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United States v. Anderson

United States District Court, S.D. Georgia

May 24, 2018

UNITED STATES OF AMERICA
v.
MICHAEL BRIAN ANDERSON, Defendant.

          ORDER

          WILLIAM T. MOORE, JR. JUDGE

         Before the Court are Defendant's Motion for Judgment of Acquittal (Doc. 126) and Motion for New Trial (Doc. 127). After careful consideration, Defendant's motions are DENIED.

         BACKGROUND

         On May 3, 2017, Defendant Michael Brian Anderson was indicted for an alleged fraud scheme perpetrated against the United States. (Doc. 1.) According to the indictment, Defendant "completed and mailed multiple false certifications to [United States Customs and Border Protection] relating to his supposed shrimping expenses, and fraudulently caused the U.S. government to pay him over $700, 000 to which he was not entitled." (Id. at 2.) Ultimately, Defendant was indicted on nine counts related to his alleged fraud scheme-four counts of Mail Fraud in violation of 18 U.S.C. § 1341 (Counts One, Two, Three, and Four); three counts of making False Statements in violation of 18 U.S.C. § 1001 (Counts Fijve, Six, and Seven); and two counts of Money Laundering Transactions Over $10, 000 in violation of 18 U.S.C. § 1957 (Counts Eight and Nine). (Id. at 2-8.)

         Defendant's trial began on March 19, 2018. (Doc. 111.) At trial, the Government presented evidence that Defendant falsified and mailed forms to United States Customs and Border Protection in order to obtain money allotted for shrimpers under the Continued Dumping and Subsidy Offset Act. Most relevant to this order, however, are the facts surrounding the jury instructions and the parties' closing arguments.

         Five days prior to trial, the Court provided a copy of proposed jury instructions to the parties. (See Doc. 136, Attach. A.) In the proposed mail fraud instruction, the draft jury charges provided that the Government, as one of the elements of mail fraud, must prove beyond a reasonable doubt that "the Defendant used the United States Postal Service by mailing or causing to be mailed something meant to help carry out the scheme to defraud." (Id. at 6.) Pursuant to Federal Rule of Criminal Procedure 30, the Court held a charge conference following the first day of trial to discuss the proposed charges. Neither party objected to the Court's proposed instruction.

         During closing arguments, however, defense counsel argued that Defendant could not be convicted on Counts One, Three, or Four, according to the Court's proposed jury instructions, because the Government failed to prove that Defendant mailed or caused to be mailed documents via the United States Postal Service ("U.S. Postal Service"). Instead, defense counsel argued that the Government only presented evidence that Defendant used the United Parcel Service ("UPS") in furtherance of the alleged scheme. At the conclusion of defense counsel's closing statement, the Court altered the proposed jury instructions. The Court inserted into the existing draft of the jury charges that the Government could also prove that Defendant violated the mail fraud statute by showing that the Defendant used "a private or commercial interstate carrier by depositing or causing to be deposited with the carrier" some mailing meant to further his scheme to defraud. (Doc. 114 at 6.) Defense counsel objected to the added instruction and requested a curative instruction explaining that the draft charges were altered only after her argument. The Court denied the request and used the updated jury charges to instruct the jury. Ultimately, Defendant was convicted on all nine counts. (Dec. 119.)

         Now, Defendant Anderson has filed a Motion for Judgment of Acguittal (Doc. 126) and Motion for a New Trial (Doc. 119) . Although filed separately, Defendant essentially makes the same arguments in both motions. As a result, the Court will consider both motions simultaneously.

         In his motions, Defendant first contends that he is entitled to relief because the Court's instruction to the jury constituted a constructive amendment to the charges alleged in the indictment. (Doc. 126 at 9; Doc. 127 at 6.) In his view, when the Court instructed that the jury could consider evidence that Defendant used a private carrier, the Court essentially amended the indictment and| improperly broadened the basis for which he could be convicted. (Id.) Secondly, Defendant argues that even if the Court does not find that the instruction created a constructive amendment of the indictment, the Court's instruction and evidence presented at trial at the very least constituted a material variance of the facts as alleged in the indictment. (Doc. 126 at 5; Doc 127 at 6.) Here, Defendant asserts that the indictment alleged that he used the U.S. Postal Service and that any evidence he used a different carrier is a material variance from the facts stated in the indictment. (Id.) Finally, Defendant argues that the Court's decision to alter the proposed jury instruction violated Federal Rule of Criminal Procedure 30(b), which requires a judge to provide jury instructions to the parties prior to their closing arguments. (Doc. 126 at 8; Doc 127 at 4-10.)[1]

         In response, the Government argues that there was no constructive amendment or material variance to the indictment when the Court instructed the jury that it could consider proof of a private carrier to satisfy the mailing element of the mail fraud statute. (Doc. 132.) In the Government's view, the indictment never asserted that Defendant only used the U.S. Postal Service, (Id. at 9.) Instead, the Government contends that the indictment alleged that Defendant more generally used multiple forms of mailings in furtherance of his scheme. (Id. at 9-10.) Moreover, the Government argues that Defendant suffered no harm by the Court's alteration and, therefore, should not be entitled to any relief. (Id. at 18.)

         ANALYSIS

         I. CONSTRUCTIVE AMENDMENT

         Defendant first argues that he is entitled to a new trial because the Court's instruction to the jury constituted a constructive amendment of the charges in the indictment. (Doc. 126 at 9; Doc. 127 at 6.) In his view, by instructing the jury that the Government could prove Defendant violated the mail fraud statute by showing that he used or caused a private carrier to be used, the Court essentially changed the crime for which he was indicted. (Id.) In response, the Government asserts that there was no amendment to the indictment because the evidence presented at trial and the allegations in the indictment were the same. (Doc. 132 at 9-10.)

         A constructive amendment occurs "when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment." United States v. Keller, 916 F.2d 628, 635 (11th Cir. 1990). If the Court finds that there was a constructive amendment to the indictment, the amendment would constitute a per se reversible error that would reguire this Court to either grant Defendant a new trial or acquittal on Counts One, Three, and Four. Id. at 633 (citing United States v. Figueroa, 666 F.2d 1375, 1379 (11th ...


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