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United States v. Polos

United States District Court, S.D. New York

February 6, 2017

UNITED STATES OF AMERICA,
v.
DAVID POLOS and GLEN GLOVER, Defendants.

          MEMORANDUM OPINION & ORDER

          PAUL G. GARDEPHE, U.S.D.J.

         Following an eight-day trial, a jury convicted Defendants David Polos and Glen Glover of conspiring to make false statements on their national security forms, in violation of 18 U.S.C. § 371, and of making false statements on their national security forms, in violation of 18 U.S.C. § 1001. (See June 9, 2016 Tr. (Dkt. No. 128) at 20-21)[1] Polos and Glover have moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, or for a new trial under Federal Rule of Criminal Procedure 33. (See Def. Br. (Dkt. Nos. 131-36)) Defendants argue that the weight of the evidence is insufficient to support the guilty verdict, and that newly discovered evidence regarding a key Government witness justifies granting a new trial.

         I. THE EVIDENCE AT TRIAL

         The Government's theory at trial was that Polos and Glover had agreed to conceal from their employer - the Drug Enforcement Administration (the "DEA") - their employment at Twins Plus Go-Go Lounge ("Twins" or "the Club"), an adult entertainment establishment in South Hackensack, New Jersey. As part of the scheme, Polos and Glover did not disclose on their national security forms their employment at Twins, and Polos concealed his intimate relationship with a Brazilian national who danced at the Club.

         Glover was employed as a DEA Telecommunications Specialist from 1988 to 2015. (See May 31, 2016 Tr. (Dkt No. 114) at 47) Polos was employed by the DEA from 1991 to 2015, serving most recently as an Assistant Special Agent-in-Charge of the DEA's New York office. (See Id. at 131, 219)

         The evidence at trial demonstrated that during 2011, Polos and Glover each worked at Twins several times a week, Jeffrey Brown, a bouncer at Twins, testified that (1) he saw Polos and Glover every day at the Club (see June 1, 2016 Tr. (Dkt. No. 116) at 36-37); (2) the Defendants held themselves out as owners of Twins (see Id. at 41, 174); (3) Polos worked Tuesday and Thursday evening shifts, while Glover worked Wednesday, Friday, and Saturday evening shifts (see Id. at 40); (4) the Defendants regularly stopped in at the Club during the day (see Id. at 53); and (5) when they were not working at the Club, the Defendants monitored the security cameras at the Club from their cellphones. (See Id. at 64) Brown testified that Polos and Glover oversaw renovation work at the Club (see id, at 33), and that Glover hired bartenders and bouncers. (See Id. at 55)

         Joseph Banas - a regular customer at Twins who assisted Defendants in managing the Club - testified that Polos worked one or two evening shifts per week and supervised the bouncers (see June 3, 2016 Tr. (Dkt. No. 120) at 119, 145-46); that Glover managed Twins several nights each week (see Id. at 121); and that Polos and Glover presented themselves as the "owners" of Twins.[2] (See Id. at 123) Banas testified that Polos and Glover would do "[w]hat any owner or manager would do, keep an eye on the place and make common sense decisions on things." (Id. at 121) Defendants hired and fired Twins employees, determined Club employee compensation, paid the Club's bills, promulgated rules and policies for the Club, and viewed the Club's security cameras from their cellphones. (Id. at 133, 136-37, 141, 144, 179-80, 185) Glover hired Banas to perform electrical work at the Club, and Banas reported to Glover while he worked on this project. (See Id. at 97-100, 103-04) Glover also supervised other renovations at Twins and oversaw a kitchen construction project. (See Id. at 103) Polos was responsible for placing advertisements for the Club. (See Id. at 143)

         Brown and Banas' testimony about Defendants' work at the Club was corroborated by dozens of text messages and emails introduced at trial, in which Polos and Glover discussed auditioning dancers; the hiring, firing, disciplining, and payment of Club employees; cleaning the lounge; obtaining licenses and permits; kitchen renovations; repairing Club equipment, including the fog machine, cooler, and television; painting the roof; scheduling shifts; setting house rules; hiring electricians; and paying the Club's bills. (See, e.g., GX 403-R; GX 404-Z; GX 405-H; GX 405-L; GX 405-M; GX 405-R; GX 405-V; GX 405-OO; GX 405-XX; GX 405-AAA; GX 405-FFF; GX 405-MMM; GX 406-D; GX 406-G; GX 406-1; GX 406-L; GX 406-Z; GX 406-TT; GX 407-M; GX 407-S; GX 702; GX 1105-R; June 1, 2016 Tr. (Dkt, No. 116) at 243-55; June 2, 2016 Tr. (Dkt. No. 118) at 26-124, 142-206; June 3, 2016 Tr. (Dkt. No. 120) at 8, 15, 66-68, 97, 107-08, 115-16, 145, 156-59, 168-73, 177-86, 188-90) The documentary evidence also included nightly reports sent to Polos and Glover, which summarized cash receipts at Twins and monies paid out. (See GX 406-D; June 3, 2016 Tr. (Dkt. No, 120) at 145)

