1The motions to be decided are McBirney’s February 3, 2006

motion for arrest of judgment, February 3, 2006 motion for judgment

of acquittal notwithstanding the verdict or in the alternative

motion for new trial, May 4, 2006 supplemental motion for judgment

of acquittal notwithstanding the verdict or in the alternative

motion for new trial, and May 4, 2006 supplemental motion for

arrest of judgment. Briefing on the motions concluded July 13,

2006.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

 §

Plaintiff, §

 § Criminal No. 3:04-CR-059-D

VS. §

 §

EDWIN T. McBIRNEY, III, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

Following his convictions by a jury on multiple counts of mail

fraud, making a false statement in a matter within the jurisdiction

of the Judicial Branch of the United States, and concealment of

assets from the Federal Deposit Insurance Corporation (“FDIC”), and

one count of money laundering, defendant Edwin T. McBirney III

(“McBirney”) moves for arrest of judgment, for judgment of

acquittal notwithstanding the verdict, or for a new trial.1

 Except

for counts 13 and 22, as to which the court grants the motion and

supplemental motion for judgment of acquittal notwithstanding the

verdict, the court denies the motions.

 

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2

The indictment also included forfeiture allegations.

- 2 -

I

Before Sunbelt Savings Association of Texas (“Sunbelt”)

failed, McBirney was its Chief Executive Officer. In civil and

criminal cases related to Sunbelt’s demise, McBirney was ordered to

make certain payments to the FDIC, as Sunbelt’s receiver. Pursuant

to a settlement agreement in the civil case, Federal Deposit

Insurance Corp. v. McBirney, No. 3:89-CV-2295-X (N.D. Tex.), the

FDIC obtained a judgment against McBirney for $8.5 million plus

interest. In the criminal case, United States v. McBirney, No.

3:90-CR-171-T (N.D. Tex.), McBirney pleaded guilty to four felony

counts, including bank fraud. The court sentenced McBirney to 15

years’ imprisonment and ordered him to pay $7.5 million in

restitution. The criminal judgment provided that payments made on

the civil judgment would be credited against the restitution

obligation. The court later reduced McBirney’s sentence to five

years’ imprisonment and five years’ probation.

In the present case, the grand jury handed up a 27-count

superseding indictment (“indictment”) that charged McBirney with

multiple counts of mail fraud, making a false statement in a matter

within the jurisdiction of the Judicial Branch of the United

States, and concealment of assets from the FDIC, and one count of

money laundering.2 The government alleged that McBirney had

concealed his assets in a spendthrift trust——the Oslin Nation 1993

 

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3One provision in the ONT also permitted the trustee, with

McBirney’s consent, to distribute any part of the trust estate to

or for the benefit of Roland Freeman.

- 3 -

Trust (“ONT”)——that was actually an artifice to defraud the FDIC.

The ONT was created on September 10, 1993. According to the

terms of the trust, Oslin Nation (“Nation”) was the settlor, Pamela

Stewart (“Stewart”) was the initial trustee, and McBirney was the

beneficiary.3 At the time the ONT was created, McBirney and

Stewart were involved in a personal relationship. Dan Jackson

(“Jackson”) later replaced Stewart as trustee. The ONT contained

a spendthrift provision that purported to protect the trust estate

from being reached by McBirney’s creditors and to prevent McBirney

from anticipating or assigning his interest in the trust estate.

The ONT was initially funded with four investments that the trust

document stated Nation had transferred to the trust. The

government maintained that the ONT was a sham trust, the initial

trust assets and subsequent investments were McBirney’s assets that

were transferred to the trust, McBirney exercised control over the

trust and in essence used it as his personal account, and McBirney

put his own assets into the purported spendthrift trust to conceal

them and to defraud the FDIC.

The indictment charged that McBirney devised a scheme and

artifice to defraud the FDIC concerning its right to payment under

the criminal restitution order and the civil judgment. The grand

jury alleged that McBirney used the ONT as his alter ego to conduct

 

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- 4 -

his business and pay his personal expenses, and that he

fraudulently concealed his income by causing it to be paid to the

ONT rather than to him. 

Counts 1 through 6 charged McBirney with mail fraud, in

violation of 18 U.S.C. § 1341, and alleged that, for the purpose of

executing the scheme and artifice, he knowingly caused to be

delivered to the United States Probation Office by United States

mail six separate Probation Office Monthly Supervision Reports

(“Reports”). Counts 7 through 15 charged McBirney with making a

false statement in a matter within the jurisdiction of the Judicial

Branch of the United States, in violation of 18 U.S.C. § 1001(a).

These counts alleged that McBirney knowingly and willfully made

false, fraudulent, and fictitious material statements and

representations in nine separate Reports by significantly

understating his actual monthly income. Counts 16 through 24

charged McBirney with concealment of assets from the FDIC, in

violation of 18 U.S.C. § 1032(1). These counts alleged that

McBirney violated § 1032(1) by knowingly understating his income on

the same nine Reports alleged in counts 7 through 15. Count 25

charged McBirney with making a false statement in a matter within

the jurisdiction of the Judicial Branch of the United States, in

violation of 18 U.S.C. § 1001(a), by denying on a personal

financial statement submitted to the Probation Office that he

received or expected to receive benefits from any established

 

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4

Count 27 also charged McBirney with committing this offense

as an aider and abettor, under 18 U.S.C. § 2.

- 5 -

trust. Count 26 charged McBirney with violating § 1001(a) by

falsely stating in a net worth statement submitted to the Probation

Office that he did not have any control over the ONT. And count 27

charged McBirney with money laundering, in violation of 18 U.S.C.

§ 1956(a)(1)(B)(i), by causing Jackson, the trustee, to write 248

checks from the ONT bank account for payment of McBirney’s personal

expenses.4

II

A

McBirney moves for a judgment of acquittal on the mail fraud

counts (counts 1 through 6) on the ground that a reasonable jury

could not have found beyond a reasonable doubt that he devised a

scheme to defraud the FDIC. He maintains (1) the ONT was a valid

Texas spendthrift trust, (2) the ONT was not a self-settled trust,

(3) later assets transferred to the ONT were transferred

appropriately, and (4) there was nothing illegal or improper about

the operation and/or control of the ONT. 

The government responds that the evidence is sufficient to

support the verdict because (1) the ONT was created for a

fraudulent purpose and was McBirney’s alter ego, (2) the ONT was a

self-settled trust under Texas law, and (3) McBirney transferred

later assets to the ONT without consideration.

