The opinion of the court was delivered by: Surrick, J.
Presently before the Court are Defendant Asya Richardson's Motions for Judgments of Acquittal Pursuant to Federal Rule of Criminal Procedure, Rule 29(c), or, in the Alternative, for a New Trial Pursuant to Federal Rule of Criminal Procedure, Rule 33. (Doc. No. 953.) For the following reasons, the Motions will be denied.
Asya Richardson is one of a number of defendants who were charged with and convicted of crimes committed in connection with a large-scale drug conspiracy operated by Alton Coles. Along with his coconspirators, Coles supplied the streets of Philadelphia with cocaine from 1998 to 2005. Richardson met Coles in the summer of 2002, and shortly afterward the two started dating. In December of 2002, Coles proposed to Richardson, notwithstanding the fact that he was seeing several other women, one of whom was pregnant with his fifth child. Within a year of the proposal, Richardson was in family court requesting a protection from abuse ("PFA") order against Coles after he assaulted her. Through those proceedings, it became clear that Richardson knew that Coles was, in her words, a "big time drug hustler."
Money was an important factor in the relationship between Richardson and Coles. Disputes over Richardson's spending were sometimes nasty. After law enforcement began monitoring Coles's phone calls via a legally obtained wiretap, several of these disputes were recorded. (See, e.g., Gov't Exs. 267--6810 at 1; 267--6819 at 2; 275--6805 at 4--5.) One example involves Coles engaging in a diatribe against Richardson:
What the fuck do you fuck with money that ain't the fuck yours for? It ain't your money! I don't wanna hear what I don't fucking give you; it's not your fucking money.... Why the fuck do you touch money that ain't yours without asking? That shit fucking pisses me off; you like a fucking kid, man. You're a asshole; you just touch shit that ain't yours. It ain't your fucking money.... What the fuck did you spend a thousand dollars on? (Gov't Ex. 267--6810 at 1 (punctuation and grammar unaltered).) Despite the disputes, Richardson stayed with Coles. She was living with Coles when law enforcement officials arrested him in August 2005. At that time, they were living in an expensive custom-built home in Mullica Hill, New Jersey, with a Bentley automobile parked in the garage.
Richardson was not arrested at the same time as Coles. The Government eventually charged her for laundering Coles's drug proceeds and for committing wire fraud. Ultimately, Richardson was indicted along with Coles and the other members of his drug conspiracy. Count 1 of the 194-count Fifth Superseding Indictment (the "Indictment") charged Coles and eighteen other individuals with conspiracy to distribute at least 1200 kilograms of cocaine and 600 kilograms of cocaine base ("crack") in violation of 21 U.S.C. § 846. Richardson was charged in four counts with laundering money to conceal the nature, source, ownership, and control of illicit proceeds in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 18 U.S.C. § 2 (Count 79); conspiracy to launder money in violation of 18 U.S.C. § 1956(h) (Count 80); and wire fraud in violation of 18 U.S.C. § 1343 and 18 U.S.C. § 2 (Counts 87--88).
The money laundering counts arose out of Coles and Richardson's purchase of the custom-built home where Coles and Richardson lived at the time of Coles's arrest in August 2005. Located at 117 Dillons Lane in Mullica Hill, the home cost approximately $466,690. In early 2005, Coles put down two deposits totaling $40,000 with the homebuilder. (See generally Trial Tr. 13--25, Feb. 7, 2008, Vol. I; see also Gov't Ex. 250D.) In July 2005, Coles and Richardson attended the settlement of the property, where they paid an additional $74,000 to a title company. They made the payment with three checks from three separate bank accounts: one Citizens Bank account in Coles's name, one joint PNC Bank account in Coles's and Richardson's names, and one Wachovia account in the name of Naseem Coles, Coles's minor son. (See Gov't Ex. 250D.) Title to the house was in Richardson's name, and Richardson took out a stated-income loan to secure a $373,352 mortgage. The stated-income loan grossly overstated Richardson's income (see Trial Tr. 22, 41, 70--71, 82--83, 96--100, Feb. 5, 2008, Vol. II) and did not indicate that Coles would be making the monthly mortgage payments.
