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United States v. Mitan

April 9, 2010

UNITED STATES OF AMERICA
v.
KENNETH MITAN



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: POST-TRIAL MOTIONS

I. Background

On December 18, 2008, a federal grand jury returned a six-count indictment against Defendants Kenneth Mitan, Frank Mitan, Charro Pankratz and Bruce Atherton (Doc. No. 1). The indictment charged all four Defendants with conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349 (Count One), and further charged Defendants Kenneth Mitan and Frank Mitan with two counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts Two and Three), and two counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts Four and Five). The indictment also charged Kenneth Mitan with use of a false name in furtherance of mail fraud, in violation of 18 U.S.C. § 1342 (Count Six). On April 23, 2009, the grand jury returned a superseding indictment adding Count Seven, charging Kenneth Mitan with making a false statement before this Court in violation of 18 U.S.C. § 1623.*fn1

Defendant Kenneth Mitan, after a detailed colloquy, insisted on representing himself pro se. The Court appointed Ann Flannery, Esquire as his stand-by counsel. As the pretrial aspects of the case proceeded, the complexity of the case required Ms. Flannery to take an active role, particularly concerning discovery matters with the government and subpoenas to various witnesses requested by the Defendant. In this role, Ms. Flannery, a former federal prosecutor and law professor, performed skillfully, admirably, and in the highest traditions of the Bar. At trial, the Court agreed to a hybrid representation where Defendant Kenneth Mitan was allowed to cross examine certain witnesses and present the closing argument, and Ms. Flannery handled other aspects of the trial, all of which was explained to the jury.

The trial began on October 13, 2009 against Kenneth Mitan and his father, Frank Mitan.*fn2

Defendants Pankratz and Atherton had entered into plea agreements with the government. Although Defendant Atherton did testify at the trial, Defendant Pankratz did not.

On November 6, 2009, the jury returned a verdict of guilty as to Kenneth Mitan on all counts, and guilty as to Frank Mitan as to Counts Two through Five. Frank Mitan was acquitted of conspiracy. On January 29, 2010, Defendant Kenneth Mitan filed his Post-Trial Motion for Judgment of Acquittal or New Trial (Doc. No. 532).

The Court requested supplemental briefing on several points and will now determine the post-trial motions.

II. Standard of Review

Following the verdict of guilty against Kenneth Mitan on all counts, the Court must review the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60 (1942). In determining the Defendants' alternate Motion for a New Trial, the Court has discretion to determine whether a miscarriage of justice has occurred or whether the Court committed a legal error in the admissibility of evidence or in the charge to the jury. See, e.g., United States v. Vitillo, 490 F.3d 314, 325 (3d Cir. 2007) ("The decision to grant or deny a motion for a new trial lies within the discretion of the district court." (quoting United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006))).

III. Conspiracy

The essence of the conspiracy charge against Kenneth Mitan consisted of four separate, but interrelated, schemes to defraud the owners of certain small businesses. The indictment charged, and the government presented evidence, that from approximately June 2005 through February 2008, Kenneth Mitan set about to acquire the stock of the following four small, basically family-owned businesses:

a. Benny's Cheese Company

b. Engel Corporation

c. Housewares Distributors, Inc. ("HDI") d Pruscino Brothers Produce ("Pruscino")

The government's evidence showed a consistent pattern used by Kenneth Mitan in taking control of these companies and then intentionally and willfully refusing to follow through on material representations and promises that he had made to the owners. The basic thrust of the scheme was similar in all four instances: Kenneth Mitan, using the false name "John Adams," contacted each of the owners and indicated that he was acting on behalf of the "Williams Fund" -- the fictitious name of a dummy company that the jury was entitled to conclude was equally fictitious and a figment of Kenneth Mitan's imagination.

The evidence allowed the jury to determine that the Williams Fund was a front and was nothing more than a name that Kenneth Mitan and his father, Frank Mitan, had invented as the vehicle by which these independent businesses would be acquired. In each instance, Kenneth Mitan met with the owners, expressed a great deal of interest in purchasing the stock of these businesses, and indicated that he had the backing of a supposedly wealthy investor ...


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