Opinion
Case No. CR-2-07-179(7).
June 1, 2009
OPINION ORDER
This matter is before the Court on Defendant Jonathan L. Boyd's Motion for New Trial (doc. nos. 212 and 213). Defendant moved for leave to file a reply brief to the Government's Response (doc. no. 220). The Motion for Leave is GRANTED. Defendant also moved to extend the time to file objections to the Presentence Investigation Report (doc. no. 214). The Government does not object to this Motion. The Motion to Extend Time to File is GRANTED. Objections must be filed to the Presentence Investigation Report within seven days after the issuance of this Order. Objections must be filed to the Final Presentence Investigation Report within 14 days after the issuance of this Order. For the reasons set forth below, the Court GRANTS in PART and DENIES in PART Defendant's Motion for New Trial.
II. BACKGROUND
On November 17, 2008, Defendant proceeded to trial on charges of wire fraud, conspiracy to commit wire fraud, and attempting to evade or defeat a tax. After seven days of trial, the jury returned guilty verdicts on all counts. Defendant now seeks relief from the jury's verdict on Count 3, the conspiracy to commit wire fraud count, and Counts 29-32, the wire fraud counts, of the Indictment. Defendant asserts that a new trial is warranted because of the constructive amendment of Counts 29-32 of the Indictment, because the guilty verdicts on Counts 3 and 29-32 were against the manifest weight of the evidence, because trial counsel was ineffective, because extraneous communications were submitted to the jury, and because the Government commented on the Defendant's silence.
Defendant does not assert that the guilty verdicts must be vacated on Counts 6 and 7, the attempting to evade or defeat a tax counts, or that a new trial is warranted for those counts.
III. STANDARD OF REVIEW
Federal Rule of Criminal Procedure 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Whether to grant a Rule 33 motion is left to the sound discretion of the district court. United States v. Wheaton, 517 F.3d 350, 361 (6th Cir. 2008).
IV. LAW AND ANALYSIS
Defendant asserts several arguments on behalf of vacating the guilty verdicts returned against him on Counts 3 and 29-32 and ordering a new trial. First, Defendant argues that there was a constructive amendment of Counts 29-32 of the Indictment. Second, Defendant argues that the guilty verdicts for Counts 3 and 29-32 were against the manifest weight of the evidence. Third, Defendant argues that trial counsel was ineffective. Fourth, Defendant argues that extraneous communications were submitted to the jury. Finally, Defendant argues that the Government commented on Defendant's silence. Each of these contentions will be discussed in turn.
A. Constructive Amendment of Counts 29-32 of the Indictment
Defendant was convicted of wire fraud, in violation of 18 U.S.C. § 1343. Defendant argues that the guilty verdicts for Counts 29-32 should be vacated and a new trial should be ordered because there was a constructive amendment of the Indictment.
"[A]fter an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself." Stirone v. United States, 361 U.S. 212, 215-16 (1960). There are two types of amendments to indictments: actual and constructive modification. United States v. Budd, 496 F.3d 517, 521 (6th Cir. 2007). Defendant asserts that a constructive amendment of the Indictment occurred in this case. A constructive amendment results:
when the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is substantial likelihood that the defendant may have been convicted of an offense other than the one charged in the indictment.U.S. v. Brock, 295 F. App'x. 792, 794 (6th Cir. 2008) (citing United States v. Smith, 320 F.3d 647, 656 (6th Cir. 2003)). Constructive amendments, therefore, require "a discrepancy between the indictment and both the trial evidence and the jury instructions." Id. (citing Budd, 496 F.3d at 521).
The Indictment in this case charges that:
[i]n furtherance of the aforesaid scheme and artifice to defraud . . . the defendants transmitted or caused to be transmitted by means of wire in interstate commerce, writings, signs or signals in the nature of moneys or funds sent from the State of Michigan to the State of Ohio for the ultimate purpose of executing a scheme and artifice to defraud . . .
(Ind. p. 28).
The Jury Instruction given on wire fraud in this case stated:
Section 1343 of Title 18 of the United States Code provides, in part, that:
Whoever, having devised or intending to devise any scheme or artifice to defraud or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, and transmits or causes to be transmitted by means of a wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice . . .
shall be guilty of an offense against the United States.
(Jury Ins. no. 44) (citing 2A Kevin F. O'Malley et al., Federal Jury Practice and Instructions § 47.05 (5th ed. 2001)).
