United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD JUDGE
trial, Defendant James A. MacCallum ("Defendant")
was. convicted of one count of mail fraud in violation of 18
U.S.C. § 1341. Presently before the Court is
Defendant's motion pursuant to Fed. R. Crim. P. 29(c) for
a judgment of acquittal. (Dkt. 67). Defendant bases his
motion "on the grounds set forth on the record at the
close of the government's case on March 23, 2017, and
prior to verdict on March 24, 2017." (Id. at
¶ 4). For the reasons set forth below, Defendant's
motion is denied.
timely filed his motion pursuant to Rule 29(c)-within 14 days
after the guilty verdict. See Fed. R. Crim. P.
29(c)(1). The standard on a motion for a judgment of
acquittal is stringent, and a defendant claiming that he was
convicted based on insufficient evidence "bears a very
heavy burden." United States v. Blackwood, 366
F.App'x 207, 209 (2d Cir. 2010) (quoting United
States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002)).
"In considering a motion for judgment of acquittal, the
court must view the evidence presented in the light most
favorable to the government." United States v.
Guadagna, 183 F.3d 122, 129 (2d Cir. 1999).
Accordingly, "[a]ll permissible inferences must be drawn
in the government's favor." Id.
any rational trier of fact could have found the
essential elements of the crime, the conviction must
stand." United States v. Puzzo, 928 F.2d 1356,
1361 (2d Cir. 1991) (internal quotation marks and citation
omitted). "The test is whether the jury, drawing
reasonable inferences from the evidence, may fairly and
logically have concluded that the defendant was guilty beyond
a reasonable doubt." Id. (internal quotation
marks and citations omitted). The evidence must be viewed
"in its totality, not in isolation, " United
States v. Huezo, 546 F.3d 174, 178 (2d Cir. 2008),
"as each fact may gain color from others."
Guadagna, 183 F.3d at 130. The court may enter a
judgment of acquittal only if the evidence that the defendant
committed the crime is "nonexistent or so meager that no
reasonable jury could find guilt beyond a reasonable
doubt." Id. (internal quotation marks and
district court must be careful not to usurp the role of the
jury. "Rule 29(c) 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.'" Id. at 129
(quoting United States v. Mariani, 725 F.2d 862, 865
(2d Cir. 1984)). "A jury's verdict will be sustained
if there is substantial evidence, taking the view most
favorable to the government, to support it." United
States v. Nersesian, 824 F.2d 1294, 1324 (2d Cir. 1987).
The government is not required '"to preclude every
reasonable hypothesis which is consistent with
innocence.'" United States v. Chang An-Lo,
851 F.2d 547, 554 (2d Cir. 1988) (citing United States v.
Fiore, 821 F.2d 127, 128 (2d Cir. 1987)). Further, a
jury's verdict may be based entirely on circumstantial
evidence. See United States v. Martinez, 54 F.3d
1040, 1043 (2d Cir. 1995).
argued during his oral motions for judgment of acquittal that
the evidence was insufficient to support a verdict of guilty
with respect to each of the elements necessary to establish a
violation of the mail fraud statute set forth at 18 U.S.C.
§ 1341. In other words, Defendant contended that there
was insufficient evidence to establish: a scheme or artifice
to defraud or to obtain money or property by materially false
or fraudulent pretenses, representations or promises, as
alleged in the Indictment; that Defendant knowingly and
willfully participated in the scheme or artifice to defraud,
with knowledge of its fraudulent nature and with specific
intent to defraud; and that in execution of that scheme,
Defendant used or caused the use of the mails or a private or
commercial interstate carrier as specified in the Indictment.
Court indicated in ruling on those oral motions, the evidence
was more than sufficient to support a guilty finding. The
Government presented evidence at trial that from 2008 until
2010, Defendant received money from numerous victim
investors, and that Defendant used the incoming money to pay
other investors in furtherance of a quintessential Ponzi
scheme-where one investor's moneys were used to pay other
investors. The jury heard testimony from five victim
investors who described how he or she sent money to Defendant
intending for Defendant to invest the moneys on their behalf
with guaranteed rates of return in excess of 12 percent, but
that they did not receive such return and, in fact, the
investments that were allegedly secured by various types of
collateral were fraudulent. The evidence established that the
moneys were not used as Defendant represented, and instead he
used the moneys to pay his own personal expenses and further
his fraudulent scheme. Moreover, the evidence established
that, as part of the scheme, one of the victims-who was a
citizen and resident of Canada- received a promissory note
dated December 13, 2010, from Defendant sent by commercial
interstate carrier. The note promised to pay $500, 000, when
at the time, Defendant only had approximately $5, 000
available to make any such payment.
addition to the victim investors, the jury heard testimony
from Defendant's former business associates, employees of
the Federal Bureau of Investigation ("FBI"), and
perhaps most importantly, Defendant's own words wherein
he confessed to FBI Special Agent Brent Isaacson that
Defendant had perpetrated the Ponzi scheme.
the evidence was more than sufficient to support the
jury's verdict that the Government met its burden of
proof on each and every element of the mail fraud count.
foregoing reasons, Defendant's motion for acquittal
pursuant to Fed. ...