UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 v. 

MICHAEL DeMARCO, 

 Defendant. 

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Case No. 12-cr-00389-1 

Judge John W. Darrah 

MEMORANDUM OPINION AND ORDER

Defendant Michael DeMarco was convicted by a jury of one count of wire fraud, in 

violation of 18 U.S.C. § 1343, on June 20, 2013. Following his conviction, Defendant filed a 

motion for a new trial pursuant to Fed. R. Crim. P. 33 and a renewed motion for judgment of 

acquittal pursuant to Fed. R. Crim. P. 29. The Government filed a response opposing these 

Motions. Defendant was given the opportunity to file a reply but failed to do so. For the reasons 

stated below, Defendant’s Motions [43, 44] are denied. 

BACKGROUND

At trial, Michael Suarez, the victim, testified that Defendant helped him obtain a Chase 

Bank checking account, while Defendant worked at Chase as a branch manager. Suarez 

informed Defendant he was trying to sell his home and testified that Defendant told him that 

Chase Bank would purchase the home. According to Suarez, Defendant convinced him he 

needed a home equity line of credit to fix his home. Defendant convinced Suarez to complete 

paperwork that would help Suarez obtain a line of credit, and Defendant was present when 

Suarez obtained a line of credit. The bank employee handling the closing testified that Suarez 
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did not appear to fully understand what was happening during the closing. Suarez testified 

Defendant tried to keep him from reading the closing documents. 

Evidence introduced at trial demonstrated that the credit line documents listed Suarez’s 

home address as Defendant’s business address. Bank records showed the proceeds from the 

home equity line of credit were deposited into a joint bank account with Defendant’s business 

address on record, though Suarez testified he did not agree to open a joint checking account with 

Defendant. The parties stipulated that Defendant wired $245,000 from that joint account to his 

own checking account; this was reversed a day later, at which point Defendant withdrew 

$245,000 from the joint account and deposited the money into the joint checking account he held 

with his wife. 

Thereafter, Defendant controlled the funds from that credit line for his own benefit and 

spent almost 90 percent of the money on his own use. Suarez testified he did not consent to 

these transactions, but Defendant testified he believed he was acting with the full knowledge and 

consent of Suarez. FBI Special Agent Daniel McCune also testified that Defendant admitted that 

he lied to Suarez about having a buyer lined up for Suarez’s property and admitted he had 

wronged Suarez. 

LEGAL STANDARD 

Judgment of Acquittal

Federal Rule of Criminal Procedure 29 provides that 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.” Fed. R. Crim. P. 29(a). However, “[t]he court may reserve decision on the 

motion, proceed with the trial (where the motion is made before the close of all the evidence), 
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submit the case to the jury, and decide the motion either before the jury returns a verdict or after 

it returns a verdict of guilty . . . .” Fed. R. Crim. P. 29(b). In reserving this decision, a court 

must decide the motion for judgment of acquittal based on the evidence presented at the time the 

ruling was reserved. Id. 

To grant Defendant’s motion in this case, it must be shown that there was insufficient 

evidence to sustain a conviction of wire fraud, a crime which requires a showing that the 

defendant has “devise[d] any scheme or artifice to defraud, or for obtaining money or property 

by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be 

transmitted by means of wire, radio, or television communication in interstate or foreign 

commerce.” 18 U.S.C. § 1343. In order to obtain a judgment of acquittal under Rule 29, the 

defendant must show that “even drawing all inferences in the light most favorable to the 

government, no rational trier of fact could have found him guilty beyond a reasonable doubt.” 

United States v. Acosta, 534 F.3d 574, 591 (7th Cir. 2008) (citing United States v. Hendrix, 482 

F.3d 962, 966 (7th Cir. 2007)). 

