U.S. V. Billmyer CR-94-29-JD 09/26/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 94-029-01, 04-JD
John W. Billmyer Dennis R. Josleyn
O R D E R
On June 1, 1995, the jury convicted defendants John Billmye
and Dennis Josleyn of count II, conspiracy to commit mail fraud.
Josleyn was also convicted of the following offenses: count I,
RICO; count III, conspiracy to commit mail fraud; and count IV,
mail fraud. Before the court are Billmyer's motion for judgment
of acguittal under Fed. R. Crim. P. 29(c) or, in the alternative
for a new trial under Fed. R. Crim. P. 33 (document no. 429);
Josleyn's motion for judgment of acguittal or a new trial
(document no. 432); and Josleyn's second motion for a new trial
and reguest for an order directing the attendance of a witness
(document no. 441).
Discussion
I. Count II - Venue
Billmyer and Josleyn assert that they are entitled to a
judgment of acguittal because venue was not proper in the District of New Hampshire for the conspiracy charged in count
II.1 Billmyer asserts that the government failed to adduce
evidence to link Pedersen's conduct to Billmyer or to the overall
count II conspiracy. See, e.g.. Memorandum of Law in Support of
Motion for Judgment of Acguittal or. Alternatively, for a New
Trial ("Billmyer1s Memorandum") at 1, 14-22 ("There was no proof
at trial that Billmyer had any knowledge of what Pedersen was
doing, much less that Billmyer approved of Pedersen's activities,
was involved in them, or shared profits with Pedersen").
When faced with a motion for judgment of acguittal under
Rule 2 9, the court must determine "whether the total evidence,
including reasonable inferences, when put together is sufficient
to warrant a jury to conclude that the defendant is guilty beyond
a reasonable doubt." United States v. Doe, 921 F.2d 340, 343
(1st Cir. 1990) (guoting Dirring v. United States, 328 F.2d 512,
515 (1st Cir.), cert. denied, 377 U.S. 1003 (1964)). Following
conviction, the court is reguired to preserve the jury's
responsibility to weigh the evidence by considering "all of the
evidence ... in the light most favorable to the prosecution."
I d . at 344 (guoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original) ) .
1Josleyn has adopted Billmyer's venue argument by reference.
2 The First Circuit recently cautOioned courts not to consider
"each piece of evidence in isolation" when ruling on a Rule 29
motion, adding that "it is for the jury, not the court, to choose
between conflicting inferences." United States v. Olbres, No.
94-2123, 1995 WL 431143 at * 7 (1st Cir. July 26, 1995)
(reinstating convictions following district court's entry of
judgment of acguittal). The First Circuit reasoned that
[u]nder the viewpoint principle, a jury charged with determining an accused's guilt or innocence is entitled to consider the evidence as a seamless whole. Jurors are not reguired to examine the evidence in isolation, for individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove i t . The sum of an evidentiary presentation may well be greater than its constituent par t s .
I d . (guotations omitted) (emphasis supplied).
The venue argument fails. As an initial matter, the court
notes that the government was reguired to establish venue in New
Hampshire by a preponderance of the evidence, a lighter burden of
proof than that reguired for every other element of the crimes
alleged.2 Moreover, the Rule 29 standard is deferential to the
21he court gave the jury the following venue instruction:
Count II alleges that only one overt act occurred in New Hampshire. That overt act is found at paragraph 9 6 (p) of the indictment and reads as follows:
In or about May, 1987, David Pedersen, an Assistant Zone Manager for American Honda, and other American Honda employees, caused an Acura dealership in Nashua, New Hampshire, to
3 jury's verdict and, as such, operates to the government's
benefit. In both his brief and in oral argument, defense counsel
carefully digests the trial testimony, emphasizing the absence of
a direct evidentiary link between Pedersen's and Bohlander's
be awarded to an automobile dealer, who shall be referred to as Dealer G.
You may find that venue is proper in the district of New Hampshire only if you conclude that: (1) In May 1987 David Pedersen was a member of the same conspiracy as the defendants; (2) David Pedersen knowingly committed the above described overt act; (3) the act was in furtherance of the conspiracy charged in count II; and (4) the occurred in the state of New Hampshire. The government has the burden of proving these facts set forth in paragraphs 1-4 above by the preponderance of the evidence rather than by the higher standard, beyond a reasonable doubt. When I use the phrase "preponderance of the evidence," I mean that the government must prove that it is more probably so than not that the act occurred and occurred in New Hampshire. Your determination of whether venue is proper in the district of New Hampshire is the only determination you will make in count II under the preponderance of the evidence standard. All other determinations must be made according to the higher, "beyond a reasonable doubt" standard. Because the overt act found at paragraph 9 6 (p) is the only overt act alleged to have occurred in New Hampshire, you must find that this act occurred in order to find either defendant guilty under count II. If you do not find by the preponderance of the evidence that this act occurred in New Hampshire, you must find both defendants not guilty.