The Jury Instruction given on the elements of wire fraud required:
that the defendants used wire, radio or television communications or caused another to use wire, radio or television communications in interstate commerce in furtherance of the scheme.
(Jury Ins. no. 45) (citing Sixth Circuit Pattern Criminal Jury Instructions § 10.02 (2005)).
Defendant argues that the Government broadened the scope of the Indictment because the Indictment pertaining to wire fraud limits the wire transactions to transmissions from Michigan to Ohio, whereas the jury instruction does not limit incoming wire transfers to those from Michigan (Mot. p. 4). The Court and the parties, however, specifically dealt with this "scrivener's error" prior to the charge to the jury (Tr. 652-53). Counsel for the Government identified the error, having copied language from Counts 1 and 2 into Count 3, the conspiracy count charging Defendant.
More importantly, however, there is no requirement that a specific state of origin be identified in the Indictment. It is important only that the transfers came from another state into Ohio, and the trial exhibits showed that. The evidence and jury instructions did not alter the essential elements of the offense. The Court uses Federal Jury Practice and Instructions and the Sixth Circuit Pattern Criminal Jury Instructions. The jury instructions the Court would give with Michigan listed in the Indictment and the instructions the Court would give with Michigan not listed in the Indictment do not differ, as all that is required is that the wire transfer occur through "interstate commerce." There was nothing essential about the state from which wire transfers were made into Ohio. For a constructive amendment to occur, it is required that the evidence and jury instructions "so modify essential elements of the offense charged that there is substantial likelihood that the defendant may have been convicted of an offense other than the one charged in the indictment." Brock, 295 F. App'x. at 794 (citing Smith, 320 F.3d at 656) (emphasis added).
The evidence aided in proving, as alleged in the Indictment, that wire transfers came into Ohio through interstate commerce. And the Court gave the pattern jury instruction it gives for all wire fraud charges. Therefore, no constructive amendment occurred, and Defendant's Motion for New Trial is denied on this ground.
B. Guilty Verdict for Counts 3 and 29-32 Against the Manifest Weight of the Evidence
Defendant was convicted of wire fraud and conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1343 and 18 U.S.C. § 371. Defendant argues that guilty verdicts for Counts 3 and 29-32 are against the manifest weight of the evidence. "New trials are not to be granted on the grounds that the verdict was against the weight of the evidence unless the verdict was unreasonable." Barnes v. Owens-Corning Fiberglass Corp., 201 F.3d 815, 820-21 (6th Cir. 2000) (internal quotations omitted). Although a court may re-weigh the evidence on a motion for a new trial, it may not set aside the jury verdict merely because it reaches a different conclusion or even a more reasonable one. Holmes v. City of Massillion, 78 F.3d 1041, 1048 (6th Cir. 1996).
To find the Defendant guilty of wire fraud, a jury must find that the Government has proved each of the following elements beyond a reasonable doubt:
First, that the Defendant knowingly participated in, devised, or intended to devise a scheme to defraud in order to obtain money or property;
Second, that the scheme included a material misrepresentation or concealment of a material fact;
Third, that the Defendant had the intent to defraud; and
Fourth, that the Defendant used wire, radio or television communications or caused another to use wire, radio or television communications in interstate commerce in furtherance of the scheme.
(Jury Instruction no. 45) ( Sixth Circuit Pattern Criminal Jury Instructions § 10.02). Defendant asserts that: (1) the Government failed to prove that the allegedly false statements Defendant made were material; and (2) the Government failed to prove that Defendant sent or caused to be sent any wires in interstate commerce as alleged in the Indictment.
1. Materiality
Defendant asserts that the Government failed to produce sufficient evidence to establish that the allegedly false statements involved in the alleged scheme to defraud were material. Generally, "a false statement is material if it has a natural tendency to influence, or [is] capable of influencing, the decision of the decision-making body to which it is addressed." Neder v. United States, 527 U.S. 1, 16 (1999) (internal quotations omitted). "[T]he misrepresentation or omission must have the purpose of inducing the victim of the fraud to part with property or undertake some action that he would not otherwise do absent the misrepresentation." United States v. Daniel, 329 F.3d 480, 487 (6th Cir. 2003).
At trial, the Government contended that false documents were submitted to lenders in an effort to defraud them regarding Counts 29-32. Defendant complains, however, that the Government did not call one lender to testify as to the significance, and hence materiality, of these documents. Defendant asserts that simply because the loan documents and leases exist does not prove that they contain material statements.
