https ecf alnd uscourts gov cgi bin show temp pl file 1847522 0 LM by lJt41jZz


                                                                                   2009 Nov-16 PM 03:22
                                                                                   U.S. DISTRICT COURT
                                                                                        N.D. OF ALABAMA


UNITED STATES OF AMERICA                       )
      v.                                       )    2:08-CR-00245-LSC-PWG
LARRY P. LANGFORD                              )

                     MOTION FOR NEW TRIAL &

      Comes now the United States of America, by and through undersigned
counsel, and hereby files its Opposition to the Defendant’s Motion for New Trial
and Renewed Motion for Judgment of Acquittal.

The Applicable Legal Standards

       Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, a judgment
of acquittal in the face of a jury finding of guilt is an extraordinary remedy that
should be granted only in rare circumstances. In reviewing a motion brought under
Rule 29(c), the Court must view the evidence in the light most favorable to the
government, with all reasonable inferences and credibility choices made in the favor
of supporting the jury’s verdict. United States v. Descent, 292 F.3d 703, 706 (11th
Cir. 2002); United States v. Miles, 290 F.3d 1341, 1355 (11th Cir. 2002). A
conviction should be disturbed only where the Court finds that a reasonable

fact-finder could not – as a matter of law – find proof of guilt beyond a reasonable
doubt. United States v. Anderson, 289 F.3d 1321, 1325 (11th Cir. 2002); United
States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001). In this regard,

      It is not necessary that the evidence exclude every reasonable hypothesis of
      innocence or be wholly inconsistent with every conclusion except that of
      guilt, provided that a reasonable trier of fact could find that the evidence
      established guilt beyond a reasonable doubt. A jury is free to choose among
      the constructions of the evidence.

United States v. Battle, 892 F.2d 992, 998 (11th Cir. 1990).

       Rule 33 of the Federal Rules of Criminal Procedure provides that “upon
motion of the defendant, the Court may grant a new trial as to that defendant if the
interests of justice so require.” While a district court’s inquiry under Rule 33 is
somewhat broader than under Rule 29, United States v. Martinez, 763 F.2d 1297,
1312 (11th Cir. 1985) (court may weigh evidence and consider witness credibility
under Rule 33), the court’s discretion is not without limits. The court may not
reweigh the evidence and set aside the verdict simply because it feels that some
other result wold be more reasonable. United States v. Cox, 995 F.2d 1041, 1043
(11th Cir. 1993). Rather, in order for a court to grant a new trial “[t]he evidence
must preponderate heavily against the verdict, such that it would be a miscarriage
of justice to let the verdict stand.” United States v. Fernandez, 905 F.2d 350, 352
(11th Cir. 1990). Motions on this basis are not favored, and courts should “grant

them sparingly and with caution, doing so only in those really ‘exceptional cases.’”
Martinez, 763 F.2d at 1313.

The Defendant Fails to Meet the Standard of Rule 33 or Rule 29

       With respect to each of his asserted grounds for granting a new trial and/or
entering a judgment of acquittal, the Defendant fails to meet the legal standard.
His contentions are addressed in turn.

      Paragraph 1 of Defendant’s Motion

      The Defendant’s assertion that the Court erroneously excluded evidence that
the Defendant “gave things not just to Mr. Blount, but to many others, besides Mr.
Oden, and not just the things given him by Blount” fails to meet the standard for a
new trial or a judgment of acquittal. The proffered evidence was improper
character evidence and unrelated to the offenses charged in the indictment.

      First, the testimony which the Defendant sought to elicit from Mr. Oden
regarding the Defendant’s gift-giving nature would have been improper character
evidence. Rule 404(a) of the Federal Rules of Evidence establishes the general
proposition that evidence of an accused’s character or a trait of a character is not
admissible for the purposes of proving action in conformity therewith on a

          The references to and discussion of the trial proceedings that follow are set
forth without the benefit of a trial transcript.

particular occasion. See In re Sealed Case, 352 F.3d 409, 412 (D.C. Cir. 2003).
The United States filed (and the Defendant did not oppose) a pre-trial motion to
exclude improper character evidence unless the evidence met one of Rule 404(a)’s
well-established and narrow exceptions.

