UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA

vs. CASE NO: 8:05-Cr-475-T-27TGW

THOMAS SPELLISSY

and

STRATEGIC DEFENSE INTERNATIONAL, INC.

___________________________________________/

DEFENDANTS THOMAS SPELLISSY AND STRATEGIC DEFENSE INTERNATIONAL, INC.’S JOINT RENEWED MOTION

FOR JUDGMENTS OF ACQUITTAL AND, IN THE

ALTERNATIVE, MOTION FOR NEW TRIAL

Defendants Thomas Spellissy and Strategic Defense International, Inc., through respective their undersigned counsel, hereby jointly move pursuant to Fed.R.Crim.P. 29(c) to set aside the jury verdicts and enter judgments of acquittals. Defendants renew their arguments, previously made at the close of the Government’s case and again at the close of all the evidence that no reasonable jury could find that the Government proved the elements of the charged offenses beyond a reasonable doubt. Pursuant to Fed.R.Crim.P. 29(d), both Defendants also request that, should judgments of acquittals be entered, this court conditionally grant a new trial in the event its judgments of acquittals are reversed on appeal.

Alternatively, both Defendants move for a new trial under Fed.R.Crim.P. 33 because the jury’s verdicts were contrary to the great weight of the evidence. Thus, Defendants contend that they are entitled to either judgments of acquittals or to a new trial based on the insufficiency of the evidence under the standards of Rule 29 and Rule 33, respectively. The Defendants renew all prior arguments concerning the sufficiency of the evidence as to all counts and all previous legal challenges to the indictment.

MEMORANDUM OF LAW

I. Insufficiency of the Evidence

Fed.R.Crim.P. 29(a) provides, in relevant part, that,

The Court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

Rule 29(c), meanwhile, authorizes renewal of a motion for judgment of acquittal at any time within seven days following a jury’s verdict of guilty. Rule 29(d), finally, obligates the trial Court to determine whether a new trial should be conditionally granted should a judgment of acquittal be later reversed on appeal.

On Rule 29 motions contending insufficiency of the evidence, the evidence is examined in the light most favorable to the prevailing party, in this case the Government. United States v. Thomas, 8 F.3d 1552, 1556 (11th Cir. 1993). As the Thomas Court explained,

“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 reasonable constructions of the evidence.” United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982)(en banc), aff’d on other grounds, 462 U.S. 356. The reversal of a conviction for insufficient evidence is warranted only if no reasonable jury could find proof of guilt beyond a reasonable doubt. United States v. Jones, 913 F.2d 1552, 1557 (11th Cir. 1990). Nevertheless, there must be sufficient evidence to support all necessary elements of the crime. Id. (quotations omitted).

This standard is relaxed for motions for new trial, brought under Fed.R.Crim.P. 33, that allege insufficiency of the evidence. In United States v. Martinez, 763 F.2d 1297 (11th Cir. 1985), the Eleventh Circuit assessed the proper standard for Rule 33 new trial motions grounded on claims that the jury’s verdict is contrary to the great weight of the evidence. Id. at 1312. In so doing, the Martinez Court addressed the relationship between Rule 29 and Rule 33:

Initially, we note that a motion for new trial made on the ground that the verdict is contrary to the weight of the evidence raises issues very different from a motion for judgment of acquittal notwithstanding the verdict, which is based on the sufficiency of the evidence. On a motion for judgment of acquittal, the Court must view the evidence in the light most favorable to the verdict, and, under that light, determine whether the evidence is sufficient to support the verdict. Thus, on this motion, the Court assumes the truth of the evidence offered by the prosecution. On a motion for a new trial based on the weight of the evidence the Court need not view the evidence in the light most favorable to the verdict. It may weigh the evidence and consider the credibility of the witnesses. If the Court concludes that, “despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.” Id., quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980) (other citations omitted).

The Martinez Court, however, adds some caveats. Although a trial court’s discretion is broad when assessing Rule 33 motions based on evidentiary insufficiency, the court’s authority is not unlimited when it is asked to reweigh the evidence. Id. For example, the court may not grant a new trial merely because the court believes another result “would be more reasonable.” Id. at 1313. “Motions for new trial based on weight of the evidence,” cautions Martinez, “are not favored”; trial courts must grant such motions sparingly and cautiously, and only in exceptional cases. Id. Again, according to Martinez, “The evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.” Id.

