United States v. Vas
| Decision Date | 20 September 2012 |
| Docket Number | No. 11-2098,11-2098 |
| Parties | UNITED STATES OF AMERICA v. JOSEPH VAS, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Appeal from the United States District Court
for the District of New Jersey
Submitted Under Third Circuit LAR 34.1(a)
September 18, 2012
Before: SLOVITER, RENDELL, and HARDIMAN, Circuit Judges
Appellant Joseph Vas was convicted of mail fraud, misapplication of funds involving a local government receiving federal funds, making false statements to federal law enforcement agents, and making contributions to a federal candidate through straw donors.
At the times relevant to the criminal charges at issue, Vas was the Mayor of Perth Amboy, New Jersey, a New Jersey State Assemblyman, and a candidate in the 2006 Democratic primary election for New Jersey's 13th U.S. Congressional District. Melvin Ramos, Vas' co-defendant, was Vas' Mayoral Aide and Congressional Campaign Treasurer. Vas and Ramos were charged with, and convicted of, two interrelated sets of offenses. First, Vas and Ramos were convicted of a set of charges involving the abuse of Vas' authority as Mayor to misappropriate public funds in order to entice a contractor to buy an apartment building in Perth Amboy from Vas at an inflated price.1 Second, Vas and Ramos were convicted of charges related to the use of straw donors to evade contribution limits to Vas' congressional campaign (the "straw-donor scheme").
Vas purchased an apartment building on Dekalb Avenue in Perth Amboy (the "DeKalb property"); held it for a brief period; and sold it to Evan Samouhos, a developer,for $290,000 in profit.2 Samouhos bought the property on assurances from Vas and Ramos that he would receive Regional Contribution Agreement ("RCA") funds to renovate the building.3 Vas used part of the profit from the sale of the DeKalb property to fund his congressional campaign. After the sale, Vas, without disclosing his prior ownership of the property, manipulated municipal procedures in an attempt to expedite the approval of $360,000 in RCA funds for the rehabilitation of the DeKalb property. Among other actions Vas took in this regard was misusing his authority to obtain a $90,000 advance payment of RCA funds to the developer outside of the municipal approval process for such a payment. Vas subsequently made false statements to FBI agents about his involvement with the DeKalb property.
The jury also convicted Vas of Count Twelve, which charged him with accepting campaign contributions through straw donors, in violation of 2 U.S.C. §§ 441a(f) and437g(d)(1)(A)(ii).4 In this scheme, city employees and other persons made donations to Vas' congressional campaign and were then reimbursed with cash received from other donors.
Following his convictions, the District Court sentenced Vas to 78 months imprisonment, a fine of $73,200, and restitution of $90,000.
Vas filed a timely notice of appeal.
Vas makes numerous arguments on appeal. First, he argues that the jury's verdicts on various counts were against the weight of the evidence and that the District Court erred in failing to grant a judgment of acquittal on those charges. Second, Vas contends that his due process rights were violated by the Government's misjoinder of the property-flip counts and the straw-donor count and by the District Court's refusal to sever them. Vas next argues that he is entitled to a new trial because the District Court improperly admitted evidence of other wrongful acts in violation of Federal Rule of Evidence 404(b). Finally, Vas challenges the District Court's sentencing guidelines calculation and its imposition of $90,000 in restitution to the City of Perth Amboy.
Vas argues that the jury's verdicts on the various counts were against the weight of the evidence and that the District Court erred by denying his Rule 33 motion for a newtrial. This court reviews a district court's denial of a motion for a new trial under Rule 33 for abuse of discretion. See United States v. Kelly, 539 F.3d 172, 181 (3d Cir. 2008). Where, as here, a defendant's Rule 33 motion is premised on the argument that the jury's verdict was against the weight of the evidence, the task of the district court is not to "view the evidence favorably to the Government, but instead [to exercise] its own judgment in assessing the Government's case." United States v. Brennan, 326 F.3d 176, 189 (3d Cir. 2003) (quoting United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002)). "A district court can order a new trial on the ground that the jury's verdict is contrary to the weight of the evidence only if it believes that there is a serious danger that a miscarriage of justice has occurred - that is, that an innocent person has been convicted." Id.