       Second, although the Defendant argues in the motion that the testimony
should have been admitted under Rule 404(b), whether the Defendant frequently
gave gifts to others is immaterial. When questioned outside the presence of the
jury, Mr. Oden was unable to connect any of the gifts that he received from the
Defendant to any particular merchandise that the Defendant received from Mr.
Blount. The witness could only recall the origin of one suit which was from a store
where Blount purchased items for the Defendant. However, the witness was unable
to provide any details regarding when he received this item or provide any
description of the item. Even assuming, arguendo, that the Defendant gave some of
the merchandise he received to others, such evidence has no bearing on the conduct
charged in the indictment. Whether the Defendant intended to keep, sell, or give
away any of the items that he received from Mr. Blount was not an issue

         The United States notes that the Court did permit the Defendant to present
evidence that the Defendant gave gifts to his co-conspirator, William Blount, to
support the Defendant’s arguments that the bribes money and merchandise the
Defendant received were gifts between the two men, not bribes.

for the jury to consider. The only issue before the jury was whether the Defendant
received the items intending to be influenced or rewarded in connection with the
Jefferson County bond and swap transactions. Accordingly, because the evidence
from Mr. Oden was both improper character evidence and irrelevant to any issue
for the jury, this evidence was properly excluded.

      Paragraphs 2 through 6 of Defendant’s Motion

        In challenging the guilty verdict on the mail and wire fraud charges, the
Defendant selectively references trial exhibits and selectively cites the statutory
language at issue. Notwithstanding these efforts, the entire record, which includes
documentary and testimonial evidence, amply supports the jury’s verdict of guilt on
all fraud charges against the Defendant.

        The United States Code proscribes a scheme or artifice to defraud, or for
depriving another of the intangible right of honest services, or for obtaining money
or property by means of false or fraudulent pretenses, representations, or promises.
Under controlling case law, and as the jury was correctly instructed, the statutory
proscription includes schemes executed by means of half-truths, as well as the
omission of, concealment of, or failure to disclose material facts. See United States
v. Gray, 367 F.3d 1263, 1271 (11th Cir. 2004) (citing approvingly jury instruction
that stated a “representation may also be false or fraudulent when it constitutes a

half truth or effectively conceals a material fact”); United States v. Hasson, 333

F.3d 1264, 1270-71 (11th Cir. 2003) (“A scheme to defraud requires proof of
material misrepresentations, or the omission or concealment of material facts.”)
(citations omitted) (emphasis added); United States v. DeVegter, 198 F.3d 1324,
1328 (11th Cir. 1999) (“taking kickbacks or benefitting from an undisclosed
conflict of interest will support the conviction of a public official for depriving his
or her constituents of the official’s honest services because . . . [w]hen official
action is corrupted by secret bribes or kickbacks, the essence of the political
contract is violated.”) (internal citations omitted).

       As the evidence at trial established, the Defendant, aided and abetted by
William B. Blount and Albert LaPierre, executed a scheme and artifice to defraud
that included (i) the Defendant failing to disclose the things of value (including
cash, luxury clothes, and jewelry) that he obtained from Blount, and (ii) the
Defendant using his official position to get Blount Jefferson County business and
concealing Blount’s swap transaction fees by keeping those fees out of the
Confirmation documents (which included the deceptively incomplete section
entitled “Fees”). Testimony at trial from Steve Saylor, Finance Director for
Jefferson County, as well as Norm Davis and Kelly O’Donnell, financial advisors
from National Bank of Commerce, further corroborated the nondisclosure,

concealment, and half-truths. The side letters that included Blount’s fee
information were received by the Defendant, who thereby controlled the
dissemination of this material information so that the internal and external financial
advisors he selected, his fellow commissioners, and the public would remain in the


         The Defendant (Motion at 4-5) attempts to categorize his 2006 Ethics Form

(filed September 21, 2007) as a “non-statement” or “non-representation” because of
when the Forms were filed and based on the legal argument that he was not required
to make the disclosure. The Ethics Form and letter signed by the Defendant did
contain false statements asserting that the cash installments he received from Blount
through LaPierre back in 2003 were “loans.” The Defendant elected to make these
false statements much as he elected to make false statements to the Securities and
Exchange Commission. Like his SEC testimony, the Ethics Forms were probative
of his intent to defraud, and his corrupt intent, which were elements of the fraud and
bribery counts respectively.

