United States v. Brown

1

UNITED STATES OF AMERICA v. DASHAUN BROWN, Defendant.

Crim. No. 22-108 (KM)

United States District Court, D. New Jersey

November 10, 2022

OPINION & ORDER

KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

This matter comes before the Court on post-verdict motions for acquittal, pursuant to Fed. R. Crim. P. 29(c), and for a new trial, pursuant to Fed. R. Crim. P. 33. (DE 54, 57)

Trial of this matter occupied four days. The government introduced the testimony of some nine witnesses, and the defendant testified on his own behalf. Before reaching its verdict, the jury deliberated for approximately one and one half days.

On April 2, 2022, the jury convicted defendant Dashaun Brown of conspiracy to commit bank fraud, in violation of 18 U.S.C § 1349 (Indictment^[1]Count 1); bank fraud, in violation of 18 U.S.C. § 1344 and § 2 (Count 3); receipt and possession of stolen mail, in violation of 18 U.S.C. § 1708 and § 2 (Count 4); and aggravated identity theft in violation of 18 U.S.C. § 1028A and § 2 (Count 6). The jury unanimously found that Defendant: (i) participated in a conspiracy to defraud banks by using credit cards and checks that had been stolen from the U.S. mail (Count 1); (ii) defrauded J.P. Morgan Chase Bank, N.A. (“Chase”) by using a credit card issued to Marta Febos to purchase goods at a Costco in Bridgewater, N.J (Count 3), and committed aggravated identity theft against Febos (Count 6); (iii) received and possessed stolen mail (Count 4) namely, the stolen credit cards and checks referred to in the incorporated paragraphs of the conspiracy count.

The jury acquitted Defendant of the substantive bank fraud (Count 2) and the associated aggravated identity theft (Count 5), involving the use of Joseph Machewirth's credit card to buy a BMW at Best Cars R Us in Irvington, NJ.

Now before the court is the defendant's counseled motion for a judgment of acquittal or a new trial, pursuant to Rules 29 and 33, Fed. R. Crim. P. (DE 54). Defendant has filed a brief in support of the motion (DE 57), and the government has filed a response in opposition (DE 59).^[2]

I. Legal Standards

A. Rule 29 and Rule 33

Under Rule 29, a defendant who asserts that there was insufficient evidence to sustain a conviction shoulders “a very heavy burden.” United States v. Anderson, 108 F.3d 478, 481 (3d Cir. 1997) (quoting United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)). In reviewing a motion for acquittal, the court “must be ever vigilant ... not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury.” United States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006) (quoting United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)). The evidence is to be viewed in the light most favorable to the prosecution. United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001). The government receives “the benefit of inferences that may be drawn from the evidence and the evidence may be considered probative even if it is circumstantial.” United States v. Pecora, 738 F.3d 614, 618 (3d Cir. 1986). Credibility conflicts, too, are to be resolved in the government's favor. United States v. Scanzello, 822 F.2d 18, 21 (3d Cir. 1987). Having applied those principles of interpretation, the court must uphold the conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Accord United States v. Fattah, 902 F.3d 197, 268 (3d Cir. 2018) (reviewing court, applying same standard as district court, must affirm “unless no reasonable juror could accept the evidence as sufficient to support the defendant's guilt beyond a reasonable doubt”); United States v. Caraballo-Rodriguez, 726 F.3d 418, 430-31 (3d Cir. 2013) (en banc) (reaffirming Jackson standard and reversing a line of drug conspiracy cases to the extent they undermined it); United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987).

The standard under Rule 33 is more general than that under Rule 29. A court “may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33. When a defendant seeks a new trial claiming that the verdict was against the weight of the evidence, the court's review is less restricted than it is under Rule 29. “However, even if a district court believes that the jury verdict is contrary to the weight of the evidence, it can order a new trial ‘only if it believes that there is a serious danger that a miscarriage of justice has occurred-that is, that an innocent person has been convicted.'” United States v. Silveus, 542 F.3d 993, 1004-05 (3d Cir. 2008) (quoting United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002)). “Such motions are not favored and should be ‘granted sparingly and only in exceptional cases.'” Id. at 1005 (quoting Gov't of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) (citations omitted)).