Defendant's argument that no evidence was offered regarding materiality of the allegedly false leases and loan applications ignores the testimony at trial. The significance and materiality of these documents was established by the testimony of Keith Summers ("Summers"), the owner of the mortgage company where Defendant worked and through which these documents were submitted to lenders. Defendant has no legal support for the proposition that only certain classes of witnesses may testify as to the materiality of documents introduced at trial. Summers offered competent testimony as to these documents which the jury could properly consider in its conviction of Defendant:
Q. So then how would SummerTyme Mortgage make their money?
A. We would be paid a certain percentage of the loan amount upon closing the loan. Once all of that information was collected, then it would be submitted to a lender for loan approval. The lender would send you back a commitment to lend along with a list of conditions that applied to that loan of what they would require to fund that loan. Once you had cleared all of those conditions, they would issue a clear to close to the title company. They would, in turn, e-mail the closing instruction and the closing documents to the title company, and the borrower and the title company would sit down and close the loan and the seller, if it was a purchase transaction.
***
Q. So when you provided the documentation to the lender, can you give me specifically what documents you would provide?
A. Whatever the lender was asking for. It varied. I mean, every file that we submitted, if it was a full doc loan, it always had appraisal, it always had a title commitment proving that the title to the property was clear. If it was full doc, it had income documents in it. . . .
***
Q. So the lender would look at the loan application, the financial information set forth in the loan application to determine whether or not the buyer met the criteria or was able to fund the loan?
A. Absolutely.
Q. We talked a little bit about real estate investments. So if you had a buyer who owned income producing property, that information would be set forth on the loan application?
A. Absolutely. . . .
Q. So what information about the income producing property owned by a buyer would be set forth on the loan application?
A. Basically, the rent. What it was producing in rent.
Q. Why is that important?
A. Well, 75 percent of the face value of the rent was acceptable as income to offset the debt. So you wanted leases in your file so you could show the lender that the buyer had this much income from rent, you know, in order to get the deals done. . . .
Q. So, then the residential leases included in the loan application package is critical to the lender?
A. Absolutely. It was either a lease or tax returns. That was the only acceptable proof. If you don't have one of the two, then they wouldn't count the income.
(Tr. 311-12, 313-14, 324-26). As shown above, the significance of the leases was set forth in competent testimony, thereby establishing the materiality of the lease and other documents pertaining to the real estate loans.
Defendant also argues that because no lender was called to testify, there was no evidence presented that the lenders actually received the allegedly false loan documents and leases. The testimony of Summers above, along with other testimony and exhibits documenting the approval of the loans, establishes that the loan applications, appraisals, and residential leases were submitted to the lenders in the ordinary course of business. (See, e.g., Testimony of Thomas Dobies, Abby Woycitzky Fischer and Regina Dravis). This is competent evidence as to these documents which the jury properly considered in its conviction of Defendant.
2. Use of Interstate Wires
Establishing that a wire communication actually crossed state lines is an essential element of wire fraud. 18 U.S.C. § 1343; Sixth Circuit Pattern Criminal Jury Instructions § 10.02. Defendant asserts that during trial, the Government offered no testimony that the wire transfers that allegedly occurred in this case crossed state lines. Defendant asserts that the only evidence offered to establish that the wire transfers crossed state lines is the exhibits introduced at trial, and this evidence failed to establish that any wire transfer crossed state lines.
Summers testified as to how money that was transferred via wire was recorded. For instance, regarding the property at 1590 Aberdeen, Summers testified that there was a charge on the settlement statement which recorded a wire fee, because "[a]ny time you move money by wire, there's always a wire transaction fee." (Tr. 341). Summers testified regarding the wire transaction fee:
A. It's a fee that the title company will charge for physically transferring the funds from . . . the buyer to the seller, okay? In other words, the lender would fund the title company. The title company would be in possession of those funds and then they would transfer those funds to the seller and they would charge a wire fee for that.
Q. How would the lender fund the transaction? How would they actually get the money to the title company?
A. They would send a wire to the title company.
Q. That happens in all cases?
A. Yes.
Q. A wire transfer?
A. Yes.
Q. From the lender to the title company?
A. Correct.
(Tr. 343). Summers also testified that the lenders that sent money via wire to the title company at closing were located, "All over the world. They could be anywhere." (Tr. 312). Summers testimony was also confirmed by the Settlement Statement for the properties that listed a wire fee paid to the title company as part of the fees paid from the borrowers funds at settlement. (See Settlement Stmts., line 113).