          The Defendant (Motion at 4) inexplicably equates the class of documents a

member of the public could request and receive from the County with the class of
documents held in the files of the County that must be produced in response to a
grand jury subpoena. He asserts, without authority, that the location of the side
letter in any County file, including that of Commission President, would necessarily
mean that a member of the public could obtain it. To the contrary, Steve Saylor
explained that the Confirmation documents were the documents available to the
public. Other financial advisors, Norm Davis and Kelly O’Donnell, testified that
they had no knowledge of the Blount fees in the side letters that the Defendant
signed and acknowledged he received. Thus the contention that the location of the
side letters could be exculpatory is specious at best.

      Paragraphs 7 through 10 of Defendant’s Motion

       At Paragraphs 7 through 10 of his Motion, the Defendant again challenges the
legal standards applicable to the bribery charges, and claims that the evidence did
not support the verdict of guilt. First, the Defendant claims that the jury should
have been instructed that the cash, luxury clothing and jewelry he received from
Blount could have been conferred for the purpose of “generating good will.”
(Motion at 5). The Defendant cites no authority for this contention, and indeed the
case law that discusses even obliquely the concept of engendering good will with a
public official concerns campaign contributions. See generally McCormick v.
United States, 500 U.S. 257 (1991) (discussing whether and under what
circumstances donations received in the course of an election campaign can be
rendered criminal under the Hobbs Act). There was absolutely no basis in the
record to conclude that the cash, luxury clothes, and jewelry the Defendant received
from Blount were campaign contributions. Indeed, the Defendant presented
evidence in his own case that the cash he received was a personal loan guaranteed
by personal property, not a campaign contribution.

      In paragraphs 8-10, the Defendant renews his argument that bribery is
nothing more than the “buyer-seller” relationship, and therefore cannot support a
charge of conspiracy. The Defendant made this argument in a motion to strike

(Doc. 62), which the United States opposed (Doc. 81). The United States
incorporates by reference the legal authority and arguments from that opposition. In
summary, in cases where the buyer was merely buying drugs without more, courts
have concluded there was insufficient evidence of a conspiracy with the seller of the
drugs. See, e.g., United States v. Mercer, 165 F.3d 1331 (11th Cir. 1999); United
States v. Dekle, 165 F.3d 826 (11th Cir. 1999). However, the evidence in this case
could not be farther removed from the cases the Defendant cites. The evidence
proved that the Defendant, with Blount and LaPierre, engaged in a continuous, long
running course of conduct based on their jointly conceived and executed plan and
scheme for Blount and LaPierre to provide personal benefits and things of value to
the Defendant in connection with a series of official actions related to bond and
swap transactions. There was ample evidence to support the jury’s verdict of guilt
on the conspiracy charge.

      Paragraph 12 of Defendant’s Motion

       The Defendant argues that certain evidence regarding the Defendant’s credit
card applications at National Bank of Commerce should not have been admitted
because there was not a “proper custodian of records” and the records constituted

      The evidence presented at trial established that Kelly O’Donnell was an

appropriate witness to introduce the records and testify that they fell within the

business records exception to the hearsay rule. Rule 803(6) of the Federal Rules of

Evidence provides that evidence shall not be excluded as hearsay if it is a:

             memorandum, report, record, or data compilation, in any
             form, of acts, events, conditions, opinions, or diagnoses,
             made at or near the time by, or from
             information     transmitted    by,    a    person    with
             knowledge, if kept in the course of a regularly
             conducted business activity, and if it was the regular
             practice of that business activity to make             the
             memorandum, report, record or data compilation, all as
             shown by the testimony of the custodian or other
             qualified witness.

FRE 803(6) (emphasis added).

      The Advisory Committee Note to FRE 803(6) as clarified by the 1974

amendments states:

             It is the understanding of the committee that the use of the
             phrase “person with knowledge” is not intended to imply
             that the party seeking to introduce the memorandum, report,
             record, or data compilation must be able to
             produce, or even identify, the specific individual upon
             whose first-hand      knowledge        the     memorandum,
             report, record or data compilation was based. A
             sufficient foundation for the introduction of such
             evidence will be laid if the party seeking to
             introduce the evidence is able to show that it was the
             regular practice of the activity to base such
             memorandums, reports, records, or data complications upon
             a transmission from a person with knowledge. . . . In short,
             the scope of the phrase “person with knowledge” is meant to
             be coterminous with the custodian of the evidence or
             other qualified witness. The committee believes
             this represents the desired rule in light of the complex
             nature of modern business organizations.

