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United States District Court, Southern District of New York

July 22, 2003


The opinion of the court was delivered by: Peter Leisure, District Judge


On March 21, 2003, following a two-week jury trial, defendant Barbara Renor Jasper was convicted of one count of embezzlement, in violation of 18 U.S.C. § 657. Defendant now moves for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. For the reasons stated in this Opinion, the motion is denied.


Jasper was employed as a branch manager at the Secretariat Branch of the United Nations Credit Union ("Credit Union") until her termination in May 2000. Based on the government's evidence at trial, including documents, witness testimony and a video tape, the jury found that defendant embezzled cash from the Credit Union while in the process of replenishing automated teller machines ("ATM").


Defendant makes several arguments in support of her motion, including (1) that the Court's jury instruction on willfulness was incorrect; (2) that the Court's jury instruction should have stated that embezzlement required a taking of the Credit Union's money off premises; (3) that the evidence regarding intent was insufficient to sustain a conviction; (4) that the Court should not have quashed a subpoena served on the Credit Union on the first day of trial; (5) that the Court should have granted a mistrial because of the government's alleged disparagement of defense counsel in front of the jury; (6) that the government made inappropriate unsupported allegations in summation; and (7) that the indictment is duplicitous and the Court should have reviewed the grand jury minutes to insure that any date of theft submitted to the jury was actually charged by the grand jury. The Court finds no merit in any of defendant's contentions.

I. Standards for Rule 29 and Rule 33

A. Rule 29 Standard

When a defendant moves pursuant to Rule 29, the district court must determine, based on all of the relevant evidence, whether a rational juror "might fairly conclude guilt beyond a reasonable doubt." United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (internal quotation marks omitted). The district court must draw all reasonable inferences in the favor of the government, See id., and must resolve all issues of credibility in favor of the jury's verdict. See United States v. Weiss, 930 F.2d 185, 191 (2d Cir. 1991); United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir. 1990). To succeed on the motion, a defendant must persuade the court that, "viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997) (McLaughlin, J.) (internal quotation marks omitted). A defendant challenging the sufficiency of the evidence "bears a very heavy burden." United States v. Scarpa, 913 F.2d 993, 1003 (2d Cir. 1990) (internal quotation marks omitted); see also United States v. Cervone, 907 F.2d 332, 343 (2d Cir. 1990); United States v. Tillem, 906 F.2d 814, 821 (2d Cir. 1990) (stating that motions challenging the sufficiency of the evidence for a conviction "rarely carry the day").

B. Rule 33 Standard

Rule 33 of the Federal Rules of Criminal Procedure provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). It confers broad discretion upon a trial court to set aside a jury verdict and order a new trial in order to avert a perceived miscarriage of justice. See United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). A defendant seeking a new trial bears the burden of demonstrating the "essential unfairness of the [original] trial." United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956). In adjudicating a Rule 33 motion, a court is entitled to weigh the evidence and, in so doing, to evaluate the credibility of witnesses. See Sanchez, 969 F.2d at 1413. A court, however, should exercise its discretion under Rule 33 sparingly, granting a new trial only in exceptional circumstances. See id. at 414. Indeed, "motions for a new trial are disfavored in this Circuit." United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995).

II. Defendant's Contentions

A. The Jury Instruction on Willfulness Was Correct

Defendant first argues that the Court's instruction to the jury regarding willfulness was incorrect. A criminal defendant who challenges a jury charge after a conviction must show (1) that she requested an instruction that correctly described applicable law and (2) that the "instruction actually given was, viewed as a whole, prejudicial to [her] rights." United States v. Yousef, 327 F.3d 56, 130 (2d Cir. 2003); see also United States v. Pujana-Mena, 949 F.2d 24, 27 (2d Cir. 1991). The charge should be "viewed in its entirety and not on the basis of excerpts taken out of context, which might separately be open to serious question." United States v. Clark, 765 F.2d 297, 303 (2d Cir. 1985); see also Victor v. Nebraska, 511 U.S. 1, 16 (1994) (stating that an excerpt from a jury instruction "cannot be sequestered from its surroundings"); Scarpa, 913 F.2d at 1018. Furthermore, a reviewing court should also consider the questioned jury instruction not just in light of the rest of the charge, but also "in the context of the entire trial." United States v. Dyer, 922 F.2d 105, 107 (2d Cir. 1990); see also United States v. Amuso, 21 F.3d 1251, 1261 (2d Cir. 1994); Scarpa, 913 F.2d at 1018.

The Court has reviewed its charge to the jury on willfulness and finds it to be entirely proper and correct. It is telling that defendant has not identified any specific fault with the charge, only saying generally that it was incorrect. The Court will not invent a specific argument against the charge where defense counsel has not proffered one.