Motion for a New Trial

Federal Rule of Criminal Procedure 33 provides that “the court may vacate any judgment 

and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). Under 

Seventh Circuit law, a new trial is necessary in situations where “the substantial rights of the 

defendant have been jeopardized by errors or omissions during trial.” United States v. Kuzniar, 

881 F.2d 466, 470 (7th Cir. 1989) (citation omitted); see also United States v. Van Eyl, 468 F.3d 

428, 436 (7th Cir. 2006) (stating that the defendant is entitled to a new trial if the trial error “had 

a prejudicial effect upon the jury’s verdict”). 
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ANALYSIS

Judgment of Acquittal

Defendant concedes he was with Suarez when he opened the line of credit; he also 

concedes he transferred funds from the line of credit to his own account, that he controlled these 

funds for his own benefit, and that Suarez testified that he did not consent to these transactions. 

(R. 29 Mot. ¶ 3.) However, Defendant contends that he believed he was acting with full 

knowledge and consent from Suarez and that there was insufficient evidence to prove no 

agreement between them existed. (R. 29 Mot. ¶¶ 3-4.) Defendant also argues that there is 

insufficient evidence to prove that he acted with the intent to defraud Suarez at the time of the 

wire transfer. (R. 29 Mot. ¶ 5.) 

 Defendant’s claims with respect to the evidence are unavailing. Defendant cannot meet 

the difficult burden that no rational trier of fact could have found him guilty beyond a reasonable 

doubt. A reasonable jury certainly could have considered the evidence presented at trial, 

particularly Suarez’s testimony that he did not agree to let Defendant use the credit line for his 

own personal use, and could have found Defendant guilty. 

 Defendant also claims there is insufficient evidence to prove that he acted with an intent 

to defraud at the time of the wire transfer. This assertion contradicts the evidence presented at 

trial and is an insufficient basis to grant a motion for judgment of acquittal. In United States v. 

Howard, the defendant was also accused of wire fraud or mail fraud and appealed the district 

court’s denial of her motion for judgment of acquittal, asserting that the government did not 

prove her intent to defraud. United States v. Howard, 619 F.3d 723, 726 (7th Cir. 2010). The 

Seventh Circuit held that: 

[I]ntent to defraud requires a wilful act by the defendant with the specific intent to 

deceive or cheat, usually for the purpose of getting financial gain for one's self or 
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causing financial loss to another. However, because direct evidence of a 

defendant's fraudulent intent is typically not available, specific intent to defraud 

may be established by circumstantial evidence and by inferences drawn from 

examining the scheme itself. 

Id. at 727 (internal quotations and citations omitted). Defendant provided no support for his 

assertion that the Government failed to offer sufficient evidence of his intent. By contrast, the 

evidence provided by the Government permitted, at the very least, for inferences to be drawn that 

Defendant intended to defraud Mr. Suarez. Therefore, this claim is unavailing and is an 

insufficient grounds to grant a motion for acquittal under Fed. R. Crim. P. 29. 

 Neither of Defendant’s asserted bases for an acquittal under Fed. R. Crim. P. 29. are 

adequate. Thus, considering the evidence presented by the Government at trial, a rational trier of 

fact could have found Defendant guilty beyond a reasonable doubt, and this Motion is denied. 

Motion for a New Trial

 Defendant separately moves for a new trial under Fed. R. Crim. P. 33, asserting the Court 

erred in evidentiary and other rulings at trial such that Defendant is entitled to a new trial. Each 

of these purported errors is addressed in turn. 

Confrontation of Witnesses 

 Defendant argues that the Court erred in restricting defense counsel’s cross-examination 

of Suarez. (R. 33 Mot. ¶ 1.) Defendant claims to have attempted to impeach Suarez on “a 

number of matters relating to his credibility and judgment”, but “[t]he Court found that these 

matters were collateral, and therefore impeachment as to these matters was improper.” (Id.) As 

a result, Defendant claims his Sixth Amendment right to confront witnesses against him has been 

violated. “The Sixth Amendment guarantees a defendant an opportunity for effective crossexamination, but there is no guarantee of cross-examination to whatever extent the defense might 
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wish.” United States v. Recendiz, 557 F.3d 511, 530 (7th Cir. 2009) (internal quotation and 

citation omitted). “A judge has broad discretion to place reasonable limits on crossexamination, based on concerns of, inter alia, confusion of the issues and relevance.” Recendiz, 

557 F.3d at 530; see also United States v. Reyes, 542 F.3d 588, 593 (7th Cir. 2008) (“Under the 

Confrontation Clause of the Sixth Amendment, a defendant must be given an opportunity for 

effective cross-examination. . . . If the ‘core values’ of the Confrontation Clause remain intact, 

we merely ensure that the district court's exercise of its wide discretion in limiting crossexamination was not abusive.” (citations omitted)). 

