United States District Court, D. Massachusetts
MEMORANDUM AND ON DEFENDANT'S MOTION FOR A
JUDGMENT OF ACQUITTAL, OR IN THE ALTERNATIVE, FOR A NEW
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
call them to our presence: face to face and frowning brow to
brow, ourselves will hear the accuser and the accused freely
case raises the difficult issue of whether a violation of a
defendant's Sixth Amendment right of confrontation,
“invited” or not, should be deemed harmless
beyond a reasonable doubt. Gov't's Mem. (Dkt # 514)
at 19. Because I conclude that in the circumstances of this
case it cannot, a new trial must be ordered. See United
States v. Earle, 488 F.3d 537, 542 (1st Cir. 2007).
January 15, 2019, after a seven-day jury trial, defendant
Donna M. Ackerly was convicted of conspiring with three
coworkers, Charles Garske, Richard Gottcent, and Michael
Sedlak, and a fourth individual named Brian Zentmyer (also
known as Brian Bennett) to commit wire fraud and honest
services fraud. She was also convicted of two substantive
counts of wire fraud involving clients of her employer
Georgeson, a proxy solicitation firm.
Garske, and Gottcent were senior managing directors (Account
Executives) in Georgeson's Institutional Services Group
(ISG). Sedlak worked as a researcher at ISG and reported
directly to Gottcent. Zentmyer was a mid-level employee of
Institutional Shareholders Services (ISS), a proxy voting
advisory firm. In his position at ISS, Zentmyer had access to
confidential information, including the tallies of proxy
votes cast by ISS's institutional shareholder clients.
case against Ackerly and the codefendants was premised on an
alleged scheme to suborn the “honest services” of
Zentmyer by inducing him to disclose ISS's confidential
information in exchange for bribes. The “bribes”
paid to Zentmyer consisted of tickets to sporting events and
concerts totaling some $14, 000 over the almost five-year
life of the conspiracy. The wire fraud counts against Ackerly
involved two instances in which she allegedly billed a
portion of the costs of the tickets to Georgeson clients
without their authorization.
was the second jury trial Ackerly faced. The first ended in a
mistrial after she and the government refused to stipulate to
a jury of eleven when, immediately prior to closing
statements, the twelfth juror was excused because of a
medical emergency. See Fed. R. Crim. P. 23; Dkt #
404. Now before the court are Ackerly's post-trial
motions seeking a judgment of acquittal, see Fed. R.
Crim. P. 29, or in the alternative, a new trial, see
Fed. R. Crim. P. 33.
district court's power to order a new trial pursuant to
Rule 33 is broader than its power to grant a motion for
acquittal. United States v. Rothrock, 806 F.2d 318,
321 (1st Cir. 1986). The court may consider both the weight
of the evidence and the credibility of the witnesses in
deciding a motion for a new trial. Id. However,
“[t]he remedy of a new trial is rarely used; it is
warranted ‘only where there would be a miscarriage of
justice' or ‘where the evidence preponderates
heavily against the verdict.'” United States v.
Andrade, 94 F.3d 9, 14 (1st Cir. 1996), quoting
United States v. Indelicato, 611 F.2d 376, 387 (1st
Confrontation Clause violation at issue occurred during the
redirect examination of Keith Haynes, a former Account
Executive at Georgeson who had previously pled guilty. To set
the context, the government had listed Zentmyer, who had been
a key witness at the prior trial, on its witness list, but
did not ultimately call him. On cross-examination,
Ackerly's lawyer, Michael Kendall, had asked Haynes
whether the government had told him prior to his guilty plea
that Zentmyer had entered into a cooperation agreement. The
government, in its post-trial Memorandum, states that it
interpreted Kendall's line of questioning as implying
“that the government withheld from Haynes the fact that
Zentmyer did not commit a crime, ” and that the
government believed him. Gov't's Mem. at 17, 18. To
disabuse the jury of any such inference, AUSA Frank asked
Haynes the following:
Q. You were asked what you were aware of at the time you
chose to plead guilty, correct?
Q. You were aware - Mr. Kendall asked you about Brian
Zentmyer's cooperation agreement?
A. About - Q. Do you recall being asked whether Brian
Zentmyer was cooperating with the government?
Q. You were aware at the time you pled guilty that Mr.
Zentmyer had also pled guilty to being involved in a
conspiracy - MR. KENDALL: Objection.
Q. - to steal confidential ISS information in exchange for
THE COURT: I'm going to sustain the objection. Jurors,
the admitted guilt of others really is not relevant to this
specific defendant's guilt or non-guilt, as the case may
Tr. Day 3 at 67:19-68:12.
Confrontation Clause of the Sixth Amendment guarantees that
an accused in a criminal prosecution “shall enjoy the
right . . . to be confronted with the witnesses against
him.” The origins of the Confrontation Clause have been
described by one scholar as “murky, ” Randolph N.
Jonakait, The Origins of the Confrontation Clause: An
Alternative History, 27 Rutgers L.J. 77, 77 (1995),
although the fundamental concept figured prominently in Roman
The consensus view with respect to its inclusion in the U.S.
Constitution - espoused by Justice Scalia in Crawford v.
Washington, 541 U.S. ...