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United States v. Sturdivant

United States District Court, Fifth Circuit

September 5, 2013



DANIEL P. JORDAN, III, District Judge.

This criminal matter is before the Court on the post-trial motions of Defendant Aubrey Brent Sturdivant for judgment of acquittal [209] or new trial [210]. Having fully considered the premises, the Court finds that both motions should be denied.

I. Facts/Procedural History

Sturdivant was charged in a superseding indictment on July 6, 2011, with having conspired to defraud the United States in violation of 18 U.S.C. § 371. Following Hurricane Katrina, Sturdivant obtained a subcontract to remove debris in Wayne County, Mississippi. The project was funded by the United States with oversight by FEMA. Although several contracts existed, the operative one covered removal of what the parties referred to as "leaners" and "hangers"-trees and limbs that were leaning or hanging in ways described by the contracts, often into public rights of way.

After debris was cut, a county inspector would prepare a debris-removal ticket that tallied the work. The contract allowed payment of specified amounts for each cut tree or limb based on the diameter of that tree or limb. According to the Government, Sturdivant knowingly and willfully conspired with others to defraud the United States by submitting inflated debrisremoval tickets resulting in increased compensation under the contract.

After the Government's case in chief, the Court granted judgment of acquittal to county inspector Rita Giles. Then, after more than three weeks of trial, the jury acquitted two additional inspectors, Valerie Shortridge and Laura Walley, as well as Sturdivant's older brother Shane Sturdivant. A final alleged conspirator, county inspector Judd Johnston, pleaded guilty under a separate indictment and testified at trial against Sturdivant.

II. Standards

Under Rule 29, the Court may set aside a jury's verdict of guilt if "the evidence is insufficient to sustain a conviction" of one or more of the offenses charged in the indictment. Fed. R. Crim. P. 29(a), (c). The standard for reviewing a claim of insufficient evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the evidence establishes the essential elements of the crime beyond a reasonable doubt.'" United States v. Bellew, 369 F.3d 450, 452 (5th Cir. 2004) (quoting Jackson v. Virginia, 43 U.S. 307, 319 (1979)).

Rule 33 allows the Court to "vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). But "[t]he grant of a new trial is necessarily an extreme measure." United States v. O'Keefe, 128 F.3d 885, 898 (5th Cir. 1997). Therefore, "motions for new trial are not favored, and are granted only with great caution." Id. (citing United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977)). "A new trial is granted only upon demonstration of adverse effects on substantial rights of a defendant.'" United States v. Rasco, 123 F.3d 222, 228 (5th Cir. 1997) (quoting United States v. Cooks, 52 F.3d 101, 103 (5th Cir. 1995)). An error affects the defendant's substantial rights if "it affected the outcome of the trial court proceedings." United States v. Alarcon, 261 F.3d 416, 423 (5th Cir. 2001); see also United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005) (holding that "[t]he restitution order affected [the defendant's] substantial rights because the outcome of the district court proceedings would have been different if the error had not occurred").

Unlike when considering a motion for judgment of acquittal, the Court may weigh the evidence and assess the credibility of witnesses with respect to a motion for new trial. United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997) (citing Tibbs v. Florida, 457 U.S. 31, 37-38 (1982)). "The evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand." Id. at 1118. And "any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial.'" United States v. Wall, 389 F.3d 457, 474 (5th Cir. 2004) (quoting 3 Charles Alan Wright, et al., Federal Practice and Procedure § 556 (3d ed. 2004)). Based on the applicable standards, the Court finds that neither acquittal nor a new trial is warranted in this case.

III. Analysis

Sturdivant premises both motions on the same arguments. In essence, he contends that the "evidence was insufficient" to sustain a conviction under Rule 29, Def.'s Mot. [209] at 1, or was so lacking in credibility and weight that "in the interest of justice a new trial should be granted" under Rule 33. Def.'s Mot. [210] at 1. He then attacks four specific categories of evidence as being unreliable: (1) the expert testimony of Brooks Wallace; (2) a 2006 FEMA validation purporting to tally the number of trees for which compensation would have been proper; (3) FBI Special Agent James Grunwald's summary charts based on the 2006 FEMA validation and the actual debris tickets; and (4) the testimony of alleged co-conspirator Judd Johnston.[1] Sturdivant's final two arguments are legal in nature, contending that he could not conspire with Johnston because Johnston was a government informant and that the evidence at trial varied from the charges in the Indictment.

This Order separately addresses the sufficiency arguments under Rules 29 and 33 and examines the evidence Sturdivant attacks. But review under Rules 29 and 33 is not limited to the evidence Sturdivant chose to examine. Instead, the Court considers the record as a whole and determines whether it is sufficient to support the verdict under the legal standards applied to a conspiracy conviction.

Starting with those standards, the jury found Sturdivant violated 18 U.S.C. § 371. That statute imposes criminal sanctions

[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy

18 U.S.C. § 371. Thus, "[a] conviction under § 371 requires proof beyond a reasonable doubt of: (1) an agreement between two or more persons to pursue an unlawful objective; (2) the defendant's knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy.'" United States v. Read, 710 F.3d 219, 226 (5th Cir. 2012) (quoting United States v. Coleman, 609 F.3d 699, 704 (5th Cir. 2010)).

Detrimental to many of Sturdivant's arguments, "[c]onspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act." Iannelli v. United States, 420 U.S. 770, 777 (1975). "To be convicted of engaging in a criminal conspiracy, an individual need not know all the details of the unlawful enterprise... so long as he knowingly participates in some fashion in the larger objectives of the conspiracy." United States v. Brown, 553 F.3d 768, 781 (5th Cir. 2008) (citation and quotation omitted). "Once the government has produced evidence of an illegal conspiracy, it need only introduce slight evidence' to connect an individual defendant to the common scheme." United States v. Krenning, 93 F.3d 1257, 1265 (5th Cir. 1996) (other internal quotation marks omitted). Thus the question presented is whether the evidence establishes Sturdivant's knowing agreement with at least one other person to defraud the Government by inflating the load tickets and an overt act in furtherance of that objective. Brown, 553 F.3d at 781.

A. Weight of the ...

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