United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
On January 10, 2014, a jury found defendant guilty of one count of conspiracy to encourage illegal aliens to reside in the United States for commercial advantage and private financial gain in violation of 18 U.S.C. § 371. This matter is before the Court on Defendant's Motion For Arrest Of Judgment & Judgment Of Acquittal (Doc. #220) and Defendant's Motion For A New Trial (Doc. #218), both filed January 24, 2014. For reasons stated below, the Court overrules defendant's motions.
I. Motion For Arrest Of Judgment
Defendant argues that the Court should arrest judgment because the indictment does not charge an offense. See Fed. R. Crim. P. 34(a)(1). Under Rule 34, 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." Id . Defendant maintains that the indictment alleges merely that defendant joined the conspiracy by "agreeing to be employed" by Advantage Framing, which is insufficient to charge a violation of 8 U.S.C. § 1324(a)(iv). Defendant went to trial only on the conspiracy count which does not require a substantive violation of Section 1342(a)(iv). The indictment properly alleges the elements of the crime of conspiracy under 18 U.S.C. § 371. Accordingly, the Court overrules defendant's motion for arrest of judgment.
II. Motion For Judgment Of Acquittal
In considering a motion for judgment of acquittal, the Court cannot weigh the evidence or consider the credibility of witnesses. See Burks v. United States , 437 U.S. 1, 16 (1978). Rather, the Court must view the evidence in the light most favorable to the government and determine whether the record contains sufficient evidence from which a jury might properly find defendant guilty beyond a reasonable doubt. United States v. White , 673 F.2d 299, 301 (10th Cir. 1982) (standard reflects "deep respect" for fact-finding function of jury). The jury may base its verdict on both direct and circumstantial evidence, together with all reasonable inferences that can be drawn therefrom. Id . Acquittal is proper only if the evidence implicating defendant is nonexistent or is so meager that no reasonable jury could find guilt beyond a reasonable doubt. Id .; see United States v. Brown , 995 F.2d 1493, 1502 (10th Cir. 1993) (evidence supporting conviction must be substantial and raise more than mere suspicion of guilt), overruled on other grounds by United States v. Prentiss , 256 F.3d 971 (10th Cir. 2001).
Defendant argues that the government presented insufficient evidence that he was guilty of conspiracy, either as a principal or as an aider and abettor. Defendant argues that agreeing to hire undocumented workers is not an agreement to encourage unlawful residence. See Defendant's Memorandum Of Law In Support Of His Motion Of Judgment Of Acquittal (Doc. #261) filed January 24, 2014 at 2. In ruling on a similar issue on defendant's pretrial motion to dismiss, the Honorable Judge J. Thomas Marten noted as follows:
The court agrees with the Eleventh Circuit that employment of undocumented individuals is not sufficient by itself to be encouragement. However, employment that is coupled with aggravating factors consistent with knowingly assisting such persons in maintaining illegal residence qualifies as illegal encouragement under § 1324(a)(1)(A)(iv).
The court now applies this standard to the facts alleged by the government. According to the government, Ovalle was a framing crew leader who managed a team of undocumented workers for Advantage. These workers used fake names and were apparently given false identification documents, facts the government alleges were known to management of Advantage, which shuffled out unlawful employees when the government learned of them. The government also alleges that Advantage intentionally failed to fill out and submit employment forms for several of its undocumented workers. Ovalle cashed checks written to him by Advantage, and he distributed the money to his crew. According to the indictment, these workers, including Ovalle, were told that if OSHA investigators conducted any inspections, they were to lie and tell the investigators that they worked for a subcontractor. The undocumented workers also allegedly ran drills for running and hiding from immigration officials.
Memorandum And Order (Doc. #182) at 15.
Defendant concedes that "his goal was to employ undocumented workers." Defendant's Reply To The Government's Response To The Motion For Judgment Of Acquittal And Supplemental Argument Regarding Jury Instructions (Doc. #253) filed March 18, 2014 at 11. Viewing the evidence in a light most favorable to the government, to encourage workers to maintain illegal residence in the United States, defendant conspired to take steps beyond mere employment of undocumented workers. The evidence at trial showed that (1) defendant was unlawfully present in the United States; (2) James Humbert, Kimberly Humbert and Charles Stevens worked with framing crew leaders including defendant and his brother to employ crew members without regard to their immigration status; (3) defendant received checks from Advantage and paid his crew members in cash; (4) defendant knew that his crew members were unlawfully present in the United States; (5) at the request of James Humbert, defendant allowed Jose Anuar Garcia-Rosas, who was not legally present in the United States and could not get liability insurance because he had no social security number, to use or "work under" defendant's insurance; (6) Advantage issued checks to defendant for work performed by Garcia-Rosas; and (7) Garcia-Rosas cashed the checks issued to defendant and in turn, paid defendant ten per cent as a fee for helping him.
The above evidence is more than sufficient to find defendant guilty as either a principal or an aider and abettor of the charged conspiracy. See United States v. Clark , 717 F.3d 790, 805 (10th Cir. 2013) (to support conspiracy charge, evidence need not show express agreement); United States v. Sells , 477 F.3d 1226, 1236 (10th Cir. 2007) (agreement requirement may be satisfied entirely through circumstantial evidence); see also United States v. Hamilton , 587 F.3d 1199, 1207 (10th Cir. 2009) (connection of defendant to conspiracy need only be slight, provided sufficient evidence establishes that connection beyond a reasonable doubt). Defendant is not entitled to a judgment of acquittal based on the sufficiency of the evidence.
III. Motion For A New Trial
Rule 33, Fed. R. Crim. P., provides that the Court may grant a motion for a new trial "if the interest of justice so requires." A motion for new trial under Rule 33 is not regarded with favor and is granted with great caution. United States v. Herrera , 481 F.3d 1266, 1269-70 (10th Cir. 2007); United States v. Trujillo , 136 F.3d 1388, 1394 (10th Cir. 1998). The decision whether to grant a motion for new trial is committed to ...