at trial was that the City received the federal assistance.
It is clear, therefore, that defendant's argument in support of his Rule 29 motion is essentially one of statutory construction--that because the indictment alleged that the property stolen was under the care, custody or control of the Parks Department; that the Parks Department was an agency of the City of Buffalo; and that defendant was an agent of the Parks Department, the government was required, under § 666, to prove that the Parks Department, and not the City, received the federal assistance. As such, defendant's motion is simply an attempt to reargue his motion to dismiss Count III, and the Court's prior ruling that the City of Buffalo and City of Buffalo Parks Department constitute the same legal entity for purposes of § 666. Having previously resolved this statutory construction issue in a decision rendered from the bench on October 9, 1992; and defendant having presented no new authority or reasoning that would warrant a different conclusion, the Court denies defendant's Rule 29 motion as to Count III.
Nevertheless, the Court finds it necessary to address defendant's assertion that the Court's decision on Count III, and its subsequent jury instructions thereon, invaded the jury's fact-finding function.
As the Court noted in its October 9, 1992 oral decision, § 666 is a relatively new statute. The language of the statute does not lend itself to clear interpretation, as evidenced by the amount of time the parties were afforded by the Court to formulate and argue their respective interpretations. Few cases have interpreted § 666, and none have addressed the issues raised by defendant. These issues, which the Court first addressed and decided in the context of a motion to dismiss made on the eve of summation, and after the parties had reviewed the charges several times at several different charging conferences, involve questions of statutory construction.
Issues of statutory construction and interpretation are legal, not factual. Once the Court resolved such issues, it was obligated to instruct the jury in accordance with its decision. Thus, the Court's decision regarding the statutory construction of § 666 and the jury instructions that subsequently incorporated the Court's decision, were purely within the province of the Court. See United States v. Peery, 977 F.2d 1230, 1233-34 n.2 (8th Cir. 1992) ("determining whether section 666 applies to [a defendant's] conduct is a question of law.").
It is a fundamental principle that courts in both civil and criminal cases are to determine questions of law and instruct the jury accordingly. The authority to instruct the jury that the government has satisfied a particular element of a crime as a matter of law does not intrude upon the jury's fact-finding function.
As to Count III, the jury was instructed as a matter of law that the Parks Department and City of Buffalo were one and the same; that defendant, as commissioner of the Parks Department, was an agent of the City of Buffalo; and that if the jury found that the City of Buffalo Urban Renewal Agency ("BURA") received in excess of $ 10,000 of federal assistance in any one-year period, the City of Buffalo received that federal assistance.
Although the jurors were instructed that federal funds received by BURA were, for purposes of the statute, received by the City, they were not instructed as a matter of law that BURA received $ 10,000 of federal funds in any one-year period. That was a question of fact for the jury to decide from the testimony and exhibits in evidence. Defendant's assertion that the Court charged the jury that the government had satisfied its burden on this issue as a matter of law is therefore without merit.
In addition, the Court notes that its instructions to the jury on Counts IV and V involved several findings as a matter of law to which defendant did not object. As to the wrongful use of fear aspect of these counts, the jury was instructed that money and the value of services of Clyde Mays Tree Experts constituted property for purposes of the first element, and for purposes of the third element, that Clyde Mays Tree Experts' business was involved in interstate commerce. See Leonard B. Sand, et al., Modern Federal Jury Instructions, Volume 2, Instructions 50-13, 50-14
(1992). As to the under color of official right aspect of Counts IV and V, the jury was instructed that there was no issue that defendant was a "public official, or held public office for purposes of the first element, or that Clyde Mays Tree Experts' business was involved in interstate commerce for purposes of the fourth element. See id., Instructions 50-21, 50-22.