The Martinez Court further observes that new trial motions based on weight of the evidence are typically granted only when the defendant has impeached the credibility of the government witnesses and the government’s case is “marked by uncertainties and discrepancies.” Id. One example is cases in which there is no direct proof of the defendant’s guilt and the government’s case depended on a chain of inferences, drawn from uncorroborated testimony of questionable credibility. Id. The Martinez Court offered the second example of cases in which the testimony of the government’s key witnesses “was subject to serious impeachment by prior inconsistent statements and by independent evidence.” Id., quoting United States v. Hurley, 281 F.Supp. 443, 449 (D.Conn. 1968).

The Martinez Court, finally, acknowledged that the Eleventh Circuit had yet, at that time, to consider whether a new trial may be granted on the sole basis of evidentiary insufficiency. Id. However, the Martinez Court deferred the question, concluding in any event that the jury’s verdict was not contrary to the weight of the evidence. Id. (holding that the government’s case was not marked by uncertainties and discrepancies, based on compound inferences, or presented through the testimony of impeached and suspect witnesses.) The Court observed that the jury simply resolved a conflict in testimony, specifically an agent’s and the defendant’s dispute about the content of their post-arrest interview. Id. at 1314. Thus, the Martinez Court concluded that the matter was not one of the “exceptional cases” warranting the trial court’s rejection of the jury’s factual findings. Id.

In United States v. Cox, 995 F.2d 1041 (11th Cir. 1993), the Eleventh Circuit answered Martinez’s open question, holding that Rule 33 motions for new trial may be based on insufficiency of the evidence. The Cox Court applied a standard requiring the trial court to grant a new trial only when the jury verdict is against the great, as opposed to the greater, weight of the evidence. Id. at 1044. In other words, according to Cox, (and consistent with Martinez), the evidence must “preponderate heavily against the jury’s verdict.” Id.

The Cox Court then expressly adopted the Martinez Court’s Rule 33 analysis. The Cox Court, albeit “[a]necdotally,” discussed the Martinez Court’s observation that courts grant Rule 33 motions based on evidentiary insufficiency “‘only where the credibility of the government’s witnesses had been impeached and the government’s case had been marked by uncertainties and discrepancies.’” Id. at 1045, n.9, quoting Martinez, 763 F.2d at 1313 (emphasis added by Cox Court). The first Martinez query, according to Cox, is whether the defendant challenges the credibility of the government’s witnesses. Id. at 1045, n.9. The second issue “is whether any uncertainties or discrepancies sullied the United States’ case.” Id. As the defendant in Cox raised neither of the two prongs of Martinez, a new trial was inappropriate in that case. Id. at 1045.

Applying both the Rule 29 and Rule 33 standards expressed above, Defendants move this Court to enter judgments of acquittals or, in the alternative, grant a new trial. First, the Defendant contends that no reasonable jury could find that the Government proved each element of the offense beyond a reasonable doubt. Acknowledging that Rule 29(c) relief cannot be based on this Court’s independent weighing of the evidence and assessment of credibility, Defendants alternatively requests a new trial under Rule 33 on the basis of insufficiency of the evidence. In determining the merit of a Rule 33 motion, this Court is not obligated to view the evidence in the light most favorable to the Government, and may also assess, for itself, the credibility of a witness on whom the Government relies so heavily. Particularly given the impeachment material described below, this Court can find that “the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred,” and order a new trial. Martinez, 763 F.2d at 1312.

ARGUMENT

While it is universally acknowledged that juries sometimes get it wrong, it is still a truism that bears repeating. Juries sometimes get it wrong. Although more often than not they get it right, they occasionally just simply return the wrong verdict. When what appears to be a guilty defendant is set free by a jury verdict, despite acknowledging that they got it wrong, we accept the jury’s verdict because it is the price we are willing to pay to prevent the gravest of all injustices known to our legal system, that is, that an innocent man gets convicted. But, it has never been the law, even from the earliest times, that a jury’s guilty verdict was untouchable.

A jury’s verdict of guilt is not sacrosanct. This is true for several reasons. On an empirical level, it is true because it promotes justice in that it recognizes that because juries sometimes convict an innocent person, there needs to be a mechanism to correct that injustice. It is also true because as an “evolved” society, we recognize that we have a duty to act in the name of justice and that the failure to correct injustice may be even worse that than the original injustice. Additionally, we know that humanly speaking, no human system can get it right all the time.

