United States District Court, Western District of Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. UNITED STATES DISTRICT COURT JUDGE
Now pending before the Court are Defendant Andrew C. Judkins’ Motion for Judgment of Acquittal or New Trial (Doc. 98), filed pursuant to Federal Rules of Criminal Procedure 29(c) and 33, and the Government’s Response (Doc. 99). As explained in detail below, the Court finds that Defendant’s Motion should be, and hereby is, DENIED.
The jury trial of this matter commenced on March 2, 2014 and concluded on March 6, 2014. Judkins faced charges arising from a Third Superseding Indictment (Doc. 37) brought on September 23, 2014, that listed three counts of bank fraud in violation of 18 U.S.C. §§1344 and 2; one count of engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. §§ 1957 and 2; and one count of laundering monetary instruments in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2. The Third Superseding Indictment also included a forfeiture allegation.
After a five-day trial, the jury returned a unanimous verdict of guilty on Counts One and Two, and not guilty on Counts Three, Four, and Five. After the jury delivered its verdict, Judkins’ attorney made an oral motion for acquittal pursuant to Rule 29(c), and on March 10, 2015, the Court entered an Order directing Judkins’ counsel to file a brief in support of her oral Motion. That brief was filed on March 23, 2015, and the Government filed its Response on April 3, 2015.
Judkins’ primary argument in favor of acquittal on Counts One and Two is that the evidence presented by the Government was insufficient to sustain convictions on both of those Counts. In the alternative to acquittal, Judkins moves for a new trial on Count One, maintaining that the jury failed to follow the Court’s instructions as to this Count. As for Count Two, Judkins contends there was a constructive amendment to the Third Superseding Indictment, and as a result, he was not convicted for the same conduct for which he was indicted. The Court will address each of Judkins’ arguments in turn.
II. LEGAL STANDARD
According to Rule 29(c)(1) of the Federal Rules of Criminal Procedure, a defendant may move for judgment of acquittal within 14 days of a jury verdict if the evidence is insufficient to sustain a conviction. When reviewing the sufficiency of the evidence, the Court must view it “in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury’s verdict.” United States v. Ellefson, 419 F.3d 859, 862 (8th Cir. 2005) (quoting United States v. Espino, 317 F.3d 788, 791 (8th Cir. 2003). “A conviction may be based on circumstantial as well as direct evidence. The evidence need not exclude every reasonable hypothesis except guilt.” United States v. Tate, 633 F.3d 624, 628 (8th Cir. 2011) (quoting United States v. Pizano, 421 F.3d 707, 719 (8th Cir. 2005). Furthermore, “a jury's guilty verdict should not be overturned lightly, ” id. (citation omitted); therefore, the standard of review as to a claim of insufficient evidence is quite strict.
Judkins’ alternative argument is that he is entitled to a new trial on Counts One and Two. According to Rule 33(a), a court “may vacate any judgment and grant a new trial if the interest of justice so requires.” “The decision to grant or deny a motion for a new trial based upon the weight of the evidence is within the sound discretion of the trial court, ” United States v. Campos, 306 F.3d 577. 579 (8th Cir. 2002); however, that discretion must be exercised “sparingly and with caution.” Id. “Unless the district court ultimately determines that a miscarriage of justice will occur, the jury's verdict must be allowed to stand.” Id.
A. Count One
The Third Superseding Indictment charged Judkins in Count One as follows:
On or about June 2, 2008, in the Western District of Arkansas, Fayetteville Division and elsewhere, the defendant, ANDREW C. JUDKINS, knowingly executed and caused to be executed a scheme and artifice to obtain money and funds owned by and under the custody and control of First Security Bank, a financial institution whose deposits are insured by the Federal Deposit Insurance Corporation, by means of false and fraudulent pretenses, representations and promises; namely, JUDKINS submitted and caused to be submitted to First Security Bank a fake invoice representing A. Camp ...