ORDER DENYING DEFENDANT'S MOTION FOR ACQUITTAL AND
MOTION FOR A NEW TRIAL
This matter is before the Court on Defendant Duane Eddings's ("Eddings") Motion for Acquittal and Motion for New Trial (Doc. # 155). The United States of America (the "government") opposes the motion (Doc. # 166), and Eddings filed a reply to the opposition (Doc. # 169). Eddings moves the Court for judgment of acquittal and a new trial on Counts 3 and 4 of the Superseding Indictments, arguing there was insufficient evidence from which the jury could reasonably find Eddings guilty; on Counts 8, 9, and 10 of the Superseding Indictment on the grounds that the government either constructively amended the indictment at trial or fatally varied from the indictment; and on Counts 11 and 12 on the grounds that the government provided insufficient evidence to support a 2 conviction. For the reasons set forth below, Eddings's motion is 3
When considering a Rule 29 motion for a judgment of acquittal, 6 the evidence adduced at trial is viewed in the light most favorable 7 to the government, and an acquittal should not be ordered where 8 "any rational trier of fact could find each essential element of 9 the crime beyond a reasonable doubt." United States v. Mosley, 465 F.3d 412, 415 (9th Cir. 2006) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).
When considering a Rule 33 motion for a new trial based on the sufficiency of the evidence, a court may grant a motion for a new trial only if it "concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred . . . ." United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 1206, 1211--12 (9th Cir. 1992) (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980)).
Eddings incorporates by reference his arguments with regard to these counts from his pre-judgment Motion for Acquittal (Doc. # 135). The Court denied that motion on November 21, 2011 (Doc. # 157). For the same reasons discussed in the Court's November 21 order, Eddings's current motion is DENIED.
Eddings argues that acquittal or a new trial on Counts 11 and 3 12, both for mail fraud in violation of 18 U.S.C. § 1341, should be 4 granted because the government did not produce evidence sufficient 5 for a reasonable jury to find Eddings guilty beyond a reasonable 6 doubt.*fn1 At trial, the government presented evidence that Eddings 7 engaged in a scheme to defraud creditors by filing for bankruptcy 8 and then hiding assets from the bankruptcy court. Eddings argues 9 the mailings in Counts 11 and 12 were sent as a matter of course in the bankruptcy proceeding, and were accordingly not part of a scheme to defraud. Eddings also argues that both mailings were sent to Robert Brown, whom the government contends was not one of Eddings's creditors, and was thus not defrauded by the bankruptcy scheme.
The government responds that the mailings in Counts 11 and 12 were mere jurisdictional requirements, and that the notices identified in Counts 11 and 12 were essential parts of the scheme to defraud. The government contends that the first notice was mailed to creditors to inform them of a stay, and that the second notice was mailed to inform them of the discharge of Eddings's debts in bankruptcy. This discharge was, the government, argues the point of Eddings's scheme to defraud.
To support a mail fraud charge, the mailings need not be an essential part of the scheme, but they must be made or caused to be made for the purpose of executing the scheme. United States v. 2 Mitchell, 744 F.2d 701, 703 (9th Cir. 1984) (citing United States 3 v. Maze, 414 U.S. 395, 400 (1974); United States v. Bohonus, 628 4 F.2d 1167, 1173 (9th Cir. 1980)).
Eddings relies on Parr v. United States, 363 U.S. 370 (1960). 6
In that case, the defendants were convicted of mail fraud in 7 furtherance of a scheme to embezzle funds from a school district. 8
Id. at 372-73. The government in that case presented evidence that 9 when the school district sent tax bills to taxpayers, the defendants converted the payments sent back by the taxpayer to their private use. Id. at 375-76. The Parr court found that the school district tax bills were not sufficient to satisfy the mailing requirement of mail fraud because the school district would have sent the bills even if the scheme did not exist. Id. at 391. Eddings's argument is that if the school district's ...