United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE.
the court is defendant Phyllis Doty's Motion under Rules
29 and 33 of the Federal Rules of Criminal Procedure and
Memorandum in Support (ECF Nos. 149, 150), and
defendant's Motion to Supplement Motion for Judgment of
Acquittal or in the Alternative a New Trial and Memorandum in
Support (ECF No. 168, 169). The government filed a Response
in Opposition to Defendant's Motion under Rules 29 and 33
of the Federal Rules of Criminal Procedure and a Response to
Defendant's Motion to Supplement Motion for Judgment of
Acquittal or in the Alternative a New Trial (ECF No. 152,
170). For the reasons that follow, the defendant's
motions are DENIED.
August 31, 2018, a properly impaneled jury returned verdicts
of guilt (ECF No. 142) against defendant on Counts 1, 2, 3,
4, 5, 6, 7, and 8 of the Second Superseding Indictment. The
defendant argues that a judgment of acquittal or a new trial
is appropriate because: (1) Counts 3, 4, 7 and 8 should be
dismissed on the basis of prosecutorial vindictiveness; (2)
there was insufficient evidence to sustain a conviction on
counts 1-8 of the Second Superseding Indictment; (3) the
court erred in admitting evidence of alleged 404(b) acts
which were outside the statute of limitations and acts
involving the conduct of others; (4) there was insufficient
evidence of the value of the items totaling $5, 000 to
sustain a conviction for violating 18 U.S.C. § 666 and
the court erred in excluding the defendant's expert
witness regarding value; (5) there was insufficient evidence
of receipt of $10, 000 in federal funds to sustain a
conviction for violating 18 U.S.C. § 666; and (6) Mrs.
Doty had the authority to make the purchases which were the
subject of the allegations against her. (ECF No. 149). In the
defendant's supplemental motion, the defendant argues
that the existence of newly discovered evidence supports a
judgment of acquittal or a new trial. (ECF No. 169).
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. Lespeir, 725 F.3d 437, 447 (4th Cir. 2013);
United States v. Royal, 731 F.3d 333, 337 (4th Cir.
2013); 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
of the Federal Rules of Criminal Procedure allows a trial
court to grant a new trial to a defendant upon the
defendant's motion “if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). When a Rule 33
motion attacks the weight of the evidence, a trial
court's authority to grant a new trial is “much
broader” than when a trial court decides a motion under
Rule 29 of the Federal Rules of Criminal Procedure.
United States v. Arrington, 757 F.2d 1484, 1485 (4th
Cir. 1985). Included within this broader discretion is the
ability to weigh the credibility of witnesses. See
id. However, despite a trial court's broad
discretion when deciding a Rule 33 motion that attacks the
weight of the evidence, a trial court should use such
discretion “sparingly, and a new trial should be
granted only when the evidence weighs heavily against the
verdict.” Id. at 1486; United States v.
Singh, 518 F.3d 236 (4th Cir. 2008) (reversing a
district court that granted a new trial under Rule 33 for
abuse of discretion where the evidence at trial did not weigh
heavily against the verdict).
Defendant's allegation that Counts 3, 4, 7 and 8 should
be dismissed on the basis of prosecutorial
defendant argues that Counts 3, 4, 7, and 8 of the Second
Superseding Indictment should be dismissed based upon
prosecutorial vindictiveness because no new evidence was
presented. (ECF Nos. 149, 150). In support, the defendant
states that evidence of the prosecutorial vindictiveness is
the fact that the charges increased from five to eight
counts, and that she faces significant time of imprisonment
and fines as a result. (ECF No. 150 at p. 3-4).
establish prosecutorial vindictiveness, a defendant must
show, through objective evidence: (1) the prosecutor acted
with genuine animus towards the defendant; and (2) the
defendant would not have been prosecuted but for that animus.
United States v. Wilson, 262 F.3d 305, 314 (4th Cir.
2001)(citing United States v. Goodwin, 457 U.S. 368,
372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)(noting that the
charges must be brought “solely to ‘penalize'
the defendant and could not be justified as a proper exercise
of prosecutorial discretion”)). A presumption of
vindictiveness “is warranted only when circumstances
warrant it for all cases of the type presented, ” and
“will rarely, if ever, be applied to prosecutor's
pretrial decisions. Id. at 315.
there is no evidence or cited case law to support a
presumption of prosecutorial vindictiveness. Furthermore, the
defendant has failed to demonstrate that the prosecutor acted
with genuine animus towards her, and that she would not have
been prosecuted but for that animus. The court does not find
that the government's decision to increase the charges
prior to the trial amounts to vindictiveness. But
see, e.g., Blackledge v.
Perry, 417 U.S. 21, 28-29, 94 S.Ct. 2098, 2103, 40
L.Ed.2d 628 (U.S. 1974) (holding that if a prosecutor
responds to a defendant's successful exercise of his
right to appeal by bringing a more serious charge against
him, he acts unconstitutionally). Therefore, the
defendant's renewed motion to dismiss Counts 3, 4, 7 and
8 based on prosecutorial vindictiveness is DENIED.
Defendant's allegation that there was insufficient
evidence to sustain a conviction on Counts 1-8 of the Second
Four and Five charge the defendant with theft concerning
programs receiving federal funds: the misappropriation of
Apple products in Count Four and the misappropriation of
items used in the defendant's son's wedding in Count
Five. The defendant's primary theory is that because the
government allegedly failed to present sufficient evidence
regarding the two theft counts, the other six counts,
involving wire fraud, mail fraud and aggravated identity
theft, which are related to the two theft counts, lack the
requisite evidentiary basis to support the conviction.
Therefore, the defendant argues that the government presented
insufficient evidence to support all counts of conviction.
Count Four (theft concerning programs receiving federal
Count Four, the defendant was charged with stealing more than
$5, 000 in Apple devices purchased by the Logan County Board.
Ellis, the purchasing director at the time of the scheme,
testified that the Board ordered and paid for several hundred
iPods and iPads directly from Apple during the years of the
scheme. The defendant directed the orders and faxed the
orders from the Board's office in West Virginia to Apple,
Inc. in Texas-six iPads on July 29, 2013, and five iPads on
November 26, 2013. The government presented evidence that
demonstrated that of the eleven total iPads ordered on July
29, 2013, and November 26, 2013, the defendant gave away six
to her family. The defendant's niece, Ashley Stapleton,
testified that defendant, along with her husband, Jack Doty,
gave the Stapleton family brand new iPads and iPods as gifts.
The registration records from Apple confirmed that the
devices Stapleton received from the defendant were the same
devices purchased by the Board. Additionally, the
defendant's nephew, Steven Cochrane, testified that the
defendant and her husband gave him a new iPad for Christmas
in 2011. The Apple records confirmed that this iPad was also
purchased by the Board. Apple records further revealed that
at least thirteen Apple devices purchased by the Board
between 2011 and 2013 were registered to members of the
was also presented at trial that an eBay account, that was
registered in the defendant's husband's name, Jack
Doty, used their joint mailing address and an email address
that was shared, was used to sell new Apple devices purchases
by the Board. Records indicated that the devices sold on the
account “jack1545” were paid for using PayPal and
the profit was posted to a PayPal account registered to Jack
Doty using an email address he and the defendant shared. The
government presented evidence that the PayPal records showed
that the profits posted to that PayPal account were deposited
into a joint bank account that the defendant shared with her
husband. The government presented evidence of the eBay
records, the records of the Board's order, and the Apple
registration records, which supported the allegation that
twenty iPods and iPads purchased by the Board during the
defendant's alleged scheme were sold on eBay using the
jack1545 account. The government also presented evidence that
the money from the sale ...