These findings and instructions by the Court that the government had satisfied, as a matter of law, its burden of proof on several elements or portions of elements of the Hobbs Act charges are no different than the Court's finding that for purposes of the first element of Count III, the Parks Department and City of Buffalo were one and the same, or that, for purposes of the second element, if the jury found that federal assistance was received by BURA, then as a matter of law, that assistance was received by the City. As such, the Court rejects defendant's argument that these findings involved questions of fact for the jury.
Contrary to defendant's assertion, the Court did not draft the jury instructions on Count III to save the inartfully and inaccurately drafted indictment; the Court drafted the instructions consistent with its interpretation of the statute. Whether or not the legal interpretation made by the Court on the eve of summations is correct, is better left to the Court of Appeals, rather than the trial court on a post-verdict Rule 29 motion.
Defendant's motion for judgment of acquittal on Count III is therefore denied.
Rule 33: Motion for a New Trial
In the alternative, defendant seeks to have the jury verdict set aside and a new trial ordered pursuant to Fed. R. Crim. P. 33.
In general, the Court may grant a new trial "if required in the interest of justice." Fed. R. Crim. P. 33. "Motions for a new trial are directed to the trial court's discretion and [are] sparingly used." United States v. Rivera-Sola, 713 F.2d 866, 874 (1st Cir. 1983) (citations omitted); see also United States v. Morales, 902 F.2d 604, 605 (7th Cir.), amended on other grounds, 910 F.2d 467 (1990). The burden of justifying a new trial rests with the defendant. See, e.g., United States v. Geders, 625 F.2d 31, 33 (5th Cir. 1980); United States v. Vargas, 606 F.2d 341, 344 (1st Cir. 1979). "The evidence must preponderate heavily against the verdict such that it would be a miscarriage of justice to let the verdict stand." United States v. Martinez, 763 F.2d 1297 (11th Cir. 1985); see also United States v. Reed, 875 F.2d 107, 114 (7th Cir. 1989) (test is whether it would be a "manifest injustice" to let the guilty verdict stand).
Defendant asserts that a new trial is warranted on two grounds: (1) that his right to confront his accusers was restricted in violation of the Sixth Amendment by this Court's evidentiary ruling that defendant was precluded from testifying regarding statements made to him by witnesses who had already testified as to those conversations; and (2) that the Court's submission of the text of the jury charge to the jury constituted an abuse of discretion and resulted in substantial prejudice to defendant.
I. Right of Confrontation
Defendant asserts that it would be a manifest injustice to let the guilty verdict stand because the Court violated his right to confrontation when it ruled that he was precluded from testifying about his recollection of conversations he had with witnesses who had previously testified as to those conversations during the government's case. The Court allowed defendant to testify as to what he said to those individuals and what his understanding of the conversations was, but precluded him from testifying as to what the individuals allegedly said to him.
At oral argument, defendant argued that not allowing him to testify as to statements made to him resulted in fundamental unfairness and requires a new trial. The principal of fundamental fairness in a court of law is necessarily defined and shaped by the rules of evidence. Evidence that may be relevant or probative is not by that reason alone, admissible. Testimony that constitutes hearsay--an out of court statement offered to prove the truth of the matter asserted--is not admissible unless it falls within one of the exceptions enumerated in Fed. R. Evid. 803 and 804.
Defendant's proposed testimony regarding statements made to him by others did not fall within Rule 801(d), statements that are not hearsay, and was therefore hearsay unless not offered for the truth of the matters asserted. During the trial and at oral argument, defendant consistently conceded that the statements were being offered for the truth of the matters asserted, and were, therefore, hearsay, but argued that the testimony should nevertheless be admitted solely for the purpose of protecting the defendant's right to confront the witnesses and counter their version of conversations with him.
Despite defendant's sense of what is fair, however, such statements are admissible only if they fall within one of the hearsay exceptions. At trial, the Court found that they did not fall under a hearsay exception, and defendant has not asserted otherwise. On the other hand, as to the testimony of the witnesses in question--Josephine LoMeo, Ralph Degenhart, Joseph Imiolo and others--the Court specifically found that their testimony regarding conversations with defendant was either not offered for the truth of the matter asserted, or was admissible under various hearsay exceptions.
