U.S. v. Wittig, 03-40142-JAR.
| Decision Date | 31 March 2006 |
| Docket Number | No. 03-40142-JAR.,03-40142-JAR. |
| Court | U.S. District Court — District of Kansas |
| Parties | UNITED STATES of America, Plaintiff, v. David C. WITTIG and Douglas T. Lake, Defendants. |
Adam S. Hoffinger, Earl J. Silbert, Harold B. Walther, Paula M. Junghans, Robert A. Salerno, Piper Rudnick LLP, Washington, DC, Heather J. Garretson, Berkowitz Oliver Williams Shaw & Eisenbrandt, LLP, Kansas City, MO, James L. Eisenbrandt, Jeffrey D. Morris, Robert B. Rogers, Berkowitz Oliver Williams Shaw & Eisenbrandt, LLP, Prairie Village, KS, Christopher M. Wilson, Edward J.M. Little, Fabio B. Bertoni, Jason A. Masimore, Lisa Ann Cahill, Vicki Fotiny Andreadis, Hughes, Hubbard & Reed, New York, NY, J. Nick Badgerow, Spencer Fane Britt & Browne, Overland Park, KS, F. James Robinson, Jr., Gaye B. Tibbets, Hite, Fanning & Honeyman, LLP, Wichita, KS, for Defendants.
Christine E. Kenney, Mary Katherine Dimke, Richard L. Hathaway, Topeka, KS, for Plaintiff.
MEMORANDUM ORDER AND OPINION DENYING MOTIONS FOR JUDGMENT OF ACQUITTAL AND NEW TRIAL
At the close of the government's evidence, defendants jointly moved for judgment of acquittal pursuant to Fed. R.Crim.P. 29(a) (Doc. 493); and at the close of the trial defendants orally moved for judgment of acquittal. This Court took the motions under advisement. Defendants Wittig and Lake subsequently filed a Joint Motion for Judgment of Acquittal (Doc. 541) on October 26, 2005.1 Defendant Wittig filed a Motion for New Trial (Doc. 538); and defendant Lake filed a motion to join in the motion for new trial (Doc. 544).
On March 27, 2006—over five months past the deadline for filing post-trial motions, and on the eve of the sentencing hearing in this case, defendant Lake filed a Motion for Leave to File a Supplemental Memorandum of Law in Support of Defendants' Pending Rule 29 Motions, attaching the memorandum to his motion (Doc. 658). Defendant Wittig filed a motion to join in the motion for leave to file the same supplemental memorandum (Doc. 670), and the government objects to any consideration of this supplemental memorandum. Although the Court will grant defendant Lake's motion for leave and consider the memorandum in this order, the Court notes the extreme untimeliness of the motion. The October 26, 2005 original deadline for submission of post-trial motions was set in response to a request by defendants for an extension of time (Doc. 517). Additionally, the Court accommodated defendants' request to continue the sentencing hearing in this case from January 9 to April 3, 2006. Despite providing these extra months to defendants to prepare their post-trial motions and sentencing filings, the defendants waited until five months past the original deadline to add arguments that do not rely on new evidence or recent developments in the law. Nevertheless, the Court will consider the defendants' most recent filing along with the other post-trial motion briefs previously filed. For the reasons set forth in this opinion, the Court denies the motions for judgment of acquittal and new trial.
The first trial commenced on October 12, 2004 and concluded on December 20, 2004 when the Court declared a mistrial after the jury was unable to reach a unanimous verdict. The retrial of this case began with voir dire on June 14, 2005 and lasted over two months. The jury began deliberating on August 24, 2005 and returned its verdicts in the guilt phase of the trial on September 12, 2005 (Docs.512, 515). The jury found defendant Lake guilty on Counts 1 (conspiracy), 3 through 15 (circumvention of internal controls), 16 through 18 and 20 through 22 (wire fraud), and 30 through 39 (money laundering). The jury found Lake not guilty on Count 2 (circumvention of internal controls), 19 (wire fraud), and 23 through 29 (money laundering). The jury found defendant Wittig guilty on Counts 1 through 39.2 The forfeiture phase of the trial began the next day and the jury returned split verdicts as to both defendants on September 15, 2005 (Docs.534, 535).3
Most of the grounds asserted in these post-trial motions are either: (1) unsupported, "shotgun" challenges to evidentiary rulings; (2) rehashes of oral or written motions raised before or during trial and ruled on by this Court orally or in writing; or (3) challenges to the sufficiency of the evidence, based on the defendants' recitation of the facts or evidence viewed in the light most favorable to the defendants. The Court has considered each and every ground raised in these motions, whether or not the Court had previously ruled on the same objection or motion. While the Court will not distinctly address each of the numerous points raised by defendants, the Court has considered them and concludes that no errors necessitating a new trial were committed and that the jury's verdict was reasonable and supported by sufficient evidence. This lengthy order thus addresses the most salient arguments.
