Free Order on Motion for New Trial - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A jury trial was held before t he Honorable Roslyn O. Silver in this case. The jury found Defendant guilty of theft of government property and social s ecurity fraud. Defendant's trial counsel has filed a M ot ion for New Trial (Doc. #135) and the Government has filed an Opposition (Doc. #137). Defendant's counsel has filed no reply. Judge Silver has recus ed herself. See Doc. #133. Having reviewed the parties' briefing and relevant vs. Neil Rusty Bond, Defendant. United States of America, Plaintiff, ) ) ) ) ) ) ) ) ) ) CR 03-0974-PHX-DGC ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

portions of the record, the Court will deny Defendant's motion. 1. Comment to Jury Panel.

Defendant complains that the trial judge informed the jury panel, at the beginning of voir dire, that he had been charged with unlawful posses s ion of a firearm. See

Reporter's Transcript of Proceedings ("RT") 3/1/05 at 40. The firearm charge had in fact been dismissed before trial. Defense counsel brought this matter to Judge Silver's

attention and requested a mistrial. Judge Silver denied the motion for mistrial and promptly corrected her statement to the jury. Less than ten minutes after the initial statement had

been made, Judge Silver informed the jury of the charges actually pending against

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Defendant and ins t ruct ed them "not to consider anything I said previously." Id. at 45. Later, Judge Silver instructed the jury that it should not view anything she does during trial as indicating what the verdict in the case should be. Id. at 102. The Court concludes t hat Judge Silver's prompt corrective instruction remedied any p rejudice arising from her reference to the firearm charge. M oreover, prior to trial each juror had completed a questionnaire that properly stated the two charges pending against Defendant . In addition, Defendant himself mentioned the firearm charge during his

testimony and his counsel addres s ed it in some detail during cross-examination of a government witness. See RT 3/11/05 at 20-23. steps were taken because of Judge Silver's statement. The Court cannot conclude that a new trial is w arranted on the basis of Judge Silver's statement at the beginning of voir dire. To the extent the statement w as error, the Court concludes that it did not affect substantial rights of Defendant and therefore was harmless. See Fed. R. Crim. P. 52(a). 2. Exhibit 39 and 42.1 D efendant does not suggest that these

Defendant argues that the Court improperly admitted Exhibits 39 and 42 as adoptive admissions. For documents to be admitted under Rule 801(d)(2)(B) as adoptive admissions a Court must first find that sufficient foundat ional facts have been introduced for the jury reasonably to conclude that the defendant actually adopted the statements contained in the documents. See United States v. Gill, 58 F.3d 1414, 1419 (9th Cir. 1995). The court must make this finding by a preponderance of the evidence. See J ack B. Weinstein & M argaret A . Berger, Weinstein's Federal Evidence, § 801.31[2] at 801-58 (2004). Once a document is admitted on this basis, it is for the jury to decide w het her t he defendant actually adopted the writing as his own statement.

Defendant complains that other exhibits lacked foundation or were inadmissible, but he does not identify them or explain the basis for his concern. The Court cannot address unexplained objections, and therefore will confine its analysis to Exhibit 39 and 42. -2Filed 07/14/2005

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The Government presented evidence that Exhibits 39 and 42 were found in Defendant's home and maintained in an orderly fashion in Defendant's home office. The

Government presented evidence that no other person lived in Defendant 's home or worked in his office. In addition, the documents themselves contained references to Defendant.

The Court concludes that s ufficient evidence supported the admission of Exhibits 39 and 42 as adoptive admissions. 3. Various Complaints.

Defendant asserts broadly that he was not permitted to present a fair defense. This section of his motion (pages 6-9) mentions a number of alleged difficulties. Defendant

asserts that he broke his ankle before trial, resulting in pain and medication, and that the Court granted him a 21-day continuance instead of a requested 30-day continuance. Defendant suggests that the lack of a longer continuance prevented him from participating fully in the preparat ion of his defense. Defendant also asserts that he was in pain during trial and had difficulty getting to the courthouse. He asserts t hat he was taking pain