The Court's evidentiary ruling limiting defendant's testimony did not violate defendant's right of confrontation because the right of confrontation does not vitiate the rules of evidence. The right is not implicated where the accused seeks to introduce hearsay declarations as part of his or her defense. United States v. DiMaria, 727 F.2d 265, 272 n.6 (2d Cir. 1984).
Further, the Supreme Court has held that "the right of confrontation is basically a trial right [which] includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness." Barber v. Page, 390 U.S. 719, 725, 20 L. Ed. 2d 255, 88 S. Ct. 1318 (1968). "[A] primary interest secured by [the right of confrontation] is the right of cross-examination." Ohio v. Roberts, 448 U.S. 56, 63, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980) (quoting Douglas v. Alabama, 380 U.S. 415, 418, 13 L. Ed. 2d 934, 85 S. Ct. 1074 (1965)).
"The primary object of the [Confrontation Clause] . . . [is] to prevent depositions or ex parte affidavits . . . being used against the [defendant] in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him [or her] to stand face to face with the jury in order that they may look at him [or her], and judge by his [or her] demeanor upon the stand and the manner in which he [or she] gives his [or her] testimony whether he [or she] is worthy of belief."
Barber, 390 U.S. at 721 (quoting Mattox v. United States, 156 U.S. 237, 242-43, 39 L. Ed. 409, 15 S. Ct. 337 (1895)).
The Court finds that because defendant had a full and fair opportunity to cross-examine each of the witnesses in question, his confrontation right was not implicated. Defendant cross-examined the witnesses extensively on the basis of their recollection; any possible motive or bias that would color their recollection or testimony; the context of their conversations with defendant; and any possibility there might have been for misinterpreting the conversations. Each of the witnesses took the stand, giving the jury a full opportunity to observe their demeanor, hear the tone and inflection of their voices, and note the manner in which they answered or failed to answer the questions put to them both on direct and cross examination.
In addition, the Court did, in a sense of fairness, allow defendant to testify as to what he said to these witnesses and what his understanding of the conversations was. Because the Court allowed the jury to hear such testimony, which was arguably hearsay, any prejudice to defendant resulting from the preclusion of defendant's testimony as to what the witnesses said to him, was at best, slight. As a practical matter, defendant was allowed to testify as to the general nature and scope of the various conversations between himself and the witnesses in question.
The right to confront witnesses does not require that either through cross examination or taking the stand, a defendant be allowed to contest, in derogation of the rules of evidence, each and every statement made by a witness. Defendant's motion for a new trial on this basis is therefore denied.
II. Submitting the Jury Charge to the Jury
At the commencement of jury deliberations, the Court sent the jury the written text of its instructions on the law. Defendant argues that because the jurors had the text of the charge, they did not request further instructions and the parties were therefore unable to ensure that they were following the proper rules of law. Defendant asserts that the decision to give the jury a copy of the charge was an abuse of the Court's discretion that resulted in such prejudice to defendant that, pursuant to Fed. R. Crim. P. 33, it would be a miscarriage of justice to let the verdict stand.
The Court finds that this argument really involves two distinct issues: (1) was the submission of the written text of the charge to the jury an abuse of discretion that resulted in substantial prejudice to defendant so as to warrant a new trial; and (2) is defendant entitled to seek a new trial based on the jury's alleged misunderstanding or misinterpretation of the law.
A. Abuse of Discretion
Courts have wide discretion to submit the text of the charge to the jury:
As litigation grows increasingly complex, the jury often may be helped in their deliberations by having a copy of the instructions before them rather than sending word to the court asking that the instructions on a certain point be repeated. The trial judge has wide discretion as to whether he [or she] will submit a copy of his [or her] instructions to the jury.