United States v. Kenner, 13-CR-607 (JFB) (AYS)
| Decision Date | 03 December 2019 |
| Docket Number | No. 13-CR-607 (JFB) (AYS),13-CR-607 (JFB) (AYS) |
| Parties | UNITED STATES OF AMERICA, v. PHILLIP A. KENNER AND TOMMY C. CONSTANTINE, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On July 9, 2015, following a nine-week trial, a jury convicted defendant Phillip Kenner ("Kenner") of one count of conspiring to commit wire fraud, in violation of 18 U.S.C. § 1349 (Count One of the Superseding Indictment); four counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts Two, Three, Four, and Seven); and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Nine).1 (ECF No. 324.) In addition, the jury convicted defendant Tommy C. Constantine ("Constantine," and together with Kenner, "defendants") of one count of conspiring to commit wire fraud (Count One); five counts of wire fraud (Counts Two through Six); and one count of conspiracy to commit money laundering (Count Nine).
Now pending before the Court is Kenner's motion for a judgment of acquittal, pursuant to Rule 29, and his motion for reconsideration of his Rule 33 motion. (ECF No. 668.)2 In his Rule 29 motion, Kenner principally argues that: (1) venue was improper in the Eastern District of New York ("EDNY" or "District"); and (2) there was a prejudicial variance between the Superseding Indictment and the proof presented at trial. In his Rule 33 motion, he repeats his same arguments that served as the bases for his original motion, including newly-discovered evidence and prosecutorial misconduct. (ECF No. 668 at 6.)
On July 2, 2019, Kenner filed a motion pursuant to 28 U.S.C. § 2255 on the basis ofineffective assistance of counsel. (ECF No. 675.)
For the reasons set forth below, the Court denies Kenner's motions.
Familiarity with the facts of the case is presumed. Nevertheless, the Court briefly summarizes the evidence relevant to the instant motions below. The evidence is construed in the light most favorable to the government, pursuant to Rule 29 of the Federal Rules of Criminal Procedure.
At trial, the government presented three theories of fraud: (1) the Hawaii Project; (2) the funds related to Eufora, LLC ("Eufora"); and (3) the Global Settlement Fund ("GSF").
With respect to the Hawaii Project, the government's evidence demonstrated that Kenner defrauded several professional hockey players who were his clients. His clients testified that they contributed funds to the project based on Kenner's representations that their investments would finance a real estate development in Hawaii. In reality, however, Kenner diverted his clients' money, without authorization, to another property development in Mexico that involved Ken Jowdy ("Jowdy"). According to bank records introduced at trial, Constantine received money that was actually intended for the Hawaii Project.
Similarly, with respect to the Eufora scheme, the government established at trial that Kenner sought funds from several investors who were told that their money would be used to finance the Eufora company. However, according to bank records and testimony, Constantine and Kenner converted those investments to cover personal expenses without the investors' authorization.
Finally, government witnesses testified that Kenner and Constantine convinced them to invest in the GSF because they were told that their contributions would principally finance litigation against Jowdy to recover money from him. Again, bank records and testimony demonstrated that both defendants used GSF money for personal expenses. For example, the records established that Constantine covered his rent and automotive work with funds from the GSF.
1. Relevant Procedural History
By Superseding Indictment dated April 22, 2015, the government charged Kenner with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349 (Count One); conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Nine); and seven counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts Two through Eight). (ECF No. 214.) In addition, the government charged Constantine with conspiracies to commit wire fraud and money laundering (Counts One and Nine) and five counts of wire fraud (Counts Two through Six).
Following a nine-week trial, the jury returned a verdict on July 9, 2015. (ECF No. 324.) The jury found Constantine guilty on all charges and Kenner guilty on both conspiracy counts. (Id.) The jury also found Kenner guilty on the wire fraud charges in Counts Two, Three, Four, and Seven in the Superseding Indictment, but it acquitted him of the wire fraud charges in Counts Five, Six, and Eight. (Id.)
Thereafter, Constantine moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 as to all counts, or, in the alternative, for a new trial, pursuant to Federal Rule of Criminal Procedure 33. (ECF No. 346.) In addition, Kenner moved for a new trial pursuant toFederal Rule of Criminal Procedure 33, on the basis of Brady violations, newly-discovered evidence, prosecutorial misconduct, and the assertion that the verdict was against the weight of the evidence. (ECF No. 416.) On October 11, 2017, this Court denied both motions, (ECF No. 501), but reserved decision on Constantine's request for relief based on ineffective assistance of counsel, (ECF No. 483), because it was not fully briefed at the time the Order was issued (ECF No. 501 at 3 n.2). On October 4, 2019, the Court denied Constantine's motion for a new trial on the basis of ineffective assistance of counsel. (ECF No. 729.)
On June 17, 2019, Kenner filed the instant motion. (ECF No. 668.) On July 23, 2019, the government responded, alleging that Kenner had waived his venue arguments and that there was no variance at the trial. (ECF No. 681.) The government urged this Court to deny Kenner's Rule 33 motion because all of the issues he raised were already decided by the Court in its October 11, 2017 Order. On October 17, 2019, upon direction from this Court, the government provided additional support for its venue arguments. (ECF No. 752.) Kenner submitted a reply on October 30, 2019, asserting that the government's basis for venue is predicated on falsehoods, mere preparatory acts, and non-victim activity. (ECF No. 762.)
Kenner principally argues that: (1) venue was improper; and (2) there was an unconstitutional variance from the Superseding Indictment at the trial. As discussed below, the Court finds each of these arguments to be without merit.
Pursuant to Rule 29(a), a district court shall enter a judgment of acquittal as to "any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). Rule 29(c) permits a defendant to "move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later." Fed. R. Crim. P. 29(c).
Under Rule 29, the standard 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 reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord United States v. Finnerty, 533 F.3d 143, 148 (2d Cir. 2008); United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008); United States v. Irving, 452 F.3d 110, 117 (2d Cir. 2006); United States v. Temple, 447 F.3d 130, 136 (2d Cir. 2006). In other words, "[a] court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." Temple, 447F.3d at 136 (quoting United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999)).
Importantly, when evaluating the evidence under this standard, "courts must be careful to avoid usurping the role of the jury when confronted with a motion for acquittal." United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003); see also United States v. Florez, 447 F.3d 145, 154-55 (2d Cir. 2006) (); Guadagna, 183 F.3d at 130 () (citation and internal quotation marks omitted).
Therefore, viewing the evidence in the light most favorable to the government means "drawing all inferences in the government's favor and deferring to the jury's assessments of the witnesses' credibility." United States v. Arena, 180 F.3d 380, 391 (2d Cir. 1999) (citation and internal quotation marks omitted). In examining the sufficiency of the evidence, the Court should not analyze pieces of evidence in isolation, but rather must consider the evidence in its totality. See United States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir. 1993); see also Guadagna, 183 F.3d at 130 ().
Rule 33 states, in relevant part, 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). A district court may grant a Rule 33 motion only in "extraordinary circumstances," United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009), and only if there exists "a real concern that an innocent person may have been convicted." United States v. Parkes, 497 F.3d 220, 232 (2d Cir. 2007) (quo...
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