United States v. Billmyer and Josleyn, Cr. 94-29-01, 04-JD, Jury Instructions at 46-47.
4 conduct relative to the Nashua LOI and other acts committed in
furtherance of the count II conspiracy. In essence, Billmyer's
argument invites the court to engage in a piecemeal dissection of
the factual record in a manner similar to that rejected by the
First Circuit in United States v. Olbres and the cases cited
therein. Based on its application of the Rule 29 standard, the
court finds that the evidentiary record, when viewed as a
seamless whole and taken in a light most favorable to the
government, supports the jury's finding by a preponderance of the
evidence that the overt act charged in paragraph 9 6 (p) of the
second superseding indictment occurred as alleged.
II. Multiple Conspiracies
A. Count II
judgment of acguittal on count II or, in the alternative, a new
trial under Rule 33, because the evidence established multiple
conspiracies and not the single conspiracy charged in the second
superseding indictment.3
3Billmyer's multiple conspiracy argument is advanced in support of his motion for a new trial. Josleyn, who has adopted Billmyer's legal argument and memoranda by reference, advances the multiple conspiracies argument in support of his motion for judgment of acguittal and his motion for a new trial.
5 The First Circuit does not employ a "mechanical test
through which a reviewing court can plumb the scope and contours
of a given conspiracy or determine how many conspiracies may be
said to exist." United States v. David, 940 F.2d 1 22 , 734 (1st Cir.), cert, denied, 502 U.S. 989 (1991). Rather, the guestion
of whether a conspiracy is multiple or single is one of fact
which focuses on the "totality of the evidence and the
permissible inferences therefrom." I d . at 732-34. In United
States v. Cloutier, a drug case, the First Circuit announced
several factors to be considered when making this fact-based
determination. 966 F.2d 24, 28 (1st Cir. 1992).
We consider: 1) when the drug [or other illegal] activity occurred; 2) the locations of the drug [or other illegal] activity; 3) the identities of the persons involved; 4) the co-conspirators' ends; 5) the means used to achieve those ends; and 6) the similarities (or differences) in the evidence used to prove the two conspiracies.
I d . at 2 8.
As counsel for Billmyer acknowledged in oral argument, the
multiple conspiracies argument is analytically similar to his
Rule 2 9 venue argument to the extent that both rest on the view
that, as a matter of law, the conduct charged as an overall
conspiracy actually encompassed numerous independent and
disconnected schemes or patterns of conduct. Indeed, both
defense counsel and counsel for the government argued that
6 application of the Cloutier factors to the factual record reveals
the existence of multiple or single conspiracies, respectively.
The defense requested a jury instruction on multiple
conspiracies and a detailed instruction on this issue was given
to the jury.4 This instruction directed the jury to acquit the
4The court gave the following multiple conspiracy instruction:
In this case, the defendants contend that the government's proof fails to show the existence of only one overall conspiracy. Rather, they claim that there were actually several separate and independent conspiracies with various groups of members. Whether there existed a single unlawful agreement, or many such agreements, or indeed, no agreement at all, is a question of fact for you, the jury, to determine in accordance with these instructions. When two or more people join together to further one common unlawful design, purpose, or overall plan, a single conspiracy exists. On the other hand, multiple conspiracies exist when there are separate unlawful agreements to achieve distinct purposes. You may find that there was a single conspiracy despite the fact that there were changes in personnel by the termination, withdrawal, additions of new members, or in activities, or both, so long as you find that some of the co-conspirators continued to act for the entire duration of the conspiracy for the purpose charged in the indictment. The fact that the members of a conspiracy are not always identical does not necessarily imply that separate conspiracies exist. It is not necessary that you find that the alleged co conspirators joined the conspiracy at the same time or shared the same knowledge beyond their understanding, tacit or otherwise, that their illicit agreement existed. Nor do the participants in a conspiracy need to have known all of their co-conspirators or to have participated at the same time in furtherance of their criminal venture. What is essential is that the criminal goal or overall plan have persisted without