A Rule 33 motion may also be based on an alleged error or combination of errors at trial. Borrowing the appellate concept of harmless error, district courts have held that a new trial will be ordered when it is “reasonably possible that such error, or combination of errors, substantially influenced the jury's decision.” United States v. Crim, 561 F.Supp.2d 530, 533 (E.D. Pa. 2008) (citing U.S. v. Copple, 24 F.3d 535, 547 n. 17 (3d Cir. 1994)), aff'd, 451 Fed.Appx. 196 (3d Cir. 2011); accord United States v. Bryant, Crim. No. 07-267, 2009 WL 1559796 at *6 (D.N.J. May 28, 2009). In doing so, however, the court must consider the alleged errors in the context of the strength of the evidence of guilt, the scope of the objectionable conduct in relation to the entire proceeding, and the ameliorative effect of any curative instruction. See United States v. Gambone, 314 F.3d 163, 179 (3d Cir. 2003) (citing United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc); United States v. Helbling, 209 F.3d 226, 241 (3d Cir. 2000)).

B. Conspiracy

The jury was instructed, without objection, that a conspiracy under 18 U.S.C. § 1349 requires that two or more persons agreed to commit bank fraud, that Mr. Brown was a party to that agreement, and that he joined the agreement knowing of its criminal objectives. (Tr. 971; see Third Circuit Model Criminal Jury Instructions, 6.18.371A.)

C. Bank Fraud

The jury was instructed without objection that the offense of bank fraud, in violation of 18 U.S.C. § 1344, charged in Counts 2 and 3 (and as an object of the Count 1 conspiracy) has three essential elements:

First, that Dashaun Brown knowingly executed a scheme or artifice to defraud financial institutions, in this case JP Morgan Chase & Co., or knowingly executed a scheme to obtain money, funds or other property owned by or under the control of financial institutions, again JPMorgan Chase & Co., by means of material false or fraudulent pretenses.

Second, that Dashaun Brown did so with the intent to defraud that bank; and Third, that the bank was then insured by the Federal Deposit Insurance Corporation.^[3]

(Tr. 976-77; Third Circuit Model Criminal Jury Instructions, 6.18.1344).

D. Identity theft

The jury was instructed, without objection, that the offense of aggravated identity theft, in violation of 18 U.S.C. § 1028A, charged in Counts 5 and 6 has four essential elements:

First, that the defendant committed . . . the felony violation of bank fraud charged in [Count 2 or Count 3].^[4]

Second, that the defendant knowingly transferred, possessed, or used a means of identification of another person without lawful authority.

Three, that the defendant knew that the means of identification belonged to another person.

Fourth, that the transfer, possession, or use was during and in relation to . . . the crime charged in [Count 2 or Count 3].

(Tr. 980:10-21; Sixth Circuit Model Criminal Jury Instructions, 15.04).

E. Possession of stolen mail

The jury was instructed, without objection, that the offense of receipt and possession of stolen mail, in violation of 18 U.S.C. § 1708, charged in Count 4, has three essential elements: that the mail was stolen from the U.S. mail; that the defendant received or possessed the mail; and that the defendant knew the mail was stolen. (Tr. 978; Tenth Circuit Model Criminal Jury Instructions, 8.140)

F. Aiding and abetting

Each of the substantive Counts, numbers 2 though 6, cited 18 U.S.C. § 2, the aiding and abetting statute. The Court charged the jury, and later amplified its instruction in response to a jury question, that aiding and abetting liability has four essential elements: that some person committed an offense; that the defendant knew of the offense being committed; that the defendant did some act for the purpose of aiding or facilitating the commission of that offense, with the intent that the offense be committed; and that the defendant performed at least one act in furtherance of the offense. (Tr. 986, 1025; Third Circuit Model Criminal Jury Instructions, 7.02.)

II. Evidence at Trial

The evidence at trial established a conspiracy among defendant Brown, postal employee Khadijah Banks-Oneal, Jahad Salter, and Hakir Brown (referred to herein as “Hakir,” to distinguish him from the defendant). It also established a pattern of criminal behavior that belied defendant Brown's innocent explanations of his conduct. The overall scheme was to use bank-issued credit cards and U.S. Treasury checks that Banks-Oneal stole from the mail, together with personal identifiers of the rightful owners, to fraudulently obtain money and property.

Banks-Oneal a cooperating witness, was a postal employee at the time of the offenses. She testified that, on literally thousands of occasions,...