On May 9, 2018, a grand jury returned an Indictment charging defendant with one count of conspiracy to commit wire and mail fraud, one count of mail fraud, and seven counts of wire fraud. Doc. 1. Each count also charged violations under 18 U.S.C. § 2, the aiding and abetting statute. Id.
To support the conspiracy charge in Count 1, the Indictment alleged the following: defendant and her coconspirators—doing business as Reliant Home Financial Group and The Arize Group, Incorporated ("Arize")—targeted homeowners "who were in financial difficulties with promises that the homeowners . . . would be rescued from their homeowner financial problems." Id. at 3. Specifically, the Indictment alleged, Arize made materially false and fraudulent promises to lower homeowners' mortgage interest rates, lower their monthly mortgage payments, and secure a loan modification for them. Id. Because Arize instructed victims to pay Arize directly—instead of paying their lending financial institutions—banks purportedly foreclosed on victims' houses. Id. at 5. This practice caused "financial losses to the lender financial institutions." Id. at 5. The charged conduct occurred between approximately November 2010 and November 2011. Id. at 2.
To support Count 2's mail fraud charge, the Indictment alleged that on May 16, 2011, defendant "placed and caused to be placed in an authorized depository for mail . . . a letter mailed from The Arize Group to Thomas M. . . . with that letter containing a formal offer and demand letter." Id. at 5-6.
Each of Counts 3-9 charged wire fraud and the Indictment alleged that defendant transmitted certain writings in the form of emails in interstate commerce as part of a scheme to defraud. Id. at 6. The charges in Counts 3-9 relied on the following emails:
| E-mail from The Arize Group to James J. advertising |
| Welcome E-mail from The Arize Group to James J. |
| requesting financial documents. |
| E-mail from The Arize Group, Inc. to James J. with |
| attached Formal Offer and Demand Letter. |
| Email from The Arize Group, Inc. to Mary J.S. with |
| attached Formal Offer and Demand Letter. |
| E-mail from The Arize Group to Delmar R. requesting |
| Email from The Arize Group to Bruce S. advising client |
| that their documents were sent to The Arize Group |
| Email from The Arize Group, Inc. to Bruce S. with |
| attached Formal Offer and Demand Letter. |
Id. at 6-7.
Trial began on September 17, 2019. Doc. 133. After a nine-day trial, the jury convicted defendant on Counts 1-6 and Counts 8 and 9.1 At the close of the government's case, defendant orally moved for acquittal. Consistent with Fed. R. Crim. P. 29(b), the court reserved its ruling and ordered defendant to file a written motion and supporting papers. Defendant filed her Motion for Judgment of Acquittal (Doc. 142) on September 26, 2019. Her motion argues that the court should acquit her on all counts for two related reasons: (1) the government failed to prove beyond a reasonable doubt that the charged offenses affected a financial institution, and (2) the government failed to prove beyond a reasonable doubt that the charged offenses occurred within the statute of limitations. Doc. 142 at 1.
On October 14, 2019, defendant filed a Motion for New Trial (Doc. 163). Her motion argues that the court should grant her a new trial because of the "cumulative effect of numerous discovery violations leading up to trial, the prosecutor's improper closing argument and the provision of an unsupported aiding and abetting instruction . . . ." Doc. 163 at 1.
The government filed a Response to defendant's Motion for New Trial (Doc. 166). But it didn't file a response to defendant's Motion for Judgment of Acquittal. So, on December 3, 2019, the court ordered the government to respond. Doc. 167. The government filed its Response (Doc. 168) on December 18, 2019, and defendant filed a Reply (Doc. 172). In itsJanuary 24, 2020 Memorandum and Order, the court identified deficiencies in the government's arguments and the evidence it had cited in its Response to the motion for acquittal. Doc. 173 at 4-12. It also set the motion for oral argument. Id. at 12. On January 27, 2020, the government moved to continue the oral argument to permit it time to acquire transcripts from the jury trial. Doc. 175. The court granted the motion and ordered the government to file a supplemental response to defendant's motion. Doc. 177. On March 12, 2020, the government filed its Supplemental Response (Doc. 187), and defendant filed a Supplemental Reply (Doc. 191). Concluding that the parties had provided sufficient briefing for the court to rule the motion, the court canceled oral argument set for May 1, 2020. The court now rules defendant's motions based on the parties' filings. The court first considers the acquittal motion and then, in Part III, addresses the motion for a new trial.
II. Motion for Judgment of Acquittal First, the court sets out Fed. R. Crim. P. 29's legal standard for deciding a motion for judgment of acquittal. Then, it considers whether the statute of limitations bars defendant's convictions, addressing defendant's two related arguments for acquittal.
A. Legal Standard under Fed. R. Crim. P. 29(a) Fed. R. Crim. P. 29(a) provides: "After 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." Subsection (b) of this rule also authorizes the court to reserve decision on a Rule 29 motion and decide it after the jury returns a verdict. Fed. R. Crim. P. 29(b). But, when the court reserves judgment on such a motion, "it must decide the motion on the basis of the evidence at the time the ruling was reserved." Id.
When the court decides a motion for judgment of acquittal, it views the evidence in the light most favorable to the government. United States v. Hughes, 191 F.3d 1317, 1321 (10th Cir. 1999). The court must uphold a guilty verdict if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Haber, 251 F.3d 881, 887 (10th Cir. 2001) (citation and internal quotation marks omitted). The court considers direct and circumstantial evidence, plus reasonable inferences drawn from that evidence. United States v. Davis, 1 F.3d 1014, 1017 (10th Cir. 1993).
As explained above, defendant argues that the statute of limitations bars her convictions. Doc. 142 at 1. She asserts that the statute of limitations expired before the government secured an indictment because the government failed to prove something—that her scheme "affected a financial institution"—essential to the government's position that the 10-year statute of limitations under § 3293(2) applies to all charges. Id. at 1-2. The court first explains the legal standard under § 3293(2) that the government must satisfy to extend to 10 years the statute of limitations to sustain the jury's conviction for conspiracy, mail fraud, wire fraud. Then, the court considers whether the evidence can support a finding that the government proved this required element beyond a reasonable doubt.
1. Legal Standard under 18 U.S.C. § 3293(2) Generally, "a five-year statute of limitations applies to non-capital federal crimes." United States v. Mullins, 613 F.3d 1273, 1278 (10th Cir. 2010). This "default" provision applies to wire fraud, id., as well as mail fraud and conspiracy. 18 U.S.C. § 3282(a); United States v. McNaul, No. 6:12-CR-10210-JTM, 2015 WL 3670492, at *2-3 (D. Kan. June 12, 2015). But, 18 U.S.C. § 3293(2) creates an important exception to the five-year rule: if the offense "affects afinancial institution," the government has 10 years to indict the defendant. Mullins, 613 F.3d at 1278. Here, all the conduct charged by the Indictment occurred between November 2010 and November 2011—more than five years before the grand jury returned the Indictment in May 2018. Doc. 1. So, to sustain a conviction for mail fraud, wire fraud, or conspiracy, the government had to prove that the extended statute of limitations in § 3293(2) applied to each charge. This extension required the government, in turn, to prove beyond a reasonable doubt that the charged conduct affected a financial institution.
In United States v. Mullins, our Circuit considered the meaning of the key phrase in § 3293(2)—"affect[] a financial institution." 613 F.3d at 1278. The Circuit held that this statutory provision requires the government to prove that "the scheme to defraud expose[d] a financial institution to a new or increased risk of loss or cause[d] the financial institution to suffer an actual loss." Mullins, 613 F.3d at 1278 (citation and internal quotation...