B. The Jury Instruction on Embezzlement Was Correct

Defendant's next contention is that the Court's charge should have instructed the jury that embezzlement requires a taking of the Credit Union's money off of the premises. The Court defined embezzlement thusly:

Embezzlement is the voluntary and intentional taking or conversion to one's own use of the money or property of another after that money or property lawfully came into the possession of the person taking it by virtue of some office, employment or position of trust. To take or convert money or property means to knowingly and willfully deprive the owner of its use and benefit. No particular form of moving or carrying away of the funds is required. Any appreciable change of location of funds, including transferring of the funds into an account in one's own name is sufficient, even if the funds are never removed from the credit union's premises.*fn1
Trial Transcript ("Tr.") at 1123. Defendant's assertion that embezzlement requires a removal of funds from the Credit Union's branch office is simply incorrect. As the Supreme Court said over a century ago, "Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come." Moore v. United States, 160 U.S. 268, 269 (1895). It does not require that funds be removed from the property of the victim. Cf. United States v. Ehrlich, 902 F.2d 327 (5th Cir. 1990).*fn2 Jasper has cited, and the Court has found, no cases that have held, or even implied, otherwise. The Court's instruction to the jury was correct.*fn3

C. There Was Sufficient Evidence of Intent

Defendant next argues that the evidence presented by the government was insufficient to show the requisite intent. Defense counsel makes no attempt to develop this argument and states it only in conclusory fashion.*fn4

As stated supra, a defendant challenging the sufficiency of the evidence "bears a very heavy burden." Scarpa, 913 F.2d at 1003 (internal quotation marks omitted). There was ample evidence presented by the government for the jury to conclude that defendant acted willfully, including, but certainly not limited to, (1) that on an inordinate number of occasions when Jasper was involved in the ATM replenishment, there was a significant difference between the amount of money she returned to the vault and the amount that should have been returned; (2) that these differences consistently involved less money being returned than should have been, and it was usually similar round amounts; (3) that receipts that should have been included with her work and that would have made the discrepancy easier for the Credit Union to discover had they been included, were consistently not included with Jasper's work; and (4) that these issues only occurred when defendant was involved in the replenishment process. Therefore, Jasper's motion with respect to the sufficiency of evidence of intent is denied.

D. The Subpoena Was Correctly Quashed

On the first day of trial,*fn5 defense counsel served subpoenas on Esther Stella, an employee of the Credit Union, and James Fenimore, the employee at the Credit Union who uncovered Jasper's embezzlement. After careful consideration of the arguments presented, the Court quashed each of the subpoenas. Jasper now contends that the subpoenas should not have been quashed to the extent that they requested Fenimore's personnel file and his correspondence (especially his e-mail) from the time period of January 1, 1998 up to December 31, 2000. Defendant argues that the failure of the Court to require production of these requested items "deprived defense counsel of an effective tool for use in cross-examination." Affidavit of Roger Bennet Adler, Esq., sworn to on May 2, 2003 ("Addler Aff."), ¶ 21.

On March 13, 2003, the Court issued a written opinion quashing the subpoenas, see United States v. Jasper, No. 00 Cr. 825, 2003 WL 1107526 (S.D.N.Y. Mar. 13, 2003), and there is no reason now to depart from any of the reasons stated therein to quash the subpoenas.*fn6 The only new argument that defendant raises as to why the requested documents should have been produced involves defense counsel's knowledge of high profile financial cases in which retrieved e-mail has played a significant role. Mr. Adler even goes so far as to include a New York Times article*fn7 with his submissions, which he says "dramatically illustrates the use to which e-mails can be made." Letter from Roger Bennet Adler, Esq., to the Court, dated July 9, 2003 ("Def. Reply"), at 3 (emphasis added). Illicit use of e-mail in wholly unrelated circumstances and cases reported in the press, however, does not lead to the conclusion that e-mail correspondence is discoverable in this criminal case. Defendant did not, and to this day has not, come forward with any indication whatsoever other than baseless speculation that there are any relevant Fenimore e-mails.*fn8 See United States v. Nixon, 418 U.S. 683, 700 (1974) (stating that a party seeking material under a Rule 17(c) subpoena must show, inter alia, that the requested material is relevant). The Court's March 13, 2003 ruling was correct.

