U.S. v. Wirtz
| Citation | 357 F.Supp.2d 1164 |
| Decision Date | 22 February 2005 |
| Docket Number | No. CRIM.04-18(3)(PAM/RL).,CRIM.04-18(3)(PAM/RL). |
| Parties | UNITED STATES of America, Plaintiff, v. Raymond H. WIRTZ, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Peter B. Wold, Peter B. Wold, PA, Minneapolis, MN, for Defendant.
Henry Joseph Shea, III, US Attorney, Nicole A. Engisch, US Attorney, Minneapolis, MN, for Plaintiff.
SECOND AMENDED MEMORANDUM AND ORDER
On December 1, 2004, this Court issued a Memorandum and Order denying Defendant Raymond H. Wirtz's Motion for a Judgment of Acquittal or a New Trial. The Court now sua sponte strikes that Order and substitutes this Amended Order for the previous Order. For the reasons that follow, the Court denies the Motion.
In January 2004, Defendant was charged with conspiracy to commit mail fraud and mail fraud in violation of 18 U.S.C. §§ 2, 371, and 1341. On October 8, 2004, a jury convicted Defendant of mail fraud but acquitted him of the conspiracy charge. Count Two of the Superseding Indictment, which relates to the mail fraud charge, states:
Beginning prior to 1985, and continuing until in or about June 2000, in the State and District of Minnesota and elsewhere, the defendant, Raymond H. Wirtz, aided and abetted by others, and others not indicted herein, did knowingly and intentionally participate in and devise a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses, representations, and promises.
(Superseding Indictment ¶ 19.) Count Two also alleges one specific act: Defendant mailed a Katun Corporation check dated February 11, 1999, in the amount of $500 to Steve Adams of Xerox Corporation, for the purpose of executing the scheme to defraud. (Id. ¶ 20.)
Defendant now asks that the Court either set aside his mail fraud conviction or grant him a new trial.
Rule 29 of the Federal Rules of Criminal Procedure provides that a Court may set aside a guilty verdict if the evidence presented at trial is insufficient to sustain a conviction. Fed.R.Crim.P. 29(c)(2). However, the Court "has very limited latitude in ruling upon a motion for judgment of acquittal." United States v. Baker, 367 F.3d 790, 797 (8th Cir.2004). The Court cannot weigh the evidence or assess the credibility of witnesses. Id. Likewise, if the evidence rationally supports two conflicting hypotheses, the Court will not disturb the conviction. Ortega v. United States, 270 F.3d 540, 544 (8th Cir.2001) (citations omitted). Thus, the Court may grant a judgment of acquittal "only where the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged." Baker, 367 F.3d at 797; United States v. Armstrong, 253 F.3d 335, 336 (8th Cir.2001).
The Court may grant a new trial to a defendant "if the interests of justice so require." Fed.R.Crim.P. 33. When ruling on a motion for a new trial under Rule 33, the Court has broader discretion than on a motion for judgment of acquittal under Rule 29. United States v. Campos, 306 F.3d 577, 579 (8th Cir.2002). It therefore may "weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict." White v. Pence, 961 F.2d 776, 780 (8th Cir.1992). Nevertheless, the Court's discretion is not unfettered. Motions for a new trial based on the weight of the evidence are generally disfavored. Campos, 306 F.3d at 579. Thus, the Court must exercise its authority under Rule 33 "sparingly and with caution." Id. (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980)). Unless the Court ultimately determines that a miscarriage of justice will occur, the jury's verdict must stand. Id.
Defendant first argues that the jury must have misapplied the law by implicitly finding that Xerox pricing information was "property" and therefore covered by the federal mail fraud statute. Mail fraud is the use of the mails in furtherance of a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S.C. § 1341. The federal mail fraud statute is "limited in scope to the protection of property rights." Cleveland v. United States, 531 U.S. 12, 18, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000) (citation omitted). Confidential business information is an intangible property right. Id. at 19, 121 S.Ct. 365 (citation omitted).
The Court provided the jury with an instruction specifically relating to Xerox pricing information:
Evidence has been presented that Xerox Corporation retail pricing information and maintenance pricing information was confidential. For the information to constitute "confidential business information" and therefore property, the information must be exclusively used by Xerox Corporation and not be disclosed publicly. If Xerox Corporation was deprived of its right to exclusive use of such information, and had not publicly disclosed the information when Katun Corporation received the information, Xerox Corporation was deprived of property.
The Court based this instruction on the holding in Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987). In Carpenter, the defendant was an author of a Wall Street Journal investment advice column. He entered into a scheme with two stockbrokers who, in exchange for advanced information from the reporter as to the timing and contents of the column, bought and sold stocks based on the column's probable impact on the stock market. The stockbrokers then shared their profits with the reporter.
The official policy and practice at the Journal was that prior to publication, the contents of the column were the Journal's confidential information. The United States Supreme Court held that information that has yet to be disclosed to the public is "property" as defined under the mail fraud statute. It reasoned:
The Journal had a property right in keeping confidential and making exclusive use, prior to publication, of the schedule and contents of the ... column.... The confidential information was generated from the business, and the business had a right to decide how to use it prior to disclosing it to the public.... It is sufficient that the Journal has been deprived of its right to exclusive use of the information, for exclusivity is an important aspect of confidential business information.
Defendant argues that no reasonable jury could find that the Xerox pricing information contained in Exhibits 2A-D and 17A-B was confidential. He maintains that Xerox did not consider the information confidential because it did not mark these documents "confidential" as required by Xerox policy. In addition, Defendant argues that Xerox widely distributed the pricing information contained in those exhibits to its customers. Defendant also points out that the Xerox customers were not contractually bound to maintain confidentiality, and that Xerox made no efforts to ensure that the information remained exclusive. Thus, according to Defendant, once Xerox produced the retail sales and maintenance price lists to its customers, the information was no longer confidential.
The Court agrees that the information was no longer confidential once Xerox disclosed the information to its customers. However, confidential business information for the purposes of the mail fraud statute can include information that, although it will shortly be disclosed by its owner and will be placed in public domain, is property until that disclosure. Several witnesses testified about the timeliness of the information that Katun received and of the value inhered in such timely information. (See, e.g., Adams Tr. at 13-14 (); Becker Tr. at 159 (); Clarke Tr. at 19 ().) Based on that testimony, a jury could reasonably conclude that Xerox had not yet publicly disclosed the information when Katun received the information. Thus, the jury's implicit finding that the information was confidential business information until Xerox publicly disclosed the information is consistent with Carpenter.
Furthermore, Exhibit 2 contains apparently confidential information, as it is marked private.2 Defendant argues that the Court erred in admitting Exhibit 2 because the Government failed to establish adequate foundation. Specifically, Defendant contends that Larry Stroup, the witness who introduced Exhibit 2, had no personal knowledge of the source of Exhibit 2.
Federal Rule of Evidence 602 provides that a "witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." The foundation requirement of personal knowledge need not be proved by the witness's own testimony. See Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1332 (10th Cir.1984) (). Furthermore, personal knowledge can include "inferences and opinions, as long as they are grounded in personal observations and experience." United States v. Rodriguez, 162 F.3d 135, 144 (1st Cir.1998) (quoting United States v. Neal, 36 F.3d 1190, 1206 (1st Cir.1994)).
A witness may testify about his opinions or inferences if they are rationally based on the perception of the witness and aid the jury in understanding the witness's testimony or the...
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