MAKING VIABLE JUDGMENT OF ACQUITTAL ARGUMENTS IN FEDERAL SCHEME TO DEFRAUD & EMBEZZLEMENT TRIALS

Here is a question often faced by lawyers while in federal trial. The question deals with whether the Government presented enough evidence to the federal jury to survive a contemplated Rule 29 motion.

Heads I win; tails you lose!

A Federal Rule 29 motion is a federal motion for a Directed Verdict also known as a Judgment of Acquittal which is made after the Government has rested (presented it's entire case in chief); the defense may renew the motion once it rests. If at the end of it's case in chief the Government has not established all of the elements of the charged offense, then the Judge grants the Directed Verdict in favor of the Defense - except of course for courts in Florida, where it's normally handled by a fair flip of the coin.

The basic theory of the government’s case in a wire fraud trial is that the defendant embezzled money from his employer's bank account. The government introduced a number of e-mails sent from the defendant's e-mail account to the employer's broker. In the e-mails the employee seeks to have the broker send money into the employer's bank account, but without any false statements actually being made. Aren't false material statements necessary for the Government to survive a Rule 29 motion?

The four essential elements which the federal government must prove to establish wire fraud are the following:

First, that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money. 

Second that the defendant acted with the intent to defraud. 

Third, that it was reasonably foreseeable for the Defendant that interstate wire communications would be used during the course of the scheme.

Fourth, that interstate wire communications were in fact used.

Evidence of material false pretenses, representations, or promises must be introduced in order for the Government to establish that a  scheme to defraud has occurred. Even assuming that the Government did not admit further evidence that would establish the scheme to defraud, then the Rule 29 motion still likely would not be granted by the Federal District Judge. 

Most judges broadly construe criminal statutes and the evidence of possible guilt thus allowing the Government to make an argument to the jury that the emails themselves may establish guilt. The very act of requesting money to be sent may be sufficient to establish false pretenses and false representations. Clearly, if the money the employee asked for was not to actually be used by his boss, but by the employee, then the emails would seem to be useful in establishing his mens era (the mental state of the defendant), his criminal intent as well as his possible false representations all in furtherance of the scheme to defraud. 

Even if the judge isn't likely to grant the motion, or if it's not even a viable theory, it's clearly important to at least make an oral Rule 29 motion once the Government rests to preserve your client's appellant opportunities. It's also a good argument to make for the jury that there's reasonable doubt in the case especially if the Government failed to provide evidence of the money trail actually linking the defendant to it's use or enjoyment.

CAN DIRECTED VERDICTS BASED ON WRONG ELEMENTS OF A CRIME LEAD TO RETRIALS IN TAMPA BAY, FLORIDA?

The United States Supreme Court this morning granted cert in an interesting criminal law case that will determine the future of criminal law in Tampa Bay, Florida, especially when a Court is confused (just blame the attorneys) as to the elements of the charged offense. At the close of the prosecution's dull case during a trial, a St. Petersburg Criminal Defense Lawyer will ask, well beg really, the trial court for what is known as a  directed verdict or judgment of acquittal (JOA). 
The Supreme Court will look at a case where the trial court issued a JOA at the close of the prosecution's case, but the trial court misapplied or misunderstood the elements of the offense in granting the Defense motion. The prosecution wants to retry the Defendant, damn them, so the Supreme Court must determine if a retrial by the prosecution is barred on double jeopardy grounds even though the JOA was granted by the court on misunderstood elements of the charged offense (go ahead, blame the lawyers for confusing an honest judge).
The elements of a criminal offense are the facts that must be proven to sustain a verdict. Life is so unfair, as our Judges in Tampa Bay, Florida know all too well the elements and even add a few now and then no matter how much a  Clearwater Criminal Defense Lawyer tries to confuse, spin or alter the law. 
Having been a prosecutor and a defense attorney it seems to me that a directed verdict should be final as it's unfair to try the Defendant twice on the same set of facts.

A Lawyer argues for a JOA 

Here are some of the facts of the case: Lamar Evans was charged by the state of Michigan with arson or "burning other real property" for his role in starting a fire in a vacant house. At the conclusion of the prosecutions' case his lawyer moved for a directed verdict, arguing -apparently with the sly defense attorney's fingers crossed - that a necessary element of the burning of other real property is that the building was not a dwelling, and that the prosecution's evidence proved that the building burned in his case was a dwelling. 

The court agreed, granting defendant's motion. The state appealed and the Michigan Supreme Court held that the trial court was mistaken -- the prosecution was not required to prove that the building was not a dwelling. And under these specific circumstances, the court held that if the trial court grants a defendant's motion for a directed verdict on the basis of an error of law, an error that did not resolve any factual element of the charged offense -- the trial court's ruling does not constitute an acquittal for the purposes of double jeopardy and retrial is therefore not barred. Evans v. Michigan, No. 11-1327.