medications during the trial, stating: "I am deeply concerned that I t ook excessive amounts of the p res crip t ion drugs, due to the pain in my ankle and my anxiety, which caused a drug induced testimony on my behalf." M otion for N ew T rial, Attachment B. Defendant further notes that the Government was permitted to introduce evidence of his prior misdemeanor conviction for impersonating an INS agent , t hat the court limited the amount of his testimony, that the court limited him to two character w it nesses, and that the court improperly denied him funds to hire an accountant to summarize and present charts displaying exculpatory evidence. Defendant presents these concerns in summary fashion

with few citations to the record and no citations to legal authority. Although Defendant cont ends that he did not have adequate time to review documents and assist in preparation of the defens e, he fails to explain what he was unable to do or how it prejudiced him at t rial. D efendant did assert on the morning of trial that he w as concerned about the lack of his attorney's preparation. During an ex parte discussion

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on the record, the trial judge inquired carefully into preparation issues and agreed to take steps that would assist in ensuring that Defendant 's counsel was fully prepared and effective at trial. See RT 3/1/05 (Sealed) at 4-27. Defendant does not assert that he informed the Court of the pain medication he was taking during trial or other difficulties in his testimony. Nor does Defendant assert that the medication affected his testimony or trial participation ­ only that he is "deeply concerned" that it might have. Defendant does not identify any specific errors, mis s t atements, or

strategic lapses that occurred because he was medicated. Defendant complains that the trial judge unfairly limited his t es t imony, but the record does not support this claim. Defendant began his t es t imony on M arch 9, 2005, at 10:51 a.m. (RT 3/9/05 at 52) and continued to 4:16 p.m. that day (Id. at 141). Defendant resumed his testimony the next day at 9:19 a.m. and continued until 3:54 p.m. RT 3/10/05 at 26, 196. D efendant testified for a substantial portion of this six-day trial, and fails to

explain what relevant testimony he would have given had additional time been allowed. Defendant also fails to explain w hat evidence additional character witnesses would have presented or why it was not duplicative of the character witnesses who did testify. Nor does Defendant explain what evidence an accountant w ould have presented that might have influenced the jury's decision. T he Court concludes that the variety of arguments asserted by Defendant do not warrant a new trial. Defendant's arguments largely lack specificity and fail to identify

prejudicial events, decisions, or evidence. 4. Prosecutor's S tatement During Closing Arguments.

Defendant complains that the prosecutor referred in her closing argument to Defendant's prior misdemeanor conviction for imp ersonating an INS officer and suggested to the jurors that they could consider this fact "on whether or not M r. Bond had the intent." RT 3/11/05 at 106. Defendant suggests that this argument transformed t he p rior

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act evidence, w hich had been admitted solely as impeachment, into impermissible character evidence. Evidence of the prior misdemeanor conviction had been admitted under Rule 609. T hat rule permits the admission of evidence of a crime of dishonesty for the purpose of attacking t he credibility of a witness, in this case, Defendant. The Court has reviewed the p ros ecutor's argument and the defense argument to which it was responding and concludes that Defendant was not prejudiced by the prosecutor's comment. argument was error, it was harmless. Defense counsel asserted in closing argument that Defendant did not mislead the Social Security Administration ("SSA"), t hat he did not submit incomplete information, that he did not fabricat e a letter purportedly sent to the SSA, and that he was not the " mas t ermind" of any fraud. RT 3/11/05 at 96-97. In response, the prosecutor asserted t hat Defendant was a mastermind of fraud and that his testimony to the cont rary was not credible. During this argument, the prosecutor referred to the previous misdemeanor If the

conviction and said "you can consider that on whether or not M r. Bond had the intent." Id. at 106. In context, the prosecutor was suggesting that M r. Bond's explanation of his

actions, including his denial of being a "mastermind" of fraud, were not credible. See id. at 106-107. Such a credibility argument was proper under Rule 609. 5. The Trial Court's Comments to Defendant.