In the field of human endeavor, criminal trial work is one of the few activities where the professionals typically defer to the amateurs. Sometimes that deference cannot be defended. Thomas Spellissy is one of those rare cases. Yet, our collective experience tells us that juries, although, correct the overwhelming percentage of time, can err. It is not elitism with a professional with vast experience to say so.

Because we recognize that a jury’s verdict is not untouchable, the law provides a mechanism to correct an injustice. That mechanism is found in Rule 29 and more specifically in Rule 33. Clearly, if a jury’s verdict of guilty was untouchable, there would be no need for Rule 29 and Rule 33, since both rules challenge the sufficiency of the evidence and in the latter rule, the weight of the evidence, notwithstanding the jury’s previously returned guilty verdicts. The only reason for the legal creation for these rules is because, as previously stated, the legal system recognizes that sometimes juries simply get it wrong and this injustice requires a correction.

The purpose of this motion is, in its purest form, to convince this Court to grant a new trial because a serious miscarriage of justice occurred. This motion sets out at length, the legal basis this Court has in which to act. The real question though appears to be whether this Court will take that, admittedly, rarest of steps, and grant the Defendants the new trial that the law provides for. Not a single person – including the Government Prosecutor – thought that at the close of argument a reasonable jury could return anything but a not guilty verdict. The verdict, to everyone who sat through the entire trial was nothing less than shocking.

Because juries are made of people, all of us in the legal system are well aware that innocent defendants are unfortunately convicted, for the system, our legal system, is not a perfect system. To some, this injustice may be shrugged off and easily dismissed, sometimes with nothing more than with the cliché, “the jury has spoken.” This caviler attitude is an easy way out, an easy way to numb the conscience and not have to think about what occurred. But to others, including those at Project Innocence, injustice is not so easily endured. While the advances of DNA clearly and conclusively prove that juries have sometimes gotten it completely wrong, other cases, those without DNA, make it much harder to convince the “powers that be” that a subject defendant is innocent despite the jury’s verdict. It is instructive to know that Rules 29 and 33 existed prior to the advent of DNA testing.

We are aware that our endeavor herein is a monumental task. This is true but not because the evidence does not preponderate heavily against the jury’s verdict; even skeptics and adversaries have admitted shock at the verdict. In fact, one such adversary stated after the verdict, “if this case wasn’t reasonable doubt, then what is?” No, the reason this is a monumental task is because the relief requested goes against the natural tendency of those in the legal system, a tendency to leave a jury’s verdict untouched. A tendency to attribute to the verdict a kind of mystical faith. A tendency to explain the unexplainable by shrugging one’s shoulders and concluding that since they reached a verdict, this jury must be wiser and smarter than those to whom the verdict is unexplainable. A tendency to attribute to a jury’s verdict a sense of omnipotence and a sense of knowledge of such astral heights that we must accept it on faith and not try to understand what to everyone seems unexplainable. Mysticism aside, this is a verdict that needs to be examined.

Truly the greatest impediment to the granting of this motion is not the facts of this case. Indeed the facts in this case cry out for the correction of the verdict. The greatest impediment is an almost an unbelievable conservatism that allows things to remain the same no matter how manifestly unjust.

In Martinez, key held that on a motion for new trial, the court may weigh the evidence and consider the credibility of the witnesses. It need not have to view the evidence in the light favorable to the government. “[D]espite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.” Id., quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980) (other citations omitted).

As stated earlier, the Martinez Court further observed that new trial motions based on weight of the evidence are typically granted only when the defendant has impeached the credibility of the government witnesses and the government’s case is “marked by uncertainties and discrepancies.” Id. There is no question that the central witness to the Government’s case, Bill Burke, was impeached. As the Government acknowledged in closing argument, Bill Burke testified at trial that he never took a bribe, the Defendants never bribed him, and that the two money payments – the core basis for the bribery and fraud counts – were payments for legitimate work done and not for bribes. Any testimony in contradiction came through the Government impeaching their witness by prior inconsistent – at least to his trial testimony – or prior consistent statements. Regardless, the bottom line is that seldom has the Government ever called a central witness who has had his credibility so totally impeached. Even the Government was forced to advance the argument that their central witness was so badly impeached that he was unworthy of being called credible and thus the jury should completely disregard his testimony.

