The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant Timothy D. Naegele's motion for judgment of acquittal on the two remaining counts of the indictment, Counts 5 and 8, under Rule 29 of the Federal Rules of Criminal Procedure. Upon careful consideration of the legal arguments presented by counsel, orally and in their written submissions, and the record of the trial in this case, the Court will grant the motion.
Defendant Timothy Naegele is an attorney licensed to practice law in California and in the District of Columbia. Naegele owns his own law firm as a sole proprietorship. On or about March 29, 2000, Naegele filed a Chapter 7 petition for personal bankruptcy in the United States Bankruptcy Court for the District of Columbia. See In re Naegele, Case No. 00-0601 (Bankr. D.C. 2000). On or about May 4, 2000, he filed with the Bankruptcy Court additional documents relating to his bankruptcy case.
On May 23, 2000, the bankruptcy trustee conducted a creditors' meeting pursuant to 11 U.S.C. § 341, at which Naegele was questioned under oath by the trustee and several creditors about the information provided in the documents filed with the Bankruptcy Court and about his financial situation in general. On September 5, 2000, the Bankruptcy Court granted Naegele a discharge from bankruptcy under 11 U.S.C. § 727. The bankruptcy case was closed on September 20, 2000.*fn1
On April 28, 2005, a grand jury returned an eleven-count indictment against Naegele, alleging that he had made numerous misstatements on his bankruptcy forms and in the creditors' meeting. He was charged in three counts with testifying falsely under oath at the creditors' meeting (18 U.S.C. § 152(2)), in seven counts with making false declarations or statements under penalty of perjury in documents he used in connection with his bankruptcy proceeding (18 U.S.C. § 152(3)), and in one count with bankruptcy fraud (18 U.S.C. § 157). Before trial, the Court dismissed Counts 1, 2, 3 and 7 of the indictment -- all relating to alleged false statements made on the Statement of Financial Affairs filed in the Bankruptcy Court -- and Count 9, relating to false testimony under oath at the creditors' meeting. See United States v. Naegele, 341 B.R. 349 (D.D.C. 2006); United States v. Naegele, 367 B.R. 1 (D.D.C. 2007).
Naegele was tried before a jury on the remaining counts of the indictment -- Counts 4, 5, 6, 8, 10 and 11 -- beginning on September 19, 2007. On October 17, 2007, the jury returned a verdict of not guilty on Counts 4, 6, 10 and 11 of the indictment, and reported that they were unable to reach a unanimous verdict with respect to Counts 5 and 8 of the indictment. On October 18, 2007, after further deliberation, the jury reported that they were still unable to reach a unanimous verdict on Counts 5 and 8 of the indictment. The Court declared a mistrial as to those counts.
The defense orally moved for judgment of acquittal on all counts at the close of the government's case in chief on September 24, 2007. After oral argument was presented, the Court reserved ruling as permitted under Rule 29(b) of the Federal Rules of Criminal Procedure. The defense orally renewed its motion for judgment of acquittal at the close of its own case on October 12, 2007, and the Court again reserved ruling. Out of an abundance of caution, the defense again renewed its motion for judgment of acquittal on October 24, 2007. The parties briefed the motion, and the Court heard oral argument on December 20, 2007.*fn2 For the reasons explained below, the Court will grant the motion and will order the entry of a judgment of acquittal on Counts 5 and 8 of the indictment.
Rule 29(a) of the Federal Rules of Criminal Procedures provides that "[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." FED. R. CRIM. P. 29(a). "The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict." FED. R. CRIM. P. 29(b). "If the jury has failed to return a verdict, the Court may enter a judgment of acquittal." FED R. CRIM. P. 29(c)(2).
In ruling on a motion for judgment of acquittal, the Court must "consider the evidence in the light most favorable to the government and determin[e] whether, so read, it is sufficient to permit a rational trier of fact to find all of the essential elements of the crime beyond a reasonable doubt." United States v. Kayode, 254 F.3d 204, 212-13 (D.C. Cir. 2001) (quoting United States v. Harrington, 108 F.3d 1460, 1464 (D.C. Cir. 1997)). In so doing, the Court must "accord the government the benefit of all legitimate inferences." United States v. Weisz, 718 F.2d 413, 437 (D.C. Cir. 1983) (citations omitted). The question is whether the evidence is sufficient for a rational juror to have found the defendant guilty. See United States v. Kayode, 254 F.3d at 212-13; United States v. Harrington, 108 F.3d at 1464. Put another way, the Court may grant a motion for judgment of acquittal only when "a reasonable juror must necessarily have had a reasonable doubt as to the defendant[']s guilt." United States v. Weisz, 718 F.2d at 437 (emphasis in original) (citing United States v. Singleton, 702 F.2d 1159, 1162-63 (D.C. Cir.1983); United States v. Reese, 561 F.2d 894, 898 (D.C. Cir.1977); Curley v. United States, 160 F.2d 229, 232-33 (D.C. Cir.), cert. denied, 331 U.S. 837 (1947)). "If the evidence reasonably permits a verdict of acquittal or a verdict of guilt, the decision is for the jury to make." United States v. Jemal, Criminal No. 05-0359, 2007 WL 778623, at *3 (D.D.C. March 12, 2007) (quoting United States v. Sutton, 801 F.2d 1346, 1358 (D.C. Cir. 1986) and Curley v. United States, 160 F.2d at 237).
Count 5 of the indictment charges Naegele with making a material false statement in violation of 18 U.S.C. § 152(3), alleging that on his Bankruptcy Schedule B he stated "[t]hat he had no contingent claims of any nature when, in truth and in fact as he then well knew, he had contingency ...