throbber
Case 1:15-cr-00204-EAW-JJM Document 73 Filed 05/11/17 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
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`;·.
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`UNITED STATES OF AMERICA,
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`v.
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`JAMES A. MACCALLUM,
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`Defendant.
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`DECISION AND ORDER
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`1 :15-CR-00204 EAW
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`Following trial, Defendant James A. MacCallum ("Defendant") was. convicted of
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`one count of mail fraud in violation of 18 U.S.C. § 1341. Presently before the Court is
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`Defendant's motion pursuant to Fed. R. Crim. P. 29( c) for a judgment of acquittal. (Dkt.
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`67). Defendant bases his motion "on the grounds set forth on the record at the close of
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`the government's case on March 23, 2017, and prior to verdict on March 24, 2017." (Id.
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`at 14). For the reasons set forth below, Defendant's motion is denied.
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`DISCUSSION
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`Defendant timely filed his motion pursuant to Rule 29(c)-within 14 days after the
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`guilty verdict. See Fed. R. Crim. P. 29(c)(l). The standard on a motion for a judgment of
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`acquittal is stringent, and a defendant claiming that he was convicted based on
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`insufficient evidence "bears a very heavy burden." United States v. Blackwood, 366 F.
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`App'x 207, 209 (2d Cir. 2010) (quoting United States v. Desena, 287 F.3d 170, 177 (2d
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`Cir. 2002)). "In considering a motion for judgment of acquittal, the court must view the
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`evidence presented in the light most favorable to the government." United States v.
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`Case 1:15-cr-00204-EAW-JJM Document 73 Filed 05/11/17 Page 2 of 4
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`Guadagna, 183 F.3d 122, 129 (2d Cir. 1999). Accordingly, "[a]ll permissible inferences
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`must be drawn in the government's favor." Id.
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`"If any rational trier of fact could have found the essential elements of the crime,
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`the conviction must stand." United States v. Puzzo, 928 F.2d 1356, 1361 (2d Cir. 1991)
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`(internal quotation marks and citation omitted). "The test is whether the jury, drawing
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`reasonable inferences from the evidence, may fairly and logically have concluded that the
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`defendant was guilty beyond a reasonable doubt."
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`Id. (internal quotation marks and
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`citations omitted). The evidence must be viewed "in its totality, not in isolation," United
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`States v. Huezo, 546 F .3d 17 4, 178 (2d Cir. 2008), "as each fact may gain color from
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`others." Guadagna, 183 F.3d at 130. The court may enter a judgment of acquittal only if
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`the evidence that the defendant committed the crime is "nonexistent or so meager that no
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`reasonable jury could find guilt beyond a reasonable doubt."
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`Id. (internal quotation
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`marks and citation omitted).
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`A district court must be careful not to usurp the role of the jury. "Rule 29(c) does
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`not provide the trial court with an opportunity to 'substitute its own determination of ...
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`the weight of the evidence and the reasonable inferences to be drawn for that of the
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`jury."' Id. at 129 (quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984)).
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`"A jury's verdict will be sustained if there is substantial evidence, taking the view most
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`favorable to the government, to support it." United States v. Nersesian, 824 F.2d 1294,
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`1324 (2d Cir. 1987). The government is not required "'to preclude every reasonable
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`hypothesis which is consistent with innocence."' United States v. Chang An-Lo, 851
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`F.2d 547, 554 (2d Cir. 1988) (citing United States v. Fiore, 821 F.2d 127, 128 (2d Cir.
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`Case 1:15-cr-00204-EAW-JJM Document 73 Filed 05/11/17 Page 3 of 4
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`1987)). Further, a jury's verdict may be based entirely on circumstantial evidence. See
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`United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995).
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`Defendant argued during his oral motions for judgment of acquittal that the
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`evidence was insufficient to support a verdict of guilty with respect to each of the
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`elements necessary to establish a violation of the mail fraud statute set forth at 18 U.S.C.
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`§ 1341.
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`In other words, Defendant contended that there was insufficient evidence to
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`establish: a scheme or artifice to defraud or to obtain money or property by materially
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`false or fraudulent pretenses, representations or promises, as alleged in the Indictment;
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`that Defendant knowingly and willfully participated in the scheme or artifice to defraud,
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`with knowledge of its fraudulent nature and with specific intent to defraud; and that in
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`execution of that scheme, Defendant used or caused the use of the mails or a private or
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`commercial interstate carrier as specified in the Indictment.
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`As the Court indicated in ruling on those oral motions, the evidence was more than
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`sufficient to support a guilty finding. The Government presented evidence at trial that
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`from 2008 until 2010, Defendant received money from numerous victim investors, and
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`that Defendant used the incoming money to pay other investors in furtherance of a
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`quintessential Ponzi scheme-where one investor's moneys were used to pay other
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`investors. The jury heard testimony from five victim investors who described how he or
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`she sent money to Defendant intending for Defendant to invest the moneys on their
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`behalf with guaranteed rates of return in excess of 12 percent, but that they did not
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`receive such return and, in fact, the investments that were allegedly secured by various
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`types of collateral were fraudulent. The evidence established that the moneys were not
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`Case 1:15-cr-00204-EAW-JJM Document 73 Filed 05/11/17 Page 4 of 4
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`used as Defendant represented, and instead he used the moneys to pay his own personal
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`expenses and further his fraudulent scheme. Moreover, the evidence established that, as
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`part of the scheme, one of the victims-who was a citizen and resident of Canada-
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`received a promissory note dated December 13, 2010, from Defendant sent by
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`commercial interstate carrier. The note promised to pay $500,000, when at the time,
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`Defendant only had approximately $5,000 available to make any such payment.
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`In addition to the victim investors, the jury heard testimony from Defendant's
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`former business associates, employees of the Federal Bureau of Investigation ("FBI"),
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`and perhaps most importantly, Defendant's own words wherein he confessed to FBI
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`Special Agent Brent Isaacson that Defendant had perpetrated the Ponzi scheme.
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`In sum, the evidence was more than sufficient to support the jury's verdict that the
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`Government met its burden of proof on each and every element of the mail fraud count.
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`CONCLUSION
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`For the foregoing reasons, Defendant's motion for acquittal pursuant to Fed. R.
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`Crim. P. 29 (Dkt. 67) is denied.
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`SO ORDERED.
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`Dated: May 11, 2017
`Rochester, New York
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