         The evidence also demonstrated that Polos had a "romantic" relationship with Andressa de Lima- a Brazilian national who danced at the Club - from 2011 to 2015. Brown testified that de Lima was "Dave's girl" (see June 1, 2016 Tr, (Diet. No. 116) at 65); that Polos received lap dances from de Lima at the Club (see Id. at 67); and that Polos and de Lima were seen together outside of the Club "[a]ll the time." (Id. at 67-69, 107) Banas testified that Polos treated de Lima differently than all of the other dancers, and excused her problematic behavior. (See June 3, 2016 Tr. (Dkt. No. 120) at 181-83) De Lima confirmed that she had a "romantic" relationship with Polos between 2011 and 2015 (see Id. at 78, 82-83), that they dated outside of the Club (see Id. at 89), and that Polos did not tell her that he was married at the beginning of their relationship. (See Id. at 83) Finally, in an August 2011 conversation with Banas, Polos expressed concern about rumors that de Lima was pregnant. (See Id. at 191 -92)

         As DEA employees, Polos and Glover were periodically required to complete a national security form (the "SF-86 form") to maintain their security clearances. (See June 2, 2016 Tr. (Dkt. No. 118) at 139) DEA employees seeking to renew their security clearances were required - when submitting their completed national security forms - to certify that all of the statements on the forms were "true, complete, and correct" to the best of their knowledge and belief; that they were "made in good faith;" and that they understood that "a knowing and willful false statement on the form can be punished by fine or imprisonment or both." (GX 101 at 33; GX 102 at 33; May 31, 2016 Tr. (Dkt. No. 114) at 97-98) DEA employees were also required to print, sign, and date the completed national security form before submitting it to DEA headquarters. (See June 1, 2016 Tr. (Dkt. No. 116) at 165; June 2, 2016 Tr. (Dkt. No. 118) at 129)

         The national security form seeks the following information concerning employment:

List all your employment activities, beginning with the present (#1) and working back 7 years . . . You should list all full-time and part-time work, paid or unpaid, consulting/contracting work, all military service duty locations, temporary military duty locations (TDY) over 90 days, self-employment, other paid work, and all periods of unemployment. The entire period must be accounted for without breaks. EXCEPTION: Do not list employments that occurred before your 18th birthday unless it is necessary for providing a minimum of 2 years of employment history.

(GX 101 at 10; GX 102 at 12 (emphasis in original); May 31, 2016 Tr. (Dkt. No. 114) at 131)

         As to "Foreign Contacts, " the national security form seeks the following information:

Do you have or have you had close and/or continuing contact with foreign nationals within the last seven years with whom you, your spouse, or your cohabitant are bound by affection, influence, and/or obligation? Include associates as well as relatives not already listed in Section 18, (A foreign national is defined as any person who is not a citizen or a national of the U.S.)

(GX 101; GX 102; May 31, 2016 Tr. (Dkt No, 114) at 100-01)

         On August 1, 2011 and September 7, 2011, Glover and Polos, respectively, submitted their completed national security forms. Both men indicated on the forms that they had no outside employment, (See GX 101; GX 102; GX 204; May 31, 2016 Tr. (Dkt. No. 114) at 131-33) Polos did not list any foreign national with whom he had close or continuing contact. (See GX 102; May 31, 2016 Tr. (Dkt. No. 114) at 101)

         The national security form requires applicants to list three references who know the applicant "well" and who are "aware" of the applicant's activities outside of the workplace, (See GX 101; GX 102) Glover listed Polos as a reference. (See GX 101; June 6, 2016 Tr. (Dkt. No. 122) at 185-86, 204)

         Because Glover had listed Polos as a reference, Jamila Whetts - a background investigator for the DEA - interviewed Polos and questioned him about Glover's activities outside the workplace. (See June 6, 2016 Tr. (Dkt. No. 122) at 205) Polos told Whetts that Glover exercises and spends time with his wife. (See id. at 214)

         Whetts also interviewed Glover on August 18, 2011, and asked him what he did in his free time. (See Id. at 130) Glover said that he helped his wife ran the Paramus Puppy Spa. (See Id. at 140) Glover had not listed the puppy spa as outside employment on his national security form. Accordingly, Whetts asked Glover whether he had engaged in any other outside employment that was not listed on his national security form. (See id. at 149) Glover told Whetts that he had no other self-employment. (See id.)

