Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Burfoot

United States District Court, E.D. Virginia, Norfolk Division

April 19, 2017

UNITED STATES of AMERICA,
v.
ANTHONY L. BURFOOT, Defendant.

          OPINION & ORDER

          HENRY COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Anthony Burfoot's ("Defendant's") eight (8) post-trial motions: (1) Rule 33 Motion for a New Trial on All Counts of Conviction for the Jury's Failure to Deliberate Fully and to Follow the Jury Instructions regarding Deliberations ("Rule 33 Motion for Jury's Failure to Deliberate"), Doc. 159; (2) Rule 33 Motion for a New Trial on All Counts of Conviction, and Renewal of Motion for Mistrial, for Inadmissible Opinion and Hearsay Testimony regarding Government Witness Ronald Boone, Sr.'s Perceived Influence with the City of Norfolk ("Rule 33 Motion for Inadmissible Testimony"), Doc. 161; (3) Rule 33 Motion for a New Trial on Count Four, or, in the Alternative, Rule 29 Motion for a Judgment of Acquittal on Count Four, Based on a Constructive Amendment of the Indictment on Count Four ("Rule 33 or 29 Motion on Count Four for Constructive Amendment"), Doc. 163; (4) Rule 29 Motion for a Judgment of Acquittal as to Count One for Insufficiency of the Evidence That There Was a Conspiracy to Commit Wire Fraud ("Rule 29 Motion on Count One for Insufficiency of Evidence"), Doc. 165; (5) Rule 29 Motion for a Judgment of Acquittal as to Count Two for Insufficiency of the Evidence to Establish That the Defendant Transmitted or Caused to Be Transmitted a Wire Communication ("Rule 29 Motion on Count Two for Insufficiency of Evidence"), Doc. 167; (6) Rule 29 Motion for a Judgment of Acquittal as to Counts One and Two on the Grounds That the Evidence, at Best, Established That Defendant Engaged in a Conflict of Interest, as Opposed to a Bribery Scheme, Involving His Alleged Former Role with Tivest ("Rule 29 Motion on Counts One and Two"), Doc. 169; (7) Post-Verdict Renewal of Certain Previously Filed and Made Motions ("Renewal of Certain Previous Motions"), Doc. 171; and (8) Supplemental Rule 29 Motion for a Judgment of Acquittal as to Counts One and Two on the Grounds That the Evidence, at Best, Established That Defendant Engaged in a Conflict of Interest, as Opposed to a Bribery Scheme, Involving His Alleged Former Role with Tivest ("Supplemental Rule 29 Motion"), Doc. 175 (together, the "Motions"). The Government opposes the Motions. Doc. 177. On April 12, 2017, the Court convened a hearing, heard evidence and argument on the Motions, and ruled from the bench. The Court DENIED Defendant's Motions and now issues this Opinion and Order setting forth the reasons for its ruling in further detail.

         I. BACKGROUND

         On January 7, 2016, a federal grand jury returned an eight-count Indictment charging Defendant with (1) Conspiracy to Commit Honest Services Wire Fraud, in violation of 18 U.S.C. § 1349; (2) Honest Services Wire Fraud, in violation of 18 U.S.C. § 1343; (3) Conspiracy to Obtain Property Under Color of Official Right, in violation of 18 U.S.C. § 1951; (4) Obtaining Property Under Color of Official Right, in violation of 18 U.S.C. § 1951; and (5)-(8) Perjury, in violation of 18 U.S.C. § 1623. Doc. 3. The Indictment also includes a provision for criminal forfeiture in accordance with 18 U.S.C. § 981(a)(1)(C). Id.

         A five-week jury trial in the instant matter commenced on November 7, 2016. On December 9, 2016, at the conclusion of the jury trial, the jury rendered a verdict finding Defendant Guilty on Counts 1, 2, 3, 4, 7, and 8 and Not Guilty on Counts 5, and 6. Doc. 144. On January 11, 2017, the Defendant filed seven (7) post-trial motions. Docs 159, 161, 163, 165, 167, 169, 171. On February 15, 2017, the Defendant filed a supplement to one of his post-trial motions. Doc. 175. On February 24, 2017, the Government responded in opposition to the Motions. Doc. 177. Sentencing of the Defendant is set for April 17, 2017 at 11:00 AM.