 

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“To establish mail fraud, the government must show beyond a

reasonable doubt ‘that the defendant (1) used a scheme to defraud,

(2) which involved a use of the mails, and (3) that the mails were

used for the purpose of executing the scheme.’” United States v.

Reyes, 239 F.3d 722, 735 (5th Cir. 2001) (quoting United States v.

Sneed, 63 F.3d 381, 385 n.3 (5th Cir. 1995)). McBirney does not

challenge the sufficiency of the evidence as to the second and

third elements; he contests his mail fraud convictions solely on

the ground that a reasonable jury could not have found that he

devised a scheme to defraud the FDIC. “The first element . . .

requires that the government prove fraudulent activity and ‘that

the defendant had a conscious knowing intent to defraud.’” Id. at

736 (quoting United States v. Krenning, 93 F.3d 1257, 1264 (5th

Cir. 1996)).

“Th[e] court reviews a defendant’s claim of insufficient

evidence to determine ‘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.’” United States v. Infante, 404 F.3d 376, 384

(5th Cir. 2005) (quoting United States v. Bellew, 369 F.3d 450, 452

(5th Cir. 2004)). “In applying this standard, [the court] must

‘accept all reasonable inferences [that] tend to support the jury’s

verdict.’” Id. (second alteration in original) (quoting United

States v. McDow, 27 F.3d 132, 135 (5th Cir. 1994)). “The evidence

 

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- 7 -

need not exclude every reasonable hypothesis of innocence or be

wholly inconsistent with every conclusion except that of guilt, and

the jury is free to choose among reasonable constructions of the

evidence.” Id. at 384-85 (quoting United States v. Dadi, 235 F.3d

945, 949-50 (5th Cir. 2000)).

B

McBirney first contends that the ONT was a valid Texas

spendthrift trust. To support his argument, he relies heavily on

the testimony of Duncan E. Osborne, Esquire (“Osborne”), the

government’s expert witness. Osborne testified that “The trust on

its face is valid. There’s not anything on the face of the

document that would suggest that it’s illegal or invalid or

inappropriate.” Tr. 5:86. Osborne also testified that the

spendthrift provision appeared facially to prevent McBirney’s

access to or anticipation of the trust assets. McBirney also

points to the testimony of Michael E. Miller, Esquire (“Miller”),

the attorney who represented Stewart and prepared the trust

documents. Miller testified that the ONT met the legal

prerequisites of a valid spendthrift trust and that it was his

understanding that Nation’s assets were going into the trust.

Second, McBirney argues that the ONT was not a self-settled

trust. Under Texas’s self-settled trust rule, a spendthrift

provision does not operate to protect trust assets from creditors

when the beneficiary is the one who places the assets into

 

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- 8 -

trust——i.e., the grantor and beneficiary are the same person. See

Tex. Prop. Code Ann. § 112.035(d) (Vernon 1995 & Supp. 2006) (“If

the settlor is also a beneficiary of the trust, a provision

restraining the voluntary or involuntary transfer of his beneficial

interest does not prevent his creditors from satisfying claims from

his interest in the trust estate.”). McBirney asserts that the ONT

was not a self-settled trust because Nation transferred each of the

four initial assets into the trust. Nation transferred these

assets to the trust, however, subject to promissory notes from the

trust back to himself. McBirney points to Osborne’s testimony that

there was nothing inherently unlawful or improper about Nation’s

putting assets in the trust, subject to promissory notes.

Moreover, McBirney posits that the ONT complied with Nation’s

wishes in that Nation had known McBirney for over 20 years and

thought of him as a “second son.” Furthermore, after learning

about the ONT and receiving copies of the trust documents in

December 1998, the government failed to interview Nation before his

death in February 2000 concerning the circumstances surrounding the

ONT.

Third, McBirney asserts that later assets transferred to the

ONT were properly conveyed. In 1994 McBirney, as President of

Tangent Corporation (“Tangent”), transferred to the ONT Tangent’s

interest in a Certificate of Accrual on Treasury Securities

(“CATS”), valued at $310,000. In the 1980s McBirney had

 

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- 9 -

transferred his majority ownership of Tangent from himself to his

father, although he remained the President. McBirney maintains

that these transactions were lawful, and he disputes the

government’s theory that he transferred ownership of Tangent to his

father because he learned he was under investigation for his

activities related to Sunbelt, that the transfer was only nominal

because he maintained control over Tangent, and that the transfer

of CATS to the ONT was a transfer of his own asset. McBirney also

asserts that the transfer of two other assets——an option to buy an

interest in a condominium and the ONT’s purchase of the residence

in which McBirney lived rent-free——was proper and lawful. 

Fourth, McBirney maintains that the conveyance to the ONT of

his 5% general partnership interest in McBirney 544 Joint Venture

(“544 JV”) was proper and lawful. 544 JV owned 134 acres of land

in Collin County, Texas. On his bankruptcy schedules, McBirney

valued his 5% interest at $125,000, subject to $289,620 in debt.

After the bankruptcy trustee abandoned the interest in 544 JV,

McBirney sold it to the ONT for $10. After the sale of the land,

the ONT later received from 544 JV distributions in excess of

$212,030. McBirney contends that nothing was improper about the

conveyance of his interest in 544 JV to the ONT because $10 was

fair market value considering that the land had more debt than it

was worth and because the government knew about but did not object

to the conveyance before it occurred.

 

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- 10 -

Fifth, McBirney contends there was nothing illegal or improper

about the operation and control of the ONT. He asserts that he was

in prison during Stewart’s entire tenure as trustee, he had no

authority to do anything regarding the ONT, Stewart conducted the

ONT’s business, and she was in actual control over the ONT’s

operation. McBirney also avers that, under Jackson’s tenure as

trustee, it was Jackson, not McBirney, who exercised control over

the ONT, signed all documents and checks on behalf of the ONT,

decided when and where to invest trust funds, maintained possession

of all financial and tax documents pertaining to the trust, and

signed the ONT’s tax returns. McBirney points to Jackson’s

testimony that he took no compensation for his duties, he consulted

independent counsel regarding his duties as trustee, and he would

not have accepted the trusteeship had he thought anything about the

trust was illegal or improper. Additionally, McBirney asserts that

Texas law is unclear about the level of control a beneficiary may

exert over a spendthrift trust before the spendthrift provision is

invalidated. He posits that because Texas law is unclear, he

lacked the requisite intent to commit a crime.

