under the facts of this case, the jury was not permitted to infer the conspiracy from the evidence of the substantive offenses.
There seems little or no question that the jury was able to follow these instructions since the defendant was found guilty of some counts of false statements and not guilty of others, and since she was found not guilty of wire fraud. The jurors obviously did not understand the instruction to be that if the defendant was convicted of conspiracy, that they were required to find her guilty of all of the substantive offenses.
The court which authored the opinion in Sperling also distinguished that case from a case decided two years later. See United States v. Corr, 543 F.2d 1042, 1049-1050 (2d Cir.1976). The Pinkerton instruction remains viable in the Second Circuit as well as in this circuit, see United States v. Bridgeman, 173 U.S.App.D.C. 150, 170, n. 20, 523 F.2d 1099, 1119, n. 20 (1975), and in other circuits, United States v. Finazzo, 704 F.2d 300 (6th Cir.), cert. denied, 463 U.S. 1210, 103 S. Ct. 3543, 77 L. Ed. 2d 1392 (1983).
In sum, the Court finds that the Pinkerton instruction was a proper instruction in this case under the facts of this case, and that the instruction properly informed the jury of the law of vicarious liability. So much of the motion for a new trial or for judgment of acquittal as is based upon giving the Pinkerton instruction is denied.
The Court finds that the other arguments made by the defendant in support of her motion for judgment of acquittal or in the alternative for a new trial warrant little comment.
The defendant argues that the Court should grant her motion for judgment of acquittal on the ground that the evidence does not support the verdict. This argument must be rejected because there was sufficient evidence in which the jury could find the defendant guilty beyond a reasonable doubt. The jury must consider all of the evidence and weigh the credibility of the witnesses and consider any justifiable inferences based on proven facts. Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied 331 U.S. 837, 67 S. Ct. 1511, 91 L. Ed. 1850 (1947). To state it differently, the Court is required to grant the motion only if, after considering all of the evidence, the Court concludes that there must be a doubt in a reasonable mind. Id. The Court cannot make such a determination in this case. See also, Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); United States v. Staten, 189 U.S.App.D.C. 100, 581 F.2d 878 (1978).
Next, the defendant argues that the Court should reject the testimony of Zellane Laney and, in effect, strike her testimony. This argument also lacks merit. Although it is true that there were differences in her testimony given at trial and that given before the grand jury, there appeared to be little difference insofar as the substantive facts were concerned. Moreover, as the Court noted earlier in Part II, supra, the defendant had ample opportunity to exploit perceived differences, and to argue those differences to the jury.
The contention that the tax counts should have been severed is also without merit and is rejected for the reasons set forth in this Court's earlier ruling in this case. See United States v. Treadwell, 566 F. Supp. at 83-87. As the Court noted, there is a substantial difference between the facts in this case and those reported in United States v. Halper, 590 F.2d 422 (2d Cir.1978). In the latter case, the fund charged in the tax evasion indictment was not the same fund as that involved in the Medicare fraud. 566 F. Supp. at 87. Here, the Government's theory was that the same funds were involved in the conspiracy count and that it was those funds that were unreported on the counts charging defendant with tax evasion. The fact that the jury found the defendant not guilty of tax evasion, does not necessarily result, as the defendant suggests, because there was no connection between the alleged stolen money and the tax counts. The defendant testified that she was under the belief that IRS had access to her bank records, and that this was another means of keeping records for IRS. Based upon that testimony the jury could have a reasonable doubt as to whether she attempted to evade the payment of the tax. In any event, this Court cannot find that the inclusion of the tax counts prejudiced the defendant since she was found not guilty of those counts. The initial decision made by the Court in its earlier opinion, United States v. Treadwell, supra, was sound.
Finally, the defendant contends that the Court's instructions were in error. The Court has given full consideration to that argument as well as the opposition filed by the Government. The Court concludes that those instructions are consistent with the law in this circuit and that so much of the motion which attacks those instructions must be denied.
In sum, the Court finds that all of the defendant's arguments are without merit and must be rejected.