The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: DEFENDANT'S POST VERDICT MOTIONS
On October 14, 2009, a federal grand jury returned an indictment charging Defendant Joseph Casile with one count of stalking in violation of 18 U.S.C. § 2261A, interstate travel with intent to harass or intimidate. On November 5, 2010, after a jury trial, Casile was found guilty as to the count charged in the Indictment. On November 15, 2010, Casile filed a Motion for Acquittal, Motion for New Trial, and Motion to Supplement (ECF No. 98), requesting relief under Federal Rules of Criminal Procedure 29, 33, and 34. On March 4, 2011, Casile filed a Supplemental Motion for Judgment of Acquittal and for New Trial (ECF No. 106). These Motions are presently before the Court.
Casile's core arguments are that 1) 18 U.S.C. § 2261A was not intended to apply to his conduct; 2) the Government did not present sufficient evidence to establish Casile committed the crime charged; 3) the Government presented evidence that constructively amended or was in variance with the Indictment; and 4) the Court failed to give Casile's proposed theory of defense instruction. For the reasons discussed below, Casile's Motions for post-verdict relief are denied.
II. Factual and Procedural History
Casile is a Pennsylvania resident. (See Tr. 11/3/10 at 240.) On October 17, 2004, John Fagan asked Casile to meet him at Olga's Diner, in Marlton, New Jersey. At that meeting, Fagan told Casile that George "Pat" Bell and John Bell had approximately $400,000 of Fagan's illegally-obtained cash. Fagan asked Casile to assist in retrieving the money from the Bells. Casile agreed to do so in exchange for ten percent of the $400,000. (Tr. 11/3/10 at 190-91, 276.)
On November 18, 2004, Casile and several other men went to Johnny Apples, the Bells' restaurant in Bucks County, Pennsylvania. Casile approached Pat Bell, who was bartending, and demanded that the money be returned within a short time period, while other men surrounded them. (Tr. 11/3/10 at 32-35, 64-65, 191-92, 276-77.) Pat Bell testified that he felt threatened and scared. (Tr. 11/3/10 at 35, 69-70.) On November 19, 2004, John Bell received several threatening calls from Casile, who identified himself as Frank or Joe. Casile demanded that John Bell return the money to him in Philadelphia within the hour, or else there would be problems and Bell would suffer the consequences. (Tr. 11/3/10 at 98-101, 105-07.) Later, Casile called John Bell from Princeton Tavern, a bar that John Bell operated in Northeast Philadelphia, said that he was at the bar with six associates, and threatened the patrons and the bartender. (Tr. 11/3/10 at 9, 109-12.) John Bell testified that Casile threatened his family and that Bell was concerned for their safety. (Tr. 11/3/10 at 111-12.) As a result of the incidents on November 18th and 19th, police provided assistance at Johnny Apples, surveilled Pat Bell's residence, and quarantined John Bell and his mother for several days at their residence with 24-hour-a-day police protection, out of concern for the physical safety of the Bell family. (Tr. 11/2/10 at 165-66; Tr. 11/3/10 at 114-15, 178-82, 283-85.)
Casile was indicted by a federal grand jury on October 14, 2009. The Court denied Casile's Motion to Dismiss the Indictment, United States v. Casile, Crim No. 09-668, 2010 WL 3835006 (E.D. Pa. Sept. 30, 2010), and the case proceeded to trial.
At the close of the government's case, Casile moved for judgment of acquittal pursuant to Federal Rule Criminal Procedure 29(a). The Court reserved judgment on the motion. On November 5, 2010, the jury found Casile guilty of the count charged in the indictment. On November 15, 2010, Casile renewed his Motion for Acquittal and also moved for new trial and arrest of judgment, pursuant to Fed. R. Crim. P. 29(c), 33, and 34 (ECF No. 98).*fn1 On March 4, 2011, Casile filed a Supplement to the Post-Verdict Motion (ECF No. 106). The Government filed its response on March 25, 2011 (ECF No. 112). Casile replied on April 19, 2011 (ECF No. 118).