And Bill Burke was without a doubt the Government’s central witness. Without calling Bill Burke, the Government could not put on a case. They needed Bill Burke to interpret the e-mails and state that what was apparent on its face - invoices and corresponding payments for legitimate work performed - was, in disguise, actually partial payments for bribes. The e-mails do not state or discuss a bribe. To get a bribe out of the e-mails, Bill Burke was necessary to spin them, to “uncloak” them if you will. They needed Bill Burke to connect the circle – to connect preferential treatment with the giving of something of value, in this case money. Without the giving of money, the circle could not be connected. There needed to be a “quid” to the “quo.”

But Bill Burke on direct did not connect the circle, did not “uncloak” them, did not provide the “quid.” When Burke refused to say what the Government was expecting him to say and thus connect the circle, the Government had to rely on impeaching their own witness in order to admit prior statements as substantive evidence in a roundabout way of connecting the circle.

By impeaching Bill Burke, and in closing asking the jury to disregard Burke as lacking credibility, the Government was also attacking the credibility of the same person who wrote the e-mails and pleaded guilty – Bill Burke! If Burke lacks credibility, he lacks credibility as Bill Burke not just when testifying but when pleading, proffering or writing e-mails. The Government stated there were two Bill Burkes, the one that pled and the one that testified – and then they argued that the jury should disregard both. No reasonable jury, if following the Government’s argument, could have found sufficient evidence in the e-mails to prove the elements of the crimes. Nor could a reasonable jury have followed the reasonable doubt instruction and convict the Defendants. The e-mails cannot be sufficient evidence of a bribe or wire fraud because on their face they do not allege a fraud or a bribe. At best they described Bill Burke’s conflict of interest in moonlighting for SDI while working for Sentel, but any conflict of interest was Burkes’ with Sentel, not Defendant Spellissy’s or SDI’s.

Alternatively, the jury could have chosen to disregard the Government’s suggestion and accept Bill Burke’s testimony in whole (which is actually impossible to do because of his conflicting statements) or in part. If in part, which part? To choose the Bill Burke that testified at trial would be to acquit the Defendants. To choose the Bill Burke that testified at the Plea Hearing would be to ignore the Government’s argument to find Burke of having no credibility as well as to disregard the jury instructions regarding: credibility of witnesses; inconsistent statements; caution of those signing plea agreements with the government; and most importantly reasonable doubt.

In sum, no reasonable jury could have made such a finding with so much impeachment of Bill Burke. As the Court stated in Martinez, new trial motions based on weight of the evidence are typically granted only when the defendant has (1) impeached the credibility of the government witnesses and (2) the government’s case is “marked by uncertainties and discrepancies.” Id. Clearly, if ever there was a case where a central witness like Bill Burke was impeached and the Government’s case was marked by uncertainties and discrepancies, this is the case.

In Martinez, the Court gave some examples of insufficient evidence that require the granting of a new trial. One example is cases in which there is no direct proof of the defendant’s guilt and the government’s case depended on a chain of inferences, drawn from uncorroborated testimony of questionable credibility. Id. The Martinez Court offered the second example of cases in which the testimony of the government’s key witnesses “was subject to serious impeachment by prior inconsistent statements and by independent evidence.” Id., quoting United States v. Hurley, 281 F.Supp. 443, 449 (D.Conn. 1968). There is no doubt that when the Government stands up in closing argument and tells the jury that they should not believe Bill Burke – their key witness –because he has no credibility, that witness has suffered “serious impeachment.”

In United States v. Cox, 995 F.2d 1041 (11th Cir. 1993), the Eleventh Circuit expressly adopted the Martinez Court’s analysis. The first Martinez query, according to Cox, is whether the defendant challenges the credibility of the government’s witnesses. Id. at 1045, n.9. The second issue “is whether any uncertainties or discrepancies sullied the United States’ case.” Id. The direct, cross, re-redirect, re-cross and re-re-direct examination of Bill Burke is a text book example of a witness being impeached with completely inconsistent statements and positions. Because Bill Burke was so vital to the Government’s case, his lack of credibility infected the remainder of the Government’s evidence, which was the e-mails.

