United States District Court, S.D. New York
OPINION & ORDER
M. WOOD, District Judge
January 27, 2017, a jury found defendant Sandra Zongo guilty
on all four counts of Superseding Indictment S2 15 CR 319
(the "S2 Indictment"). The defendant now moves,
pursuant to Rules 29 and 33 of the Federal Rules of Criminal
Procedure, for ajudgment of acquittal and for a retrial on
all counts of the S2 Indictment. For the reasons set forth
below, the Court DENIES the defendant's Rule 29 motion
for ajudgment of acquittal, and DENIES the defendant's
Rule 33 motion for a new trial.
29 MOTION FOR A JUDGMENT OF ACQUITTAL
defendant moves for a judgment of acquittal on Count Four of
the S2 Indictment on the ground that the Government failed to
prove each and every element of the crime charged beyond a
reasonable doubt. Count Four charged the defendant with
attempted wire fraud for sending "documentation falsely
representing her residence, employment, and income, in an
effort to obtain benefits disbursements by means of...
interstate wire transfer." (Indictment at 3-4).
government argued to the jury that the defendant committed
attempted wire fraud when she submitted an application to the
New York Human Resources Administration ("HRA") for
Supplemental Nutrition Assistance Program ("SNAP")
benefits. It argued that her application contained two
materially false statements relating to her employment,
income, and rent payments. First, Ms. Zongo submitted a
letter signed by "S. Young" claiming that she was
an intern for "SDG Cluster Policy In Action 4 United
Nations Implementation" and earned an income of $400 per
month, which was false. (Def. Mem. at 2). Second, Ms. Zongo
submitted a form signed by a person named Mawahib Mohammed,
which claimed that the defendant paid $400 in rent per month
to reside in "Room #2" of "Apartment
#528" at 134 East 43rd Street in Manhattan,
which was also false. (Id. at 3). The jury found the
defendant guilty of attempted wire fraud.
now argues that "no rational jury could render a verdict
of guilty on Count Four because: (1) the government failed to
prove that Ms. Zongo made a false statement regarding her
employment or her rent expenses; and (2) none of the alleged
false statements, individually or collectively, was material.
(Id. at 5).
defendant who files a Rule 29 motion "bears a heavy
burden, as the standard of review is exceedingly
deferential." United States v. Brock, 789 F.3d
60, 63 (2d Cir. 2015). The Rule permits a district court to
enter a judgment of acquittal on a count of conviction only
if it finds that the evidence on that count is
"insufficient to sustain a conviction." Fed. R.
Crim. P. 29. In deciding a motion for a judgment of acquittal
under Rule 29, a 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. Chavez, 549 F.3d
119, 124 (2d Cir. 2008). Thus, a jury verdict must be upheld
if "any rational trier of fact could have found the
essential elements of a crime beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 307, 319
Four of the S2 Indictment charged the defendant with
attempted wire fraud in violation of 18 U.S.C. § 1349.
In order to convict on this count, the jury had to find
beyond a reasonable doubt (1) that the defendant knowingly
and willfully participated in a scheme to defraud by
materially false and fraudulent pretenses with specific
intent to defraud through the use of interstate wires,
see United States v. Bouyea, 152 F.3d 192, 194 (2d
Cir. 1998); and (2) that the defendant took a
"substantial step" in an effort to bring about or
accomplish the crime, see United States v. Farhane,
634 F.3d 127, 146 (2d Cir. 2011).
statement is fraudulent if it was made with the intent to
deceive. United States v. Mahaffy, 285 F.App'x
797, 799 (2d Cir. 2008). The fraud statutes are violated by
both affirmative misstatements and material omissions that
the defendant had a duty to disclose, United States v.
Autori, 212 F.3d 105 (2d Cir. 2000), and a
defendant's fraudulent intent "may be proven
entirely through circumstantial evidence. ..."
United States v. Romano, 794 F.3d 317, 335 (2d Cir.
2015). In order to prove that the fraudulent statements were
material, the statements must have had "a natural
tendency to influence, or [were] capable of influencing, the
decision of the [HRA]." Neder v. United States,
527 U.S. 1, 16 (1999).
government presented extensive evidence at trial to prove
that the statements at issue were both false and material.
Thus, the jury's decision to convict the defendant on
Count Four of the S2 Indictment was reasonable, and supported
by sufficient evidence.