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UNITED STATES v. NEILL

May 1, 1997

UNITED STATES OF AMERICA
v.
DENIS M. NEILL, Defendant.



The opinion of the court was delivered by: GREEN

 Upon consideration of Defendant Denis M. Neill's Motion For a New Trial, the government's opposition thereto, the defendant's reply, and the record in this matter, the defendant's motion will be denied.

 On March 10, 1997, a jury convicted Defendant Denis M. Neill of Count Six of the Indictment, *fn1" which alleged a violation of 26 U.S.C. § 7206(1). *fn2" The jury acquitted the defendant of Counts One through Five. (Earlier, at the close of the government's case, the Court granted the defendant's motion pursuant to Fed.R.Crim.P. 29(a), dismissing Count Seven.) Immediately following the verdict, the Court denied the defendant's motion for judgment of acquittal and his renewed motion to dismiss due to prejudicial pre-indictment delay. See Trial Transcript ("TR") at 3582. Later, the Court denied the defendant's Motion for Judgment of Acquittal Notwithstanding the Verdict and For Dismissal, or, in the Alternative, For Reconsideration of the March 10, 1997 Order Denying Denis M. Neill's Renewed Motions for Judgment of Acquittal and for Dismissal. See Mem. Op. and Order (April 29, 1997).

 In the instant motion, the defendant now asks this Court to grant him a new trial based on five grounds: (1) that the Court erred by refusing to take judicial notice of an amended tax return that the defense failed to introduce into evidence at trial; (2) that the Court's jury instructions were inconsistent with Cheek v. United States, 498 U.S. 192, 112 L. Ed. 2d 617, 111 S. Ct. 604 (1991); (3) that the Court erroneously admitted the testimony of Elaine Shea; (4) that the government's arguments regarding funds in the Bermuda bank account were improper; and (5) that the defendant suffered prejudicial spillover from evidence admitted to prove the obstruction and conspiracy counts. For the reasons stated below, each argument is rejected.

 The Standard of Review

 In considering a motion for a new trial, the Court "weighs the evidence and evaluates the witnesses' credibility and decides whether 'a serious miscarriage of justice may have occurred.'" United States v. Rogers, 287 U.S. App. D.C. 1, 918 F.2d 207, 213 (D.C. Cir. 1990). Whether to grant a motion for a new trial is a decision committed to the Court's sound discretion. United States v. Dale, 301 U.S. App. D.C. 110, 991 F.2d 819, 838 (D.C. Cir.), cert. denied, 510 U.S. 1030, 126 L. Ed. 2d 607, 114 S. Ct. 650 (1993).

 The defendant's second amended 1989 tax return.

 The defendant claims error where this Court denied his request to take judicial notice of the second amended 1989 tax return, which he did not introduce into evidence at trial. The defendant tendered his request for judicial notice while the jury was deliberating, which request was denied minutes before the jury returned its verdicts. The record unambiguously describes the events leading to the Court's decision to deny the defendant's request.

 In this document-intensive case, Defendant Denis M. Neill introduced numerous exhibits during the government's case-in-chief. On February 27, 1997, after both sides moved exhibits into evidence, see TR at 2901-03, the government rested. TR at 2904. As was his right, Defendant Denis M. Neill immediately rested. TR at 2905. On numerous instances and again before the Court instructed the jury, she cautioned the parties to confer with each other and the Courtroom Deputy Clerk regarding the "mass of exhibits" to ensure that all of their exhibits were assembled and ready for the jury. See, e.g., TR at 3272-73; TR at 3366-67. The record makes abundantly clear that the admission of exhibits consumed a considerable portion of the Court's time and attention during this case as the parties frequently contested the admissibility of the "mass of exhibits." See, e.g., TR at 102-59; 192-96; TR 202-18; TR at 368-88; TR at 575-586; TR at 281-301; TR at 2625-28; TR at 2810-18; Order of March 5, 1997 (Docket No. 219); Corrected Order of March 3, 1997 (Docket No. 218); Order of Feb. 27, 1997 (Docket No. 206); Order of Feb. 21, 1997 (Docket No. 196); Order of Feb. 13, 1997 (Docket No. 195); Order of Jan. 27, 1997 (Docket No. 176); Order of Jan. 27, 1997 (Docket No. 175); Order of Jan. 27, 1997 (Docket No. 174). Immediately prior to the Court's instructions to the jury, the following colloquy took place:

 
The Court: You have gone through each other's exhibits and your own exhibits just to make sure they are correct too. Not only each to examine the other, but your own .
 