       The evidence established that Ms. O’Donnell was familiar with the customs
and practices of the National Bank of Commerce and that the records introduced
through her testimony at trial were made and kept in the bank’s regular course of
business. Ms. O’Donnell was designated custodian of the records by the bank and
produced the response to the grand jury subpoena for the documents. Although
Ms. O’Donnell was not personally familiar with the details of each of those records,
FRE 803(6) does not require that the witness have personal knowledge. See United
States v. Jones, 554 F.2d 251, 252 (5th Cir. 1977) (“It is not essential that the
offering witness be the recorder or even be certain of who recorded the item. It is
sufficient that the witness be able to identify the record as authentic and specify that
it was made and preserved in the regular course of business.”); see also United
States v. Franks, 939 F.2d 600, 602 (8th Cir. 1991) (“Rule 803(6) is satisfied if the
custodian demonstrates that a document has been prepared and kept in the course of
a regularly conducted business activity.”) (citations omitted).

         The Defendant’s Motion fails to identify precisely how any of the bank’s
business records admitted into evidence constitute hearsay within hearsay.

      Paragraph 13 of Defendant’s Motion

       In one sentence, without citation or embellishment, the Defendant asserts that
he is entitled to a new trial because the United States asked during rebuttal closing:
If a man will lie to his wife to cover up a little spending, what will he do when he
presents a defense to a jury when he is charged with crimes? Because the
prosecutor’s closing argument did not encourage the jury to consider the
Defendant’s silence as evidence of guilt, the prohibition against government
comment on the Defendant’s exercise of his right not to testify was not violated.

        A prosecutor’s statement violates the Defendant’s right to remain silent only
if (1) the statement was manifestly intended to be a comment on the Defendant’s
failure to testify; or (2) the statement was of such a character that a jury would
naturally and necessarily take it to be a comment on the failure of the Defendant to
testify. United States v. Thompson, 422 F.3d 1285, 1297-1300 (11 Cir. 2005);
United States v. Knowles, 66 F.3d 1146, 1162-63 (11 Cir. 1995). The Court
cannot find that the prosecutor manifestly intended to comment on the Defendant’s
failure to testify if some other explanation for his remark is equally plausible.

          Although the United States has not yet obtained the trial transcript, it is
believed that these words are substantially, if not precisely, the prosecutor’s
comment. The sentiment in these words certainly is what the prosecutor intended
to convey.

United States v. Swindall, 971 F.2d 1531, 1551-52 (11 Cir. 1992); United States v.
Rochan, 563 F.2d 1246, 1249 (5 Cir. 1977). Moreover, the question is not
whether the jury possibly or even probably would view the remark as a comment on
the Defendant’s failure to testify, but whether the jury necessarily would have done
so. Knowles, 66 F.3d at 1163; Swindall, 971 F.2d at 1552. The Defendant bears
the burden of establishing the existence of one of the two criteria, Knowles, 66 F.3d
at 1163; Swindall, 971 F.2d at 1551, and the comment must be examined in context
in order to evaluate the prosecutor’s motive and to discern the impact of the
statement, United States v. Robinson, 485 U.S. 25, 31-33 (1988); Knowles, 66 F.3d
at 1163.

       The Defendant presented a defense to the charges through cross-examination
and the presentation of witnesses and documents. For approximately ninety
minutes of closing argument, the Defendant’s lawyers attacked the United States’
witnesses and evidence, asserting that the Defendant should be acquitted for various
reasons. One defense lawyer argued that the Defendant lacked the requisite
criminal intent because his acceptance of expensive clothing, fancy jewelry, and
cash/checks from Blount was the result of an out of control spending compulsion.
In furtherance of this theory, and to explain damaging evidence of a secret bank
account through which the Defendant laundered the cash/checks he
received from Blount, the defense argued that the Defendant lied to his wife and
set up the bank account to hide his spending.