Besides Bill Burke, the rest of the Government’s case consisted of witnesses who had no direct evidence of wrong doing, one witness – Mr. Pettigrew - who testified to actually looking for and finding no evidence of “preferential treatment”, and witnesses who testified regarding procurement procedures and decision making authority. These witnesses, while relevant to testify whether Burke was in a position worth “bribing,” had no direct evidence of a bribe or any wrong doing. So, other than Burke, the entire cast of witnesses called by the Government had no direct evidence of any crime.

Much of the trial was a battle over whether Burke was in a position of decision making authority. Assuming for argument that Burke was in a position of decision making authority to be worth bribing – that he had “juice” – there would still need to be sufficient evidence that a bribe occurred, because being in a position of “juice” does not prove a crime. There has to be a giving of value in exchange for use of the “juice.” This is again the connection of the circle. The two checks, invoices and 1099’s do not on their face show a bribe. To place a corrupt or sinister twist on these documents a jury needs a witness – Burke – to do so. Once again, all roads lead back to the credibility of Burke.

None of the e-mails by Spellissy discuss a bribe and only in one (1) e-mail does Spellissy cross a conflict of interest line – and that would be Burke’s conflict of interest not Spellissy’s – when he suggests to a potential client to call Burke and see who those at SOCOM would rather deal with. The rest of the e-mails are Burke’s. On their face they showed two things. One, they show that Burke may have in one (1) e-mail crossed a conflict of interest line in suggesting that a potential vendor hire SDI. Two, the rest of the e-mails suggest that Burke has “juice” and had given preferential treatment to Spellissy’s clients and if not paid in the future, he will turn the “spigot” off.

While these e-mails appear as if Burke is asking for a bribe – the uncontroverted facts at trial proved otherwise, that none of the companies or vendors listed ever received any preferential treatment. Again, it was uncontroverted that no example of preferential treatment could be shown despite the boasting by Burke in his e-mail. Even if the jury disregarded the lack of evidence of a single example of preferential treatment to a vendor or client of Spellissy’s, at a minimum the defense created uncertainties and discrepancies that sullied the Government’s case – one of the queries that Martinez and Cox indicated the court must find in a Rule 33 analysis.

Applying both the Rule 29 and Rule 33 standards expressed above, Defendants move this Court to enter judgments of acquittals or, in the alternative, grant a new trial. First, Defendants contend that no reasonable jury could find that the Government proved each element of the offenses beyond a reasonable doubt. Acknowledging that Rule 29(c) relief cannot be based on this Court’s independent weighing of the evidence and assessment of credibility, Defendants alternatively request a new trial under Rule 33 on the basis of insufficiency of the evidence. In determining the merit of a Rule 33 motion, this Court is not obligated to view the evidence in the light most favorable to the Government, and may also assess, for itself, the credibility of a witness on whom the Government relies so heavily. Particularly given the impeachment material described below, this Court can find that “the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred,” and order a new trial. Martinez, 763 F.2d at 1312.

REQUEST FOR HEARING

While the undersigneds are aware that hearings are not normally granted on such motions, nonetheless, the undersigneds assume the risk in asking for such hearing in case the written word is found lacking.

CONCLUSION

According to Eleventh Circuit authority, the evidence was insufficient to support the jury’s verdict. Defendants Thomas Spellissy and SDI, Inc. are entitled to judgments of acquittals or, alternatively, a new trial, on the basis of insufficiency of the evidence as to all counts.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of the foregoing has been furnished by Electronic Filing to Sheryl L. Loesch, Clerk of the Court, U.S. District Court, Middle District of Florida, located at U.S. Courthouse, 801 N. Florida Ave., #223, Tampa, FL 33602-3800, and that e-mail notification of this filing will be sent to all interested persons on this day of , 2006.

_______________________________ ______________________________

PATRICK D. DOHERTY, ESQUIRE JEFFREY G. BROWN, ESQUIRE

Brown & Doherty, P.A. Brown & Doherty, P.A.

450 Carillon Parkway, Suite 120 450 Carillon Parkway, Suite 120

St. Petersburg, FL 33716 St. Petersburg, FL 33716

(727) 299-0099, Fax (727) 299-0044 (727) 299-0099, Fax (727) 299-0044

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pat@brownanddoherty.com jeff@brownanddoherty.com