         II. LEGAL STANDARDS

         A. Motion for Judgment of Acquittal

         Federal Rule of Criminal Procedure 29 governs motions for judgment of acquittal. In reviewing a motion for judgment of acquittal, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, 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). The court allows "the government the benefit of all reasonable inferences from the facts proven to those sought to be established." United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). "The jury, not the reviewing court, weighs the credibility of the evidence and resolves any conflicts in the evidence presented." United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994). In weighing inconsistencies, "[w]e also assume that the jury resolved all contradictions in the testimony in favor of the government." United States v. Move. 454 F.3d 390, 394 (4th Cir. 2006) (citing United States v. Sun. 278 F.3d 302, 313) (4th Cir. 2002)).

         B. Motion for a New Trial

         Federal Rule of Criminal Procedure 33(a) provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Whether to grant or deny a motion for a new trial is within the broad discretion of the district court, which should be disturbed only in very limited circumstances. See United States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 2006); United States v. Perry. 335 F.3d 316, 320 (4th Cir. 2003). When ruling on a Rule 33 motion, a court "is not constrained by the requirement that it view the evidence in the light most favorable to the government" and "may evaluate the credibility of the witnesses" if necessary. United States v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985). A court "should exercise its discretion to grant a new trial sparingly, and it should do so only when the evidence weighs heavily against the verdict." United States v. Chong Lam, 677 F.3d 190, 203 (4th Cir. 2012) (internal quotations and citations omitted).

         III. ANALYSIS

         A. Defendant's Motions for Judgments of Acquittal Fail

         Defendant filed four (4) post-trial motions that seek relief in the form of a judgment of acquittal based on Federal Rule of Criminal Procedure 29: (1) Rule 29 Motion on Count One for Insufficiency of Evidence, Doc. 165; (2) Rule 29 Motion on Count Two for Insufficiency of Evidence, Doc. 167; (3) Rule 29 Motion on Counts One and Two, Doc. 169; and (4) Supplemental Rule 29 Motion, Doc. 175 (together the "Motions for Judgments of Acquittal").

         i. Rule 29 Motion on Count One for Insufficiency of Evidence

         In Defendant's Rule 29 Motion on Count One for Insufficiency of Evidence, Doc. 165, Defendant argues that "the trial evidence was insufficient to establish any of the three elements for honest-services wire fraud conspiracy." Doc. 166 at 2.

         Count One charged the Defendant with Conspiracy to Commit Honest Services Wire Fraud. Doc. 3. Jury Instruction No. 18 listed three elements for the offense of Conspiracy to Commit Honest Services Wire Fraud as charged in Count One:

First: That the conspiracy, agreement, or understanding to commit honest-services wire fraud through bribery, as charged in the indictment, was formed, reached, or entered into by two or more persons; and Second: That at some time during the existence or life of the conspiracy, agreement, or understanding, the defendant knew the purpose of the agreement, which was that the defendant would solicit, accept or agree to accept a thing of value in return for his performance or promise to perform an official act; and one or more of the co-conspirators agreed to use a wire in interstate commerce to further the purpose of the conspiracy; and Third: That with knowledge of the purpose of the conspiracy, agreement, or understanding, the defendant then deliberately joined the conspiracy, agreement, or understanding.

J.I. #18.

         Defendant argues that the "only evidence of any wire communication during the life of the alleged conspiracy was Dwight Etheridge's sister's use of a credit card to partially satisfy a Tivest tax delinquency on February 14, 2011 at the Norfolk City Treasurer's Office." Doc. 166 at 2. Defendant claims

there is no evidence that two or more people agreed to use interstate wire communications to commit honest-services fraud. . . . [T]here is, again, no evidence, that the defendant 'knew the purpose of the agreement' included that 'one or more of the c[o]-conspirators agreed to use a wire in interstate commerce to further the purpose of the conspiracy.' . . . [And], the defendant lacked 'knowledge of the purpose of the purpose of the conspiracy, agreement, or understanding.'

