The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Before the Court is defendant Mark Estell Wilkins' ("Defendant") Motion for Judgment of Acquittal or in the Alternative for a New Trial (Court File No. 37), pursuant to Fed. R. Crim. P. 29. Defendant claims four grounds for acquittal or a new trial: (1) there was insufficient evidence to support the jury's verdict; (2) the statute under which he was convicted does not apply to a false Department of Housing and Urban Development ("HUD") settlement statement (a "HUD-1"); (3) the jury should not have been charged under Pinkerton v. United States, 328 U.S. 640 (1946); and (4) the jury should have been charged with the United States Court of Appeals for the Sixth Circuit's form instruction for wire fraud. For the following reasons, this Court finds no merit in Defendant's claims. Accordingly, this Court will DENY Defendant's motion for judgment of acquittal and will DENY Defendant's motion for a new trial (Court File No. 37).
I. FACTS AND PROCEDURAL HISTORY
Defendant was indicted with co-defendant Jay Ann Snyder ("Snyder") on four counts (Court File No. 1). Counts One and Two charged Defendant with wire fraud, in violation of 18 U.S.C. § 1343. According to the indictment Defendant and Snyder defrauded mortgage lenders by purchasing real properties using false HUD-1 settlement statements, which reflected inflated sales prices and fees (id.). Snyder was a mortgage broker and would prepare the documents. Defendant's role was to act as buyer using Snyder as broker, knowing she would cause a duplicate set of settlement forms to be prepared (id.).*fn1 As a result of these actions, the mortgage lender would disburse more money than it otherwise would have loaned; the excess money was split between Defendant and Snyder and sometimes allegedly disguised using an entity known as Century Processing. The indictment alleges that on two specific occasions, Snyder, aided and abetted by Defendant, used wire communications to further this fraudulent scheme (id.).
Counts Three and Four charged Defendant with aiding and abetting the making of false and fraudulent statements to HUD on HUD-1 forms in violation of 18 U.S.C. §§ 1001 & 2 (id.). Under the Real Estate Settlement Procedures Act of 1974 ("RESPA"), 12 U.S.C. §§ 2601 et seq., "HUD-1s" are required to be included at all real estate settlements. 12 U.S.C. § 2603. The indictment alleges two occasions in which an inflated purchase price was included on HUD-1 forms (id.).
After pleading "not guilty," Defendant proceeded to trial by jury commencing on January 22, 2007. The trial lasted two days and included testimony from co-defendant Snyder (Court File No. 38) on Defendant's behalf. At the close of the Government's proof, Defendant moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 (id. at p. 70-76). The Court orally denied the motion as to Counts One and Two, holding the Government had put on sufficient evidence to establish Defendant's willful fraudulent intent (id. at p. 76). The Court reserved ruling as to Counts Three and Four, to further consider whether the loans at issue were within HUD's jurisdiction as required by 18 U.S.C. § 1001 (id.). The Court did not rule on this motion prior to the jury's verdict, finding Defendant guilty of all four counts (Court File No. 36).
On January 30, 2007, Defendant timely filed his Rule 29/33 motion (Court File No. 37). On February 2, the United States of America (the "Government") timely filed a response (Court File No. 39). On February 6, the Government filed a supplemental response (Court File No. 40).
A. Motion for Judgment of Acquittal under Rule 29
Under the Federal Rules of Criminal Procedure, the defendant may move for judgment of acquittal within seven days of the jury's discharge. Fed. R. Crim. P. 29(a). Such a motion should be granted if "the evidence is insufficient to sustain a conviction." Id. In reviewing such a challenge to the sufficiency of the evidence, the Court determines, "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) (original emphasis). In coming to this determination, the court does not weigh the credibility of witnesses or the weight of the evidence. United States v. Walls, 293 F.3d 959, 967 (6th Cir. 2002). "A defendant bringing such a challenge bears a 'very heavy burden.'" United States v. Daniel, 329 F.3d 480, 485 (6th Cir. 2003) (quoting United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986)).
If, as here, a court reserves ruling on a motion for judgment of acquittal, the court may decide the motion after the jury returns a verdict of guilty, on the basis of the evidence at the time the ruling was reserved. Fed. R. Crim. P. 29(b); United States v. Finn, 375 F.3d 1033, 1037 (10th Cir. 2004).
B. Motion for a New Trial under Rule 33
"Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). The decision to order a new trial is committed to the Court's discretion; an appellate court will reverse only upon a defendant demonstrating clear abuse of discretion. United States v. Talley, 164 F.3d 989, 1002 (6th Cir. 1999); United States v. Davis, 15 F.3d 526, 531 (6th Cir. 1994). A reviewing court looks most closely at the essential fairness to the accused of the prior proceedings in deciding whether to grant a Rule 33 motion. See Davis, 15 F.3d at 531-32.
When considering whether to grant a new trial based on the sufficiency of the evidence, the Court may consider the credibility of witnesses and the weight of the evidence to ensure there is not a miscarriage of justice. United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998) (citing United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988)). Rule 33 motions are generally disfavored and the Court should grant such a motion "only in the extraordinary circumstances where the evidence preponderates heavily against the verdict." Ashworth, 836 F.2d at 266; United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991); United States v. Hoffa, 382 F.2d 856, 862 (6th Cir. 1967). A defendant bears the burden of proving a new trial should be granted. Seago, 930 F.2d at 488.
A. Elements of the Offenses
Counts One and Two of the indictment allege wire fraud. To convict a defendant of wire fraud, the Government must establish the following elements beyond a reasonable doubt:
(1) A scheme or artifice to defraud;
(2) Use of interstate wire communications in furtherance ...