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United States v. Doty

United States District Court, S.D. West Virginia, Charleston

March 7, 2019

UNITED STATES OF AMERICA
v.
PHYLLIS DOTY

          MEMORANDUM OPINION AND ORDER

          DAVID A. FABER SENIOR UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. BACKGROUND

         On 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).

         II. APPLICABLE LAW

         On 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 (1999).

         Rule 33 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).

         III. ANALYSIS

         A. Defendant's allegation that Counts 3, 4, 7 and 8 should be dismissed on the basis of prosecutorial vindictiveness

         The 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).

         To 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.

         Here, 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.

         B. Defendant's allegation that there was insufficient evidence to sustain a conviction on Counts 1-8 of the Second Superseding Indictment

         Counts 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.

         1. Count Four (theft concerning programs receiving federal funds)

         In Count Four, the defendant was charged with stealing more than $5, 000 in Apple devices purchased by the Logan County Board.

         Ray 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 defendant's family.

         Evidence 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 ...


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