C

The court holds that a rational jury could have found beyond

a reasonable doubt that McBirney committed each essential element

of the crime of mail fraud. To satisfy the scheme element, the

government was required to prove beyond a reasonable doubt that

 

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- 11 -

McBirney “had a conscious knowing intent to defraud.’” Reyes, 239

F.3d at 736 (quoting Krenning, 93 F.3d at 1264). It was not

obligated to prove, for example, that the ONT documents were not

facially valid, that the trust did not appear to be validly

established, or that there was anything inherently unlawful about

how the trust appeared to be set up. Even a trust that appears to

have been properly created can be an instrument of a scheme to

defraud. Accordingly, it is not controlling that the ONT appeared

to have been validly established under Texas trust law and not to

have been self-settled. A rational jury could have found that

McBirney used what seemed to be a lawfully created spendthrift

trust to carry out his scheme and artifice to defraud the FDIC of

its right to payment.

Moreover, the government presented sufficient evidence from

which a rational jury could have found beyond a reasonable doubt

that McBirney devised a scheme to defraud the FDIC and that the ONT

was part of that scheme. The evidence reasonably supports a

finding that McBirney, not Nation, directed the creation of the

trust. The government presented evidence that McBirney’s attorney

suggested to him that he have someone set up a spendthrift trust

for him and then file for bankruptcy relief. Although Nation used

one attorney to set up trusts for his family members and one person

outside his family, Nation’s attorney did not draft the ONT and

related documents. Rather, Stephen A. Roberts, Esquire

 

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5Even if the evidence was insufficient for a rational jury

to find that every initial trust asset was McBirney’s and was

funneled into the trust through ITI and Nation, it is nonetheless

sufficient if the evidence was sufficient for a rational jury to

find beyond a reasonable doubt that McBirney devised a scheme to

conceal in the ONT even one of his assets from the FDIC. At a

minimum, the evidence permits such a finding.

- 12 -

(“Roberts”), who represented Stewart as trustee, drafted the trust

documents. Roberts dealt primarily with McBirney, to a lesser

extent with Stewart, and not at all with Nation. McBirney wrote

Roberts several notes detailing how the trust should be set up.

The relationship between McBirney and Roberts became so close that,

at one point, Roberts wrote McBirney a letter explaining that he

represented Stewart, not McBirney, and asking McBirney to sign an

acknowledgement of that fact. There is no evidence that Roberts

ever communicated with Nation prior to the execution of the trust

document.

Moreover, a rational jury could have found that the trust was

initially funded with McBirney’s assets, which were funneled

through Inter-Texas Investments, Inc. (“ITI”) and Nation.5

Although Nation transferred each of the initial trust assets to the

ONT, the government presented evidence that Nation acquired at

least some of these assets from ITI, a corporation that Stewart

owned. ITI had initially acquired these assets at McBirney’s

direction. Nation conveyed each of the initial trust assets

subject to promissory notes. The trust document provided that the

trust was responsible for paying all gift tax, if any, otherwise

 

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- 13 -

payable by Nation as a result of his transfer of assets to the ONT.

James Nation, Nation’s son and business partner, testified that it

was Nation’s practice to file gift-tax returns, even if there was

no gift-tax owed. Nation did file a 1993 gift-tax return, but he

did not report any gift to the ONT, despite reporting a number of

other gifts. The ONT did not file a gift-tax return for 1993.

Moreover, Osborne testified that Nation’s net gift to the ONT was

likely zero——i.e., Nation transferred assets that were valued at

approximately $300,000 into the ONT and took back approximately the

same amount in promissory notes. A rational jury could have found

from this evidence that McBirney’s own assets were hidden in ITI

and that, at McBirney’s direction, ITI transferred his assets to

Nation, who then transferred them to the ONT subject to promissory

notes for the approximate value of the assets.

Additionally, the government presented sufficient evidence for

a rational jury to find that McBirney caused other assets to be

transferred to the ONT after its creation, that these assets were

actually McBirney’s, and that McBirney hid them in the ONT in

furtherance of his scheme to defraud the FDIC. For example, a

rational jury could have found that the CATS belonged to McBirney

and that he arranged for their transfer to the ONT. James C.

Hayes, a former Senior Vice President at Sunbelt, testified that

McBirney was the majority shareholder in Tangent and that he

transferred his interest in Tangent to his father when he learned

 

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6

The CATS are but one example of later assets that a rational

jury could have found McBirney caused to be transferred to the ONT

to defraud the FDIC. Other assets included a condominium in Padre

Island, Texas; the home at 6281 Raintree Court in Dallas, which was

McBirney’s residence; two limousines; and McBirney’s interest in

544 JV. The court need not set out in detail how these assets were

actually McBirney’s and how he caused them to be transferred to the

ONT for no value. It is sufficient that a rational jury could

reasonably have found that the government proved this as to either

one initial asset or one later asset.

- 14 -

he was under investigation for bank fraud. Although McBirney’s

father nominally owned Tangent, McBirney served as Tangent’s

President and continued to exercise primary control over it.

Tangent owned the CATS before it transferred them to the ONT. The

ONT paid nothing for them. From this evidence, a rational jury

could have inferred that the CATS actually belonged to McBirney and

that he caused them to be transferred to the ONT as part of a

scheme to defraud the FDIC.6

Accordingly, the court denies McBirney’s motion and

supplemental motion for judgment of acquittal notwithstanding the

verdict as to counts 1 through 6.

III

A

The court turns next to McBirney’s challenge to counts 7

through 15, which charged McBirney with violating 18 U.S.C.

§ 1001(a) by making false statements on nine of his Reports by

stating on each Report that his income was below its actual value.

To convict him under this statute, the government was required to

 

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7

McBirney does not dispute that the ONT received income that

he did not include in the Reports as his own income.

- 15 -

prove beyond a reasonable doubt (1) the making of a statement, (2)

the falsity of such statement, (3) knowledge of the falsity of such

statement, (4) relevance of such statement to the functioning of a

federal department or agency, and (5) that the false statement was

material. See United States v. Kosth, 257 F.3d 712, 718 (7th Cir.

2001); United States v. Gahagan, 881 F.2d 1380, 1382 (6th Cir.

1989) (citing United States v. Aarons, 718 F.2d 188, 190 (6th Cir.

