S. Ct. 1385 (1958)).

 The trial was conducted by skilled counsel, both for the government and the defense, and in some fashion unknown to this court is part of a mosaic being fashioned by the prosecution arising out of the Campaign. The issues presented are close ...

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