United States District Court, N.D. California
ORDER RE MOTIONS FOR JUDGMENT OF ACQUITTAL AND NEW
TRIAL RE: DKT. NO. 410, 412, 413
DONATO United States District Judge
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.
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.
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.
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.
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
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
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).
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.
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