1983) (per curiam)); United States v. Godwin, 566 F.2d 975, 976

(5th Cir. 1978) (per curiam). 

McBirney challenges these convictions only on the basis that

the government failed to establish the second element of this

offense beyond a reasonable doubt: that his statements about his

income were not true. He posits that although the ONT received

income during the relevant periods, the trust’s income was not

his.7 He relies again on Texas trust law in asserting that the ONT

was valid. D. Supp. Mot. for Judg. Acquittal 21 (citing Tex. Prop.

Code Ann. §§ 113.001-.028 (Vernon 1995 & Supp. 2006)).

Specifically, he points to Jackson’s testimony that the ONT income

on which the government premises counts 7 through 12 and 14 is

attributable to the ONT and not to McBirney. He also directs the

court to Jackson’s testimony that a check written on behalf of the

ONT to McBirney underlying count 13 probably reflected a

 

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- 16 -

distribution from ONT to McBirney rather than the payment of a fee.

He urges that under the Internal Revenue Code (“IRC”), this check

was a “gift” and not income. Id. at 19 (citing 28 U.S.C.

§§ 652(a), 662(a)). Accordingly, McBirney maintains that the

government failed to prove that the nine statements he made about

his income on the Reports were false.

B

Essentially, McBirney relies on arguments already made and

rejected: that the ONT was valid, that its income was not

reportable by McBirney, and therefore that he must be acquitted of

counts 7 through 15. See id. at 20 (“If the Government’s theory as

to the validity of the ONT from its inception is incorrect . . . ,

then these false statement counts must fall . . . .”). This

argument lacks merit. 

As discussed supra at § II(C), a rational jury could have

found beyond a reasonable doubt that the ONT was part of a scheme

to defraud the FDIC of payments McBirney owed it under the criminal

restitution order and the civil judgment. Because a rational jury

could have found that the ONT was merely an artifice to perpetrate

McBirney’s scheme to fraud, it likewise could have found that the

income of the ONT was McBirney’s. Therefore, a rational jury could

have found that McBirney’s statements to the Probation Office about

his income——which did not include the ONT income——were false. See

also United States v. Inserra, 34 F.3d 83, 86, 88 (2d Cir. 1994)

 

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8

McBirney also argues that a check dated January 6, 2000 from

the ONT to him for $15,000 was a gift rather than income. He

maintains that because the check was not his income, he did not

falsely overstate his January 2000 income by $15,000 on the March

10, 2000 Report, as alleged in count 13. He also argues that the

government failed to give him credit for this check, since it was

found in the probation files. The court need not consider either

of these contentions. A rational jury could have found beyond a

reasonable doubt from other government evidence that McBirney

falsely stated his income as $12,850 on his March 10, 2000 Report.

Specifically, it proffered evidence that a check for $60,000 was

deposited into the ONT account in January 2000.

- 17 -

(affirming conviction of defendant who made false statements on

supervision reports to Probation Office and indicated he neither

owned nor drove any vehicles when he in fact owned and drove sports

car valued at more than fine he owed government).8

C

The court next considers count 13 and McBirney’s contention

that the government’s evidence that he had more income in February

2000 than he reported did not constitute proof of income. McBirney

does not dispute that on February 8, 2000 he endorsed and deposited

a check for $15,000 from the ONT. He posits that under federal tax

law, this money was a gift. Accordingly, he maintains that his

statement on the March 10, 2000 Report that he had no income for

February 2000 was not false.

As a threshold matter, the court rejects McBirney’s reliance

on the IRC. Under § 1001(a), the jury need only have found beyond

a reasonable doubt that his statement on the Report to the

Probation Office——that he had no income——was false. McBirney

 

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- 18 -

points to no authority that holds that the IRC controls the meaning

of the term “income” on the Report. 

Nevertheless, viewing the evidence in the light most favorable

to the government, the court holds that a rational jury could not

have found beyond a reasonable doubt that McBirney’s statement was

false. As discussed supra at § II(C), in convicting McBirney of

mail fraud, the jury necessarily found that the ONT was used as

part of a scheme to defraud the government. Likewise, in finding

him guilty of making false statements about his income on the

Reports, the jury necessarily found that the ONT’s income was

McBirney’s. See supra § III(B). But evidence that McBirney

transferred that income to himself is not proof that he had income.

A rational jury could not have found beyond a reasonable doubt that

McBirney’s transferring his money from the ONT to himself resulted

in income to him. The government’s theory was that the income of

the ONT already belonged to McBirney. Therefore, because the

government failed to prove that McBirney (or the ONT) received

income during February 2000, a rational jury could not have found

beyond a reasonable doubt, based only on the transfer of money from

the ONT to McBirney, that he lied when he stated on his March 10,

2000 Report that his income was $0 for February 2000. The court

therefore grants McBirney’s motion and supplemental motion for a

judgment of acquittal as to count 13.

In sum, the court denies McBirney’s motion and supplemental

 

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- 19 -

motion for judgment of acquittal as to counts 7 through 12 and 14

and grants it as to count 13. 

IV

McBirney next challenges the verdict as to counts 16 through

24, in which he was convicted of concealing assets from the FDIC,

in violation of 18 U.S.C. § 1032(1). Section 1032(1) makes it a

crime to

knowingly conceal[ ] or endeavor[ ] to conceal

an asset or property from the Federal Deposit

Insurance Corporation, acting as conservator

or receiver or in the Corporation’s corporate

capacity with respect to any asset acquired or

liability assumed by the Corporation under

section 11, 12, or 13 of the Federal Deposit

Insurance Act.

The indictment charged that McBirney violated § 1032(1) by

knowingly submitting to the Probation Office nine separate Reports

on which he falsely represented his monthly income. McBirney moves

both for arrest of judgment and for judgment of acquittal as to

these counts.

A

The court first considers McBirney’s motion for arrest of

judgment.

1

“Upon the defendant’s motion, the court must arrest judgment

if the indictment does not charge an offense.” United States v.

Parasiris, 85 Fed. Appx. 380, 381 (5th Cir. 2004) (per curiam)

(unpublished opinion) (citing Fed. R. Crim. P. 34). An indictment

 

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- 20 -

adequately charges an offense if it “(1) enumerates each prima

facie element of the charged offense, (2) notifies the defendant of

the charges filed against him, and (3) provides the defendant with

a double jeopardy defense against future prosecutions.” Id.

(quoting United States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993)).

