United States District Court, W.D. North Carolina, Charlotte Division
GRAHAM C. MULLEN, District Judge.
THIS MATTER is before the Court on Defendant's Motion for Acquittal (Doc. No. 634) and Motion for New Trial (Doc. No. 635). On February 9, 2015, the Court granted those motions in part to the extent Defendant sought additional time to review the trial transcripts once they were completed. ( See Doc. No. 861). Those transcripts having been completed, and the parties' supplemental briefs having been filed, these matters are now ripe for disposition.
On July 26, 2012, a Grand Jury charged Defendant Steven Jones and a number of co-conspirators in a seventy-five page Bill of Indictment. Defendant Jones was charged with one count of securities fraud in violation of 15 U.S.C. § 78j(b) and 78ff (Count Two), one count of wire fraud scheme to defraud investors in violation of 18 U.S.C. § 1343 (Count Four), and one count of money laundering conspiracy in violation of 18 U.S.C. § 1956(h) (Count Five).
On April 18, 2013, the Grand Jury returned a Superseding Indictment, charging Defendant Jones with one count of racketeering conspiracy in violation of Title 18 U.S.C. § 1962(d) (Count One) in addition to Counts Two, Four, and Five. The Superseding Indictment, now eighty-four pages long, describes the nature of an alleged $75 million RICO Enterprise that operated from 2005 until 2012. Included in the Indictment are numerous examples of securities fraud, bank fraud, mortgage fraud, and money laundering. The Superseding Indictment specifically identifies Jones as a promoter for the Enterprise's investment fraud operations and offers an example of his alleged fraudulent conduct, which included inducing a victim to invest millions of dollars in a fraudulent account, promising outrageous returns, misappropriating the money from the account, and fraudulently misrepresenting the amount of money in the account.
On March 3, 2014, the Court preemptively set Defendant Jones for trial to begin June 23, 2014. The parties do not dispute that, over two weeks before the trial was to begin, the Government sent counsel for Defendant a copy of the draft exhibit list it intended to use at trial. ( See Doc. No. 646-1). On June 22, the Government filed its trial exhibit list (Doc. No. 615), which was nearly identical to the list sent to Defendant on June 6, 2014. The Government's list was loaded, along with the Government's exhibits, into the Western District's Jury Evidence Recording System (hereinafter "JERS"), which this district uses to electronically present to the jury exhibits received into evidence.
Trial commenced on June 23, 2014. The Government called seven witnesses, read into the record portions of Defendant's Grand Jury testimony, and introduced numerous exhibits. Defendant moved for a judgment of acquittal at the close of the Government's evidence, which was denied. Defendant called five witnesses before resting. The Court charged the jury on the third day of trial, and the deliberations continued into the next day. The following morning, the jury sent a note to the Court requesting "a hard copy of the evidence list to make it easier to choose from" and specified that "[m]ultiple copies would be great, " apparently referring to the JERS exhibit list which was available to the jury electronically. Defendant objected to a hard-copy list being sent back to the jury, noting "the commentary behind the exhibit." (Trial Transcript at 657; Doc. No. 903 at 4). The Court agreed not to provide a hard copy of the list, and to instruct the jury that "no such list is available." (Trial Tr. at 657-59). Defendant then objected to that list also being available electronically. (Trial Tr. at 657-58). The Court overruled the objection, noting that the exhibit descriptions to which he objected had been furnished to him "a considerable time ago with the exhibit list, " (Trial Tr. at 658), and specifically found that Defendant's objection was untimely. ( Id. )
After the Court broke the jury for lunch, Defendant moved for a mistrial, again on the basis of the exhibit descriptions that had been provided to the jury electronically through JERS, and which mirrored the Government's trial exhibit list. (Trial Tr. at 661-63). Defendant pointed out several examples which he believed were particularly damaging. ( Id. ) The Court denied the motion as untimely, and also noted that the commentary in the exhibit list was consistent with the testimony regarding the exhibit, and not sufficiently pejorative or damaging to the Defendant to justify a motion for mistrial. ( Id. ) Later that day, the jury returned a unanimous verdict convicting Defendant on all counts.
A. Motion for New Trial
A court may grant a new trial on motion of the defendant "if the interest of justice so requires." Fed. R. Crim. P. 33(a). The Fourth Circuit has held that "a trial court should exercise its discretion to award a new trial sparingly' and a jury verdict is not to be overturned except in the rare circumstance when the evidence weighs heavily' against it." See United States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 2006) (quoting United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003)).
Defendant bases his motion for new trial entirely on the content of the Government's exhibit descriptions submitted to the jury in the JERS exhibit list. These descriptions, he argues, contained extraneous information, and otherwise "directed" the jury to agree with disputed characterizations of the evidence. These descriptions, then, prejudiced Mr. Jones and effectively "directed the verdict" against him. Defendant cites a number of cases (many focusing on juror misconduct) in support of his assertion that a new trial is necessary. See, e.g., United States v. Lawson, 677 F.3d 629, 643-51 (4th Cir. 2012) ("[E]xtra record information of which a juror becomes aware is presumed to be prejudicial to a defendant.").
As an initial matter, the Court reasserts its finding that Defendant's objection to the descriptions in the Government's exhibit list was untimely. ( See Trial Tr. at 658, 661-63). The parties do not dispute that Defendant had the Government's exhibit list in his possession weeks before the trial began; thus he had ample opportunity to view and object to these descriptions. Defendant argues at length that the exhibit lists submitted for trial are different from the exhibit lists uploaded to JERS, evidenced by the fact that the submission process for the two lists are treated differently under this Court's Administrative Order, see supra n.1. Indeed, the two lists are formatted differently and serve different purposes; however, the Court agrees with the Government that it is generally the practice in this district that the exhibit descriptions used in the trial exhibit lists are the same as those uploaded to JERS. The Court notes that trial counsel for Defendant is an ...