United States District Court, W.D. Pennsylvania
TERRENCE F. McVERRY, District Court Judge.
Pending before the Court are JAMES LIGNELLI'S MOTION FOR NEW TRIAL PURSUANT TO RULE 33 (ECF No. 114) and the MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO RULE 29(c) (ECF No. 115) filed by Defendant James Lignelli ("Lignelli"). The government filed responses in opposition to the motions (ECF Nos. 120, 121), Lignelli filed replies (ECF Nos. 122, 123) and the motions are ripe for disposition.
Factual and Procedural Background
For many years, Lignelli worked as a professional real estate appraiser. On October 25, 2011, a federal grand jury returned a five-count indictment which has charged Lignelli with: Count 1, conspiracy to commit bank fraud from February-April 2005, along with Michael Pope, Tiffany Sprouts and others, by having prepared fraudulent real estate property appraisals for the "Sugar Camp Property, " in violation of 18 U.S.C. § 1349; Counts 2 and 3, bank fraud on Bank of America and JP Morgan Chase, respectively, resulting from the fraudulent appraisals for the "Sugar Camp Property, " in violation of 18 U.S.C. § 1344(1) and (2); Count 4, bank fraud on S&T Bank from April-August 2005, along with Michael Staaf and others, by having prepared a fraudulent real estate property appraisal for the "Perry Highway Property, " in violation of 18 U.S.C. § 1344(1) and (2); and Count 5, Conspiracy to commit bank fraud from July 2008-December 2009, along with Michael Staaf and others, by having prepared a fraudulent real estate property appraisal for the "Brodhead Road Property, " in violation of 18 U.S.C. § 1349.
During a three-week jury trial, the prosecution presented the appraisal documents prepared by Lignelli, testimony from the alleged co-conspirators, testimony by unrelated fact witnesses who were familiar with the actual condition of the properties, and numerous real estate property appraisal experts. The jury found Lignelli not guilty as to Counts 1 and 5 (the conspiracy charges), and returned a verdict of guilty as to Counts 2, 3 and 4 (the bank fraud charges). The Court will address these post-trial motions seriatim.
Motion for New Trial
Federal Rule of Criminal Procedure 33(a) provides, in relevant part, that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Lignelli asks the Court to vacate the jury verdict and grant a new trial for four reasons: (1) the government did not meet its burden to establish the admissibility of testimony from alleged co-conspirators; (2) defense counsel was precluded from cross-examining Pope regarding his early release from prison pursuant to Rule 35; (3) the government improperly "bolstered" the testimony of its cooperating witnesses; and (4) the charges regarding the residential Sugar Camp property should have been severed from the charges regarding the commercial properties at Perry Highway and Brodhead Road.
Rule 33 motions are not favored and should be "granted sparingly and only in exceptional cases." Gov't of Virgin Islands v. Derricks , 810 F.2d 50, 55 (3d Cir. 1987). In United States v. Silveus , 542 F.3d 993, 1004-05 (3d Cir. 2008) (citations omitted), the Court of Appeals for the Third Circuit explained the applicable inquiry:
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 instead exercises its own judgment in assessing the Government's case. 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.
The Court is convinced that no miscarriage of justice occurred in this case and that the jury verdict was consistent with the weight of the evidence against Lignelli.
Lignelli challenged the introduction of statements of alleged co-conspirators in a pretrial motion in limine. In denying the motion, the Court cited United States v. Giampa , 904 F.Supp. 235, 286 (D.N.J. 1995), and explained: "a practical evidentiary rule has developed whereby a co-conspirator's statement is conditionally admitted into evidence, subject to the Government's obligation to prove the conspiracy's existence and each conspirator's participation therein before the close of the Government's case." The Court evaluates whether the co-conspirator evidence is admissible pursuant to Rule 801(d)(2)(E) based on a preponderance of the evidence standard. Bourjaily v. United States , 483 U.S. 171, 176 (1987). In this case, even though the jury ultimately found Lignelli not guilty of the conspiracy charges, there was strong, independent evidence that each of the alleged conspiracies existed and that each alleged co-conspirator witness (and Lignelli) participated therein. In short, the government sufficiently "connected up" the Defendant to the conspiracies, such that mistrial is by no means warranted.
Defense counsel was permitted to vigorously cross-examine Pope regarding his lack of truthfulness, including his motivation to obtain early release from prison pursuant to Rule 35. The Court did correct the misimpression that defense counsel had left with the jury that the Court lacked the authority to grant the Rule 35 motion, but at no time did the Court undermine counsel's substantive attack on Pope's credibility. To the contrary, in its final jury instructions the Court cautioned the jury that the testimony of Pope (and other cooperating witnesses) should be viewed with "great care and caution." Moreover, there was no miscarriage of justice. The jury apparently did not find Pope credible as to the existence of a conspiracy. The elements of the bank fraud charges at Counts 2 and 3 were proven by other evidence, including the misrepresentations in the appraisal documents themselves, and were not dependent upon any testimony from Pope.
The prosecutor did not engage in improper bolstering of the credibility of his cooperating witnesses. The case cited by Defendant, United States v. Certified Environmental Services , 2014 WL 2198541 * 20 (2d Cir. May 28, 2014), is distinguishable because the "bolstering" in that case occurred in disregard of several admonitions from the Court and prior to any challenge from the defendant. In this case, the prosecutor properly responded to the credibility challenges from the defense by referring to the "truth telling" provisions in the cooperation agreements - as specifically approved in Certified Environmental Services . Id . at * 9-10; See also United States v. Walker , 155 F.3d 180, 187 (3d Cir. 1998) (vouching is improper if based on information not contained in the record); United States v. Vitillo , 490 F.3d 314, 329 (3d Cir. 2007) (prosecutors' conduct was improper because they emphasized that they had been personally present for witness' out-of-court confession of guilt and thus implied that such confession was credible). The jury in this case was not invited to trust the prosecutor's representations rather than to form its own assessments of credibility.
Finally, the Court adheres to its decision to deny Defendant's motion to sever trial, which was initially raised in September 2012 (ECF No. 31). As the Court ...