United States v. Eremian
| Decision Date | 04 May 2012 |
| Docket Number | CRIMINAL NO. 10-10159-PBS |
| Parties | UNITED STATES OF AMERICA v. TODD LYONS DANIEL EREMIAN, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Pursuant to Fed. R. Crim. P. 29(c) and 33(a), defendants Todd Lyons and Daniel Eremian move for a judgment of acquittal, or in the alternative for a new trial. After hearing, the motions are DENIED. I address the major issues below.
This case concerns a gambling enterprise, Sports Offshore, headquartered in Antigua and operating in Massachusetts, Florida, and other parts of the United States from approximately 1997 through 2010. It was owned by co-defendant (and fugitive) Robert Eremian, who is Daniel's brother. Sports Offshore allowed people in the United States to place bets on sporting events by makingtelephone calls to Antigua or visiting an internet website. Losing bettors regularly made payments in cash to Sports Offshore agents located in the United States, and other payments were submitted via checks made out to shell corporations.
Lyons and Eremian were members of the Sports Offshore enterprise. Lyons was the primary collector for Sports Offshore in Massachusetts. He regularly met agents in Massachusetts to collect from them the money they had collected from their bettors, and he also served as an agent himself collecting directly from his own bettors. Daniel Eremian traveled to Antigua to help his brother set up the Sports Offshore operation and then returned to his home in Florida, where he served as an agent collecting money directly from losing bettors.
After a month-long trial, a jury convicted Defendants Lyons and Eremian of racketeering conspiracy, racketeering, operating an illegal gambling business, and violating the federal Wire Act. The jury also convicted Defendant Lyons of multiple counts of money laundering, interstate travel in aid of racketeering enterprises, making and subscribing false tax returns, and acceptance of financial instruments for unlawful internet gambling.
Under Rule 29, "[a] judgment of acquittal should only be granted when the evidence and all reasonable inferences to be drawn from the evidence, both taken in the light most favorable to the government, are insufficient for a rational factfinder to conclude that the prosecution has proven, beyond a reasonable doubt, each of the elements of the offense." United States v. Pimental, 380 F.3d 575, 583 (1st Cir. 2004) (citing United States v. Moran, 312 F.3d 480, 487 (1st Cir. 2002); United States v. Campbell, 268 F.3d 1, 6 (1st Cir. 2001)).
Fed. R. Crim. P. 33 provides: "Upon the defendant's motion, the Court may vacate any judgment and grant a new trial if the interest of justice so requires." The First Circuit has cautioned that "[t]he remedy of a new trial is sparingly used, and then only where there would be a miscarriage of justice." United States v. Indelicato, 611 F.2d 376, 387 (1st Cir. 1979) (quoting United States v. Leach, 427 F.2d 1107, 1111 (1st Cir. 1970)) (internal quotation marks omitted). See United States v. Rivera Rangel, 396 F.3d 476, 486 (1st Cir. 2005) (); see also United States v. Glantz, 810 F.2d 316, 321 (1st Cir. 1987) ().
Defendant Eremian argues this Court erred in instructing the jury on Florida state law because the indictment did not explicitly reference Florida law. In his view, the instructions on Florida law were clearly erroneous and constituted an impermissible constructive amendment to the indictment.
This Court instructed the jury that it should consider Florida law when deciding whether Mr. Eremian committed racketeering act five (money laundering) and whether he collected an unlawful debt. See Tr. 16-217 to 16-218, 16-222, 16-258.1 Because both crimes implicate 18 U.S.C. § 1955, which requires a consideration of relevant state law, and the indictment alleged these offenses occurred in Florida, it was appropriate to instruct the jury on Florida law.
In racketeering act five, the indictment charged Mr. Eremian with money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). See Doc. No. 189 at 13-14. This statute criminalizes conducting a financial transaction that "involves the proceeds of specified unlawful activity . . . knowing that the transaction is designed in whole or in part . . . to conceal or disguise the nature, the location, the source, the ownership,or control of the proceeds of specified unlawful activity." 18 U.S.C. § 1956(a)(1). The specified unlawful activity alleged in the indictment included illegal gambling in violation of 18 U.S.C. § 1955.2 See Doc. No. 189 at 13. Therefore, to decide whether Mr. Eremian was guilty of racketeering act five, the jury had to determine whether the financial transactions Mr. Eremian was alleged to have conducted involved proceeds resulting from violations of 18 U.S.C. § 1955.
