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United States of America v. David G. Sklena

May 9, 2011

UNITED STATES OF AMERICA
v.
DAVID G. SKLENA



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant David Sklena's (Sklena) post-trial motions. For the reasons stated below, the post-trial motions are denied.

BACKGROUND

Sklena was indicted on March 31, 2009, and charged with six Counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts I-VI), one count of commodity fraud in violation of 7 U.S.C. § 6b(a)(1)(i) and 13(a)(2) (Count VII), and two counts of non-competitive futures contract trading in violation of 7 U.S.C. § 13(a)(5) (Counts VIII and IX). Sklena's co-Defendant Edward Sarvey (Sarvey) was charged in Counts I-VI with wire fraud, in Count VII with commodity fraud, and in Counts VIII and IX with non-competitive futures contract trading. Sarvey also was charged with non-competitive futures contract trading in Counts X and XI. After the indictment, and before the trial, Sarvey passed away. On July 29, 2010, the parties advised the court that the parties have agreed to proceed in a bench trial and the parties submitted to the court a document titled "Waiver of Right to Trial by Jury," signed by Sklena and Sklena's attorney. On the same document, the Government consented to the waiver by Sklena of a trial by a jury. On October 1, 2010, a hearing was held at which time Sklena was advised by the court of his trial rights and Sklena knowingly and voluntarily waived his right to a jury trial. The court then agreed to hold a bench trial in the instant action. The bench trial began on October 4, 2010. During the trial, the Government moved to dismiss Counts III and IV against Sklena and the court dismissed those counts.

After the Government rested on its case-in-chief, Sklena moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 (Rule 29) (First Rule 29 Motion), and for dismissal of Counts VIII and IX pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) (Rule 12(b)(3)(B)). The court denied Sklena's First Rule 29 Motion considering the evidence in the light or aspect most favorable to the Government. Sklena's counsel indicated that the court need not address the Rule 12(b)(3)(B) motion at that time. The court reserved judgment on Sklena's Rule 12(b)(3)(B) motion. Sklena decided not to present any evidence during his case-in-chief. Sklena was then advised by the court as to his right to testify if he chose to do so, and as to his right not to testify in his own trial. Sklena then indicated to the court that he had decided not to testify at his trial. The court then found that Sklena voluntarily waived his right to testify at his trial. Sklena then rested on his case-in-chief. Thereafter, both parties rested on the entire case. Sklena then again moved for a judgment of acquittal under Rule 29 (Second Rule 29 Motion). The court stated that no new evidence had been presented since the court ruled on Sklena's First Rule 29 Motion, but the court reserved its ruling on Sklena's Second Rule 29 Motion and indicated that the court would state its ruling as part of its written decision. On November 23, 2010, the court denied Sklena's Rule 12(b)(3)(B) motion and Sklena's Second Rule 29 Motion. The court also found Sklena guilty on Counts I and II, and V through IX. Sklena has now filed a motion for judgment of acquittal and a motion for a new trial. In addition to the written filings of the parties, Sklena asked for an opportunity to make oral arguments to the court. Both parties were given an opportunity to make oral arguments and both parties made oral arguments on April 7, 2011.

LEGAL STANDARD

A defendant in a criminal case who has been found guilty by a jury may move for an acquittal under Federal Rule of Criminal Procedure 29(c). Fed. R. Crim. P. 29(c). If the defendant is challenging the sufficiency of the evidence presented at trial, the court must "consider the evidence in the light most favorable to the prosecution, drawing all reasonable inferences in the government's favor," and a "[r]eversal is appropriate only when, after viewing the evidence in such a manner, no rational jury 'could have found the defendant to have committed the essential elements of the crime.'" United States v. Macari, 453 F.3d 926, 936 (7th Cir. 2006)(quoting United States v. Masten, 170 F.3d 790, 794 (7th Cir. 1999)); see also United States v. Pree, 408 F.3d 855, 865 (7th Cir. 2005)(stating that a motion for acquittal should be granted "only if, viewing the evidence in the light most favorable to the Government, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt"); United States v. Gougis, 432 F.3d 735, 743-44 (7th Cir. 2005)(stating that a defendant who challenges the sufficiency of the evidence "faces a nearly insurmountable hurdle")(citation omitted).