Vas bases many of his sufficiency of the evidence challenges on purported inconsistencies in testimony that he believes made witnesses Evan Samouhos, Jeffrey Gumbs, FBI Special Agent Edward Quinn, Raymond Geneske, and David Benyola not credible. We reject these arguments.
The determination of witness credibility is the province of jury. See Brennan, 326 F.3d at 191. After a careful review of the record, we agree with the District Court that, while the testimony of the Government's witnesses contained minor inconsistencies and weaknesses - all of which were the subject of extensive cross examination by defense counsel - the overall testimony was "very consistent with what the allegations stated in the indictment." Supp. App. at 417-18. Moreover, the challenged testimony wassupported by considerable documentary evidence as well as by the testimony of other witnesses whose credibility is not challenged on appeal.
Vas makes two additional arguments that the Government failed to produce any credible evidence supporting the property-flip counts. These arguments are easily rejected.
First, Vas argues that he had a good faith belief that he was acting lawfully with regard to the property-flip scheme. This contention is contradicted by the record. First, Kathleen McGlinchy, a state official, testified that she told Vas in advance that some of his proposed actions were improper under state regulations. Second, Vas' nondisclosures, acts of concealment, and subsequent false statements to the FBI are all circumstantial evidence from which the jury could have inferred that Vas knew his actions were unlawful and acted with fraudulent intent. See United States v. Pearlstein, 576 F.2d 531, 541 (3d Cir. 1978).
Vas makes a related argument that the Government failed to show that he made material false statements. In Vas' view, the Government only proved that Vas failed to disclose certain facts, without producing evidence that Vas was under an affirmative obligation to make any disclosures. Here again Vas' contention is contradicted by the record. The Government produced evidence showing that Vas engaged in affirmative acts to conceal his interest in the DeKalb property, including, for example, evidence that Vas went outside the normal channels for approval of Government payments and had third parties make requests with respect to RCA funding for the DeKalb property in orderto disguise his interest. This evidence is sufficient to support his convictions on the challenged counts. See, e.g., United States v. Olatunji, 872 F.2d 1161, 1167 (3d Cir. 1989).
In sum, we reject the suggestion that there was a miscarriage of justice, and hold that the District Court did not abuse its discretion in denying Vas' motion for a new trial.
Vas, using the same arguments made in support of his motion for a new trial, asks this court to reverse the District Court's denial of his motion for a judgment of acquittal on Counts Five, Six, Seven, Eight, and Twelve of the superseding indictment. "We exercise plenary review over a district court's grant or denial of a motion for judgment of acquittal based on sufficiency of the evidence." United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009). That review "is governed by strict principles of deference to a jury's findings." United States v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996) (internal quotation marks and citation omitted). We will overturn a verdict only "if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." United States v. Lacy, 446 F.3d 448, 451 (3d Cir. 2006) (quoting United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987)).
For the same reasons we rejected Vas' argument that he was entitled to a new trial, we conclude that the Government presented evidence sufficient to sustain Vas' convictions on the challenged counts.
Vas next argues that the superseding indictment improperly joined the property-flip counts and the straw-donor counts and that the District Court erred by declining to sever the straw-donor counts.
We make an "independent determination" as to whether the joinder of counts was proper. United States v. McGill, 964 F.2d 222, 241 (3d Cir. 1992) (internal quotation marks and citation omitted). Our inquiry focuses on the facts alleged in the indictment, not upon the proofs made at trial. United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003). Under Rule 8(b), Fed. R. Crim. P. 8(b). Under Rule 8(b), joinder of counts is proper if the indictment alleges a "transactional nexus" between the counts being joined. McGill, 964 F.2d at 241 (quoting United States v. Eufrasio, 935 F.2d 553, 570 n.20 (3d Cir. 1991)).
The transactional nexus requirement is easily met in this case. The...
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