The indictment satisfies these requirements. It enumerates

each prima facie element of the offense of concealment of assets

from the FDIC by alleging that McBirney knowingly concealed and

endeavored to conceal assets and property from the FDIC, as

receiver for Sunbelt. And it notifies McBirney of the charges

against him because it “describe[s] the specific facts and

circumstances surrounding the offense in question in such a manner

as to inform [McBirney] of the particular offense charged.”

Nevers, 7 F.3d at 63 (citing Hamling v. United States, 418 U.S. 87,

117-18 (1974)). The indictment alleges that McBirney knowingly

submitted monthly Reports to the Probation Office on which he

reported that his income was materially less than it actually was,

and for each monthly report at issue it sets forth the date of the

report, the amount of income McBirney stated on the report, and the

amount of income he allegedly concealed.

2

McBirney maintains that counts 16 through 24 do not state an

offense because he had no legal duty to report his income to the

FDIC. He asserts that the civil judgment required him only to pay

 

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the FDIC certain amounts based on his gross income, not to report

his income to the FDIC. McBirney argues that, without a legal duty

to report his income to the FDIC, there could be no criminal

liability for concealing his income.

Although McBirney makes this argument in the context of his

motion for arrest of judgment, it is more appropriately considered

as a ground for his motion for judgment of acquittal. He

essentially contends that § 1032(1) requires a duty to disclose to

the FDIC but that the government did not present sufficient

evidence to support a finding that he owed such a duty. Any

question regarding the sufficiency of the evidence, however, is

determined within the context of a motion for judgment of

acquittal, and the court will therefore address it below.

Because counts 16 through 24 adequately charge the offense of

concealment of assets from the FDIC, in violation of § 1032(1),

McBirney’s motion for arrest of judgment is denied.

B

The court next considers McBirney’s motion for judgment of

acquittal.

1

As noted, McBirney argues that he cannot be convicted under

§ 1032 because he did not owe a disclosure duty to the FDIC.

“Under 18 U.S.C. § 1032, [however,] it is a crime to ‘knowingly

conceal[ ] or endeavor[ ] to conceal an asset or property from the

 

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Federal Deposit Insurance Corporation, acting as conservator or

receiver or in the Corporation’s corporate capacity with respect to

any asset acquired or liability assumed by the Corporation[.]’”

United States v. Willey, 57 F.3d 1374, 1380 (5th Cir. 1995)

(quoting 18 U.S.C. § 1032(1)). Section 1032(1) thus determines

criminal culpability according to whether a defendant knowingly

concealed or endeavored to conceal an asset or property from the

FDIC with respect to any asset it acquires or liability it assumes

when, inter alia, acting as receiver. The statute does not merely

encompass a failure to disclose an asset or property that the

defendant had a duty to disclose but instead criminalizes the

affirmative act of knowingly concealing or endeavoring to conceal

the asset or property.

McBirney’s reliance on United States v. Seitz, 952 F. Supp.

229 (E.D. Penn. 1997), is thus misplaced. In Seitz the grand jury

charged the defendant with concealing assets from the Resolution

Trust Corporation (“RTC”), in violation of § 1032, the same statute

that counts 16 through 24 alleged that McBirney violated. See id.

at 232-33. The concealment charge was based on the defendant’s

failure to report to the RTC certain settlements and escrow

accounts. See id. at 231-32. Seitz held that, “[a]t a minimum,

. . . in order for the [g]overnment to hold Seitz responsible under

18 U.S.C. § 1032 of knowingly concealing an asset or property from

the RTC, Seitz must have had a legally-cognizable duty to the RTC

 

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to make the existence of the asset or property concealment known.”

Id. at 235. The court reasoned that “[m]ere silence in the absence

of a duty to speak . . . cannot suffice to prove fraudulent

concealment.” Id. at 233 (emphasis omitted) (quoting Sevin v.

Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. Ct. 1992)). Because the

defendant simply remained silent about the property and had no duty

to report it to the RTC, the court dismissed the concealment

charge. See id. at 236-37. The defendant in Seitz did nothing

more than remain silent, and the court relied on mere silence in

the absence of a duty to speak to hold that the defendant could not

have been guilty of violating § 1032. 

In McBirney’s case, however, a rational jury could have found

beyond a reasonable doubt that he knowingly made affirmative

misrepresentations regarding his income for the purpose of

concealing or endeavoring to conceal his assets or property from

the FDIC. That is, he did not merely remain silent in the absence

of a duty to speak; instead, through affirmative submissions to the

Probation Office, he knowingly concealed or endeavored to conceal

his income by underreporting it. 

2

McBirney next contends there is no evidence that he knew that

what he reported on his monthly Reports would be conveyed by the

Probation Office to the FDIC. In essence, McBirney challenges the

jury’s implicit finding that he knowingly concealed from the FDIC.

 

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9The settlement agreement in McBirney’s civil case required

him to pay his judgment according to the following schedule: 10% of

the first $100,000 of annual gross income, 25% of marginal annual

gross income between $100,000 and $250,000, 40% of marginal annual

gross income between $250,000 and $500,000, and 50% of marginal

annual gross income in excess of $500,000. See G. Ex. 14 at 5-6.

- 24 -

But the evidence does support the rational inference that McBirney

underreported his income to the Probation Office, knowing or

intending that it would result in restitution payments to the FDIC

in amounts smaller than he was actually obligated to make, thus

concealing or endeavoring to conceal his assets from the FDIC. For

example, the evidence supports the finding that McBirney knew he

was required to report his income to the Probation Office and was

aware that one purpose of this reporting requirement was to

determine whether he was adequately paying restitution to the FDIC.

The amount McBirney was required to pay the FDIC to satisfy his

restitution obligations was tied to his income.9 A rational

inference from this evidence is that McBirney knowingly understated

his income on the monthly Reports so as to justify making smaller

restitution payments to the FDIC, and thus that he knowingly

concealed or endeavored to conceal his assets from the FDIC.

3

McBirney’s remaining arguments are that he was not obligated

to report the ONT income as his own and that there was no

concealment from the government. The court addressed these

arguments supra at § III with respect to counts 7 through 15. The

 

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monthly Reports that are the basis for counts 7 through 15 are the

same as those for counts 16 through 24, respectively. The court

rejected the arguments with respect to counts 7 through 12, 14, and

15 and for the same reasons it does so as to counts 16 through 21,

23, and 24. But concerning count 13, the court held that there was

insufficient evidence to find that McBirney made a false statement.