Notably, the defendants often couch their grounds for a new trial or judgment of acquittal by comparing certain pretrial and evidentiary rulings made by the Court before or during their first trial, with such rulings made before or during the retrial. The Court observes at the outset, that with respect to evidentiary rulings, a comparison with rulings made in the first trial is not dispositive; rather the Court will evaluate the substance of the rulings made in the retrial, in light of the evidence presented in the retrial. The evidentiary rulings in the retrial were contemporaneous with the presentation of the evidence, and made in the context of the evidence presented at that time.
While the evidentiary rulings at the first trial are irrelevant, for evidentiary rulings are to be analyzed in the contemporaneous context in which they are made, limine rulings from the first trial were largely adopted by the Court upon retrial. There are a few exceptions; however, where the Court either excluded evidence it did not exclude at the first trial, or admitted evidence that it did not admit at the first trial. To the extent there are differences in the limine rulings in the first trial and second trial, it does not change the analysis, to wit: whether the limine rulings in the second trial were erroneous, and if so, prejudicially erroneous.
Notably, the second trial was not a mirror or carbon copy of the first trial; there were differences in witnesses, substance and scope of testimony, objections, arguments, evidence, strategies of counsel and order of proof. And, although many of the Court's limine orders continued in effect after the first trial, the Court ruled differently on some issues raised in limine motions filed before the retrial. Needless to say, pretrial rulings on limine motions are generally anticipatory of the evidence, and reliant on statements of counsel as to what the evidence will be. But in this case, this Court heard over two months of evidence during the first trial, which gave it a frame of reference beyond that available to a court ruling on limine motions in anticipation of evidence.
Moreover, the Court's frame of reference included the fact that in the first trial, defendants repeatedly abused the Court's rulings on limine motions. This Court granted a number of limine motions of the defendants, thus precluding the government from presenting certain evidence, or placing parameters on the government's use of certain evidence. These limine rulings were intended to protect or shield the defendants; instead the defendants repeatedly used these rulings to their tactical advantage. Again and again, the very evidence this Court had precluded the government from offering was offered by the defendants in cross-examining the government's witnesses. Often, the evidence was offered by the defendants in a manner suggesting that the government had not offered the evidence because they were trying to hide the truth from the jury. This tactic was repeatedly employed by both defendants and was one of many ethical breaches and abusive tactics this Court attempted to prevent at retrial.4 The Court's limine rulings at the second trial necessarily took into account the defendants' abusive tactics with respect to certain limine rulings.
Thus, to the extent the defendants are challenging this Court's rulings on the basis that they were different than a ruling made during the first trial, such challenges are overruled and denied as improper. The proper analysis is what error, if any, this Court made in its pretrial, limine and evidentiary rulings at the retrial.
At the close of the government's evidence the defendants moved for judgment of acquittal and the Court took those motions under advisement. The defendants moved for judgment of acquittal at the close of all the evidence and again in posttrial motions based on insufficiency of evidence on a number of grounds.
When considering a motion for acquittal under Fed.R.Crim.P. 29, the court may not weigh the evidence or consider the credibility of witnesses.5 The Court looks to the record and determines "only whether, taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury could find [defendants] guilty beyond a reasonable doubt."6 Moreover, "while the evidence supporting the conviction[s] must be substantial and do more than raise a mere suspicion of guilt, it need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities except guilt."7 The Court must defer to the jury's verdict so long as the government's proof meets this standard.8 The Court denies the defendants' motions for judgment of acquittal, substantially for the...
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