United States District Court, N.D. New York
ELIZABETH C. COOMBE, ESQ., RICHARD D. BELLISS, ESQ., WAYNE A. MYERS, ESQ., Ass't United States Attorneys, OF COUNSEL, HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, Albany, NY.
For Timothy M. McGinn, Defendant: E. STEWART JONES, JR., ESQ., OF COUNSEL, E. STEWART JONES LAW FIRM, PLLC, Troy, NY.
For David L. Smith, Defendant: WILLIAM J. DREYER, ESQ., LAUREN OWENS, ESQ., OF COUNSEL, DREYER BOYAJIAN LLP, Albany, NY.
MEMORANDUM--DECISION and ORDER
DAVID N. HURD, United States District Judge.
On October 11, 2012, a thirty-two count superseding indictment was filed in the Northern District of New York charging defendants Timothy M. McGinn (" McGinn" ) and David L. Smith (" Smith" ) (collectively " defendants" ) each with twenty-nine federal crimes. Counts 1 through 26 charged both defendants with conspiracy to commit mail and wire fraud (Count 1), mail fraud (Counts 2-10), wire fraud (Counts 11-20), and securities fraud (Counts 21-26). Counts 27 through 29 charged McGinn with filing false tax returns, and Counts 30 through 32 similarly charged Smith with filing false tax returns.
A four-week jury trial was conducted from January 7 through February 1, 2013, in Utica, New York. At the close of the government's proof, both defendants moved for a judgment of acquittal on all counts pursuant to Federal Rule of Criminal Procedure 29(a).
Both motions were denied in their entirety. Thereafter, defendants presented four joint witnesses. McGinn then testified and subsequently rested his case. Likewise, Smith then testified and rested. After both defendants rested, they each renewed their Rule 29 motions. Both motions were again denied. The government then called one rebuttal witness. At the close of all evidence, defendants renewed their Rule 29 motions and moved for a mistrial based on the rebuttal witness testimony. All motions were denied.
After approximately twenty-three hours of deliberations spread over four days, the jury returned a mixed verdict. Both defendants were found guilty of conspiracy to commit mail and wire fraud (Count 1). McGinn was found guilty on seven counts of mail fraud (Counts 4-10), all ten counts of wire fraud (Counts 11-20), all six counts of securities fraud (Counts 21-26), and all three counts of filing a false tax return (Counts 27-29). Smith was found guilty on three counts of mail fraud (Counts 8-10), two counts of wire fraud (Counts 14 and 17), all six counts of securities fraud (Counts 21-26), and all three counts of filing a false tax return (Counts 30-32).
Separate judgments of acquittal were entered as to McGinn (on Counts 2 and 3) and Smith (on Counts 2-7, 11-13, 15, 16, and 18-20). Defendants have each filed a motion for a judgment of acquittal pursuant to Rule 29(c) with regard to all counts on which they were convicted. In the alternative, defendants seek a new trial pursuant to Rule 33. The government responded in opposition, and defendant replied. Oral argument was heard on April 10, 2013, in Utica, New York. Decision was reserved.
The parties' familiarity with the underlying facts established at trial is assumed. Pertinent facts will be repeated below as necessary.
A. Rule 29(c) Motions for Judgment of Acquittal
When considering a Rule 29 motion, a jury verdict must be upheld if " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
United States v. Cote,544 F.3d 88, 98 (2d Cir. 2008). The evidence must be viewed in the light most favorable to the government, with all reasonable inferences drawn in its favor. Id. The evidence must be considered in its ...