United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE
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.
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).
Standard of Review
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.
Rule 29(a) Motion of Windel Lester
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.
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.
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.
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.
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.
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.
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.
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 ...