Importantly, the records of the lending and title companies that were admitted into evidence showed that the wire transfers originated in various states outside of Ohio, and necessarily traveled interstate in order to arrive at an Ohio title company for closing. For instance,
•the lender for 1255 Atcheson and 1356 Hamlet was located in Georgia,
•the lender for 1257 Atcheson and 788 Gilbert was located in New Jersey
•the lender for 1262 Atcheson was located in Illinois,
•the lender for 938 Heyl and 189 North Ohio was located in Virginia,
•the lender for 2393 Indiana was located in Arkansas,
•the lender for 228 East Hinman was located in Minnesota,
•the lender for 426 South Oakley and 1345 Sullivant was located in California, and
•the lender for 239 Warren was located in Florida.
All these lenders sent wire transfers to either Stewart Service Center, LLC or Arlington Title Agency, Ltd., which are both title companies located in Ohio. Therefore, the jury was not left to speculate about whether funds were transmitted interstate for the purchase of these properties. The weight of the evidence established that Defendant caused another, the out of state lenders, to use wire communications in interstate commerce, by sending a wire from out of state to in state title companies, in furtherance of the scheme. Therefore, the guilty verdict for Count 3 was not against the manifest weight of the evidence. The guilty verdicts for Count 29, relating to 788 Gilbert Street, and Count 32, relating to 228 East Hinman Avenue, were also not against the manifest weight of the evidence.
This Court finds, however, that for the property located at 1590 Aberdeen Avenue, though a wire transfer occurred, the lender was located in Ohio and the title agency, Arlington Title, was located in Ohio. The evidence thereby shows a wire transfer that both originated and terminated in Ohio. There is no other evidence on record that funds were transferred outside of Ohio during the course of the wire transfer. All the jury could do was speculate. Count 31 is based, in part, on a wire transfer occurring in interstate commerce relating to property at 1590 Aberdeen Avenue. The guilty verdict on this Count was, accordingly, against the manifest weight of the evidence.
In addition, this Court finds that for the property located at 35 South Richardson, though a wire transfer occurred, the address of the lender is not listed in any of the closing documents. The evidence shows a wire transfer that terminated in Ohio, as funds were ultimately transferred to Stewart Service Center in Ohio, but does not show where the wire transfer originated or whether funds were transferred outside of Ohio during the course of the wire transfer. All the jury could do was speculate. Count 30 is based, in part, on a wire transfer occurring in interstate commerce relating to property at 35 South Richardson Avenue. The guilty verdict on this Count was, therefore, against the manifest weight of the evidence.
Defendant's Motion for New Trial because the verdicts were against the manifest weight of the evidence is denied in part and granted in part. The guilty verdicts for Counts 3, 29, and 32 stand. The guilty verdicts for Counts 30 and 31, however, are vacated, on the ground that the verdicts were against the manifest weight of the evidence because the Government did not establish that the wire transfers crossed state lines.
C. Ineffective Assistance of Counsel and Violation of the 6th Amendment
Defendant asserts that the guilty verdicts should be vacated and a new trial should be ordered due to ineffective assistance of counsel. Ineffective assistance of counsel occurs when there is a deficient performance by counsel resulting in prejudice, with performance being measured against an "objective standard of reasonableness . . . under prevailing professional norms." Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal citations and quotation omitted). In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," and that counsel's performance prejudiced him in that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland v. Washington, 466 U.S. 688, 687, 694 (1984)
Defendant asserts that defense counsel provided ineffective assistance of counsel when counsel:
1. Entered into a stipulation that permitted the Government to introduce documents that were not specifically identified;
2. Failed to review documents counsel believed were included in the stipulation with Boyd;
3. Did not object to the introduction of documents that were not relevant and should never have been admitted;
4. Permitted incomplete HUD statements to be presented to the jury;
5. Permitted documents that were supposed to be removed from the exhibit binders to go to the jury; and,
6. Allowed documents to be admitted into evidence that counsel believed had been previously stipulated to be address in the stipulation when in fact there was no relationship between those documents and the stipulation.
1. Entered into Stipulation that Permitted Documents not Specifically Identified
On November 17, 2008, defense counsel entered into a stipulation with the Government authenticating certain title company, banking, and mortgage lending company records. Defendant asserts that defense counsel provided ineffective assistance of counsel when it entered into this stipulation that permitted the Government to introduce documents that were not specifically identified. Defendant asserts that because the stipulation on its face fails to identify the specific documents that are encompassed by its terms (i.e. fails to identify the documents by exhibit number or by description), it is thereby illusory and cannot be enforced. Defendant also asserts that the stipulation fails to identify the banks, the mortgage companies, and/or the title agencies that were the source of the documents.