7 fundamental alteration otwithstanding variations in personnel and their roles. In determining whether there was a single conspiracy or multiple conspiracies you may consider a wide range of factors such as: whether there was a common goal; the nature of the scheme; overlapping of participants in various dealings; the nature, design, implementation, and logistics of the illegal activity; the participants' method of operation; the relevant geography; and the scope of co-conspirator involvement. If the goal or overall plan of a conspiracy is to embrace multiple crimes, then each conspirator must have knowledge or foresight of the conspiracy's multiplicity of objectives. If an individual agrees with others simply to commit a single crime and has no knowledge or foresight of the conspiracy's broader scope, that person is a member only of the narrower, one-crime conspiracy. Therefore, you must determine if the government has proven beyond a reasonable doubt that those individuals whom it alleges were members of the conspiracy charged in count II had knowledge or foresight of the conspiracy's broader scope. If not, you must acguit the defendants. If you find that the conspiracy charged in the indictment did not exist, you cannot find any defendant guilty of the single conspiracy charged in the indictment. This is so even if you find that some conspiracy other than the one charged in this indictment existed, even though the purposes of both conspiracies may have been the same and even though there may have been some overlap in membership. If you find that there was not one conspiracy as charged in the indictment but one or more separate and independent conspiracies, then you must find the defendants not guilty. Similarly, if you find that a particular defendant was a member of another conspiracy, and not the one charged in the indictment, then you must find that defendant not guilty of the conspiracy charged. Therefore, what you must do is determine whether the conspiracy charged in the indictment existed. If it did, you then must determine who were its members. defendants if it determined that the government failed to prove
beyond a reasonable doubt the existence of a single count II
conspiracy. See United States v. Billmyer and Josleyn, Jury
Instructions at 39-42. The government introduced a considerable
guantum of evidence relating to count II. The evidence, viewed
as a seamless whole and taken in a light most favorable to the
government, included facts which could reasonably support a
finding of a single conspiracy based on an application of the
Cloutier criteria. See 966 F.2d at 24. Specifically, the
government adduced evidence which reasonably supports, inter
alia, findings of an interrelated group of conspirators who
employed the same or similar methods and means to achieve the
common goal of personal financial gain. Although the court
acknowledges that some of the evidence, such as Cardiges' failure
to include Pedersen in a list of co-conspirators, may also
support a finding of multiple conspiracies, see United States v.
Ocampo, 964 F.2d 80, 83 (1st Cir. 1992), the court neither weighs
the evidence nor chooses between conflicting inferences when
ruling on a Rule 29 motion. See,e .q ., United States v. Olbres,
United States v. Billmyer and Josleyn, Jury Instructions at 3942. 1995 WL 431143 * 7.5 Rather, based on its application of the
appropriate standard of review, the court concludes that the
factual record supports the jury's finding beyond a reasonable
doubt that the single conspiracy charged in count II of the
second superseding indictment existed.
The multiple conspiracies argument is no more effective when
advanced in support of the motions for a new trial under Rule 33.
The court "may grant a new trial . . . if reguired in the
interest of justice." Fed. R. Cr. P. 33. In the First Circuit,
a "motion for a new trial is directed to the sound discretion of
the trial court. Denial of such a motion will not be reversed,
absent a miscarriage of justice or unless the evidence heavily
preponderates against the verdict." United States v. Thornlev,
707 F.2d 622, 626 (1st Cir. 1983) (citing United States v. Leach,
427 F.2d 1107, 1111 (1st Cir.), cert. denied, 400 U.S. 829
(1970)).
The multiple conspiracies argument was a fact-intensive
defense skillfully presented to the jury along with an
5Likewise, although the evidence concerning Pedersen's efforts to conceal his unlawful conduct from other co conspirators may manifest an intent not to join a common enterprise, such testimony is also consistent with the government's theory that silence was a shared method and means of the conspiracy.
10 appropriate instruction concerning the applicable law. The court
has determined, supra, that the factual record supports, rather
than preponderates against, the jury's finding beyond a
reasonable doubt that the single conspiracy alleged in count II
existed. Accordingly, the defendants have failed to present
sufficient justification for the court to find that the interest
of justice reguires a new trial.
B. Counts I and III
Josleyn asserts that he is entitled to a judgment of
acguittal on counts I and III because "the evidence is
insufficient to establish that the conspiracies charged in Counts
I . . . and III of the indictment were single conspiracies." In
support of the motion Josleyn relies principally on Billmyer's
legal argument and memoranda even though Billmyer was not
indicted on these counts.