 Given the Court’s broad discretion to limit cross-examination to avoid issues of 

confusion and irrelevance, Defendant has not provided enough information to identify any 

prejudicial error on the part of the Court. Consequently, this claim does not provide an adequate 

basis for a new trial. 

Admission and Exclusion of Evidence 

 Defendant further asserts the Court improperly admitted evidence “of the defendant’s 

spending well after the relevant time period,” despite Defendant’s objection. (R. 33 Mot. ¶ 2.) 

The Government disagrees and contends Defendant never objected to the admission of this 

evidence. (Resp. Br. at 5.) Neither party submitted transcripts in support of their positions. 

 However, even assuming Defendant did object, the Government asserts that this evidence 

of Defendant’s “spending of the proceeds of the scheme for his own use and benefit is relevant to 

prove an element of the offense.” (Id. at 6.) That evidence supported the allegation that 

Defendant committed fraud by wire and thus “devise[d] any scheme or artifice to defraud, or for 

obtaining money or property by means of false or fraudulent pretenses, representations, or 
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promises, transmits or causes to be transmitted by means of wire, radio, or television 

communication in interstate or foreign commerce.” 18 U.S.C.A. § 1343. 

 Defendant also makes a corresponding claim that if the Government’s evidence of his 

spending after the relevant time period was properly admitted, Defendant’s evidence that he had 

been in negotiations with Bank of America to repay the money should also have been admitted. 

(R. 33 Mot. ¶ 2.) However, it is unclear how this evidence would have been used to support his 

defense that he did not intentionally commit wire fraud. The Seventh Circuit provides that 

evidence that is “only tangentially relevant” may be properly excluded. United States v. Hill, 40 

F.3d 164, 169 (7th Cir. 1994) (defendant claimed that a subsequent act of good conduct should 

have been admissible, but court ruled that this was only tangentially relevant to the issue and 

therefore inadmissible). In general, “[p]roof that a defendant acted lawfully on other occasions is 

not necessarily proof that he acted lawfully on the occasion alleged in the indictment.” United 

States v. Heidecke, 900 F.2d 1155, 1162 (7th Cir. 1990). 

 There was no clear error in the Court’s admission of the Government’s evidence of 

Defendant’s spending and the exclusion of Defendant’s evidence that he sought to repay Bank of 

America. Therefore, these evidentiary rulings are not appropriate grounds for a new trial. 

Evidence of Defendant’s Bankruptcy 

 Defendant contends the evidence of his 2009 bankruptcy proceeding should have been 

excluded under Federal Rule of Evidence 404(b) because its prejudicial effect outweighed its 

evidentiary value. (R. 33 Mot. ¶ 3.) Defendant also argues that this admission violated Federal 

Rule of Evidence 403 because it presented a danger of unfair prejudice, confusion as to the 

issues, or misleading the jury. (Id.) 
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 In response, the Government argues this evidence was proper because Defendant’s 

bankruptcy commenced a year after the scheme occurred. Defendant did not list the $245,000 he 

obtained from Suarez’s line of credit as either income or a debt to Suarez in an attempt to hide 

his scheme from the Government. His failure to list this $245,000 as income further 

demonstrates Defendant did not regard this money as legitimately earned income. Therefore, the 

Government reasons, the probative value outweighs any unfair prejudice to Defendant. 

