The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendants' post-trial motions. For the reasons stated below, we deny the motions in their entirety.
On June 7, 2010, a jury trial commenced in the instant action against Defendant Norton Helton (Helton), Defendant Charles White (White), and Defendant Felicia Ford (Ford). On July 9, 2010, the jury returned a verdict finding Helton guilty on Counts Six through Seventeen. The jury also returned a verdict finding White guilty on Counts One through Seven. The jury further returned a verdict finding Ford guilty on Counts One, Two, Three, Five, and Seven, and not- guilty on Counts Four and Six. Helton has filed a motion for judgment of acquittal or, in the alternative, for a new trial. White has filed a motion for a new trial. Ford has filed a motion for judgment of acquittal, a motion for an arrest of judgment, and a motion for a new trial.
A defendant in a criminal case who has been found guilty by a jury may move for a judgment of acquittal under Federal Rule of Criminal Procedure 29(c) (Rule 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. Moses, 513 F.3d 727, 733 (7th Cir. 2008)(stating that "[a] district court should grant a motion for a judgment of acquittal only when there is insufficient evidence to sustain a conviction"); 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).
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(a) (Rule 33(a)) "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)(quoting United States v. Woolfolk, 197 F.3d 900, 904 (7th Cir.1999)). 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. (internal quotations omitted)(quoting United States v. DePriest, 6 F.3d 1201, 1216 (7th Cir. 1993)); see also United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006)(stating that "[a] defendant is entitled to a new trial if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict").
Pursuant to Federal Rule of Criminal Procedure 34 (Rule 34), "[u]pon the defendant's motion or on its own, the court must arrest judgment if: (1) the indictment or information does not charge an offense; or (2) the court does not have jurisdiction of the charged offense." Fed. R. Crim. P. 34(a); see also United States v. Boender, 2010 WL 2523420, at *2 (N.D. Ill. 2010)(stating that Rule 34 "provides that the court must arrest judgment if 'the indictment or information does not charge an offense'" and "[t]hus, the rule raises a pure question of law distinct from the evidence adduced at trial")(quoting in part United States v. McLemore, 815 F.Supp. 432, 433 n.3 (S.D. Ala. 1993)).
I. Helton's Post-Trial Motions
Helton moves for a judgment of acquittal pursuant to Rule 29(c) and moves in the alternative for a new trial pursuant to Rule 33(a). Helton contends that he is entitled to a judgment of acquittal or, in the alternative, at least to a new trial because: (1) the court declined to sever Helton's trial from White's trial, (2) the court declined to adopt Ford's proposed jury instructions regarding multi-conspiracies and a variance, (3) the court allowed the Government to introduce evidence of Helton's misrepresentations to the bankruptcy court and his efforts to conceal his legal fees, (4) the court allowed the Government to introduce evidence relating to a 1997 bankruptcy petition personally filed by Helton (Bankruptcy Petition), (5) the court denied Helton's motion to dismiss Counts I-XI of the initial indictment on collateral estoppel grounds, (6) the court denied Helton's motion to bar the testimony of Charlene Hall (Hall), (7) the court allowed Timothy Daniel (Daniel) and other Eyes Have Not Seen (EHNS) employees to testify, and (8) there was insufficient evidence to convict Helton on any count.
Helton contends that the court erred in denying his motion to sever his trial from White's trial. Helton presents the same arguments regarding severance that were already presented to the court prior to trial and were rejected by the court. Helton again argues that a joint trial prevented him from calling White as a witness because White would have invoked his Fifth Amendment rights and would therefore have refused to provide exculpatory evidence in support of Helton. However, as pointed out by the Government, if White intended to invoke his Fifth Amendment right against self-incrimination, that right could have been asserted in a severed trial as well as in a joint trial. Helton also asserts that a joint trial deprived him of the opportunity to present his preferred defense. However, Helton has not provided details concerning the defense he would have proffered and regardless, "severance is not required even if the defenses [are] mutually antagonistic." United States v. Carrillo, 435 F.3d 767, 778 (7th Cir. 2006); See also Zafiro v. United States, 506 U.S. 534, 537 (1993)(stating that "[t]here is a preference in the federal system for joint trials of defendants who are indicted together"). There has not been a showing by Helton that he was unduly prejudiced by the joinder of his trial with White's trial or that Helton was denied a fair trial in a joint trial. See, e.g., United States v. Calabrese, 572 F.3d 362, 367-68 (7th Cir. 2009)(stating that a "defendant must be able to show that the denial of severance caused him actual prejudice in that it prevented him from receiving a fair trial; it is not enough that separate trials may have provided him a better opportunity for an acquittal")(internal quotations omitted); United States v. Warner, 498 F.3d 666, 700 (7th Cir. 2007)(stating that Federal Rule of Criminal Procedure 8 has been construed "'broadly to allow liberal joinder in order to enhance judicial efficiency'")(quoting United States v. Stillo, 57 F.3d 553, 556 (7th Cir. 1995)). There has been no showing by Helton that the defenses of his co-Defendants were antagonistic to his defense or that Helton's trial with his co-Defendants caused him any prejudice that would warrant a judgment of acquittal or new trial. The court also notes that during most of the trial, Helton adopted the defense strategy of his co-defendants.