At trial, the Government presented evidence regarding the mortgage transaction that established that Coles and Richardson initially sought to purchase the home in both of their names and that the homebuilder was aware that Coles provided the money for the down payment. (See id. at 110--14, 120--23.) The couple applied to the homebuilder's loan origination company, NVR, for a type of no-document loan known as a "no income--no asset" loan, which Coles's 20% down payment made possible. (Id. at 125--26.) In the application, Coles stated that he earned $100,000 a year as the CEO of Take Down Records and Richardson stated that she earned $22,800 as an employee of Bank of America. (Gov't Ex. 710(A).) However, because Coles had a poor credit score, the couple could not secure a mortgage from NVR and the loan had to be brokered to a loan origination company "of last resort" called Pike Creek Mortgage Services. (Trial Tr. 54, 61, 126--28, 133, 136, Feb. 5, 2008, Vol. II.) In order to obtain a mortgage through Pike Creek, Coles and Richardson had to change several aspects of the purchase. Coles was removed from the loan application and the sales contract (see, e.g., Gov't Ex. 267--16745 at 7--8), and Richardson applied for a stated-income loan instead of the no income--no asset loan (Trial Tr. 14--16, Feb. 5, 2008, Vol. II). Richardson represented that her income was $114,000 in her application to Pike Creek. She obtained the loan, and purchased the property in her own name. (Id. at 70.)
The Government called IRS Special Agent Raymond Armstrong as a fact and expert witness to testify as to the various bank and cash transactions that led to the purchase of the property. (See generally Trial Tr. Feb. 7, 2008, Vol. I; Trial Tr. Feb. 8, 2008, Vol. I.) Agent Armstrong explained how Take Down Records, Coles's record company, was a business whose expenditures canceled out its revenues, meaning it had little or no net profit. (Trial Tr. 28--32, Feb. 8, 2008, Vol. I.) Agent Armstrong further explained how the major transaction dates in the purchase of the Dillons Lane property were preceded by an intricate series of transactions. First, Take Down Records received cash deposits of less than $10,000 into its bank account. Then, transfers or check deposits of roughly the same amount were placed into Coles's personal bank account. Coles would then write checks to the homebuilder or title agency. (See Trial Tr. 36--37, Feb. 7 2008, Vol. I; see also Gov't Ex. 250D.) In addition to the flow of money through the Take Down Records account into Coles's personal account, there were significant cash deposits into Coles and Richardson's joint account and to the account of Naseem Coles. (See Gov't Ex. 250D.) All of these activities were consistent with money laundering and with structuring, which is the practice of depositing cash in amounts of less than $10,000 in order to avoid currency transaction reporting requirements. (Trial Tr. 9--10, 57--58, Feb. 8, 2008, Vol. I.)
The transactions surrounding the settlement on the property were characteristic of all the transactions. Agent Armstrong's analysis demonstrated that on the day of the settlement over $34,000 in cash was deposited into accounts controlled by Coles (including Naseem Coles's Wachovia account), Richardson, and Take Down Records and that virtually all of that money went toward settlement costs. (See Gov't Ex. 250D.) With regard to these transactions, Agent Armstrong testified that Coles and Richardson's conduct indicated that they were "frankly running out of time" because there was "a need for a large amount of currency... to get into the financial system in a short period...." (Trial Tr. 30, Feb. 7, 2008, Vol. I.) Agent Armstrong concluded that "[t]here's no reason in the world to not just take that money and stock it in one bank and buy your cashier's check. The only thing that would do would generate a currency transaction report, and that's the thing that, that this activity is attempting to avoid." (Id.) Richardson made at least one of the deposits, placing $9200 in cash into Coles and her joint PNC Account. (Trial Tr. 9, 57, 107--108 Feb. 8, 2008, Vol. I.) Another $9800 in cash was deposited into that account on the same day; however, Agent Armstrong could not determine whether the deposit was made by Richardson. (Id. at 107.)
On March 4, 2008, the jury returned a verdict finding Richardson guilty on the money laundering counts and not guilty on the wire fraud counts. (Doc. No. 748.)
II. RICHARDSON'S RULE 29 MOTION
Federal Rule of Criminal Procedure 29(a) provides that "[a]fter the government closes its evidence or after the close of all evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." The court may reserve decision on the motion under Rule 29(b). "If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R. Crim. P. 26(b); see also United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (stating that when a court reserves ruling on a Rule 29(a) motion it must "determine whether an acquittal was appropriate based solely on the evidence presented by the government").