       During rebuttal closing, the United States addressed the defense arguments in
several ways, including questioning whether the defense offered by the Defendant
was believable, particularly in light of the admission that the Defendant lied to his
wife about his spending. It was a fair response to ask whether a man who
admittedly lies to his wife about a little spending would present a false defense to a
jury to avoid criminal convictions. When the challenged comment was made, there
was no objection. The jury was instructed that their verdict must be based solely
on the evidence presented in court and that the lawyers’ arguments are not

        The prosecutor’s remark was intended solely as a comment on whether the
jury should believe the defense offered on behalf of the Defendant, a meaning
evident from the words the experienced prosecutor carefully chose (If a man will
lie to his wife to cover up a little spending, what will he do when he presents a
defense to a jury when he is charged with crimes?). The Eleventh Circuit has
repeatedly held that a defendant’s fifth amendment privilege is not infringed by a
comment on the failure of the defense, as opposed to the defendant, to counter the
United States’ evidence. Knowles, 66 F.3d at 1163; United States v. Exarhos, 135
                  th                                                                   th
F.3d 723, 728 (11 Cir. 1998); United States v. Chirinos, 112 F.3d 1089, 1100 (11
Cir. 1997); United States v. Norton, 867 F.2d 1354, 1364 (11 Cir. 1989)(citations
omitted); United States v. Griggs, 735 F.2d 1318, 1321 (11 Cir. 1984). Contrary
to the Defendant’s strained interpretation, the argument was not a request that the
jury speculate on what the Defendant might have said had he testified.

        The Defendant also has failed to prove that the jury necessarily took the
statement to be a comment on the Defendant’s failure to testify. Because the
comment obviously is a comment about whether the defense should be accepted,
the jury could only have interpreted the prosecutor’s remark as he intended. The
Court of Appeals “has been slow to find a necessarily improper understanding on
the part of the jury,” Rochan, 563 F.2d at1250, and this is not the exceptional case
for doing so.

      Paragraph 14 of Defendant’s Motion

       In this paragraph, the Defendant argues that Court improperly instructed the
jury regarding the tax fraud counts. The Motion incorrectly states that the Court
instructed the jury “that the intent of the giver determined whether something
conferred on the taxpayer was reportable taxable income or a non-reportable non-
taxable.” (Motion at 8). The jury was never so instructed. With respect to what
should be considered income, the Court instructed the jury as follows:

             Under the Internal Revenue Code, “gross income” includes
             all    income      from     whatever      source    derived,
             unless specifically        excluded.       Gross     income
             includes     income resulting from the payment of a
             kickback or other illegal income. Additionally, the
             Internal Revenue Code provides that gross income “does
             not include the value of property acquired by gift,
             bequest, devise, inheritance, or legitimate loans.”

             A “gift” is a payment which proceeds from a detached and
             disinterested     generosity,   out      of        affection,
             respect, admiration, charity or like impulses. If
             the payment proceeds primarily from the constraining
             force of any moral or legal duty or from the incentive of
             anticipated benefit of an economic nature, it is not a gift.

(Doc. 172 at 31-32).

      “The purpose of jury instructions is to give the jury a clear and concise

statement of the law applicable to the facts of the case.” Christopher v. Cutter

Labs., 53 F.3d 1184, 1194 (11th Cir. 1995) (citing Pesaplastic, C.A. v. Cincinnati

Milacron Co., 750 F.2d 1516, 1525 (11th Cir. 1985)). “It is common in tax crime

prosecutions for the court to instruct the jury on the meaning of tax law terms

implicated by the particular facts of a case.” United States v. Mikutowicz, 365 F.3d

65, 69 (1st Cir. 2004). The Court’s instructions to the jury regarding the law
related to the definitions of gross income and gift were correct and proper. The

Internal Revenue Code defines gross income as “all income from whatever source

derived” except as otherwise provided by a provision of the Code. 26 U.S.C. §

61(a)). The Internal Revenue Code further provides that gross income “does not
include the value of property acquired by gift, bequest, devise, or inheritance.” 26
U.S.C. § 102(a)). Furthermore, in Commissioner v. Duberstein, the Supreme Court
held that a gift is a payment which “proceeds from a detached and disinterested
generosity, out of affection, respect, admiration, charity or like impulses.” 363 U.S.
278, 285 (1960) (citations omitted).

      Paragraph 16 of Defendant’s Motion

        The speed with which the jury reached its verdict is not a basis for a new
trial or judgment of acquittal. Although there appears to be no law from the
Eleventh Circuit Court of Appeals directly on point, other circuits which have
addressed this issue have held that there is no minimum time that a jury must
deliberate to reach a verdict. See United States v. Anderson, 561 F.2d 1301, 1303
(9th Cir. 1977) (per curiam) (“no established rule that any specified time is
required to reach unanimity . . . jury may have thought there was not even a
shadow of doubt as to guilt.”); see also United States v. Lawrence, 405 F.3d 888,

905 (10th Cir. 2005) (district court did not abuse its discretion in refusing to grant a
new trial where jury deliberated two hours and fifteen minutes after a four-week
trial); United States v. Dolan, 120 F.3d 856, 870 (8th Cir. 1997) (defendant not
entitled to new trial based on fact that jury deliberated two hours); United States v.

