United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ST. EVE, District Court Judge.
Mark Laskowski has moved the Court for judgment of acquittal
or, in the alternative, a new trial. For the reasons
discussed below, Defendant's motions are denied.
7, 2015, the grand jury returned a three-count indictment
(the "Indictment") against Defendant. (R. 1.) Count
One charged Defendant with willfully filing a false 2008 tax
return, in violation of 26 U.S.C. § 7206(1). Counts Two
and Three charged him with willfully failing to file a tax
return for 2009 and 2010, in violation of 26 U.S.C. §
proceeded to trial on August 8, 2016. Defendant initially
informed the Court that he wanted to represent himself at
trial. After jury selection, Defendant reconsidered his
position and his appointed counsel resumed representing him.
On August 10, 2016, the jury found Defendant guilty on all
counts. (R. 86.)
the course of the trial, the government called the following
witnesses: Justin Thomas Foxx (J.T.), Lourdes Tincopa
(Defendant's renter), Jeffrey Eversden (Senior Vice
President at Wintrust), Andrew Barker (Financial Center
Manager at Fifth Third Bank), Shirley Ball (Internal Revenue
Service ("IRS") court witness coordinator), Lisa
Cicchini (Nissan Motor Acceptance Corporation), Michael David
Holmgren (neighbor & tax preparer), Rolanda Hughes-
Harrison (Defendant's renter), Dora McGary
(Defendant's renter), and Paul Ponzo (IRS Revenue Agent).
In addition, Defendant called Adam Ackerman (Defendant's
business partner) as a witness.
Motion for Judgment of Acquittal - Rule 29
Rule of Criminal Procedure Rule 29(a) provides that,
"[a]fter the government closes its evidence or after the
close of all the evidence, the court on the defendant's
motion must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a
conviction." Fed. R. Crim. P. 29(a). "In
challenging the sufficiency of the evidence, [a defendant]
bears a heavy, indeed, nearly insurmountable, burden."
United States v. Warren, 593 F.3d 540, 546 (7th Cir.
2010); see also United States v. Miller, 782 F.3d
793, 797 (7th Cir. 2015) ("We have referred to this
standard as a nearly insurmountable hurdle[.]") (inner
quotation marks omitted) (citation omitted); United
States v. Molton, 743 F.3d 479, 483 (7th Cir. 2014);
United States v. Torres-Chavez, 744 F.3d 988, 993
(7th Cir. 2014); United States v. Jones, 713 F.3d
336, 339-40 (7th Cir. 2013); United States v. Berg,
640 F.3d 239, 246 (7th Cir. 2011); United States v.
Morris, 576 F.3d 661, 665-66 (7th Cir. 2009). The
reviewing court must view the "evidence in the light
most favorable to the prosecution, " and the defendant
'"must convince' the court that, even in that
light, 'no rational trier of fact could have found him
guilty beyond a reasonable doubt.'" Id.
(quoting United States v. Moore, 572 F.3d 334, 337
(7th Cir. 2009)); see also United States v. Eller,
670 F.3d 762, 765 (7th Cir. 2012); United States v.
Doody, 600 F.3d 752, 754 (7th Cir. 2010) (stating that
the inquiry is "whether evidence exists from which any
rational trier of fact could have found the essential
elements of a crime beyond a reasonable doubt"). In
other words, a court will "set aside a jury's guilty
verdict only if 'the record contains no evidence,
regardless of how it is weighed, ' from which a jury
could have returned a conviction." United States v.
Presbitero, 569 F.3d 691, 704 (7th Cir. 2009) (quoting
United States v. Moses, 513 F.3d 727, 733
(7th Cir. 2008)); see also Warren, 593 F.3d at 546.
It follows that under Rule 29, courts "do not reassess
the weight of the evidence or second-guess the trier of
fact's credibility determinations." United
States v. Arthur, 582 F.3d 713, 717 (7th Cir. 2009).
This strict standard is in recognition that "[s]orting
the facts and inferences is a task for the jury."
Warren, 593 F.3d at 547. Indeed, the Seventh Circuit
[t]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction must be not simply
to determine whether the jury was properly instructed, but to
determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt. But
this inquiry does not require a court to ask itself whether
it believes that the evidence at the trial established guilt
beyond a reasonable doubt. Instead, the relevant question is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
Moore, 572 F.3d at 337 (quoting Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)).
Motion for a New Trial - Rule 33
of the Federal Rules of Criminal Procedure 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." Fed. R. Crim. P. 33(a); see also
United States v. Berg, 714 F.3d 490, 500 (7th Cir.
2013); United States v. Smith, 674 F.3d 722, 728
(7th Cir. 2012) (reviewing a district court's order on a
Rule 33 motion for abuse of discretion); United States v.
McGee, 408 F.3d 966, 979 (7th Cir. 2005).
'"[C]ourts have interpreted [Rule 33] to require a
new trial in the interests of justice in a variety of
situations in which the substantial rights of the defendant
have been jeopardized by errors or omissions during
trial.'" United States v. Eberhart, 388
F.3d 1043, 1048 (7th Cir. 2004) (quoting United States v.
Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)),
overruled on other grounds, 546 U.S. 12, 126 S.Ct.
403, 163 L.Ed.2d 14 (2005).
jury verdict in a criminal case is not to be overturned
lightly, '" however, '"and therefore a Rule
33 motion is not to be granted lightly.'"
Eberhart, 388 F.3d at 1048 (quoting United
States v. Santos,20 F.3d 280, 285 (7th Cir. 1994)). The
court "may grant a new trial if the jury's verdict
is 'so contrary to the weight of the evidence that a new
trial is required in the interest of justice.'"
United States v. Washington,184 F.3d 653, 657 (7th
Cir. 1999) ("The focus in a motion for a new trial is
not on whether the testimony is so incredible that it should
have been excluded. Rather, the court considers whether the
verdict is against the manifest weight of the evidence,
taking into account the credibility of the witnesses.");
see also United States v. Chambers,642 F.3d 588,
592 (7th Cir. 2011). In other words, "[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 ...