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United States v. Brice

United States District Court, S.D. Mississippi, Southern Division

February 23, 2017

UNITED STATES OF AMERICA
v.
ALLEN BRICE

          ORDER DENYING DEFENDANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL AND MOTIONS FOR NEW TRIAL

          LOUIS GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE

         BEFORE THE COURT are the Motions for Judgment of Acquittal or Alternatively, Motions for New Trial [55, 56] filed by the defendant Allen Brice. The Government has filed a response in opposition to the Motions. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds that the Motions should be denied.

         DISCUSSION

         On January 26, 2017, a jury convicted Brice of seven counts of tax preparer fraud. In support of his Motions, Brice argues: (1) that the Court erred when it denied his Motion for Judgment of Acquittal at the close of the Government's case in chief; (2) that the Court erred when it “overruled the defendant['s] objections throughout the trial as reflected in the transcript”; (3) that the Court erred when it “allowed the [G]overnment to constructively amend the indictment by virtue of the jury instructions that allowed the jury to convict in the disjunctive rather than the conjunctive;” (4) that the Government failed to inform Brice of errors in a transcript of an audio recording taken by an undercover agent; (5) that a technical error caused the undercover audio to sound distorted while he was cross-examining the witness; (6) that defense counsel's credibility was damaged by bench conferences; and (7) that the Government utilized a copy of a video exhibit rather than the original. (Def.'s Mot., ECF No. 56).

         I. BRICE'S MOTIONS FOR JUDGMENT OF ACQUITTAL

         A motion for a judgment of acquittal filed pursuant to Fed. R. Crim. P. 29 is essentially a motion challenging the sufficiency of the evidence to support a criminal conviction. United States v. Uvalle-Patricio, 478 F.3d 699, 701 (5th Cir. 2007).

[O]ur review of the sufficiency of the evidence is highly deferential to the verdict. The jury's verdict will be affirmed unless no rational jury, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense to be satisfied beyond a reasonable doubt. In reviewing the evidence presented at trial, we draw all reasonable inferences in favor of the jury's verdict.

United States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014) (internal quotation marks and footnotes omitted).

         In his current Motion, Brice merely argues that the Court erred in failing to grant his Motion for Judgment of Acquittal that was made during the trial. He has not attempted to explain how the Government's evidence may have been deficient.

         Brice was charged with seven counts of tax preparer fraud in violation of 26 U.S.C. § 7206(2), which makes it a crime for anyone to willfully aid or assist in the preparation of a document, under the internal revenue laws, that is false or fraudulent as to any material matter. The Court instructed the jury that it could only find Brice guilty of any of those charges if the Government proved each of the following elements beyond a reasonable doubt:

First, that the defendant aided in, assisted in, or advised the preparation of a return arising under the internal revenue laws;
Second, that this return falsely or fraudulently stated income, deductions, or tax credits;
Third, that the defendant knew that the statement in the return was ...

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