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United States v. Florida

United States District Court, N.D. California

March 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ALVIN FLORIDA JR., ROBERT ALHASHASH RASHEED, REFUGIO DIAZ, and JOHN LEE BERRY III, Defendants.

          ORDER RE MOTIONS FOR JUDGMENT OF ACQUITTAL AND NEW TRIAL RE: DKT. NO. 410, 412, 413

          JAMES DONATO United States District Judge

         On December 15, 2016, a jury convicted defendants Alvin Florida Jr., Robert Rasheed, Refugio Diaz, and John Lee Berry III, of bid rigging in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. Rasheed, Diaz and Berry seek in these motions a judgment of acquittal under Federal Rules of Criminal Procedure Rule 29 or alternatively a new trial under Rule 33. Florida's post-trial motions will be addressed in a separate proceeding for scheduling reasons. The motions are denied.

         BACKGROUND

         Defendants were indicted in November 2014 under the Sherman Act and for mail fraud under 18 U.S.C § 1341. The indictments arose out of investigations across the Bay Area for alleged bid rigging in public foreclosure auctions. The government's antitrust theory here, in a nutshell, was that defendants conspired from May 2008 through December 2010 to rig the bidding for residential properties at foreclosure auctions in Alameda County. Defendants would allow a co-conspirator to win the public auction at a low price by not bidding against him, and would then hold, on the steps of the Alameda County Superior Court, a nonpublic second auction or “round” in which the conspirators would bid among themselves for the rights to the foreclosed property.

         This was defendants' second trial on the Sherman Act charge. A prior trial before Chief Judge Phyllis J. Hamilton ended in a hung jury, and this Court handled the second trial to accommodate judicial and attorney scheduling issues.

         The mail fraud count was dismissed and trial started on December 5, 2016, on the bid rigging charge only. Defendants moved for acquittal under Rule 29(a) after the government rested, which the Court denied because there was “more than enough evidence for a rational trier of fact, or a jury, to convict each of the defendants on all of the elements beyond a reasonable doubt.” Dkt. No. 306 at 1053:9-13. The jury began deliberations on December 13, 2016, and returned guilty verdicts for each defendant two days later. Dkt. Nos. 387-90.

         Defendants filed the Rule 29 and Rule 33 motions pursuant to a stipulated briefing schedule. Dkt. No. 401 (stipulation); Dkt. No. 410 (Diaz motion); Dkt. No. 412 (Rasheed motion); Dkt. No. 413 (Berry motion). Rasheed and Berry cross-joined all of the motions. Dkt. No. 412 at 2; Dkt. No. 413 at 1. Diaz did not expressly join the other motions, but for clarity and full coverage of the issues, the Court will treat all of the arguments in the motions as if raised by each defendant here.

         DISCUSSION

         I. STANDARDS

         The governing standards for the motions are straightforward. Under Rule 29, a defendant may move for a judgment of acquittal, or renew such a motion, after a jury returns a guilty verdict. Fed R. Crim. P. 29(c)(2). The determinative inquiry is “whether, after viewing the evidence in the light most favorable to the prosecution, 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). The Court does not weigh witness credibility when ruling on a Rule 29 motion. United States v. Alarcon-Simi, 300 F.3d 1172, 1176 (9th Cir. 2002). Instead, “it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts.” Id. (internal quotation omitted).

         Under Rule 33, “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). When evaluating a Rule 33 motion, the Court need not view the evidence in the light most favorable to the prosecution, and may weigh the evidence and evaluate the credibility of the witnesses. United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000). If the Court 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, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.” Id. (internal quotation omitted).

         II. DEFENDANTS' CONTENTIONS

         Defendants offer the same arguments for Rule 29 and Rule 33 purposes, with no distinctions or differences. The Court resolves the motions in the same fashion.

         As a prefatory matter, defendants face a steep climb in challenging the overall sufficiency of the evidence and the soundness of the verdict. The trial featured substantial evidence from cooperating witnesses who had personally participated in the bid rigging scheme, an undercover FBI agent who infiltrated the conspiracy and worked with the defendants at the auctions, audio and video evidence that captured the defendants' own speech and conduct, and documents prepared by the defendants as business records for the ...


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