The opinion of the court was delivered by: SCHEINDLIN
Shira A. Scheindlin, U.S.D.J.:
Defendant moves for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. For the reasons set forth below, defendant's motion is denied.
I. Factual and Procedural Background
On December 11, 1995, defendant was indicted on two counts of wire fraud under 18 U.S.C. §§ 1343 and 1346 (collectively, the "wire fraud statute"). The indictment charged that defendant devised or intended to devise a scheme to deprive the Tishman Construction Corporation ("Tishman") of the intangible right of honest services of someone defendant believed to be Tishman's consultant, and that defendant used interstate wires on November 19 and 21, 1995 in furtherance of this scheme.
On November 7, 1996, after a four day trial, a jury found defendant guilty of both counts of the indictment. The evidence at trial showed that defendant agreed to pay a $ 1.25 million bribe to an undercover officer (who defendant believed to be a consultant of Tishman) to induce Tishman to participate in a construction project, and that defendant concealed his agreement with the undercover officer from Tishman.
On the eve of trial, defendant moved to dismiss the indictment on the grounds that the government would not be able to prove an essential element of the offenses charged in the indictment: namely, that either defendant or the undercover officer owed a fiduciary duty to Tishman. See Letter from Steven M. Statsinger, Counsel to defendant, to the Court of October 30, 1992 at 2. I denied defendant's motion from the bench on November 4, 1996. See Trial Transcript ("Tr.") at 8. Defendant renewed his motion on the same grounds after the close of the government's case, and also argued that the indictment should be dismissed because the November 21 telephone call was not in furtherance of the scheme to defraud. See Tr. at 429-31. Both motions were denied.
II. Applicable Legal Standards
Federal Rule of Criminal Procedure 29(a) states:
Stated another way, a judgment of acquittal must be entered "if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt". United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984). Here, defendant alleges that the government failed to produce sufficient evidence with regard to an essential element of wire fraud, namely the existence of a fiduciary duty between the undercover officer and Tishman. See Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (government must introduce sufficient evidence to allow the jury to reasonably infer that each essential element of the crime charged has been proven beyond a reasonable doubt), reh'g denied, 444 U.S. 890, 62 L. Ed. 2d 126, 100 S. Ct. 195 (1979).
B. Necessary Elements of Wire Fraud
The federal wire fraud statute states, in ...