B. Instruction on Multi-Conspiracies and Variance
Helton contends that the court erred by refusing to adopt Ford's proposed jury instructions regarding multi-conspiracies and a variance. The instructions proposed by Ford were not accurate statements of the law and were not applicable in the instant action. The indictment in this case charged Defendants with a single conspiracy. In order to ensure fairness to Defendants, the court gave a properly modified version of the multiplicity instruction approved in United States v. Mansoori, 304 F.3d 635, 643 (7th Cir. 2002). The Court also properly instructed the jury as to the unanimity requirement in accordance with United States v. Davis, 471 F.3d 783, 791 (7th Cir. 2006). Such instructions properly addressed the concerns expressed by Ford in seeking the introduction of her proposed instructions as to multiple conspiracies and a variance, and Helton has not shown that the court erred in declining to adopt Ford's proposed instructions.
C. Misrepresentations to Bankruptcy Court and Concealment of Fees
Helton argues that the court erred in allowing the Government to introduce evidence of Helton's misrepresentations to the bankruptcy court and his efforts to conceal his legal fees. Pursuant to Rule 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," but such evidence may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . ." Fed. R. Evid. 404(b). In determining whether to admit Rule 404(b) evidence, a court must consider whether "(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice." United States v. Diekhoff, 535 F.3d 611, 617 (7th Cir. 2008)(quoting United States v. Simpson, 479 F.3d 492, 498 (7th Cir. 2007)).
In the instant action, evidence that Helton made misrepresentations to a bankruptcy court was admissible as evidence of Helton's effort to conceal the conduct charged in this case. Such evidence was also admissible under Rule 404(b) since it showed Helton's knowledge of misrepresentations and omissions in the bankruptcy petitions in question and his knowledge of EHNS's alleged illegal activities. Evidence that Helton attempted to conceal his legal fees was admissible since it was directly connected to the charged conduct in this case. Such concealed fees were also an additional means by which Helton could gain funds from the fraudulent scheme and conceal the gain from illegal activity relating to the charged offense. Such evidence was also admissible under Rule 404(b) to show Helton's efforts to conceal evidence of the fraudulent scheme and to negate any conclusion that Helton's failure to properly disclose fees was due to a misunderstanding or oversight. Helton has not shown that evidence of Helton's misrepresentations to the bankruptcy court and his efforts to conceal his legal fees was overly prejudicial and should have been excluded under Federal Rule of Evidence 403. Nor has Helton shown that the court erred in allowing the Government to introduce such evidence.
Helton argues that the court erred in allowing the Government to cross-examine Helton relating to the Bankruptcy Petition, which Helton had personally filed. Helton argues that such evidence constitutes other bad acts evidence under Rule 404(b). At trial, the Government attempted to elicit testimony from Helton showing that Helton had failed to disclose his largest unsecured debt in the Bankruptcy Petition. Such evidence was admissible because Helton chose to testify at trial and, pursuant to Federal Rule of Evidence 608(b), for witnesses, specific instances of conduct can be inquired into if they are probative of truthfulness. Fed. R. Evid. 608(b). In addition, the evidence was admissible under Rule 404(b) to show the absence of a mistake or accident in regard to Helton's charged conduct in this case and to show Helton's motive, intent, and modus operandi. Thus, Helton has not shown that the court erred in permitting the Government to cross-examine Helton relating to the Bankruptcy Petition.
E. Denial of Collateral Estoppel Motion to Dismiss
Helton argues that the court erred when the court denied Helton's motion to dismiss Counts I-XI of the initial indictment on collateral estoppel grounds. Helton contends that the issues raised in such Counts have been fully litigated in a federal ...