Opinion
08 Cr. 972 (DAB)
08-25-2011
UNITED STATES OF AMERICA, v. ANTHONY J. CUTI and WILLIAM J. TENNANT, Defendants.
ORDER AND MEMORANDUM
Now before the Court is Defendants William Tennant and Anthony Cuti's Motion for a New Trial. Defendant Tennant argues that a new trial is required under Federal Rule of Criminal Procedure 33 because the Government prejudiced Defendant Tennant at trial by repeated "inferences" to the jury that there was a loss when, post-conviction and following a Fatico hearing, the Court found that the Government failed to prove there was a loss. Defendant Tennant also argues that the Government further prejudiced Defendant Tennant through repeated "inferences" that Defendant Tennant made a profit from the alleged fraud, when the evidence at the Fatico hearing demonstrated that Defendant Tennant made no profit from his fraud.
There were two separate motions for a new trial recently filed in this case. On July 28, 2011, Defendant Cuti filed a (First) Motion for a New Trial based on the Government's alleged Brady violations. On August 4, 2011, Defendant Tennant joined in Defendant Cuti's (First) Motion for a New Trial. The Court denied Defendant Cuti's (First) Motion for a New Trial on August 19, 2011. Defendant Tennant filed his (Second) Motion for a New Trial - the subject of this Order and Memorandum - on August 16, 2011. Defendant Cuti joined in Defendant Tennant's (Second) Motion for a New Trial on August 18, 2011. For simplicity's sake, the Court will refer to the July 28, 2011 Motion as "Defendant Cuti's Motion for a New Trial" and the August 16, 2011 Motion as "Defendant Tennant's Motion for a New Trial."
For the reasons below, Defendants Tennant and Cuti's Motion for a New Trial is hereby DENIED.
The Court has extensive familiarity with the facts of this case, having presided over a two month trial and a Fatico hearing. For a recitation of the facts, see the Court's Order and Memorandum at Docket No. 162.
I. DISCUSSION
A. Standard for a Motion for a New Trial
The Federal Rules of Criminal Procedure allow the district court, upon a defendant's motion, to "grant a new trial if the interest of justice so requires." Fed. R .Crim. P. 33(a). A motion for a new trial may be based on "new evidence" and the standard requires that: (1) the evidence be newly discovered after trial; (2) facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching; and (5) the evidence would likely result in an acquittal. U.S. v. Persico, 645 F.3d 85, 109 (2d Cir. 2011) (citing United States v. Owen, 500 F.3d 83, 87-88 (2d Cir. 2007)). "The 'ultimate test' is 'whether letting a guilty verdict stand would be a manifest injustice. . .[t]here must be a real concern that an innocent person may have been convicted.'" Persico, 645 F.3d at 109 (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001)(citations omitted)). However, "[t]he motion is not favored[.]" Persico, 645 F.3d at 109 (quoting United States v. Gilbert, 668 F.2d 94, 96 (2d Cir. 1981)). B. Loss was Not an Element of Any of the Offenses of Conviction
Defendant Tennant was convicted by the Jury on Count Two only.
In a July 29, 2011 Order and Memorandum deciding the that were the subject of a Fatico hearing, the Court found that the Government failed to establish, by a preponderance of the evidence, that Oak Hill suffered any loss attributable to the offenses of conviction. In light of that decision, Defendant Tennant now argues that the Government repeatedly attempted during trial, through its statements, charts, and witnesses' testimony, to infer that there was a loss, when the Fatico hearing proves there was no loss. Defendant Tennant also argues that the Government asserted at trial that Defendant Tennant was motivated to perform fraud by a $2.9 million pay-out that resulted from fraud and this assertion had no basis in fact. Defendant Tennant argues that these arguments by the Government were highly prejudicial and, accordingly, Defendant Tennant should be granted a new trial.
In the detailed Jury Instructions that the Court provided the Jury prior to its deliberations, not once did the Court use the word "loss" - let alone give an instruction related to the concept of loss. In addition, in the Jury Verdict Form that ultimately recorded the Jury's findings of guilt for both Defendants Tennant and Cuti, nowhere did it mention, or contain any element, incorporating "loss." For instance, for the Securities Fraud offense for Count Two, Defendant Tennant's only offense of conviction, the Jury Verdict Form contained the following: COUNT TWO: SECURITIES FRAUD 12. Do you find unanimously that the Government has proven beyond a reasonable doubt that the Defendant William Tennant is guilty of securities fraud as charged in Count Two?
NOT GUILTY___ GUILTY v13. If you answered "Guilty" to Question 12, which of the following forms of unlawful conduct do you find unanimously that the Government has proven beyond a reasonable doubt against Defendant William Tennant?
a. employed devices, schemes or artifices to defraud
NO___ YES v
b. made untrue statements of material fact or omitted to state material facts necessary in order to make the statements made not misleading
NO___ YES v
c. engaged in acts, practices and courses of business which operated or would operate as a fraud and deceit upon purchasers and sellers of Duane Reade securities
NO___ YES v
It is clear from the Jury Charge and the Jury Verdict Form that loss is not an element of Defendant Tennant's offense of conviction. Loss was not an element of the offense and the parties did not provide evidence on loss at trial. Accordingly, there is no basis for the Court to overturn the Jury Verdict for either Defendant. B. Defendants Present No New Evidence
Similarly, for all of Defendant Cuti's offenses of conviction (Counts 1 - 5), loss is not a part of any element.
Defendant Tennant argues that the evidence presented at the Fatico hearing, and the Court's Memo and Order of July 29, 2011, constitute "newly discovered evidence" entitling him to a new trial. This argument is without merit. The Court's ruling is not newly discovered evidence; it is law.
II. CONCLUSION
For the reasons above, Defendants Tennant and Cuti's Motion for a New Trial is hereby DENIED.
SO ORDERED. DATED: New York, New York
August 25, 2011
/s/_________
Deborah A. Batts
United States District Judge