Defendant asserts that he received advice from SSA employees concerning his ability to accept social security benefits while working in his own business. Defendant

tap e recorded three of his conversations with SSA employees. The employees apparently were not aware that the conversations were being recorded. One of t he recordings

occurred before the indictment; the other two occurred after the indictment and when Defendant was represented by counsel. The trial judge expressed concern to D efendant and his counsel, outside the p resence of the jury, that Defendant's recording of the conversations without the

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knowledge of SSA employees might have violat ed federal wiretap laws and that Defendant's testimony about the tape recordings might incriminate him. During this

colloquy the trial judge emphasized this risk to Defendant and s ought to ascertain whether his testimony about the tape recordings would be knowing and voluntary if incriminating. RT 3/10/05 at 17-23. Defendant contends that the Court's comments on this subject violat ed his right to counsel. Defendant notes that his counsel objected to the Court 's suggestion that federal Defendant then asserts that he proceeded to place in

wiretap laws had been violated.

evidence the two t ape recordings made after the indictment, but did not seek to present the earlier tape recording, implying that this decision was caused by the Court's comments. Defendant asserts that t he Court's comments violated his right to counsel, but he does not explain how the comments int erfered with the attorney-client relationship, impaired the effectivenes s of his attorney, or otherwise deprived Defendant of the services of his lawyer. The transcript of the exchange makes clear that defense counsel had

discussed thes e is s ues with Defendant before the Court's comments (RT 3/10/05 at 17), and the fact that Defendant s ubs equently decided to present two of the three recordings suggests that he consulted with his counsel after the Court's comment s . consultation with his attorney does not appear to have been impaired. Defendant implies that he decided to withhold one of the tap e recordings because of the Court's statements, but he does not assert that he would have pursued a different course had the Court remained silent. Nor does Defendant address the cont ent s of t he D efendant's

tap e recording he withheld, explain why it is different in substance from the two tape recordings Defendant did present, or explain how his decision to withhold this particular tape recording resulted in an unfair trial. The Court cannot conclude that the t rial judge's comments interfered with Defendant's right to counsel. Even if the trial judge's colloquy w ith Defendant was error,

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the Court concludes that it did not substantially affect Defendant's rights and therefore finds it harmless. See Fed. R. Crim. P. 52(a). 6. Motion for Judgment of Acquittal.

Without citing legal authority or the record, Defendant asserts that the Court should have granted his motions for judgment of acquittal. He contends that the Government

failed to prove the amount of his net income, rely ing s olely on speculation as to whether his net income was high enough to disqualify him from receiving social security benefits. H e also asserts that the Government failed to prove the existence of an "event" affecting his right to receive continued social security benefits. Defendant in effect argues that the Government presented insufficient evidence to support the jury's verdict. In ruling on such a motion, the Court must view t he evidence in the light most favorable to the pros ecution and should grant a new trial only in exceptional cases where the evidence prep onderates heavily against the verdict. States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1998). The Court concludes that the Government pres ented sufficient evidence to support the verdict. The Government p resented evidence that social security beneficiaries have United

an affirmative duty to report their income and hours worked to the SSA, that Defendant failed t o do so, that Defendant was engaged in several businesses during the years in question and earned at leas t $177,653.77 from his work as an insurance salesman, that Defendant 's t ax returns reflected work of more than 80 hours per month, and that Defendant received more than $100,000 in social security benefits to which he was not entitled. Viewed in the light most favorable to the prosecution, this evidence supports the

jury's verdict. 7. Failure of Poll the Jury.

Defendant contends that he w as denied an opportunity to have the jury polled after the verdict was returned. He asserts that t he trial judge dismissed the jury so quickly that his lawyer had no opportunity to request a polling.

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Rule 31(d) st ates that the court must poll jurors "on a party's request." Fed. R. Crim. P. 31(d). The Court has reviewed t he trial transcript and concludes that defense counsel Defense counsel was present

was not denied an opportunity to make such a request.

when the verdict was read, but did not request a poll after the reading was comp let ed. The Court then proceeded to thank the jurors, state that they had fulfilled their obligation, wish them a nice weekend, and ask them to leave t heir note pads in the jury room. During this exchange Defendant's counsel did not request a poll. The Ninth Circuit has held in very See Mull v.

similar circumstances that a Defendant's right to poll the jury is not violated. United States, 402 F.2d 571, 574 (9th Cir. 1968).

IT IS ORDERED that Defendant's M otion for a New Trial (Doc. #135) is denied. DATED this 14th day of July, 2005.

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