By accurately reporting his income on the Report that is the basis

for counts 13 and 22, McBirney likewise could not have violated

§ 1032(1).

Accordingly, the court denies McBirney’s motion and

supplemental motion for judgment of acquittal as to counts 16

through 21, 23, and 24, and it grants the motion with respect to

count 22.

V

The court now considers McBirney’s contention that a

reasonable jury could not have found him guilty beyond a reasonable

doubt of counts 25 and 26. Counts 25 and 26 charged McBirney with

making false statements, in violation of 18 U.S.C. § 1001(a). 

A

In count 25, the government alleged that McBirney made a false

statement when, in submitting a personal financial statement to the

Probation Office, he answered the question, “Do you receive, or

under any circumstances expect to receive benefits, from any

established trust . . .? If so explain.” McBirney responded: “No,

 

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to the Best of my knowledge & belief.”

McBirney first contends that, because the question was

compound, it was ambiguous. He points to the testimony of United

States Probation Officer Sharon Geider (“Officer Geider”), one of

his probation officers, as evidence that the question was

ambiguous. She testified that she interpreted it as asking only

whether McBirney expected to receive benefits. He also argues that

his answers were truthful because, under the provisions of a

spendthrift trust, he could not have expected to receive benefits

from the ONT until the trustee distributed them. He reasons that

as to the first part of the question——do you receive benefits——his

answer was truthful because he could not have anticipated future

benefits and the question did not ask whether he had received

benefits in the past. As to the second part of the

question——whether he expected to receive benefits——he contends his

response was literally true under Texas trust law. He argues that

his conviction cannot stand where his response was not false.

“[A] prosecution for a false statement under § 1001 or under

the perjury statutes cannot be based on an ambiguous question where

the response may be literally and factually correct . . . . An

indictment premised on a statement which on its face is not false

cannot survive.” United States v. Moses, 94 F.3d 182, 189 (5th

Cir. 1996) (alteration and omission in original; emphasis omitted)

(citing Gahagan, 881 F.2d at 1383; United States v. Vesaas, 586

 

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- 27 -

F.2d 101, 104 (8th Cir. 1978)). The fact that the question was

compound does not, however, make it ambiguous. The question was

framed in the disjunctive and, by answering “No,” McBirney

represented to the Probation Office both that he did not then

receive benefits from any established trust and that he did not

under any circumstances expect to receive benefits from any

established trust. 

Assuming arguendo that his answer to the second part of the

question——that he did not under any circumstances expect to receive

benefits from any established trust——was literally true, a rational

jury could still have found him guilty based on his false answer to

the first part of the question. The record amply supports the

finding that McBirney was receiving numerous benefits from the ONT

in the form of payments that supported his daily living expenses

and his lifestyle. The court thus finds that a rational jury could

have found that McBirney’s statement that he did not receive

benefits from the ONT was false, and it denies his motion with

respect to count 25.

B

Count 26 charged McBirney with making a false statement, in

violation of 18 U.S.C. § 1001(a), when, in submitting a net worth

statement to the Probation Office, he stated in a section entitled

“Trust Assets,” “I have no control over the trust.”

 

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1

McBirney contends that his response was literally true because

the trustees——and not he——exercised control over the ONT. He

posits that the facts that the trustee made monetary distributions

to him as the beneficiary of the ONT, bought the house on Raintree

for his use, purchased vehicles for his use, and paid many of his

expenses are not proof that he controlled the ONT. He points to

evidence that he contends demonstrates that Stewart drained assets

from the ONT for the benefit of her companies and that Jackson

executed all of the documents on behalf of ONT, including tax

returns. Accordingly, he argues that the evidence establishes only

that Stewart and Jackson controlled the ONT.

Viewing the evidence in the light most favorable to the

government, the court concludes that a rational jury could have

found beyond a reasonable doubt that McBirney controlled the ONT.

For instance, the government presented evidence that McBirney

represented to Michael Lance (“Lance”), a potential business

partner, that McBirney “made investments through [ONT], bought

companies” and that “Dan Jackson worked for him.” Tr. 4:108.

Lance further testified that McBirney advised him that Jackson

worked for McBirney and that whatever McBirney wanted him to sign,

Jackson signed. Tr. 4:111. A rational jury could have found from

this evidence that McBirney controlled the ONT and that he violated

18 U.S.C. § 1001(a) when he stated that he did not control the ONT.

 

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2

McBirney next argues that “a question concerning ‘control’ (a

term that has not even been defined) over a spendthrift trust is

not a question to a material matter in the area of trust law which

should rise to the level of criminal culpability.” D. Supp. Mot.

for Judg. Acquittal 27. That is, it is not clear under Texas law

that an individual’s control over a spendthrift trust is relevant

in determining whether the trust is valid. Id. (citing In re

Pratt, 411 F.3d 561 (5th Cir. 2005); In re Shurley, 115 F.3d 333

(5th Cir. 1997)). Accordingly, he urges that the statement that he

had no control over the trust cannot be material to the

government’s determination of whether he was falsifying his income.

In other words, the statement about control is merely extraneous,

because it is not relevant to a determination of the trust’s

validity.

McBirney’s argument is misplaced. To be material under 18

U.S.C. § 1001(a), a statement need only be capable of influencing

a reasonable investigator or decisionmaker. See United States v.

Gaudin, 515 U.S. 506, 509 (1995). Whether the statement is

material to a determination of the validity of the ONT under state

law is beside the point. A rational jury could have found that

McBirney’s statement that he did not have control over the ONT was

capable of leading the Probation Officer away from the ONT. In

other words, a rational jury could have found that McBirney’s

 

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statement was capable of misleading the Probation Officer by

directing her away from his relationship with the ONT. See United

States v. Stewart, 433 F.3d 273, 318 (2d Cir. 2006) (holding that

statement that “was capable of distracting government

investigators’ attention away from” third person involved in fraud

“may be considered material”); United States v. McBane, 433 F.3d

344, 351 (3d Cir. 2005) (“[S]tandard require[s] only that the false

statement at issue be of a type capable of influencing a reasonable

decisionmaker.” (emphasis omitted)). The court concludes that a

rational jury could have found beyond a reasonable doubt that

McBirney’s statement that he had no control over the trust was

“material” within the meaning of 18 U.S.C. § 1001(a). 

The court thus denies his motion with respect to counts 25 and

26.