         April Boudreau - also a background investigator for the DEA - reviewed Polos' SF-86 form and interviewed Polos on November 17, 2011. (See id, at 32) Boudreau testified that Polos had not listed any outside employment on his national security form and did not disclose his work at the Club during the interview. (See Id., at 58-59)

         II. PROCEDURAL HISTORY

         Count One of the Superseding Indictment charges Polos and Glover with conspiracy to make false statements on their national security forms, in violation of 18 U.S.C. § 371. (See SI Indictment (Dkt. No. 30) ¶¶ 1-12) The Indictment alleges that, in furtherance of the conspiracy, (1) Polos and Glover "each submitted national security forms that falsely represented that they had had no employment outside of the DEA in the previous seven years;" (2) "each sat for background interviews concerning their own national security clearances during which neither of them disclosed their involvement in the Club;" and (3) "[a]s part of the scheme, [Glover] listed [Polos] as a reference familial' with Glover's 'activities outside of the workplace.' When Polos was interviewed during the background investigation concerning Glover, he was asked what Glover did during his spare time. Polos responded, in sum and substance, that Glover exercises and spends time with his family in his spare time; Polos did not make any mention of Glover's involvement in the Club, " (Id. ¶¶ 7-9)

         Counts Two and Three charge Glover and Polos, respectively, with "falsely affirm[ing] on a national security form that, as of that date, [they] had not had outside employment beyond [their] work with the DEA for the previous seven years, when in truth and in fact, and as [the Defendants] well knew, [they] had outside employment in the form of regular work at the Club." (Id. ¶¶ 14, 16)

         Count Four charges Polos with "falsely affirm[ing] on a national security form that, as of that date, he had not had close or continuing contact with foreign nationals within the previous seven years, when in truth and in fact, and as Polos well knew, he had engaged in an intimate relationship with a foreign national for several months at the time of that affirmation." (Id.¶ 18)

         Trial began on May 31, 2016. The Government's evidence included testimony from Jeffrey Brown, a Club bouncer; Joseph Banas, a Club regular and occasional manager; Andressa de Lima, a Brazilian national who was a dancer at the Club, and with whom Polos was carrying on a romantic relationship; Jamila Whetts, a background investigator for the DEA who interviewed both Glover and Polos; and April Boudreau, another background investigator for the DEA who interviewed Polos. The Defendants did not testify. On June 9, 2016 - after three hours of deliberations - the jury returned guilty verdicts on all counts. (See June 9, 2016 Tr. (Dkt.No. 128) at 12, 20-21)

         On July 15, 2016, Polos and Glover filed motions for a judgment of acquittal or, in the alternative, for a new trial.[3] (See Dkt. Nos. 131-36)

         III. MOTIONS FOR A JUDGMENT OF ACQUITTAL UNDER FED. R. CRIM. P. 29

         Defendants contend that the evidence is insufficient as to all four counts, As to Count One, Defendants argue that the Government did not offer sufficient evidence that they conspired to make false statements. (See Polos Br. (Dkt. No. 132) at 20; Glover Br. (Dkt. No. 136) at 27) As to Counts Two and Three, Defendants argue that the employment-related question on the national security form is ambiguous (see Polos Br. (Dkt. No. 132) at 30; Glover Br. (Dkt. No. 136) at 17), and that their responses to this question are "literally true." (See Glover Br. (Dkt. No. 136) at 22) As to Count Four, Polos argues that the phrases "bound by affection, influence, and/or obligation" and "close and/or continuing contact" are ambiguous. (See Polos Br. (Dkt. No. 132) at 31-32)

         The Government contends that the questions on the national security form are not ambiguous, that the "evidence overwhelmingly showed that the defendants' activities at the Twins Lounge constituted 'employment activities, '" and that the question about foreign contacts was "wholly intelligible, " such that Polos' response constitutes a false statement. (Govt. Br. (Dkt. No. 140) at 23, 32)

         A. Legal Standard

         Federal Rule of Criminal Procedure 29(a) provides that a court shall, upon a defendant's motion, "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." A defendant seeking to challenge a jury's guilty verdict "carries a heavy burden." United States v. Oguns, 921 F.2d 442, 449 (2d Cir. 1990). In evaluating a sufficiency challenge, this Court "must view the evidence in the light most favorable to the government, crediting every inference that could have been drawn in the government's favor, and deferring to the jury's assessment of witness credibility and its assessment of the weight of the evidence." United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (quoting United States v. Chavez, 549 F.3d 119, 124 (2d Cir, 2008). "So long as the inference is reasonable, 'it is the task of the jury, not the court, to choose among competing inferences.'" United States v. Kim, 435 F.3d 182, 184 (2d Cir. 2006) f quoting United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995)). Moreover, in assessing a sufficiency challenge, "[t]he evidence is to be viewed 'not in isolation but in conjunction.'" United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) quoting United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir. 1969)).