Pursuant to the stipulation, defense counsel stipulated to the banking and mortgage company records and title company records associated with the transactions involving the 19 identified properties. Prior to trial, the Government had provided defense counsel with every document pertaining to each of said 19 properties. During trial, the Court admitted these documents as exhibits consistent with the stipulation. (Tr. 223).
Defendant also complains that the Court was led to believe the stipulation was related to closing documents only. (Tr. 218). Defendant asserts, however, that "closing documents" were not defined in the stipulation or at trial. Though no one specifically defined "closing documents," there was an indication at trial which exhibits were encompassed by the stipulation. Keith Summers testified about closing documents:
A. Once you had cleared all of those conditions, they [lender] would issue a clear to close to the title company. They would, in turn e-mail the closing instructions and the closing documents to the title company, and the borrower and the title company would sit down and close the loan and the seller, if it was a purchase transaction.
***
Q. Okay. So then once the lender approved the loans based upon the documentation provided, then they would e-mail the title company?
A. Correct.
Q. With what?
A. Closing instructions, which basically was a list of requirements that they had to fund the loan. And then they would also send the actual closing package to the . . . title company.
(Tr. 312, 313).
The closing documents were, thus, all the documents provided by the lender to the title company associated with the approval of the loan. The Court finds without merit Defendant's contention that defense counsel entered into a stipulation that permitted the Government to introduce documents that were not specifically identified.
2. Failed to Review Documents with Defendant
Defendant asserts that defense counsel failed to review documents counsel believed were included in the stipulation. Defendant asserts,
trial counsel admitted that he did not review with his client the documents that he believed were subject to the stipulation. Therefore, the defendant could not make an informed decision regarding the stipulation. Defense counsel thereby stipulated without the express knowledge, consent or authorization of the Defendant; it is incongruous to state that the Defendant agreed to the stipulation and therefore waived his right to confront witnesses when he never saw what the stipulation allegedly included.
(Mot. p. 15). Defendant fails, however, to offer any support for this assertion (i.e. a sworn affidavit of either Defendant or former defense counsel). Thus, Defendant's contention that defense counsel failed to review documents counsel believed were included in the stipulation has no merit.
3. Did not Object to Documents that were not Relevant
Defendant asserts that defense counsel did not object to the introduction of documents that were not relevant and should never have been admitted. Defendant makes the vague assertion that the Government moved to introduce properties that were not mentioned in the Indictment, and asserted "[i]t is not clear why these documents were admissible, because they were clearly not relevant . . ." (Mot. p. 13). The Court finds, however, that the failure to identify each and every property that was the subject of the conspiracy does not make the documents relating to the property not so identified irrelevant.
Count 3 of the Indictment alleged that Defendant and others participated in a conspiracy involving a scheme to defraud by exaggerating the value of real estate properties "in and around Columbus, Ohio, both to lending institutions and to prospective purchasers . . ." and misrepresenting the credit worthiness of purchasers to lending institutions. The Government is not required to specify in the Indictment each piece of real estate that might have been involved in the conspiracy. All real estate involved, however, was the subject of the discovery provided to the defense long before trial. There were no surprises. Hence, the Court finds Defendant's argument on this issue fails.
4. Permitted Incomplete HUD Statements
Defendant asserts that defense counsel permitted incomplete HUD statements to be presented to the jury. According to Defendant, three of the substantive counts of wire fraud do not include the final signature page of the HUD statements in which the parties attest to the accuracy of the HUD. Therefore, Defendant concludes, the HUD statements were incomplete and counsel was ineffective in failing to ask that the entire HUD statements be admitted pursuant to Fed.R.Evid. 106.
Upon reviewing the documents, it is not apparent on their face that a page is missing. For instance, the HUD statement does not state page 1 of 3 and page 2 of 3, and is thereby missing a page; rather, the statement just states page 1, page 2. Additionally, there has been no evidence presented before this Court that a final signature page of a HUD statement was a requirement, or was ever a part of the closing documents. Though a signature page is included with some of the closing documents, it is not apparent that it is a part of the HUD statement. Even if there was such a requirement, the Court does not find defense counsel's failure to inquire to be a deficient performance falling below an objective standard of reasonableness. Furthermore, this Court finds no reasonable probability that but for this "error" the results of the trial would have been different, as this allegedly missing signature page appears entirely irrelevant to the proceedings.