The Rule 29 motion on count I lacks support in either fact
or law. Count I of the second superseding indictment did not
allege a conspiracy and, as such, the jury was never reguired to
find the existence of a single conspiracy in order to convict.
Rather, count I alleged a substantive violation of the RICO
statute. However, to the extent the motion is based on the
government's failure to prove one of the five RICO elements.
11 which could include the failure to prove one of the three
elements of the predicate acts of mail fraud, the court denies
the motion based on a consideration of the entire factual record
in accordance with the appropriate Rule 29 standard. See e.g..
United States v. Olbres,1995 WL 431143 at * 7.
The Rule 29 motion addressed to count III based on the
existence of multiple conspiracies also fails. The conspiracy
alleged in count III was not nearly as broad in scope,
participants, or time as that alleged in count II. Ascharged,
the count III conspiracy embraced the conduct of Josleyn,
Cardiges, and others relative to the direct mail advertising
scheme and the sales training seminar ("SIT") scheme from in or
about 1989 until in or about June 1992. The factual record,
viewed as a seamless whole and taken in a light most favorable to
the government, included evidence which could reasonably support
a finding of a single conspiracy based on application of the
government adduced evidence which supports, inter alia, findings
of an interrelated group of conspirators who employed the same or
similar methods and means to achieve the common goal of personal
financial gain. The court notes that Cardiges testified over the
course of several days concerning his, Josleyn's, and Garey &
Associates' direct involvement in both the advertising and the
12 STT schemes. The fact that the same conduct also may be viewed
as comprising two separate conspiracies perpetrated by similar
means and participants, i.e., one conspiracy involving the ad
campaign and the other involving STT, does not reguire entry of a
judgment of acguittal because the court neither weighs the
evidence nor chooses between conflicting inferences when ruling
on a Rule 29 motion. See e.g.. United States v. Olbres, 1995 WL
431143 at * 7. Rather, based on its application of the
factual record supports the jury's finding beyond a reasonable
doubt that the single conspiracy charged in count III existed.
III. Misjoinder and Co-Conspirator Hearsay
Billmyer asserts that he is entitled to a new trial because
of the misjoinder of count II with the other counts charged in
the second superseding indictment. Billmyer also asserts that he
is entitled to a new trial because of the erroneous admission of
hearsay testimony of co-conspirators. Josleyn again has adopted
his co-defendant's legal argument and memoranda by reference.
Both the misjoinder argument and the hearsay argument rest
in large part on the defendants' theory that the evidence related
to count II established the existence of multiple conspiracies.
Thus, as an initial matter the arguments are imperiled by
13 the court's conclusion, supra, that the factual record supports
the jury's finding beyond a reasonable doubt that the single
conspiracy charged in count II existed. Indeed, Billmyer tacitly
acknowledges that the existence of a single conspiracy vitiates
the misjoinder argument by noting that "joinder may be proper in
the presence of an over-arching conspiracy." Billmyer's
Memorandum at 24 (citing United States v. Boylan, 898 F.2d 230,
245 (1st Cir.), cert. denied, 498 U.S. 849 (1990)). Likewise,
with regard to the admission of the hearsay statements of co
conspirators, Billmyer notes that
if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy, the hearsay is admissible.
I d . (guoting United States v. Petrozziello, 548 F.2d 20, 23 (1st
Cir. 1977) ) .
The court's analysis of the intimate relationship between
the multiple conspiracies theory and the misjoinder and co
conspirator hearsay arguments does not in itself dispose of the
instant motions under Rule 33. Rather, the court further notes
that the defendants did not suffer the level of prejudice that
would reguire a new trial in the interest of justice. The jury
was instructed to consider each count and each defendant
separately. See United States v. Billmyer and Joslevn, Jury
14 Instructions at 14-15. Likewise, the jury was instructed that
they could not consider the inculpatory acts and statements of
co-conspirators without first concluding that the acts or conduct
were made by members of the conspiracy in furtherance of the
conspiracy. See i d . at 48-49. In addition, counsel for both the
government and for the defendants segregated the evidence to
avoid prejudicial spillover from defendant to defendant and from
count to count. Where appropriate, exhibits were identified so
as to remind the jury against which defendant they were to be
considered. In addition, instructions were given to the jury
from time to time during the trial to consider certain testimony
only as to one defendant or the other. In light of the above,
the court finds that the defendants are not entitled to a new
trial under Rule 33.