After Fenimore's testimony, in which he stated that he was responsible for the ATM account in the Credit Union's general ledger and that he was never criticized by his superiors for the loss of funds, Tr. at 378-79, Jasper renewed her request for Fenimore's personnel file and e-mails. Id. 457. The Court again denied the request for the e-mails, id. at 460, but, out of an abundance of caution, agreed, as per defense counsel's suggestion, id. at 458, to review the personnel file in camera. After conducting the review, the Court ruled that there was nothing in the file to which the defendant was entitled. Defendant now argues that "at the `end of the day' not unlike `3500' material, it should be for counsel, and not the Court to evaluate how potential impeachment will be utilized." Adler Aff. ¶ 26. This statement, however, misses the point. The Court found in its in camera review that the file contained no impeachment material. Defendant's contentions in this regard are therefore incorrect.

E. The Alleged Disparagement of Defense Counsel Did Not Warrant a Mistrial
Jasper next argues that the government disparaged defense counsel in front of the jury and that disparagement warranted a mistrial. The Court disagrees.

Following the end of defendant's testimony on direct examination, the Court, because it was nearing the end of the day, gave the government the choice of commencing cross-examination immediately or waiting until the morning. Daniel A. Braun, Esq., Assistant United States Attorney, responded, "No, Your Honor, particularly because we have not received 3500 material from the defense. Mr. Adler declined to produce that to us previously." Tr. at 812. The Court immediately instructed Mr. Braun not to discuss this issue in front of the jury. Mr. Adler responded, also in front of the jury, by saying, "He wanted to make a speech, and now he did." Id. The Court then gave the following instruction to the jury:

Ladies and gentlemen, both sides are entitled to what we call 3500 material, which means statements by the witnesses in writing that they have. The government [did produce*fn9] the 3500 material before the trial started, and so that is what we are talking about. But both sides are entitled to that, and they are entitled to receive it before they start cross examination.
Id. The next morning, Jasper moved for a mistrial based on the government's statement, arguing that Mr. Braun's remarks "were calculated to have a negative effect, [and] . . . they did have a negative effect." Id. at 823. The Court denied the application. Id. at 826.

Certainly prudence would dictate discussing matters such as Jencks Act material outside the presence of the jury. However, that does not mean that mentioning such an issue in front of the jury is necessarily unfair or prejudicial. Only an excessively strained interpretation could find Mr. Braun's remarks as casting a negative light on defense counsel, and therefore Jasper's mistrial application was properly denied.

However, even if the government's words are interpreted as disparagement of Mr. Adler, the Court's denial of a mistrial was still correct. "[C]riminal convictions are not to be lightly overturned on the basis of a prosecutor's inappropriate comments standing alone in an otherwise fair proceeding." United States v. Biasucci, 786 F.2d 504, 514 (2d Cir. 1986). As such, the Court "must consider whether [the remark] resulted in substantial prejudice to the defendant's right to a fair trial," United States v. Pinto, 850 F.2d 927, 936 (2d Cir. 1988), and "weigh the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements." United States v. Modica, 663 F.2d 1173, 1179 (2d Cir. 1981). The objectionable remarks must also be considered "within the context of the entire trial." United States v. Espinal, 981 F.2d 664, 666 (2d Cir. 1992). Furthermore, the declaration of a mistrial is left to the discretion of the trial court, see Dunkerley v. Hogan, 579 F.2d 141, 145 (2d Cir. 1978); United States v. Flynn, 216 F.2d 354, 372 (2d Cir. 1958), and this "power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.'" United States v. Klein, 582 F.2d 186, 190 (2d Cir. 1978) (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)).

In the context of this standard, to suggest that the government's statement regarding the 3500 material caused substantial prejudice to defendant's right to a fair trial is so specious that it approaches frivolousness. Cf. Biasucci, 786 F.2d at 514 & n. 9 (affirming a conviction in which the prosecutor directed several ad hominem remarks at defense counsel in front of the jury, including "you sleaze" and "you hypocritical son- —"). Furthermore, to the extent that it is remotely arguable that any juror might have perceived Mr. Adler in a more negative light because of Mr. Braun's remark was most assuredly cured by the Court's explanation.

F. The Government's Allegations in Summation Were Appropriate
Defendant's contention regarding a government argument in rebuttal summation is similarly unpersuasive. During Jasper's direct examination, she testified about another bank account she held at HSBC Bank. In his rebuttal summation Andrew L. Fish, Esq., Assistant United States Attorney, argued that Jasper might have hid some of the embezzled money in an HSBC Bank account that she maintained. Tr. at 1076-77. At the close of summations, Jasper moved for a mistrial based on Mr. Fish's argument, saying that there was no evidence in the record to support the allegation. Id. at 1080-81. The Court ruled that the government's allegation was a fair inference that could be drawn from Jasper's testimony and therefore denied the mistrial request. Id. at 1087. Defense counsel then requested a curative instruction on the issue. Id. at 1088. The Court denied that request also, finding that there was nothing to cure. Id. at 1089. Jasper now argues that the verdict should be vacated because the Court did not declare a mistrial.