VI

McBirney challenges the verdict on count 27, which charged him

with money laundering, in violation of 18 U.S.C.

§ 1956(a)(1)(B)(i). It also charged McBirney with committing this

offense as an aider and abettor, under 18 U.S.C. § 2.

A

Section 1956(a)(1)(B)(i) makes it a crime,

knowing that the property involved in a

financial transaction represents the proceeds

of some form of unlawful activity, conduct[ ]

or attempt[ ] to conduct such a financial

transaction which in fact involves the

proceeds of specified unlawful activity . . .

 

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knowing that the transaction is designed in

whole or in part . . . to conceal or disguise

the nature, the location, the source, the

ownership, or the control of the proceeds of

specified unlawful activity . . . .

To prove McBirney guilty of money laundering under

§ 1956(a)(1)(B)(i), the government was required to prove beyond a

reasonable doubt that he (1) conducted or attempted to conduct a

financial transaction, (2) knowing that the property involved in

the transaction was the proceeds of unlawful activity, (3) with the

intent to conceal or disguise the nature, location, source,

ownership, or control of the proceeds of unlawful activity. See

Willey, 57 F.3d at 1383; United States v. Garza, 42 F.3d 251, 253

(5th Cir. 1994) (quoting United States v. West, 22 F.3d 586, 590-91

(5th Cir. 1994)). “To prove that a defendant aided and abetted

money laundering, the government must show that the defendant

‘associated himself with the unlawful financial manipulations, that

he participated in them as something he wished to bring about, and

that he sought, by his actions, to make the effort succeed.’”

Willey, 57 F.3d at 1384-85 (quoting United States v. Termini, 992

F.2d 879, 881 (8th Cir. 1993)).

The indictment charges that McBirney knowingly caused the

trustee of the ONT, in 248 financial transactions, to transfer

$2,054,336.00 from the ONT bank account, by checks and other fund

transfers, for the payment of McBirney’s personal expenses. The

indictment identifies the specified unlawful activity as

 

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concealment of assets from the FDIC, in violation of § 1032(1).

McBirney contends he is entitled to be acquitted of this count

because (1) since the money laundering count is based on the

concealment counts, the money laundering count must fall because he

had no duty to report his income to the FDIC; (2) there is

insufficient evidence to support the money laundering count because

there is insufficient evidence to support the concealment counts;

(3) there is insufficient evidence that the transactions underlying

the count were designed to conceal and disguise the source,

ownership, and control of the proceeds; (4) there is insufficient

evidence that he knowingly caused Jackson to write each and every

one of the 248 checks that are the basis of the count; and (5)

there is insufficient evidence that each of the 248 transactions

was performed for his personal expenses, as the indictment alleges.

The court has already rejected supra at § IV the grounds on which

McBirney’s first two arguments are premised and has upheld the

verdict on all but one concealment count. The court therefore will

not address these arguments.

B

McBirney maintains generally that there is insufficient

evidence to support the design element, i.e., that the transactions

were designed in whole or in part to conceal or disguise the

nature, location, source, ownership, or control of the unlawful

activity. He maintains that all proceeds that went into the bank

 

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account and all checks and other transfers from the account were

identified as ONT proceeds and that the account did not in any way

attempt to disguise or conceal the nature of the funds, their

source, or what they were being used for.

McBirney’s argument presupposes that the ONT was a valid trust

and that its assets were separate from McBirney’s. See D. Supp.

Mot. for Judg. Acquittal 28 (“If the ONT was a valid Texas

spendthrift trust, or, if there is a reasonable doubt thereof, this

count must fall as well.”). But the government’s theory, which is

supported by sufficient evidence, is that McBirney set up the ONT

as an artifice to conceal his assets from the FDIC. The jury

agreed with this theory, implicitly finding that the trust assets

were actually McBirney’s and that the trust was merely an artifice

to perpetrate a fraud on the FDIC.

Using a third-party entity such as the ONT “to purchase goods

on one’s behalf or from which one will benefit usually constitutes

sufficient proof of a design to conceal.” Willey, 57 F.3d at 1385.

By using trust assets to pay for his personal expenses, McBirney

“not only create[d] the false impression that the [trust] was his

source of wealth, but it create[d] documentary evidence in support

of that deception that could mislead an investigator.” Id.

(quoting United States v. Garcia-Emanuel, 14 F.3d 1469, 1476-77

(10th Cir. 1994)). Moreover, because the jury implicitly found

that McBirney placed his assets in the trust with the intent to

 

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conceal them from the FDIC, it was entitled to impute this intent

to the design element of the money laundering count. Id. at 1385

(“[A] design to conceal in a particular transaction may be imputed

to a subsequent transaction, although the inference may be weaker

than if the concealing transaction itself were charged.” (citing

Garcia-Emanuel, 14 F.3d at 1478). Consequently, the court

concludes that there was sufficient evidence for a rational jury to

find that the government proved the design element beyond a

reasonable doubt.

C

McBirney posits that there is insufficient evidence that he

knowingly caused the ONT trustee, Jackson, to write each and every

one of the 248 checks that are the basis of the money laundering

count. He asserts that the bank account described in the money

laundering count was the ONT’s account, Jackson was the only

signatory on the account, and there was insufficient evidence that

McBirney caused Jackson to write or even knew Jackson was writing

the specific 248 checks set out in the count.

This argument relates to the government’s use of the aiding

and abetting statute, § 2, to tie McBirney to the transactions

Jackson performed. The government need only prove that McBirney

“associated himself with the unlawful financial manipulations, that

he participated in them as something he wished to bring about, and

that he sought, by his actions, to make the effort succeed.” Id.

 

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at 1384-85 (quoting Termini, 992 F.2d at 881). The evidence was

ample for a rational jury to find that McBirney exercised control

over the trust, even while Jackson served as trustee. This is

sufficient to satisfy the requirement of § 2.

Even if McBirney did not cause Jackson to perform each of the

248 transactions alleged in the indictment, this is not fatal to

the government’s case. The grand jury could have indicted McBirney

on 248 separate counts for aiding and abetting money laundering,

one for each transaction alleged. Cf. id. at 1384 (affirming

convictions on separate money laundering counts, each count

alleging different specific transaction with different particular

check). Had it done so, the government would have been required to

prove McBirney’s association with or control over each transaction

identified in each count. The government’s choice to seek an

indictment for only one count did not obligate it to prove that

McBirney played a role in each of the 248 transactions set forth in

the indictment. It is sufficient that the government introduced

sufficient evidence from which a rational jury could have found

that McBirney aided and abetted merely one transaction, and the

government met this obligation.