Peñagaricano-Soler, 991 F.2d 833, 846 (1st Cir. 1990) (conviction not due to be
set aside where trial lasted five weeks and jury deliberated four hours).

        Even the Defendant acknowledges that the speed of the jury’s verdict is
susceptible to multiple interpretations (Motion at 9). The Defendant notes that the
speed of the jury’s verdict “may indicate the strength of the case.” Id. Indeed, it
may also be the product of the presentation of evidence. The use of courtroom
technology facilitated exhaustive examination of documents with the witnesses and
enabled the jury to see exhibits for themselves during the United States’ case (and
the Defendant’s case). In addition, demonstrative evidence used by both sides
illustrated and summarized a variety of issues for the jury. Other than mere
speculation, the Defendant presents no evidence for this Court to grant the
Defendant’s request for relief on the basis of jury deliberations.

      Paragraphs 11, 15 and 17 of Defendant’s Motion

       In paragraphs 11, 15, and 17 of his motion, the Defendant challenges the
sufficiency of the evidence initially as to the fraud, bribery, and conspiracy charges
and ultimately as to “each and every element of each and every count.” (Defendant’s
Motion at Paragraph 17.) There was more than sufficient evidence from which the
jury reasonably could, and did, conclude that the Defendant was guilty of each of
the 60 charges including fraud, bribery, and conspiracy. As

discussed above, the fraud and bribery objects of the conspiracy were legally
sufficient and the case law cited by the Defendant, United States v. Pendergraft, 297
F.3d 1198 (11th Cir. 2002), is inapposite. Accordingly, the Court properly denied
the Defendant’s motion for a judgment of acquittal at the close of the United States’
case and the renewed motion for a judgment of acquittal the close of the evidence.

       A conviction cannot be overturned based on insufficient evidence “unless no
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Wright, 392 F.3d 1269,1273 (11th Cir. 2004)
(internal quotation and citation omitted). The court “must accept a jury’s inferences
and determinations of witness credibility.” Id. (citing United States v. Glinton, 154
F.3d 1245, 1258 (11th Cir. 1998)). “It is not necessary for the evidence to exclude
every reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt . . . .” United States v. Garcia, 447 F.3d 1327, 1334
(11th Cir. 2006) (internal quotation and citations omitted). “The jury is free to
choose between or among the reasonable conclusions to be drawn from the evidence
presented at trial, and the court must accept all reasonable inferences and credibility
determinations made by the jury.” Id. (internal quotation marks and citation
omitted). Contrary to the Defendant’s

assertions, the evidence here was sufficient for the jury to determine that he was
guilty of fraud, bribery, and conspiracy as discussed above. Based on the evidence
presented, “there is nothing unreasonable about the jury’s choice.” United States v.
Anderson, 289 F.3d 1321, 1326 (11th Cir. 2002).

       Viewing the evidence in the light most favorable to the government, there
was ample evidence from which the jury concluded beyond a reasonable doubt that
the Defendant was guilty of all of the charged crimes including fraud, bribery, and
conspiracy. The court agreed that the evidence was sufficient when the Defendant
renewed his motion for judgment of acquittal at the conclusion of the presentation of
evidence. “After weighing the evidence and determining the witnesses’ credibility,
the jury found [Langford] guilty.” United States v. Billue, 994 F.2d 1562, 1565
(11th Cir. 1993). The Defendant has provided no basis for this court to overrule the
verdict. Accordingly, his motion for judgment of acquittal and/or a new trial is due
to be denied.

                                   Respectfully submitted,

                                   JAMES E. PHILLIPS
                                   Attorney for the United States
                                   Acting Under Authority Conferred by 28 U.S.C. § 515

/s/                                /s/
Assistant United States Attorney   Assistant United States Attorney

/s/                                /s/
Assistant United States Attorney   United States Attorney

                          CERTIFICATE OF SERVICE

       I certify that on November 16, 2009, I filed this document electronically
with the United States District Court for the Northern District of Alabama using
the CM/ECF system and thereby caused a copy to be served on Defendant’s
counsel of record.

                                        TAMARRA MATTHEWS JOHNSON
                                        Assistant United States Attorney


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