Pursuant to Rule 33(a), "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires" and "[i]f the case was tried without a jury, the court may take additional testimony and enter a new judgment." Fed. R. Civ. P. 33(a).

DISCUSSION

I. Incorporation of Prior Arguments

Sklena indicates that although his written motion for judgment of acquittal presents arguments only on one element of the charges brought against him, he "incorporates by reference his oral motion for judgment of acquittal made on October 7, 2010 at the close of the government's case, his closing argument, and his response to the government's proposed findings and conclusions." (Mot. Acquit 1 n.2). Sklena also indicates vaguely that although his motion for a new trial "focuses" on issues, he "renews all of his pretrial and trial motions and objections." (Mot. New Tr. 1). The court notes that it is incumbent upon Sklena, as the movant, to provide specific arguments as to why he is entitled to a judgment of acquittal or new trial based on his written motions. See, e.g., DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999)(stating that "[e]ven when a litigant has unused space . . . incorporation is a pointless imposition on the court's time" and that "[a] brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record"); Soto v. United States, 2005 WL 3078177, at *6 (D.N.J. 2005)(stating that "[b]asic fairness requires that an opposing party have a fair notice of his adversary's claims, as well as an opportunity to address those claims" and that the court "need not address the merits of undeveloped and unsupported claims").

The court after considering the oral arguments made by Sklena's counsel during the entirety of the trial, at the close of the Government's case in chief, based on the record at that juncture and the parties' oral arguments, denied Sklena's First Rule 29 Motion. Sklena has not presented any new arguments in his instant written motion or during the oral arguments on the instant motion that would show that Sklena is entitled to a judgment of acquittal or a new trial.

II. Appropriateness of Rule 29 Motion

The Government contends that a Rule 29 Motion is not appropriate at this juncture since Sklena's plea of not guilty acted as a request for a judgment of acquittal and the court subsequently has acted as the trier of fact and convicted Sklena. The Seventh Circuit has indicated that "[t]he rule that a motion for a judgment of acquittal must be made to preserve the issue of evidence sufficiency on appeal . . . is inapplicable in" a case "which was tried to the court." United States v. Hogan, 89 F.3d 403, 404 (7th Cir. 1996). The Seventh Circuit has held that "in a case tried to the court it is unnecessary to move formally for a judgment of acquittal" since "[t]he plea of not guilty asks the court for a judgment of acquittal and a motion to the same end is not necessary." Id. (internal quotations omitted).

Since Sklena pled not-guilty in this action and the court subsequently acted as the trier of fact and convicted Sklena, a Rule 29 Motion at this juncture is not appropriate. As indicated above in the legal standard for the Rule 29 Motion, Rule 29 entails an evaluation by the court of the rationality of the trier of fact. Rule 29, when employed after a trial and verdict, provides a check upon the power of the jury, allowing the court to nullify the verdict of a jury that has acted unreasonably. It would not make any more sense for a court to evaluate itself for reasonableness than it would be for a jury to be asked, after rendering a verdict, to decide whether it had acted reasonably. In addition, this court already denied a Rule 29 motion in this case presented by Sklena and since that ruling no new evidence has been presented. It serves no legitimate purpose to have this court evaluate at this juncture whether it acted reasonably. The court also notes that the court already rendered a verdict as the trier of fact and found that the Government had met its burden of proof and the instant motion requires the court to first construe all evidence in favor of the Government and then decide whether a reversal is appropriate. If, based on a neutral review of the evidence during the trial, when first viewing all the evidence in the light most favorable to the Government in accordance with the instant Rule 29 Motion, Sklena faces an ever tougher burden for reversal with the same record of evidence.

Sklena contends that the court is obligated to review its own ruling in order to provide Sklena with due process as though Sklena has no means to challenge the verdict in this case. Sklena has the right to seek an appeal. Redundant rulings by this court does not serve judicial economy and Sklena's attempt in the instant motion to take another bite at the apple would result in a waste of judicial ...


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