         The critical question in evaluating a Rule 29 motion is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In other words, Rule 29 "does not provide the trial court with an opportunity to 'substitute its own determination of. . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.'" United States v. Guadaana, 183 F.3d 122, 129 (2d Cir. 1999) (quoting Mariani, 725 F.2d at 865).

         "[I]f [courts] are to be faithful to the constitutional requirement that no person may be convicted unless the Government has proven guilt beyond a reasonable doubt, [however, they] must take seriously [their] obligation to assess the record to determine, as Jackson instructs, whether a jury could reasonably find guilt beyond a reasonable doubt." United States v. Clark, 740 F.3d 808, 811 (2d Cir. 2014) (emphasis in original). "[A] conviction based on speculation and surmise alone cannot stand." United States v, D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1994). While a jury is "permitted to enter an unassailable but unreasonable verdict of 'not guilty, "' it does not have the "power to enter an unreasonable verdict of guilty." Jackson, 443 U.S. at 318 n.10 (quoting Carpenters & Joiners v. United States, 330 U.S. 395, 408 (1947)). "[S]pecious inferences are not indulged, " because '[it] would not satisfy the [Constitution] to have a jury determine that the defendant is probably guilty, '" United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008) (internal quotations and citations omitted).

         Finally, the Second Circuit has made clear that "if the evidence viewed in the light most favorable to the prosecution gives 'equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, ' then 'a reasonable jury must necessarily entertain a reasonable doubt.'" United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002) (quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir, 1996)). Accordingly, a district court must grant a defendant's Rule 29 motion where the evidence "viewed in the light most favorable to the Government, remains, at best, in equipoise." Coplan, 703 F.3d at 69.

         B. Analysis

          1. Conspiracy to Make False Statements

         Defendants argue that the evidence is insufficient to prove that they conspired to make false statements about outside employment on their national security forms, (See Polos Br. (Dkt. No. 132) at 20; Glover Br. (Dkt. No. 136) at 27)

         Testimony from Club employees and the Defendants' emails and text messages demonstrated that both men were deeply involved in managing the Club and supervising its employees, however, In 2011, each Defendant worked several evening shifts a week at the Club, monitored the security cameras at the Club from their cellphones daily, and received a nightly report concerning cash receipts. (See GX 406-D; GX 1105-R; June 1, 2016 Tr. (Dkt. No. 116) at 36-37, 40, 64; June 3, 2016 Tr. (Dkt No. 120) at 119, 121, 133, 144-46) A reasonable jury could likewise have concluded that Polos and Glover were in close, regular communication about Club affairs, given that they exchanged more than 400 calls and 900 text messages between July 19, 2011 and November 30, 2011 alone. (See June 7, 2016 Tr. (Dkt, No. 124) at 91-92)

         There was also overwhelming evidence that Polos and Glover had compelling reasons to conceal their involvement with the Club from the DEA. Both men were aware of possible ongoing criminal activity at the Club, including illegal drug use (see GX 405-S; GX 405-FFF; June 3, 2016 Tr. (Dkt. No. 120) at 150), employment of undocumented aliens (see June 3, 2016 Tr. (Dkt. No. 120) at 26), tax evasion (see GX 551 at 1; June 1, 2016 Tr. (Dkt. No, 116) at 69-70; June 3, 2016 Tr. (Dkt. No. 120) at 143-45), and prostitution. (See GX 403-E; GX 403-O; June 1, 2016 Tr. (Dkt. No. 116) at 50) Given that both men were employed by a law enforcement agency, it would have been reasonable for the jury to infer that neither man wanted his involvement in the Club to come to the attention of the DEA.

         It was in this context that Glover listed Polos as a reference on his national security form, and as someone who could verify what he did in his free time. (See GX 101; June 6, 2016 Tr. (Dkt. No. 122) at 185-86, 204) It would have been reasonable for the jury to infer that Glover listed Polos as his reference because he could be confident that Polos would not reveal Glover's involvement with the Club - given that Polos likewise had a strong motive to conceal his involvement with the Club. Moreover, when Whetts - the DEA's background investigator - questioned Polos about what Glover did in his spare time, Polos maintained Glover's secret, stating that Glover exercises and spends time with his family. (See Id. at 214) Polos - who likewise was required to disclose any outside employment activities in order to maintain his position at the DEA - did not disclose that Glover managed employees and business operations at Twins at least three nights a week, and invested a significant part of his days managing the Club through emails and text messages. (See GX 406-D; June 1, 2016 Tr. (Dkt. No. 116) at 52; June 3, 2016 Tr. (Dkt. No. 120) at 145; June 7, 2016 Tr. (Dkt. No. 124) at 91-92)

         Viewed in the light most favorable to the Government, there was ample evidence demonstrating that Polos and Glover had conspired together to not disclose their employment at Twins on their national security forms. The Defendants' motions ...


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