U.S. v. Norris

753 F.Supp.2d 492

UNITED STATES of America

v.Ian NORRIS.

Criminal Action No. 03–632.

United States District Court, E.D. Pennsylvania.

Nov. 30, 2010.

Lucy P. McClain, Kimberly A. Justice, Richard S. Rosenberg, Wendy Bostwick Norman, United States Dept. of Justice, Jeffrey C. Parker, Robert E. Connolly, U.S. Dept. of Justice–Antitrust Div., Philadelphia, PA, for United States of America.Christopher M. Curran, Claire A. Delelle, Eileen Marie Cole, J. Mark Gidley, White & Case LLP, Washington, DC, Joseph G. Poluka, Blank Rome LLP, Philadelphia, PA, for Ian Norris.

MEMORANDUM

EDUARDO C. ROBRENO, J.

TABLE OF CONTENTSI.

INTRODUCTION

II.

BACKGROUND

III.

MOTION FOR A JUDGMENT OF ACQUITTAL UNDER RULE 29

A.

Legal Standard

B. Discussion

1.

Import of Defendant's Acquittal on the Objects of the Charged Conspiracy

2.

Sufficiency of the Evidence to Establish a Conspiracy Conviction for Either of the Charged Objects

i.

The Evidence Pertaining to Section 1512(b)(1)

a.

Appropriate legal standard

b.

Sufficiency of the evidence based on the applicable legal standard

ii.

The Evidence Pertaining to Section 1512(b)(2)(B)

3.

Validity of the Charge for Which Defendant was Convicted

IV.

MOTION FOR A NEW TRIAL UNDER RULE 33

A.

Defendant's Argument that the Verdict is Against the Weight of the Evidence

1.

Legal Standard

2. Discussion

B.

Defendant's Argument that Fundamental Errors were Committed During Trial

1.

Legal Standard

2.

Errors in the Jury Instructions

i.

Failure to Identify the Overt Acts Defendant Took in Furtherance of the Conspiracy

ii.

Alleged Constructive Amendment of the Indictment via the Preliminary Instructions

iii.

Failure to Give an Instruction on the Right to Withhold Testimony

iv.

Alleged Error in the “Nexus” Requirement Instruction

v.

Failure to Distinguish in the Instructions Between “Influencing” and “Preventing”

vi.

Failure to Give a Missing Witness Instruction

3.

Attorney Testimony in Violation of Defendant's Attorney–Client Privilege

4.

Failure to Comply with Discovery Obligations

i.

Legal Standard

ii. Discussion

5.

Prosecutorial Misconduct in the Antitrust Division's Closing Argument and Rebuttal

i.

Reference to Facts Outside the Record

ii.

Turning the Verdict into a Referendum on the Prosecutor's Work on the Case

V.

CONCLUSION

I. INTRODUCTION

Defendant, Ian Norris (“Defendant”), is a national of the United Kingdom who is subject to prosecution in the United States under an extradition agreement. On September 28, 2004, a federal grand jury returned the second superseding indictment (“Indictment”) against Defendant. The Indictment followed an investigation of an international conspiracy to fix the price of carbon products. It charged Defendant with four counts: (1) Count One—violating the Sherman Act; (2) Count Two—conspiring, in violation of 18 U.S.C. § 371, to violate 18 U.S.C. § 1512(b)(1) and 18 U.S.C. § 1512(b)(2)(B); (3) Count Three—violating 18 U.S.C. § 1512(b)(1); and (4) Count Four—violating 18 U.S.C. § 1512(b)(2)(B). Because Defendant's extradition order barred prosecution under the Sherman Act, Defendant was only tried on Counts Two, Three, and Four. Following a seven day trial, the jury found Defendant guilty on Count Two, but acquitted Defendant on Counts Three and Four. Presently before the Court is Defendant's motion for a judgment of acquittal or, in the alternative, a new trial.

For the reasons discussed below, the Court will deny Defendant's motion.

II. BACKGROUND

Because the Court has already outlined the background surrounding this case, see United States v. Norris, 719 F.Supp.2d 557 (E.D.Pa.2010) (“ Norris I ”), it is unnecessary to recite those facts at any length. In short, Defendant was charged with obstructing justice in violation of Section 1512(b)(1) and Section 1512(b)(2)(B) and conspiring to do the same:

The Indictment alleges that, in carrying out this conspiracy, the Defendant and his co-conspirators: (1) provided false and fictitious relevant and material information in response to the grand jury investigation; (2) prepared a written “script” which contained false information which was to be followed by anyone questioned by either the Antitrust Division or the federal grand jury; and (3) distributed the script to others who had information relevant to the grand jury investigation with instructions to follow the script when answering questions posed by either the grand jury or the Antitrust Division. Moreover, the Indictment alleges that the conspirators removed, concealed, or destroyed from business files any documents which contained evidence of an anticompetitive agreement or reflected contacts between or among competitors, and persuaded, directed and instructed others to do the same.

