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United States v. Fox

United States District Court, W.D. Washington, Seattle

June 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BINGHAM FOX, Defendant.

          ORDER DENYING BINGHAM FOX'S MOTION FOR A NEW TRIAL PURSUANT TO FED. R. CRIM. P. 33 AND MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO FED. R. CRIM. P. 29

          Robert S. Lasnik United States District Judge

         This matter comes before the Court on the motion of defendant Bingham Fox for a new trial pursuant to Fed. R. Crim. P. 33, Dkt. # 183, and defendant's motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29, Dkt. # 185. Having reviewed the memoranda and exhibits submitted by the parties, as well as the remainder of the record in this case, [1] and having heard oral argument on the motions, the Court denies both motions for the reasons that follow.

         I. BACKGROUND

         Defendant Bingham Fox was charged with one count of conspiracy to defraud the United States by violating the Clean Water Act and the Act to Prevent Pollution from Ships (under 18 U.S.C. § 371) and one count of Clean Water Act discharge of oils (under 33 U.S.C. § 1319(c)(2)(A), 33 U.S.C. § 1321(b)(3), 18 U.S.C. § 2, and 40 C.F.R. § 110.3). The government alleged that Bingham Fox and his son, Randall Fox, knowingly operated Bingham Fox's boat, the F/V Native Sun, without a functioning system to separate oily water from water, knowingly discharged oil into navigable waters in potentially harmful quantities, and conspired to conceal any visible oil by discharging detergent into the affected waters. Dkt. # 4 at 5.

         Over the course of five days between March 21 and March 29, 2017, defendant was tried before a jury. On March 30, 2017, after deliberating for just under five hours, the jury found defendant not guilty of conspiracy but guilty of violating the Clean Water Act. Dkt. ## 173, 177.

         On April 10, 2017, defendant filed this motion for a new trial pursuant to Fed. R. Crim. P. 33, on the grounds that the government committed prosecutorial misconduct at trial and that the evidence was insufficient to support his Clean Water Act conviction. Dkt. # 183. Defendant also moved for a judgment of acquittal on the same sufficiency grounds. Dkt. # 185. The government opposes both motions. Dkt. # 191.

         II. DISCUSSION

         Federal Rule of Criminal Procedure 29(a) provides that “[a]fter the government closes its evidence or after the close of all the 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 evaluates the sufficiency of the evidence independently. Fed. R. Crim. P. 29(a). The defendant may renew his motion for a judgment of acquittal within fourteen days after a guilty verdict is returned. Fed. R. Crim. P. 29(c)(1). When assessing a motion under Rule 29, the Court asks whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

         Federal Rule of Criminal Procedure 33(a) provides 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.” The Court's power to grant a motion for a new trial is much broader than its power to grant a motion for judgment of acquittal; it need not view the evidence in the light most favorable to the verdict, and it may weigh the evidence and independently evaluate the credibility of the witnesses. United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992). “If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.” Id. at 1211-12 (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)).

         Because the Court's analysis under Rule 33 is broader than its analysis under Rule 29, the Court first addresses defendant's Rule 33 motion. Finding no grounds to order a new trial even under Rule 33's more liberal standard, the Court accordingly denies defendant's Rule 29 motion, as well.

         Pursuant to Rule 33, defendant requests a new trial on the following grounds: (1) the government committed prosecutorial misconduct, causing an unfair trial; (2) the weight of the evidence is against the verdict, as the government failed to prove the “knowledge” element of the Clean Water Act charge beyond a reasonable doubt; and (3) the interests of justice require the Court to grant a new trial. This order addresses each in turn.

         A. Prosecutorial Misconduct

         Defendant argues that the government committed three separate kinds of prosecutorial misconduct in its closing argument. Specifically, he claims that the government improperly shifted the burden of proof to defendant; that it misrepresented whether certain evidence existed; and that it misstated certain evidence in the record. In evaluating allegations of prosecutorial misconduct, the Court asks whether the government's actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Hein v. Sullivan, 601 F.3d 897, 912 (9th Cir. 2010) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Factors to consider include whether the comment misstated the evidence, whether the Court admonished the jury to disregard the comment, whether the comment was invited by defense counsel in its summation, whether defense counsel had an adequate opportunity to rebut the comment, and the prominence of the comment in the context of the entire trial and the weight of the evidence. Id. at 912-13.

         1.) The ...


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