D

McBirney contends he is entitled to judgment of acquittal for

money laundering because, although the indictment alleges that the

248 financial transactions were for the payment of his personal

 

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expenses, there is insufficient evidence that each of the checks

was written for such expenses. He posits that Jackson dispersed

hundreds of thousands of dollars from the ONT account to make

investments in various entities rather than to pay for McBirney’s

personal expenses. Although McBirney does not explicitly rely on

the doctrine of constructive amendment of the indictment, this

appears to be the basis for his argument.

McBirney’s argument is without merit for two reasons. First,

there was no constructive amendment. 

An implicit or constructive amendment of the

indictment . . . occurs when it permits the

defendant to be convicted upon a factual basis

that effectively modifies an essential element

of the offense charged or permits the

government to convict the defendant on a

materially different theory or set of facts

than that with which [he] was charged. 

United States v. Reasor, 418 F.3d 466, 475 (5th Cir. 2005). The

destination of the funds involved in the transaction——personal

expense payments versus investments——is not an essential element of

the crime of money laundering. McBirney does not urge that the

transactions on which the government relied at trial are different

from the ones alleged in the indictment. Rather, he asserts that

the purpose for writing some of the checks was different. Even if

this is true, there has been no constructive amendment of the

indictment.

Second, assuming arguendo that there was a constructive

amendment, McBirney’s argument fails for the same reason as did his

 

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previous one. McBirney inherently concedes that some of the 248

transactions were for the payment of his personal expenses, and he

contends merely that a majority of the checks were written for

other purposes. The government was not obligated to prove that

each check was written for McBirney’s personal expenses. That is,

even if under the constructive amendment doctrine the government

was required to prove that the transactions were made for

McBirney’s personal expenses, as alleged in the indictment, it is

sufficient that the government met this burden with respect to at

least one of the 248 transactions because the indictment includes

only one money laundering count. Since the government introduced

evidence from which a rational jury could have found beyond a

reasonable doubt that some of the checks were written for

McBirney’s personal expenses, this argument fails.

Accordingly, the court denies McBirney’s motion for judgment

of acquittal on count 27.

VII

McBirney contends generally that he relied on instructions

from Probation Officers in “how and what to make” in restitution

payments. D. Supp. Mot. for Judg. Acquittal 29. He argues that

the Probation Office has authority to collect restitution in any

manner. And he alleges that, beginning in January 1999, he was

directed to pay $500 per month toward his restitution order, which

he did. When Officer Geider became McBirney’s Probation Officer,

 

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10Although McBirney cites cases that consider the Due Process

Clause, he does not contend that his convictions were obtained in

violation of his due process rights. 

- 38 -

she instructed him to pay $13,000 to make up for amounts she

determined were owed, and he complied. Accordingly, he asserts

that he should not be prosecuted for actions relating to the

payments of restitution because at all times he followed the

instructions of the Probation Officer regarding payment amounts.

Id. at 30-31 (citing Cox v. Louisiana, 379 U.S. 559, 571 (1965)

(holding Due Process Clause does not permit conviction for

“exercising a privilege which the State had clearly told him was

available to him”) (internal quotation marks omitted); Raley v.

Ohio, 360 U.S. 423, 426 (1959) (holding that Due Process Clause

prevented conviction of persons for refusing to answer questions of

state investigating commission when they relied upon assurances of

commission, either express or implied, that they had privilege

under state law to refuse to answer, though in fact this privilege

was not available to them)).10

First, even if McBirney complied with the Probation Officer’s

instructions, he fails to identify which counts must be dismissed

on this ground. In the same vein, he does not specify which

elements of the crimes this argument negates. McBirney has not

demonstrated that any of the counts lack sufficient evidence. 

Second, a rational inference from the evidence is that

McBirney’s falsifications on the various Reports he made to the

 

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- 39 -

Probation Office led to the Probation Officers’ instructions. That

is, by informing the Probation Officer that he had no income, she

in turn required only a minimum restitution payment. He now seeks

to hide behind the false statements by arguing that he was simply

“following instructions.” A rational jury could have found,

however, that the Probation Officer would have required that he

make greater restitution payments had he not concealed his assets

from her in the first instance. Accordingly, the court concludes

that this argument is without merit.

VIII

McBirney moves in the alternative for a new trial. On a

defendant’s motion, “[a] court may grant a new trial if it is

required in the interests of justice.” United States v. Arnold,

416 F.3d 349, 360 (5th Cir. 2005) (citing Rule 33(a)). Whether to

grant a new trial is a matter within the district court’s

discretion. See United States v. Martin, 431 F.3d 846, 850 (5th

Cir. 2005). The court “may weigh the evidence and assess the

credibility of the witnesses in considering the motion.” Arnold,

416 F.3d at 360 (citing United States v. Robertson, 110 F.3d 1113,

1117 (5th Cir. 1997)). “Although a district court has broad

discretion, it is not limitless, and it ‘may not reweigh the

evidence and set aside the verdict simply because it feels some

other result would be more reasonable.’” Id. (quoting Robertson,

110 F.3d at 1118). “The evidence must preponderate heavily against

 

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the verdict, such that it would be a miscarriage of justice to let

the verdict stand.” Id. (quoting Robertson, 110 F.3d at 1118).

Apart from stating the standard for a new trial motion,

McBirney does not set forth any specific arguments for granting a

new trial. The court concludes that the evidence does not

preponderate against the verdict, and, accordingly, it denies

McBirney’s motion and supplemental motion for a new trial.

* * *

For the reasons stated, the court denies McBirney’s February

3, 2006 motion for arrest of judgment, February 3, 2006 motion for

judgment of acquittal notwithstanding the verdict or in the

alternative motion for new trial, May 4, 2006 supplemental motion

for judgment of acquittal notwithstanding the verdict or in the

alternative motion for new trial, and May 4, 2006 supplemental

motion for arrest of judgment, except that the court grants his

February 3, 2006 motion for judgment of acquittal notwithstanding

the verdict and May 4, 2006 supplemental motion for judgment of

acquittal notwithstanding the verdict as to counts 13 and 22.

SO ORDERED.

August 21, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

 Case 3:04-cr-00059-D Document 122 Filed 08/21/06 Page 40 of 40 PageID 948