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United States v. Ackerly

United States District Court, D. Massachusetts

August 30, 2019

UNITED STATES OF AMERICA
v.
DONNA M. ACKERLY

          MEMORANDUM AND ON DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL, OR IN THE ALTERNATIVE, FOR A NEW TRIAL

          RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.

         “Then call them to our presence: face to face and frowning brow to brow, ourselves will hear the accuser and the accused freely speak.”[1]

         This 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).

         On 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.

         Ackerly, 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.

         The 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.

         This 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.

         The Legal Standard

         A 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 Cir. 1979).

         Background

         The 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:[2]

Q. You were asked what you were aware of at the time you chose to plead guilty, correct?
A. 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?
A. Yes.
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 bribes?
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 be.

Tr. Day 3 at 67:19-68:12.

         The Confrontation Clause

         The 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 law.[3] The consensus view with respect to its inclusion in the U.S. Constitution - espoused by Justice Scalia in Crawford v. Washington, 541 U.S. ...


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