5. Permitted Documents to Go to Jury that Should have been Removed
Defendant asserts that defense counsel permitted documents that were supposed to be removed from the exhibit binders to go to the jury. Specifically, Defendant complains that Auditor's Reports were submitted to the jury. Defendant asserts the parties agreed that these documents should not have been admitted.
It is true that the Auditor's Reports were not part of the stipulation concerning the 19 properties. And, it is true that defense counsel objected to the admission of those Reports. (Tr. 350). Nevertheless, those reports were subsequently admitted into evidence subject to the Court's instruction provided to counsel: "you can lay an independent foundation for the other documents related to those properties because there may be some other objections, as Mr. Belli alluded to earlier, dealing with relevancy and the like." (Tr. 223). There was a specific exchange regarding the foundation the Government established for the admission of the Auditor's Reports. The Court ultimately determined that a proper foundation had been made for their admission:
Ms. Sanders: Your honor, I again move to admit the transfer histories to the 19 properties involved, as well as the MLS records provided by — to defense counsel.
The Court: Any objection, Mr. Merkle?
Mr. Merkle: Yes, Your Honor, consistent with our comments up at the bench.
The Court: Mr. Belli?
Mr. Belli: Same objection.
The Court: All right. For the reasons stated at sidebar and for the reasons that I believe that Ms. Sanders has adequately perfected the foundation for admission of all of those records, they will be admitted, Ms. Sanders, you may publish them if you choose to do so.
(Tr. 777-78).
The Court finds nonmeritorious Defendant's contention that defense counsel permitted documents that were supposed to be removed from the exhibit binders to go to the jury.
6. Allowed Documents with Incorrect Address to be Admitted
Defendant finally asserts that defense counsel allowed documents to be admitted into evidence that counsel believed had been previously stipulated to by address in the stipulation when in fact there was no relationship between those documents and the stipulation. Defendant's complaint is that two of the properties testified to by Regina Dravis, 426 South Oakley and 2720 Fremont, were not part of the stipulation. Defendant asserts that defense counsel incorrectly believed those properties were stipulated to, and therefore did not object to their admission. This Court finds, however, that those properties were, in fact part of the list set forth in the stipulation. As a result of clerical errors, however, these properties were mislabeled 426 South Ohio and 2729 Fremont, property addresses that were not part of the discovery in this case. Those addresses were plainly erroneous and did not serve to confuse anyone. Therefore, the documents introduced at trial pertaining to 426 South Oakley and 2720 Fremont were, in fact, included in discovery, were properly identified by Bates stamp numbers, did not confuse anyone, and were recognized by the parties as being covered by the stipulation. The Court thereby finds Defendant's contention that defense counsel allowed documents to be admitted into evidence that had not been stipulated to by address to be nonmeritorious.
Defendant's Motion for New Trial due to ineffective assistance of counsel or violation of his Sixth Amendment rights is not supported by the facts. Defendant has not shown that defense counsel deficiently performed according to an objective standard of reasonableness under prevailing professional norms. Rompilla, 545 U.S. 374. Defendant also has not shown that any alleged deficient performance prejudiced him in such a way that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694.
D. Extraneous Communications
Defendant asserts that based on the record, it cannot be determined whether approximately 45 pages of documents, included in the exhibit binders provided to the jury during deliberations (the "jury exhibit binders") were admitted into evidence. (See Government Exhibit D-401-1 (containing a Boyd letter dated July 12, 2003, a Dravis W-9, and a Boyd/Dravis management contract); Government Hambleton Exhibits (consisting of MLS reports).) Defendant also argues that many of the MLS reports submitted to the jury contain the handwritten comments of an unknown person, that these errors denied him a fair trial, and that a new trial should be ordered, or at a minimum, an evidentiary hearing and a Remmer hearing must be ordered.
1. Government Exhibit D-401-1
At the beginning of trial, the Court dealt with a renumbering of the Government's exhibits:
Mr. Merkle: Well I mentioned it to Mrs. Clark this morning. Yesterday I received a notice from the government where they have renumbered all of their exhibits, which has created a problem for me organizationally.
The Court: Well, if it will help, do you have the old nomenclature?
Mr. Merkle: I do.
The Court: So do you?
Ms. Sanders: Yes, Your Honor.