III. The Parties' Contentions
In his Supplement to the Post-Verdict Motion, Casile raised four arguments in favor of judgment of acquittal. First, Casile contends that Congress did not intend 18 U.S.C. § 2261A to criminalize interstate travel that was "merely incidental" or "not substantially related" to the harassment or intimidation. Second, Casile contends there was insufficient evidence to show that he had the intent to harass or intimidate at the time he crossed state lines from New Jersey to Pennsylvania. Third, Casile contends that the government failed to prove a causal connection between the interstate travel and the resulting intimidation or harassment. Fourth, Casile argues that there was a prejudicial variance or constructive amendment because the evidence established multiple victims and the indictment alleged a single victim.
Casile also asserts that he is entitled to a new trial on the above grounds, and because the Court did not instruct the jury that the significant or dominant purpose of his travel must be an intent to intimidate or harass. Furthermore, Casile contends that he is entitled to a new trial because the Court did not instruct the jury to measure the defendant's intent at the time of travel, and the Court failed to provide Casile's proposed theory of defense instruction to the jury.
The Government responds that the plain language of 18 U.S.C. § 2261A does not require proof that the defendant's travel was "substantially related" to the harassment or intimidation. The Government contends that the evidence at trial established that Casile had the requisite intent to harass or intimidate at the time he traveled from New Jersey to Pennsylvania. The Government argues that it proved the Bells were placed in reasonable fear of serious bodily injury or death as a result of Casile's interstate travel. The Government asserts that it did not constructively amend the indictment or present evidence in a prejudicial variance from the indictment as to the number of victims. Finally, the circumstances did not warrant the Court giving the proposed theory of defense instruction.
"'In reviewing a jury verdict for sufficiency of the evidence, we must consider the evidence in the light most favorable to the government and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt.'" United States v. Gatlin, 613 F.3d 374, 380 (3d Cir. 2010) (quoting United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993)). If the defendant moved for a judgment of acquittal and the district court reserved judgment at the close of the government's case-in-chief, the district court is limited to the evidence at that point. Fed. R. Crim. P. 29(b); United States v. Boria, 592 F.3d 476, 480 n.7 (3d Cir. 2010). "'The burden on a defendant who raises a challenge to the sufficiency of the evidence is extremely high.'" United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009) (quoting United States v. Iglesias, 535 F.3d 150, 155 (3d Cir. 2008)). "A finding of insufficiency should be 'confined to cases where the prosecution's failure is clear.'" United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (quoting United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002)). A district court may not "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." Id. (citing United States v. Jannotti, 673 F.2d 578, 581 (3d Cir. 1982) (en banc)).
Under Federal Rule of Criminal Procedure 33, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "'Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion it does not view the evidence favorably to the Government, but instad exercises its own judgment in assessing the Government's case.'" United States v. Silveus, 542 F.3d 993, 1004 (3d Cir. 2008) (quoting United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002)). "However, even if a district court believes that the jury verdict is contrary to the weight of the evidence, it can order a new trial 'only if it believes that there is a serious danger that a miscarriage of justice has occurred--that is, that an innocent person has been convicted.'" Id. at 1004-05 (quoting Johnson, 302 F.3d at 150). A Rule 33 motion should be "granted sparingly and only in exceptional cases." Gov't of V.I. v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) (citations omitted).
Under Rule 34, "[u]pon the defendant's motion or on its own, the court must arrest judgment if: (1) the indictment or information does not charge an offense; or (2) the court does not have jurisdiction of the charged offense." Fed. R. Crim. P. 34(a). A motion for arrest of judgment must be based on a defect on the face of the indictment, and not upon the evidence or its sufficiency. United States v. Sisson, 399 U.S. 267, 282 (1970) (citing Bond v. Dustin, 112 U.S. 604, 608 (1884)). To withstand a Rule 34 motion, a sufficient indictment "recites the necessary ...