To allow the jury to make that determination, the court instructed the jury on relevant Florida gambling law. This is because (1) 18 U.S.C. § 1955 prohibits conducting an "illegal gambling business;" (2) an "illegal gambling business" is defined to mean one which "is a violation of the law of a State or political subdivision in which it is conducted," 18 U.S.C. § 1955(b)(1)(i); and (3) the indictment alleged Mr. Eremian conducted an illegal gambling business, Sports Offshore, in Florida. See Doc. No. 189 at 3. Because the jury had to determine whether Sports Offshore was a gambling business that violated Florida law, it was necessary to instruct the jury on the relevant Florida gambling law. He was acquitted of racketeering act number five.
This Court similarly instructed the jury that it should consider Florida law when deciding whether Mr. Eremian collected an unlawful debt. See Tr. 16-222, 16-258. He was convicted on this charge. Under the Racketeer Influenced and Corrupt Organizations Act, the government must prove either a "pattern of racketeering activity" or "collection of an unlawful debt." 18 U.S.C. § 1962(a). To determine whether the debts Mr. Eremian allegedly collected were unlawful under 18 U.S.C. § 1961(6), the jury had to decide whether the debt was "incurred or contracted in gambling activity which was in violation of the law of the United States . . . ." 18 U.S.C. § 1961(6). The Court explained to the jury that the relevant law of the United States charged in the indictment included 18 U.S.C. § 1955, which prohibits illegal gambling businesses and requires a consideration of state law, as explained above. See Tr. 16-222. See Doc. No. 189 at ¶ 1. Here, the indictment alleged Mr. Eremian collected bets in Florida, and it charged him with collecting bets from a number of specific bettors whose uncontroverted trial testimony was that Mr. Eremian was a collector in Florida. See Doc. No. 189 at 3, 17-20. Thus, it was again necessary to instruct the jury on relevant Florida gambling law. Because the indictment itself charged violations of 18 U.S.C. § 1955 that occurred in Florida, such instructions did not constructively amend the terms of the indictment. Cf.United States v. Rodriguez-Rodriguez, 663 F.3d 53, 58 (1st Cir. 2011) ().
Defendants Lyons and Eremian were convicted of violating 18 U.S.C. § 1084 ("the Wire Act"), which prohibits the use of a wire communication facility for transmitting in interstate or foreign commerce wagers on sporting events or information assisting in the placing of such wagers. The statute carves out an exception for certain types of transmissions:
Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting of sporting events or contests, or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal.
18 U.S.C. § 1084(b). The statute "provides a safe harbor for transmissions that occur under both of the following two conditions: (1) betting is legal in both the place of origin and the destination of the transmission; and (2) the transmission is limited to mere information that assists in the placing of bets, as opposed to including the bets themselves." United States v. Cohen, 260 F.3d 68, 73 (2d Cir. 2001).
Defendants Lyons and Eremian argue this safe harbor provision protected their conduct because the betting alleged was, according to them, legal in both Massachusetts and Antigua. The defendants further maintain that this Court erred by not instructing the jury on the safe harbor provision and not providing the jury with relevant Massachusetts and Antigua law to allow the jury to decide whether that provision protected their conduct.
The threshold question is whether the safe harbor provision of 18 U.S.C. § 1084(b) is an element of the offense or an affirmative defense. A defendant is entitled to an instruction on an element of the offense but not necessarily to an instruction on an affirmative defense. See United States v. Kloess, 251 F.3d 941, 945-46 (11th Cir. 2001). While none of the parties focused on this question in the briefing, Lyons referred to the safe harbor provision as an affirmative defense. See Lyons' Renewed Mot. for J. of Acquittal or for a New Trial at 16, Doc. No. 204 (...
To continue reading
Request your trial