United States District Court, W.D. Washington, Seattle
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
S. Lasnik United States District Judge
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,
having heard oral argument on the motions, the Court denies
both motions for the reasons that follow.
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.
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.
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.
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).
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)).
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
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.
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.