In determining if evidence is admissible under Fed. R. Evid. 404(b), the court considers 

the following four factors: 

(1) the evidence is directed toward establishing a matter in issue other than the 

defendant's propensity to commit the crime charged, (2) the evidence shows that 

the other act is similar enough and close enough in time to be relevant to the 

matter in issue, (3) the evidence is sufficient to support a jury finding that the 

defendant committed the similar act, and (4) the evidence has probative value that 

is not substantially outweighed by the danger of unfair prejudice. 

United States v. Leahy, 464 F.3d 773, 797 (7th Cir. 2006). In this case, it is reasonable to 

maintain that the evidence of the exclusion of the income or debt from Defendant’s bankruptcy 

filing helps establish that the money from this scheme was not legitimate income. The exclusion 

of this scheme or transaction from Defendant’s bankruptcy filing is clearly relevant and, 

moreover, the probative value outweighs the danger of unfair prejudice to Defendant. 

The fourth factor touches on the concern “that jurors will decide that a defendant is guilty 

because they believe that he has a propensity for committing the charged crime or that he simply 

has a bad character, making him more likely to commit crime in general. When balancing 

prejudice against probative value, it is important to keep in mind that all relevant evidence is 

prejudicial and that evidence must be unfairly prejudicial in order for it to be inadmissible under 

this prong.” United States v. Howard, 692 F.3d 697, 707 (7th Cir. 2012) (emphasis in original). 
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Here, Defendant cannot demonstrate that evidence of his bankruptcy would have had an 

unfairly prejudicial, confusing, or misleading effect on the jury. This evidence relates directly to 

the scheme at issue at trial and is probative of whether or not Defendant believed the income he 

earned was legitimate. This is, therefore, not an appropriate basis for a new trial. 

Jury Instructions 

 Defendant next argues that the Court included a jury instruction that improperly 

broadened the grounds for conviction. (R. 33 Mot. ¶ 5.) However, Defendant fails to identify to 

which jury instruction he refers. A careful review of the instructions provided in writing to the 

jury, which followed the Seventh Circuit Pattern Jury Instructions, does not elucidate an 

instruction that, as Defendant describes, “allowed the jury to convict the defendant if it found 

that he had committed any financial act with the requisite criminal intent.” (Id.) Defendant was 

given the opportunity to further address this point on reply and failed to do so. Accordingly, this 

basis for a new trial is rejected. 

Closing Arguments 

 Finally, Defendant asserts that the Government made an improper closing argument that 

“the defense was insufficient in part because the defendant could not provide details regarding 

the builder he claimed to have engaged as a potential buyer of Mr. Suarez’ property” and that 

this statement improperly shifted the burden of proof to the defendant. (R. 33 Mot. ¶ 6.) It is 

clear that “in a criminal trial the burden of proof as to all elements remains on the government.” 

United States v. Miller, 199 F.3d 416, 422 (7th Cir. 1999). Here, the Government contends it 

made its statements simply to emphasize its position that there was never actually a developer 

who sought to purchase the property, but that rather, Defendant manufactured the idea of an 

interested developer to defraud Suarez. While neither side provided a transcript to ascertain the 
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exact language used, “improper comments during closing argument rarely rise to the level of 

reversible error.” Willis v. Lepine, 687 F.3d 826, 834 (7th Cir. 2012) (internal quotations 

omitted). It is improbable that such a statement would have had the effect of shifting the burden 

of proof in the minds of the jurors. 

Furthermore, the jury was specifically instructed on the requisite burden of proof and also 

instructed that “[t]he lawyers’ statements and arguments are not in evidence.” Jurors are 

presumed to be able to follow these instructions. Stollings v. Ryobi Technologies, Inc., 725 F.3d 

753, 769 (7th Cir. 2013). For these reasons, the Government’s statements during closing 

argument do present a sufficient basis for a new trial. 

CONCLUSION

For the reasons set forth above, Defendant’s Motion for Judgment of Acquittal [44] and 

Motion for a New Trial [43] are denied. 

Date: November 12, 2013 ______________________________ 

 JOHN W. DARRAH 

 United States District Court Judge