IV. Newly Discovered Evidence
Josleyn asserts that he is entitled to a new trial because
evidence discovered following his conviction, if presented to the
jury, would have resulted in acguittal. He argues that
prosecution witness Robert Rivers' trial testimony directly
contradicted testimony Rivers provided in "another proceeding
15 when it so served his interest."6 Josleyn reasons that this
evidence would have had a tremendous negative effect on Rivers'
credibility and, in turn, "upon the jury's view of the
credibility of other governmental witnesses who parroted the
perjury of Rivers."
In the First Circuit, for a defendant to prevail on a motion
for a new trial based upon newly discovered evidence, four
elements must be satisfied:
1) the evidence was unknown or unavailable to defendant at the time of trial;
2) the failure to discover the evidence was not due to a lack of diligence on the part of defendant;
3) the new evidence must be material; and
4) the evidence would probably produce an acguittal upon retrial of defendant.
United States v. Ortiz, 23 F.3d 21, 27 (1st Cir. 1994) (citing
United States v. Benavente Gomez, 921 F.2d 378, 382 (1st Cir.
1990); United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.
6Josleyn asserts that Rivers contradicted his trial testimony by stating in a sworn affidavit that
I obtained ownership interest in a number of Honda dealerships [sic] It [sic] clear to me was my belief that Honda's Presidents, Chino, Munekuni, and Mr. Amemyia were cognizant of the improper activities which were occurring within American Honda Sales force.
Josleyn's Supplement to Motion for Judgment ofAcguittal or Alternatively Motion for New Trial at 4.
16 1980)). In the context of a motion for a new trial, impeachment
evidence or cumulative evidence generally is not considered
material for purposes of the third element. E.g., Barrett v.
United States, 965 F.2d 1184, 1195 (1st Cir. 1992) (listing
cases). The court must deny the motion for a new trial if any
one of these four elements is lacking. I d . (citing United States
v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991), cert. denied, 112
S. C t . 986 (1992)).
The post-conviction discovery of the Rivers affidavit,
containing certain apparently inconsistent testimony, does not
warrant a new trial. First, Rivers testified at length during
trial and, to the extent the defense was aware that Rivers had
testified on other occasions, it had the opportunity to elicit
inconsistencies based on the prior testimony. Likewise, to the
extent the defense was not aware that Rivers had testified on
other occasions, such as in the affidavit at issue, the existence
of such prior testimony itself could have been elicited through
diligent cross-examination.
Second, even without knowledge of Rivers' inconsistent
testimony in other proceedings, the defense repeatedly elicited
testimony from other witnesses, such as Cecil Proulx and David
Power, concerning Japanese management's knowledge of wrongful
conduct. Accordingly, Josleyn's bald assertion that additional.
17 and most likely cumulative, testimony on this point would have
caused the jury to adopt the defense theory of the case is
unavailing.
Third, although Rivers was an important government witness,
the jury convicted Josleyn after listening to and gauging the
credibility of countless other witnesses during a lengthy trial.
Thus, Josleyn strains reason to suggest now that a different
verdict would have resulted had the jury found Rivers to be a
less credible witness, particularly in view of the overwhelming
evidence of Josleyn's guilt.
Fourth, the motion claims that the newly discovered evidence
is exculpatory in that it would have undermined Rivers'
credibility. Impeachment evidence is not considered material for
purposes of determining whether to grant a motion for a new
trial.
V. Prosecutorial Misconduct
Josleyn next asserts that he is entitled to a new trial
because various instances of prosecutorial misconduct have
violated his constitutional right to due process. Josleyn
asserts the government wrongfully:
(1) elicited false testimony from Cardiges that Cardiges had personally reviewed all government files and, in the course of this review, found nothing to implicate Japanese
18 management or to suggest that Japanese management knew of or condoned wrongful conduct;
(2) failed to retract the testimony or "inform the jury that it had previously adduced false testimony"; and
(3) exacerbated the effect of Cardiges' false testimony by personally vouching for "the propriety of the guestion and answer" during rebuttal argument.7
The court considers several factors when determining whether
instances of prosecutorial misconduct have "so poisoned the well
that a new trial is reguired." United States v. Manning, 23 F.3d
570, 574 (1st Cir. 1994) (guotations omitted). They are:
(1) The severity of the misconduct;
(2) the context in which it occurred;
(3) whether the judge gave any curative instructions and the likely effect of such instructions; and
(4) the strength of the evidence against the defendant.
inexplicably, Josleyn has failed to identify which portions of the prosecutor's rebuttal he argues constituted an error of constitutional dimension. Based on its own review of the transcript, the court believes that Josleyn is objecting to the following remarks of Attorney Connolly:
Now, there was a lot of suggestions of foul play in this case. I want to say this. I'm a married person with a family, and I go home at night with a sound conscience. I have worked very hard on this case. Mr. Feith has worked very hard on this case. Mr. Mulvaney and Ms. Roux have worked very hard on this case. And we are very proud of what we have done. We have nothing to be ashamed of.
