Opinion
Criminal No. 3:04-CR-196-D.
April 27, 2005
MEMORANDUM OPINION AND ORDER
Defendant Lori Kay Spurlock ("Spurlock") moves under Fed.R.Crim.P. 29 and 33 for a new trial and a judgment of acquittal. The court has considered the briefs, the evidence presented at trial, and the oral argument presented on April 8, 2005, and it denies the motion.
Spurlock challenges her convictions on counts 1, 9, 10, and 11 on the ground that the evidence is insufficient to establish guilt beyond a reasonable doubt.
[T]his court reviews a claim of insufficient evidence to determine whether a rational trier of fact could have found that the evidence established the [defendant's] guilt and each essential element of the crime beyond a reasonable doubt. The evidence presented at trial is viewed in the light most favorable to the Government and with all reasonable inferences made in support of the jury's verdict.United States v. Gallardo-Trapero, 185 F.3d 307, 316 (5th Cir. 1999) (citations omitted). Having considered the evidence presented at trial under this standard, the court concludes that it is sufficient to support the convictions on all four counts.
The court also rejects Spurlock's other arguments concerning counts 10 and 11. The superseding indictment, and its reference to "proceeds from the sale of CLI business equipment and supplies," supports a conviction on count 10. And a reasonable jury could have found, notwithstanding Spurlock's position concerning the $11,000 transfer addressed in count 11, that the money consisted of property of her bankruptcy estate.
Spurlock also moves for acquittal on the charge of conspiracy to commit bankruptcy fraud charged in count 9. Count 9 alleges the commission of a conspiracy under 18 U.S.C. § 371 that had two objects: fraudulently concealing bankruptcy estate property, in violation of 18 U.S.C. § 152(1), and making a false statement or declaration in relation to a bankruptcy case, in violation of 18 U.S.C. § 152(3). Count 9 incorporates counts 10 and 11 as the overt acts committed in furtherance of the conspiracy. Counts 10 and 11 allege acts of concealment of bankruptcy assets. Spurlock thus contends the court erred in submitting this count to the jury with respect to the false statement object of the conspiracy, because the superseding indictment does not allege a false statement as an overt act.
Spurlock's argument lacks merit because it misapprehends the requirements of an overt act. "It is not necessary that an overt act be the substantive crime charged in the indictment as the object of the conspiracy." Yates v. United States, 354 U.S. 298, 334 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978); United States v. Archbold-Newball, 554 F.2d 665, 684 (5th Cir. 1977) (quoting Yates, 354 U.S. at 334). Indeed, it is not required that the overt act be criminal in nature. Yates, 354 U.S. at 334; United States v. Pomranz, 43 F.3d 156, 160 (5th Cir. 1995). Moreover, the overt act "need not have such a relationship to the substantive offense that is the object of the conspiracy as would suffice to sustain a conviction for attempt to commit the substantive offense." United States v. Marden, 872 F.2d 123, 126 n. 4 (5th Cir. 1989). "An overt act is an act performed to effect the object of a conspiracy, although it remains separate and distinct from the conspiracy itself." Pomranz, 43 F.3d at 160. "The overt act . . . need not be a crime and is not a part of the offense charged, but simply something done in furtherance of the object of the conspiracy and the only purpose of proof of the overt act is to eliminate the possibility of abandonment of the conspiracy." Castro v. United States, 296 F.2d 540, 542-43 (5th Cir. 1961). Accordingly, although one object of the conspiracy charged in count 9 was the making of false statements or declarations in relation to a bankruptcy case, it was not necessary that the superseding indictment charge the making of a false statement or declaration as an overt act in support of that object of the conspiracy. It was sufficient that the superseding indictment charged that the conspirators concealed bankruptcy estate property as an overt act committed in furtherance of the conspiracy to make a false statement in relation to the bankruptcy case.
Spurlock's February 3, 2005 motion for new trial and acquittal is denied.