"When sufficiency of the evidence at trial is challenged, the Court must affirm if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt and if the verdict is supported by substantial evidence." United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006) (citing United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)); see also United States v. Smith, 294 F.3d 473, 478 (3d Cir. 2002) (finding that courts should "sustain the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"). Moreover, in considering such a motion, the court "must view the evidence in the light most favorable to the government...." Smith, 294 F.3d at 478 (citing United States v. Dent, 149 F.3d 180, 188 (3d Cir. 1998); Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The court "must be ever vigilant in the context of Fed. R. Crim. P. 29 not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury." United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005). "A finding of insufficiency should be 'confined to cases where the prosecution's failure is clear.'" Id. (quoting Smith, 294 F.3d at 477).
At the close of the Government's case, Richardson moved for a judgment of acquittal under Rule 29(a). We reserved ruling on Richardson's motion pursuant to the discretion afforded to the trial court by Rule 29(b). (See Hr'g Tr. 37, Feb. 11, 2008.) Following the verdict, Richardson retained a new attorney and renewed her motion for a judgment of acquittal under Rule 29(c). (Doc. No. 953.) Before addressing the substance of Richardson's motion, we must resolve a procedural issue regarding what evidence was in the record at the time that Richardson made her Rule 29(a) motion.
1. PFA Affidavit Identifying Coles as a Drug Dealer
In November 2003 Richardson obtained a state-court PFA order against Coles after he became physically violent with her. As part of her submission to the court, she filed an affidavit in which she refers to Alton Coles as a "big time drug hustler." (See Gov't Ex. 511Q--1.) Richardson now asserts that the Government did not introduce the affidavit into evidence during its case-in-chief, and that since the Government did not introduce it into evidence at that time, we cannot consider it in our review of her Rule 29 motion. (See Doc. No. 1109 at 4.)
The procedural posture at the close of the Government's case-in-chief was somewhat unusual. At that time, it was still unclear whether Richardson was going to testify. Thus, the statement in the affidavit identifying Coles as a "big time drug hustler" raised a potential Bruton issue.*fn1 To resolve the issue and safeguard Richardson's right to choose to testify after the Government had rested, we bifurcated Counts 79 and 80 and held that the Government could only offer the statement that Coles was a big time drug dealer in the bifurcated portion of the trial. (Doc. No. 623.) As a result, when we gave our pre-charge to the jury and detailed the crimes charged by defendant, we mentioned only Richardson's wire fraud charges, and not the money laundering charges. (Trial Tr. 15, Jan. 16, 2008.)
After the Government rested, we discussed the bifurcation issue with counsel for all parties. (Trial Tr. 150--54, Feb. 11, 2008, Vol. III.) Richardson's trial attorney indicated that Richardson intended to testify. (Id. at 150.) In response, Coles's attorney stated that he did not have a Bruton issue if Richardson testified. (Id. at 151.) In the light of these developments, we asked the Government when it intended to introduce the affidavit and suggested that the orderly presentation would require that the Government present it in its case-in-chief. (Id. at 153.) The Government explained that it was concerned that if it offered the affidavit in its case-in-chief and Richardson then chose not to testify, the Bruton issue would re-emerge. (Id. at 154.) Richardson's attorney agreed with the Government. (Id.) Recognizing that this was an unusual situation, we decided to deal with the matter as requested by the Government and Richardson's attorney. (Id. at 153--54.) Thereafter, Richardson moved for a judgment of acquittal on all counts, arguing that the Government had not presented sufficient evidence. (Trial Tr. 22--26, Feb. 11, 2008, Vol. II.) Before responding to the substance of Richardson's motion, the Government noted that it had reserved the right to introduce Richardson's affidavit in the bifurcated portion of the trial. (Id. at 26.) We acknowledged the Government's concern about the affidavit and advised the Government to address Richardson's arguments. (Id.) We reserved ruling on the motion. (Id. at 36--37.)
We are satisfied now, as we were a trial, that there was a meeting of the minds among the Court and the parties that when the Government rested, with Counts 79 and 80 having been bifurcated, it had not closed its evidence against Richardson. Thus, Richardson cannot rely on Rule 29(b)'s requirement that we must "decide the motion on the basis of the evidence at the time the ...