Trial Transcript, May 18, 1995, afternoon session at 83.
19 I d . (citing cases). In general, prosecutors may neither vouch
for their witnesses nor appeal to the jury to act in a manner
other than as a dispassionate arbiter of the facts. I d . at 573
(citations omitted). On appeal, the First Circuit reviews a
prosecutor's allegedly improper closing argument for plain error
if the defense failed to interpose a contemporaneous objection to
the commentary. United States v. Ortiz, 23 F.3d at 26.
The allegations of prosecutorial misconduct do not warrant a
new trial. First, the court promptly addressed concerns over
Cardiges' inaccurate or misleading testimony when those concerns
were voiced by counsel at sidebar during re-cross examination.
The court found that the government's examination of Cardiges
constituted "misleading guestion and answering" which left the
jury with the impression that the government's files did not
contain materials suggestive of Japanese management's knowledge
of wrongful conduct. Trial Transcript, April 6, 1995, morning
session at 117, 121-23. The court undertook to cure the
misimpression -- over the government's strenuous objection -- by
permitting counsel for Josleyn to use hearsay material during his
cross examination of Cardiges. See i d . at 124-30; Trial
Transcript, April 6, 1995, afternoon session at 3-18. Defense
counsel took full advantage of its opportunity to cross examine
Cardiges and, in particular, enjoyed considerable latitude when
20 questioning him on his prior testimony concerning the contents of
the government's files. See Trial Transcript, April 6, 1995,
afternoon session at 18-50.
Second, Cardiges' credibility was further compromised by
Cecil Proulx's testimony that he personally submitted to the
government written materials, including copies of correspondence
and memoranda, concerning Japanese management's knowledge of
conduct violative of company policy.
Third, the defense emphasized the government's misleading
examination of Cardiges during its closing argument. In this
sense, the defense effectively co-opted potentially prejudicial
testimony to its own advantage.
Fourth, Josleyn was convicted by a jury which considered
many weeks of incriminating testimony and boxes of exhibits.
This volume of evidence invariably mitigates whatever prejudicial
taint arose from the government's line of questioning of any one
cooperating witness.
Fifth, Connolly's statement in rebuttal did not create undue
prejudice. Connolly should not have made the objectionable
remarks. They were improper to the extent that Connolly
commented on the government's probity in trying the case. The
comment may have tended to bolster the government's credibility
in a very generalized way and, also in a generalized way, may
21 have bolstered the credibility of government witnesses.
Nonetheless, Connolly neither directly vouched for the veracity
of the government's witnesses, nor made statements of the sort
generally considered to prejudice the defense in any appreciable
way, i.e., no burden shifting, no misstatements of fact or law,
no allusions to evidence not admitted at trial, and no
inflammatory arguments concerning the role of the jury.
Finally, the defendant failed to make a contemporaneous
objection to the comment.8 An objection would have alerted the
court to the perceived problem and would have allowed the court
the opportunity to take curative action.
Having weighed and considered the defendant's assertions of
prosecutorial misconduct, and having considered the overwhelming
weight of evidence introduced against Josleyn, the court finds
that any prejudice was not undue and did not create the level of
unfairness necessary to reguire a new trial.
8Josleyn's failure to object to the statements he now asserts reguire a new trial is particularly conspicuous given the defense's appropriate and timely objections to other commentary made during the course of the government's closing remarks, i.e., objections made to statements concerning the redaction of materials contained in the Sherry Cameron legal file. See Trial Transcript, May 18, 1995, afternoon session at 87-88.
22 Conclusion
For the foregoing reasons, Billmyer's motion for judgment of
acguittal under Fed. R. Crim. P. 29(c) or, in the alternative,
for a new trial under Fed. R. Crim. P. 33 (document no. 429);
Josleyn's motion for judgment of acguittal or a new trial
(document no. 432); and Josleyn's second motion for a new trial
and reguest for an order directing the attendance of a witness
(document no. 441) are denied.
SO ORDERED.
Joseph A. DiClerico, Jr. Chief Judge September 26, 1995
cc: David W. Long, Esguire Paul J. Twomey, Esguire U.S. Attorney U.S. Probation U.S. Marshal