It is well-settled law that "[t]he government [and the defendant, for that matter] has broad latitude in the inferences it may reasonably suggest to the jury during summation." United States v. Casamento, 887 F.2d 1141, 1189 (2d Cir. 1989); United States v. Rahman, 189 F.3d 88, 140 (2d Cir. 1999); United States v. Nersesian, 824 F.2d 1294, 1327 (2d Cir. 1987); United States v. Suarez, 588 F.2d 352, 354 (2d Cir. 1978). Of course, neither the prosecution nor the defense may refer to facts that are not in the record or misstate the evidence. Suarez, 588 F.2d at 354. It is certainly reasonable, however, for the government to suggest to the jury inferences that can be fairly drawn from the record. Casamento, 887 F.2d at 1189-90; see also United States v. Rodriguez, 968 F.2d 130, 143 (2d Cir. 1992) (Kearse, J.) ("The government is entitled, in summation, to argue all inferences that may permissibly be drawn from the evidence admitted."); United States v. Roldan-Zapata, 916 F.2d 795, 807 (2d Cir. 1990); United States v. White, 486 F.2d 204, 207 (2d Cir. 1973) ("Certainly, advocates may marshal all inferences that the evidence supports and indulge in nonprejudicial flourishes of rhetoric."); United States v. Dibrizzi, 393 F.2d 642, 646 (2d Cir. 1968) ("Within broad limits, counsel for both sides are entitled to argue the inferences which they wish the jury to draw from the evidence.").

In the case at bar, Jasper testified on direct examination that she had an account at HSBC Bank in which she held an average of $5,000, and that the funds in the account belonged to her brother. Jasper indicated that she was holding the money for her brother's children's college education. On cross-examination, however, she was forced to admit that there were a number of large cash deposits into the account. Tr. at 867 She further admitted that, in contradiction of her direct testimony that the money was earmarked for her brother's children's education, she wrote a number of checks on that account for her own expenses, including a trip to Spain and her daughter's high school tuition. Id. at 87-68. In light of this testimony, combined with evidence that Jasper was embezzling from the Credit Union, it would be entirely reasonable for the jury to infer, and for the government to argue, that the money in the account was actually some of the Credit Union's missing funds. Furthermore, the government made this argument in response to defense counsel's assertion in his summation that the government failed to find any of the missing funds in Jasper's possession. Id. at 1050-51. Providing an answer to a question raised by an adversary can be a powerful rhetorical device. Therefore, when a criminal defendant raises a question regarding the government's case in closing argument, that defendant runs the risk that the government will rise to the occasion and provide a plausible answer based on a reasonable inference from the evidence presented at trial. That is precisely what happened in this case. Furthermore, it was actually Mr. Adler, not the government, who made improper statements in his summation, including mentioning that defendant is being sued civilly by the Credit Union's insurance company, a fact that was not in evidence.*fn10 Id. at 1063.

G. The Indictment Is Not Duplicitous and the Court Correctly Refused to Review the Grand Jury Minutes
Resurrecting a motion denied at trial, defendant again argues that the indictment is duplicitous. She first raised this issue at the close of the government's case-in-chief.*fn11 The Court denied the motion in a written opinion dated March 19, 2003. See United States v. Jasper, No. 00 Cr. 825, 2003 WL 1345231 (S.D.N.Y. Mar. 19, 2003). Defendant has now offered no reason to reexamine the March 19 decision. As such, for the reasons stated in that decision,*fn12 the indictment is not duplicitous and the denial of

Related to this issue, defendant also argues, as she did at trial, that the Court should review the grand jury minutes to check "that any date submitted [on which an alleged theft occurred] was actually charged by the Grand Jury, and the dates not conveniently selected by the prosecutors, based upon their individual assessment of the available proof [sic]." Adler Aff. ¶ 34. This argument has no merit.*fn13 Reviewing grand jury minutes is an extraordinary action for a court, see Costello v. United States, 350 U.S. 359, 363-64 (1956); United States v. Casamento, 887 F.2d 1141, 1182 (2d Cir. 1989), and there was, and is, absolutely no need for this Court to take such a step under the circumstances presented in this case. The defendant was properly charged with, and convicted of, one count of embezzlement that was conducted as part of a single continuing scheme. Cf. United States v. Davis, 592 F.2d 1325, 1328 (5th Cir. 1979); United States v. Mott, 603 F. Supp. 1322 (S.D.N.Y. 1985).


Based on the foregoing, defendant's motion pursuant to Rules 29 and 33 is denied in all respects.


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