The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Mary Capri's ("Capri") motion for a new trial. For the reasons stated below, we deny the motion.
Capri was charged by indictment in this action with two counts of mail fraud in violation of 18 U.S.C. § 1341, which were committed while on supervised release in violation of 18 U.S.C. §3147 ("Counts I and II"). A jury trial was commenced in this case on April 11, 2007, and on April 17, 2007, the jury returned a verdict of guilty on Counts I and II. The jury also returned a second verdict and found that Capri committed the offense of mail fraud in Counts I and II while Capri was released from custody pending judicial proceedings in another matter. Capri now moves for a new trial pursuant to Federal Rule of Criminal Procedure 33.
A court may provide a defendant found guilty of a crime by a jury with a new trial under Federal Rule of Criminal Procedure 33 "if the interest of justice so requires." Fed. R. Crim. P. 33(a). The decision of whether a new trial is warranted is "committed to the sound discretion of the trial judge." United States v. Gillaum, 372 F.3d 848, 857-58 (7th Cir. 2004). In determining whether to grant a new trial, a court should exercise "great caution" and be "wary of second guessing the determinations of the . . . jury." Id. (citing United States v. DePriest, 6 F.3d 1201, 1216 (7th Cir. 1993)); see United States v. Swan, 486 F.3d 260, 266 (7th Cir. 2007)(stating that "[t]he court should grant a motion for a new trial only if the evidence 'preponderate[s] heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand'")(quoting United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989)).
I. Jury Instructions Claim
Capri argues that the court's jury instructions number 16 ("Instruction 16"), number 23 ("Instruction 23"), and number 25 ("Instruction 25") were improper. To establish the need for a new trial, a defendant must establish that the challenged instruction (1) incorrectly states the law and (2) prejudiced her because the instruction likely confused or misled the jury. United States v. Murphy, 469 F.3d 1130, 1137 (7th Cir. 2006).
Capri contends that the court erred by including Instruction 16 because the indictment charged only Capri and Capri asserts that the Government did not offer evidence that Capri participated in a scheme. Instruction 16 stated, in part:
Counts One and Two of the indictment charge the Defendant with the offense of mail fraud. To sustain the charge of mail fraud, the Government must prove the following propositions:
First, that the Defendant knowingly devised or participated in a scheme to defraud or to obtain money or property by means of material false statements, pretenses, representations, or promises, as described in Counts One and Two of the indictment; . . .
Capri argues that the court erred by including the wording "participated in a scheme" in Instruction 16 because such language is not consistent with the indictment. However, Counts I and II of the indictment charged that Capri executed and engaged in a scheme to defraud. In order for Capri to have engaged in a scheme to defraud, she must have participated in such a scheme. Therefore, Instruction 16 was not an incorrect statement of the law. In addition, ...