Id. at 2-3. Relying on Par v. United States. 363 U.S. 370 (1960), the Defendant also argues that "even if, arguendo, there were evidence of a conspiracy between Mr. Etheridge and the defendant to use an interstate wire communication, such wire as established on February 11, 2011, as a matter of law, cannot qualify." Id. at 3.

         The Government argues this "motion is entirely without merit as a rational trier of fact had substantial evidence to support guilt on Count One." Doc. 177 at 7. The Government claims it "overwhelmingly satisfied each element of this charge." Id. at 8. As evidence to support Defendant's conviction on Count One, the Government points to the testimony of Dwight Etheridge, Curtis Etheridge, and Recardo Lewis, and to "over 200 exhibits including, but not limited to, highly incriminating bank statements, phone records, home improvement invoices, and evidence of three interstate wire transfers supporting this scheme to defraud the citizens of Norfolk." Id.

         The Government further notes that Dwight Etheridge provided detailed testimony about using his sister's credit card to pay delinquent real estate taxes "to ensure passage of a crucial and controversial ordinance regarding the MidTown Office Tower project. The use of the credit card caused an interstate wire that ultimately furthered the scheme, and there was substantial evidence that [Defendant] could reasonable foresee the use of such a wire." Id. at 9-10. Additionally, "Mr. Etheridge testified that, in connection with the Broad Creek Villas project, he received an interstate wire of approximately $4 million from Paramount Community Development Fund, LLC to use to build the Broad Creek Villas Project. Mr. Etheridge used a portion of these funds to bribe [Defendant.]" Id. at 9.

         The Court believes that the elements of Count One were fully satisfied at trial through the introduction of substantial evidence. The testimony from Dwight Etheridge, Curtis Etheridge, Ricardo Lewis, and Gary Ellick, in addition to numerous government exhibits served as evidence that the Government established all three (3) elements of Count One. While Defendant denied much of the assertions in the aforementioned testimony, the jury did not find Defendant's explanations credible and convicted Defendant on Count One. Further, the Court heard evidence at trial regarding the Norfolk City Treasurer's office's established policies for handling the payment of taxes via credit card. Such evidence demonstrated that it was certainly foreseeable that Mr. Etheridge's tax payments would be made via credit card. Additionally, the receipts of Mr. Etheridge's payments, which were made available to Defendant prior to next scheduled City Council meeting, indicate that Mr. Etheridge made such payments by credit card. The Court also noted that Defendant's instructions to Wendy Petchel, a Norfolk City Treasurer's office employee, to prepare Tivest's taxes and to accept Mr. Etheridge's credit card payments made Ms. Petchel an unindicted co-conspirator. As such, it was certainly foreseeable that a wire would be used in the payment of the taxes. Finally, the $4 million interstate wire intended for the Broad Creek Villas project further supports the jury's guilty verdict on this Count. As such, because a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, " Jackson. 443 U.S. at 319 (1979), and because the Court rejects that the wire communication was a legally compelled act pursuant to Par, 363 U.S. at 370, the Court DENIED Defendant's Rule 29 Motion on Count One for Insufficiency of Evidence. Doc. 165.

         ii. Rule 29 Motion on Count Two for Insufficiency of Evidence

         In Defendant's Rule 29 Motion on Count Two for Insufficiency of Evidence, Doc. 167, the Defendant argues that "the trial evidence was insufficient to establish that the defendant 'transmitted or caused to be transmitted' Dwight Etheridge's sister's credit card payment as alleged in Instruction No. 22." Doc. 168 at 2. Count Two charged the Defendant of Honest Services Wire Fraud. Doc. 3. Jury ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.