Ms. Rogers: Absolutely .
 
The Court: You are satisfied with that?
 
Ms. Rogers: Yes, Your Honor .
 
The Court: Okay, fine, good. The charts are being turned away from the jury, however you're doing it, as long as it is away from the sight of the jury. Mr. Jones?
 
Mr. Jones: Your Honor, just to make sure our record is clear, do we have a blanket exception to the court's failure to instruct with regard to certain instructions that we submitted to the Court as well as--
 
The Court. Everything you ask me for, if I don't give it word for word--and this applies to the government too--word for word as you would have wanted to, it is an open door, as far as I'm concerned to the Court of Appeals and whatever invitation you want to exercise there, if appropriate.

 TR at 3366-67 (emphasis added). *fn3"

 The Court then instructed the jury. See TR at 3370. The jury began its deliberations at 4:13 p.m. that day, March 6, 1997. TR at 3432.

 On the morning of March 7, 1997, the jury sent the Court a note--a commonplace event in jury trials. The note stated "We would like to have the amendments for the 1989 taxes [sic] year." TR at 3447. The following colloquy occurred in Court:

 
The Court: Now, I believe I understand [the note], but--is it clear to everybody?
 
Mr. Jones: I believe those are the two amended returns.
 
The Court: I think it was August and September of 1991.
 
Mr. Jones: Yes, your honor.
 
The Court: Do you agree, Mr. Poole?
 
Mr. Poole: That sounds like what they are looking for.
 
The Court: Can we find the exhibit numbers? I believe one is 38-6. I just want to be absolutely accurate about this.
 
Mr. Poole: We believe the first one is Government 31-6 [sic] and the second one isn't in evidence.
 
The Court: That is what it appears like. We are looking in the transcript now, and at the [courtroom] clerk's notations, and it does not look like it was--[the Court's Deputy Clerk,] Mr. Wood doesn't have it as either identified or admitted.

 TR at 3447-48.

 After examining the transcript, at length, the defendant's counsel explained that the failure to introduce the second amended return was due to a clerical error:

 
Mr. Jones: That is very clear--it is very clear that it is a clerical error on our part. Because in the stipulation referred to, the other two amended--the second amended return in December of 1991, the witness testified about them extensively.
 
The Court: So it is not a clerical error on my clerk's part; correct?
 
Mr. Jones: Correct, it is not a clerical error on the clerk's part. It is a clerical error in terms of our office putting the witness exhibits together. *fn4"
 
The Court: However it happened, the fact is it is not in evidence; is that correct?

 TR at 3453-54.

 The Court then proposed a response to the jury, to which the defendant, through counsel, agreed:

 
The Court: Now let me write the specific response to their question. All right. How about saying something like this to the jury: You have all the exhibits which have been received in evidence. In specific response to your question and it would be typed right below the question--Exhibit 38-6 is the amended return filed in August of 1991 for the tax year 1989.
 
Mr. Jones: That is fine.

 TR at 3458 (the first response to the jury note was filed as Docket No. 224); see also TR at 3567. *fn5"

 Approximately two hours later on that same Friday, defendant's counsel, Mr. Jones, requested to be heard by the Court, which the Court promptly accommodated. Having decided that he was dissatisfied with the earlier response to the jury (with which counsel and the defendant had earlier agreed), Defendant Denis M. Neill's counsel now requested that the Court send the jury a second response. Although it is highly unusual, if not unheard of, to respond twice to one jury note--particularly when there has been silence from the jury after receiving the first response and no request whatsoever for clarification--under the circumstances, the Court reluctantly granted the defendant's request. After counsel for the defendant proposed the first paragraph to his requested second response to the jury note, which paragraph was accepted virtually (if not completely) verbatim by the Court, the defendant consented to the following note:

 To complete the answer provided you at 11:21 a.m. this date:

 
Exhibit 38-6 is an amended return filed in August 1991 for the tax year 1989. There has been testimony that a second amended return was filed in 1991 for the tax year 1989. That second amended return is not an exhibit in evidence.
 
It is undisputed that all of the amended returns were filed after Denis M. Neill's grand jury testimony on March 21, 1991.
 
You are the sole judges of the facts and it is your recollection of the evidence that controls.

 Time: 2:11 ...


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