The Court: Well, if it will help you to use the old nomenclature, we'll just do cross-referencing, that's all.
(Tr. 12).
Government Exhibit D-401-1 is part of a group of documents received from CMHA records and identified as Property Management Contract, Bates stamp numbers 3586-3590, records from CMHA. Exhibits CMHA-1, 2, and 3 comprise Bates stamp numbers 3586-3590. These exhibits were admitted into evidence. (Tr. 266). It does not take an evidentiary hearing to determine that Government Exhibit D-401-1 is the same as Exhibits CMHA-1, 2 and 3. Government Exhibit D-401-1 was simply renumbered (as were all the Government Exhibits).
2. MLS Reports
Defendant's assertion that many of the MLS reports submitted to the jury contain the handwritten comments of an unknown person is also without basis. It is not clear from Defendant's argument whether he is alleging that the integrity of the jury exhibit binders was compromised by the inclusion of documents not admitted or by handwriting placed on documents after they were admitted. Defendant appears to suggest that the exhibits were tampered with after being admitted into evidence. A review of the jury binders reveals only documents admitted into evidence.
The MLS reports in question had been provided to the Government by its expert witness. The reports had certain of the expert witness' handwritten notations on them. The MLS reports were not initially in the binders provided to defense counsel. These records were copied and provided to defense counsel in advance of trial. Thus, defense counsel had these same MLS reports and knew what they were.
Ms. Sanders: Your Honor, since we're here, before they come up again, I will also move to introduce the MLS records that the witness has used in its — in her report as well.
Mr. Merkle: Is that what was handed to us this morning?
* * *
Ms. Sanders: They were provided last week, your Honor. We just simply put them in. We just noted them as an exhibit this morning, but they were provided last week.
(Tr. 772-73).
The trial record establishes that the MLS reports admitted were the MLS reports the expert witness used as the basis for her opinion regarding Co-defendant Gaither's real estate appraisals (Tr. 774). As the Court requested, counsel for the Government laid the foundation for the admission of the MLS reports to come into evidence ( See Tr. 775-76). To the extent that there are handwritten notations on the MLS reports used by the expert witness which were admitted into evidence, those notations are not unauthorized communications requiring a Remmer hearing.
In Remmer v. United States, 347 U.S. 227 (1954), the defendant alleged an authorized contact with a juror by an unnamed person during the trial. The Court held,
In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.Id. at 229. A Remmer hearing is not justified in this case because no extraneous communications were made to the jurors. Nothing that was not admitted into evidence was sent back to the jury.
More importantly, admission of the MLS reports constitutes no more than harmless error. Any handwritten notations on the documents were not introduced as evidence to prove the truth of the matter asserted; the MLS reports were introduced into evidence as the basis upon which the expert witness formed her opinion as to the appraisals performed by Co-defendant Gaither, who was acquitted of all charges. Nothing was written on the MLS reports that was inconsistent with testimony the expert witness provided at trial. Furthermore, nothing was written on the MLS reports that was at all harmful to Defendant. The fact that there were handwritten notations on the reports does not make the reports inadmissable or require a hearing to determine whether the jurors relied on the notations in reaching their decision. Extraneous communications were not made to the jury, so the Motion for New Trial is denied on this ground.
E. Defendant's Fifth Amendment Privilege Against Self-Incrimination
Defendant complains that a statement in the Government's closing argument violated the Defendant's Fifth Amendment Privilege Against Self-Incrimination. It is well settled that a defendant in a criminal trial need not testify or produce any evidence, and no comment on failure to do so is appropriate. Griffin v. California, 380 U.S. 609 (1965). The government can thereby violate a defendant's rights by commenting on the defendant's failure to testify. Id. at 613.
Defendant argues:
From opening to closing, the Government argued that Boyd was responsible for creating fictitious leases that caused the lenders to issue the loans. There was never any allegation by the Government that anyone else created these documents, including Boyd's co-defendant at trial. In closing argument the Government told the jury the following:
The defendants cannot explain why the lease of the same property for the same lease period occurred in different applications and sometimes with different tenants and different lease rates.
In essence what the Government did was highlight for the jury that Boyd did not testify. Even more egregious, the Government's comments suggest that he did not testify because he did not have an explanation for all discrepancies in the multiple leases that the Government had just shown to the jury.
(Mot. p. 21).