Id. at *2. The scripts Defendant participated in creating sought to cast as legitimate price-fixing meetings between Morgan, the carbon products company for whom Defendant served as CEO during the time in question, and three of its competitors; namely, (1) Carbone; (2) Schunk; and (3) Hoffman.

Defendant's trial began on July 13, 2010. The Antitrust Division called nine witnesses in support of its case: (1) Robin Emerson; (2) Melvin Perkins; (3) Donald Muller; (4) Jack Kroef; (5) Thomas Hoffman; (6) Heinz Volk; (7) Sutton Keany; (8) William MacFarlane; and (9) Helmut Weidlich. Perkins, Kroef, Muller, MacFarlane and Emerson were Morgan employees who worked with Defendant in varying capacities. Volk and Weidlich were Schunk employees. Hoffman was responsible for Hoffman's United States operations. Keany was the attorney who conducted an investigation into Morgan's price-fixing involvement after Morgan's United States subsidiary, Morganite, was served with a grand jury subpoena on April 27, 1999.

After the Antitrust Division rested, Defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a). The Court denied Defendant's motion. Thereafter, Defendant called one witness, Michael Cox, who was also a Morgan employee during the time in question. On July 22, 2010, the Court charged the jury. As to Count Two, the verdict form the Court provided asked the jury to determine whether Defendant was guilty of conspiracy to obstruct justice for either of the following two reasons:

(a) knowingly corruptly persuading or knowingly attempting to corruptly persuade other[ ] persons with intent to influence their testimony in the grand jury proceeding in the Eastern District of Pennsylvania; or (b) knowingly corruptly persuading or knowingly attempting to corruptly persuade other persons with intent to cause or induce those other persons to destroy or conceal records and documents with the intent to impair the availability of those records and documents for use in the grand jury proceeding.

(Doc. no. 149.)

Three business days later, on July 27, 2010, the jury returned a verdict finding Defendant guilty on Count Two of the Indictment. Thus, the jury found Defendant conspired to violate either Section 1512(b)(1) or Section 1512(b)(2)(B). The jury, however, acquitted Defendant on the substantive charges of violating both of those statutes as charged in Counts Three and Four. Pointing to this apparent inconsistency and raising a variety of other issues for this Court to resolve,¹ Defendant now moves for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure or, alternatively, a new trial under Rule 33 of the Federal Rules of Criminal Procedure. The respective arguments are addressed in turn.

III. MOTION FOR A JUDGMENT OF ACQUITTAL UNDER RULE 29A. Legal Standard

In deciding a motion for a judgment of acquittal under Rule 29, the court views the evidence introduced at trial in the light most favorable to the Government and upholds the jury's verdict so long as any rational trier of fact “ ‘could have found proof of guilt beyond a reasonable doubt based on the available evidence.’ ” United States v. Smith, 294 F.3d 473, 476 (3d Cir.2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir.2001)). “The court is required to ‘draw all reasonable inferences in favor of the jury's verdict.’ ” Id. (quoting United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.1996)). The court may not “usurp the role of the jury” by weighing the evidence or assessing the credibility of witnesses. United States v. Brodie, 403 F.3d 123, 133 (3d Cir.2005) (citing United States v. Jannotti, 673 F.2d 578, 581 (3d Cir.1982) (en banc); and 2A Charles A. Wright, Federal Practice & Procedure (Crim. 3d) § 467, at 311 (2000)). Thus, the defendant bears an “extremely high” burden when challenging the sufficiency of the evidence supporting a jury verdict, United States v. Iglesias, 535 F.3d 150, 155 (3d Cir.2008) (internal marks omitted) (quoting United States v. Lore, 430 F.3d 190, 203–04 (3d Cir.2005)), and the Government “may defeat a sufficiency-of-the-evidence challenge on circumstantial evidence alone.” Id. at 156 (citing United States v. Bobb, 471 F.3d 491, 494 (3d Cir.2006)). A finding of insufficiency should therefore “ ‘be confined to cases where the prosecution's failure is clear.’ ” Smith, 294 F.3d at 477 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir.1984)).

Where, as here, the indictment charges a conspiracy to commit several federal crimes, the jury's verdict will be upheld so long as the jury could rationally find the defendant conspired to commit at least one of the crimes at issue. See Griffin v. United States, 502 U.S. 46, 59–60, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (concluding a general guilty verdict on a multiple-object conspiracy charge may stand even if there is insufficient evidence as to one object of the alleged conspiracy); Mod. Crim. Jury Instr. 3d Cir. 6.18.371C (“The government ... must prove that [the conspirators] agreed to commit at least one of the object crimes....”). Thus, to prevail on his motion for a judgment of acquittal, Defendant must establish that no rational jury could find beyond a reasonable doubt that Defendan...