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United States v. Lester

United States District Court, S.D. West Virginia

January 29, 2019

UNITED STATES OF AMERICA
v.
WINDEL LESTER JAMES EDWARD LESTER GEORGETTA KENNEY GREG A. LESTER JAMES KEITH BROWNING

          MEMORANDUM OPINION AND ORDER

          DAVID A. FABER SENIOR UNITED STATES DISTRICT JUDGE

         This case involves a complicated and wide-ranging scheme to commit fraud by setting fire to three dwellings and filing false claims for insurance proceeds. Properties burned were located at 101 Smokeless Road, Matoaka, West Virginia (“Matoaka Fire”); 3542 Norwood Road, Huntington, West Virginia (“Huntington Fire”); and 9068 Interstate Highway, Ikes Fork, West Virginia (“Ikes Fork Fire”). At trial in August 2018, defendants James Edward Lester, aka “Punkin”, Georgetta Kenney, Greg A. Lester, and Windel Lester, were found guilty of various offenses by a jury. A fifth defendant named in the original indictment, James Keith Browning, pled guilty to one count of a second superseding indictment and did not go to trial.

         At the conclusion of the government's evidence, all four defendants who went to trial moved for judgment of acquittal under Rule 29(a) of the Federal Rules of Criminal Procedure. The court reserved ruling on the motions under Rule 29(b). After their convictions, each defendant filed timely motions for judgment of acquittal, or in the alternative, for a new trial under Rule 29(c) and 33. By orders previously entered, the court denied the post-trial motion of each defendant. This Memorandum Opinion and Order addresses the defendants' motions made at trial under Rule 29(a).

         The Standard of Review

         In deciding a motion under Rule 29, the court must view the evidence in the light most favorable to the government and give the government the benefit of all reasonable inferences to be drawn from that evidence. United States v. Bailey, 819 F.3d 92, 95 (4th Cir. 2016); United States v. Lespier, 725 F.3d 437, 447 (4th Cir. 2013) cert. denied, 134 S.Ct. 974 (2014); United States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013); cert. denied, 134 S.Ct. 1777 (2014); United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The trial court is not permitted to judge the credibility of the witnesses; it must assume that the jury resolved all contradictions in favor of the government. United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998), cert. denied, 525 U.S. 1141 (1999). If the court reserves, under Rule 29(b), its rulings on a Rule 29(a) motion made at the conclusion of the government's evidence at trial it must decide the motion on the basis of the evidence at the time the ruling was reserved. The express language of Rule 29(b) so requires. Denial of a Rule 29(a) motion will be affirmed on appeal if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Tresvant, 677 F.2d at 1021.

         The Rule 29(a) Motion of Windel Lester

         In paragraphs 33 through 47 of the second superseding indictment, the government sets out the specific acts it alleges were carried out in support of the scheme to defraud. Windel Lester is specifically mentioned in three of these paragraphs, 36, 47 and 48. Paragraph 36 charged that Windel Lester instructed Georgetta Kenny, who was then his wife, to write a check for $38, 000 from their joint bank account to Dudley Bledsoe so he could purchase the house located at 101 Smokeless Road in Matoaka, West Virginia. Bledsoe used the money to buy the house and it was subsequently burned and a claim for insurance filed. In paragraph 47, the government charged that Windel Lester knowingly transmitted and caused to be transmitted by mail or fax machine various documents as part of the scheme to defraud. Paragraph 48 alleges that Windel Lester “placed and caused to be placed” various documents in furtherance of the scheme.

         In support of the Rule 29(a) motion made at trial, counsel argued there was “absolutely no evidence that Windel Lester instructed anybody to write any checks” and there was no evidence that Windel Lester transmitted, mailed or faxed any documents. Counsel argued that the evidence must show that Windel Lester himself did the acts charged. Counsel stated: “I believe that they must provide evidence he actually transmitted to, to pursue that, pursue that claim so that claim can go to the jury.” Windel Lester also contends that, by charging in the conjunctive “placed and caused” the government must prove the entirety of the allegation, not just a portion; in other words proving only that he “caused” the documents to be mailed or faxed is insufficient.

         Count 18 of the second superseding indictment charged Windel Lester with knowingly engaging and attempting to engage in a prohibited monetary transaction. Counsel argued that there was no evidence from which a jury could conclude that Windel Lester knew the money was derived from criminal activity. Similarly, Count 19 involved a $196, 000 monetary transaction completed by Dudley Bledsoe. Windel Lester argued there is no evidence he instructed or counseled Bledsoe with regard to this transaction. Similar arguments were made with regard to the remaining counts of conviction - no evidence to show Windel Lester's involvement in, or knowledge of, the criminal nature of the actions taken by others, specifically Dudley Bledsoe, Ricky Gleason and Georgetta Kenney.

         The court has reviewed the evidence as it existed at the conclusion of the government's case at trial and finds ample evidence to support, as to each count, a jury's conclusion of guilt. While Windel Lester cagily insulated himself from direct involvement in much of the criminal activity, it is clear from the evidence that he was the principle mover in the scheme to defraud. For example, while Dudley Bledsoe got the $38, 000 check from Georgetta Kenney, it is clear that Windel Lester told her to write it. Bledsoe was well aware of the relationship between Windel Lester and his then wife Georgetta and he knew that Georgetta would not make any sort of financial transaction without being directed to do so by Windel. Bledsoe testified that Windel arranged to have the check cashed.

         The evidence makes clear that Windel Lester was deeply involved in the scheme to burn the house in Matoaka, West Virginia. He provided false receipts to enhance the amount of the loss claim; he provided the funds to buy the house and shared in the proceeds from the fraudulent claim.

         The evidence shows that Windel Lester recruited Ricky Gleason to purchase the property in Huntington, West Virginia, for the purpose of burning it and filing a fraudulent insurance claim. Windel told Gleason he could “make some easy money.” Gleason testified that Windel Lester provided the money to buy the property and handled most of the paperwork involved in the purchase. Gleason testified that Windel Lester participated in the purchase of low-cost used items to furnish the house and discussed with Gleason timing of the arson.

         Cases make clear that the United States does not have to prove every specific act charged in the indictment to sustain a verdict of guilty on the fraud schemes. See United States v. McNeil, 45 Fed.Appx. 225 (4th Cir. 2002); United States v. Briscoe, 65 F.3d 576, 585 (7th Cir. 1995). It is sufficient for the government to prove the scheme to defraud and the defendant's involvement. Id. Nor does the government have to prove the defendant personally mailed or faxed documents in support of the scheme to defraud. Cases such as United States v. Godwin, 272 F.3d 659 (4th Cir. 2001), hold that the word “cause” in a mail fraud prosecution requires only that the mailing be reasonably foreseeable.

         Windel Lester's argument that use of the conjunctive in the charging language of the indictment requires proof of the entirety of the allegation is without merit, as the cases make clear. The government may charge in the conjunctive and prove in ...


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