The Sixth Circuit has adopted a two step approach to determining whether prosecutorial misconduct warranting reversal took place during a closing argument. U.S. v. Layne, 192 F.3d 556, 579 (6th Cir. 1999) (citing see United States v. Carroll, 26 F.3d 1380, 1387 (6th Cir. 1994)). First, the court must determine whether the prosecutor's remarks were improper. Id. (citing see United States v. Bess, 593 F.2d 749, 757 (6th Cir. 1979)). If the remarks were improper, the court must consider "(1) whether proof of guilt is overwhelming; (2) whether defense counsel objected; and (3) whether the trial judge stepped in and admonished the jury." Id. (citing see Carroll, 26 F.3d at 1384 n. 6).
Whether statements in a closing argument were improper depends on whether the complained of statements were "manifestly intended" to reflect on a defendant's silence, or were of such a character that a jury would "naturally and necessarily" construe them as such. Layne, 192 F.3d at 579-80 (citing United States v. Bond, 22 F.3d 662, 669 (6th Cir. 1994)). The Government did not state "defendants did not explain," which perhaps could be viewed as a comment on Defendant's failure to testify. Rather, the Government stated "defendants cannot explain," which indicates it is impossible for the defendants to explain the inconsistent information provided in different lease applications. The Court finds that the complained of statement was not "manifestly intended" to reflect on the accused's silence, nor was the statement of such a character that the jury would "naturally and necessarily" take the statement as a reflection on the accused's silence. Rather, the challenged comment was "a commentary on the uncontradicted nature of the government's evidence." See Layne, 192 F.3d at 580. Furthermore,
If it is only probable or possible that the jury was influenced by the comment, then the defendant is not entitled to the requested relief. . . . We must look at all the surrounding circumstances in determining whether or not there has been a constitutional violation.U.S. v. Randolph, No. 97-5990, 97-5991, 1999 WL 98564, at *5 (6th Cir. Jan. 27, 1999) (internal citation and quotations omitted). The Court does not find it probable that the jury was influenced by the comment.
Moreover, the Sixth Circuit has declined to find prosecutorial misconduct where "objectionable remarks were isolated and did not reoccur." Id. A court should reverse a conviction based upon prosecutorial misconduct "only if the resulting prejudice permeates the entire trial." Layne, 192 F.3d at 579 (citing United States v. Roberts, 986 F.2d 1026, 1031 (6th Cir. 1993)). The complained of comment was isolated, and it is the only statement complained of in an extensive closing argument, of nearly 20 pages, and in seven days of trial.
Even if the Court found the comment to be improper, the evidence of guilt was otherwise overwhelming; this statement did not make the Government's case. Defense counsel also failed to object to the comment. In Conn v. Wells, No. 93-1313, 1994 WL 28527, at *3 (6th Cir. Feb. 1, 1994), the Court recognized that with a brief remark, a court is under no obligation to give a curative instruction sua sponte. See id. The Court also recognized that a Court can give a general instruction, to the effect that every defendant has the absolute right not to testify, and the jury may not consider his silence. See id. And this can cure an improper statement made in closing argument. See id.; see also U.S. v. Moore, 917 F.2d 215, 226 (6th Cir. 1990) (although no curative instruction was given immediately after comment made, curative instruction was given as part of regular jury instructions); Roach v. Rone, No. 91-5888, 1992 WL 120203, at *3 (6th Cir. June 2, 1992) (though no curative instruction was requested, the judge's preliminary and final jury instructions clearly set out the government's burden of proof). In this case, the Court gave a general instruction on a defendant's election not to testify after closing arguments, in which the Court stated:
A defendant has an absolute right not to testify. You cannot consider in any way the fact that Defendant Boyd did not testify. Do not even discuss it in your deliberations. Remember that it is the government's responsibility to prove the defendants guilty beyond a reasonable doubt. It is not the defendants' responsibility to prove that they are innocent.
(Jury Instruction no. 16) (citing Sixth Circuit Pattern Criminal Jury Instructions § 7.02A).
In conclusion, Defendant has not shown that the complained of comment was improper, as the comment was not "manifestly intended" to reflect on the accused's silence, nor was the statement of such a character that the jury would "naturally and necessarily" take the statement as a reflection on the accused's silence. The comment was also isolated, proof of guilt was otherwise overwhelming, defense counsel failed to object to the comment, and the Court gave a general instruction to the jury that they were not permitted to consider the fact the Defendant did not testify. For these reasons, the Court finds that Defendant's Fifth Amendment privilege against self-incrimination was not violated by any comment of the Government during closing argument. Defendant's Motion for New Trial is denied on this ground.