Professional Documents
Culture Documents
No. 07-4818
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.
Terrence W. Boyle,
District Judge. (5:05-cr-00044-BO)
Argued:
Decided:
March 4, 2009
UNITED STATES
Robert Daniel
Carolina, for
United States
United States
Raleigh, North
PER CURIAM:
The United States appeals from a judgment of acquittal and
conditional
convicted
new
her
trial
of
granted
eight
to
charges
Diane
Pace
relating
after
to
jury
fraudulent
the
jurys
verdict,
the
district
court
found
the
supports
the
jurys
that
Pace
acted
with
an
I.
A.
Between 1996 and 2000, Stanley Van Etten formed several
venture
capital
companies
based
in
Raleigh,
North
Carolina,
Two of
in
various
portfolio
companies,
which
from
ranged
These five
software
firm
with
products
designed
to
coordinate
BuildNet registered
IPO,
investors
and
were
Mayflower
investments in BuildNet.
eager
had
to
participate
leverage
from
its
in
the
previous
Van Etten and Pace informed investors that Fund III would have
the primary purpose of purchasing BuildNet IPO shares.
It
explained that Fund III was open only to Fund I and II investors
and that [a]ny funds not used to purchase [BuildNet] IPO shares
. . . will be returned to the lenders within 60 days from the
effective
1
date
of
Hereinafter,
indicated.
the
all
BuildNet
dates
IPO,
are
from
or
within
2000
60
unless
days
if
otherwise
Government
Ettens
plan
maintains
to
use
the
that
this
Fund
III
memorandum
money
not
evidences
solely
for
Van
the
Fund
investors
over
progress
of
investments.
Managers
the
the
The
sent
coming
several
few
BuildNet
Government
IPO
letters
months,
and
updating
the
maintained
at
to
Fund
them
III
on
the
status
of
their
trial
that
these
It distinguished
between common units in Fund III, which had rights in all Fund
III investments, and preferred units, which had equal rights
and
pro-rata
BuildNet
beneficial
IPO,
which
ownership
will
be
rights
cashed
out
exclusively
and
in
distributed
the
once
of
Instruction
and
Notice
of
The accompanying
Loan
Conversion,
however, give the clear impression that the preferred units will
be used only for BuildNets IPO.
[b]y
units]
converting
to
[preferred
the
undersigned
also
units
BuildNet IPO.
exist
strictly
to
facilitate
the
upcoming
units.
6
other
companies
and
was
illiquid
by
this
time,
the
Fund
encouraged
investments
to
preferred
common
unit
units,
so
holders
that
to
[y]our
convert
money
It
their
will
be
On
note,
they
had
investments be returned.
the
option
to
request
that
their
Most investors
In response, investors
The
with
the
rest
going
to
Mayflower
Capital
and
administrative expenses.
C.
On the basis of these facts, the Government charged Diane
Pace, Brent Wood, and Stanley Van Etten with six counts of mail
fraud in violation of 18 U.S.C. 1341 & 2 (2006), one count of
conspiracy to commit mail fraud in violation of 18 U.S.C. 371,
one count of wire fraud in violation of 18 U.S.C. 1343 & 2,
and
one
count
of
conspiracy
to
commit
money
laundering
in
not
and
preceded
to
joint
trial;
Eilers,
The Governments theory at trial was that Van Etten and the
Fund
Managers
(including
Pace
and
Wood)
deliberately
In fact,
Fund
Managers
may
have
that
the
investor
money
See United
maintained
that
her
role
in
Fund
III
was
solely
other
members
of
management
had
told
investors.
Pace
the
defendants
renewed
their
motions
for
judgment
of
Governments
these
motions
case-in-chief.
and
The
conditionally
district
granted
new
court
granted
trial.
The
new
insufficient
defendants
trial
for
had
on
the
ground
reasonable
specific
juror
intent
to
that
to
the
evidence
conclude
defraud
that
investors.
was
the
The
II.
The district court rested its decision to grant a new trial
solely on its assessment that a rational trier of fact could
not review the evidence and conclude that either Wood or Pace
acted with a specific intent to defraud investors or to launder
money.
of
Paces
co-conspirators
and
other
circumstantial
Rule
of
Criminal
Procedure
29
provides
that
evidence
Crim.
is
P.
insufficient
29(a).
We
to
sustain
review
conviction.
district
courts
Fed.
grant
R.
of
in
the
light
most
favorable
to
the
Government,
charged
offense
beyond
reasonable
doubt.
See
United
the
first
element,
the
Government
must
show
that
To
the
F.3d 659, 666 (4th Cir. 2001) (quoting United States v. Ham, 998
F.2d 1247, 1254 (4th Cir. 1993)).
With
respect
to
the
count
of
conspiracy
to
commit
United
States
1999).
v.
Conspiracy
Edwards,
to
commit
188
F.3d
230,
fraud
234
also
(4th
Cir.
requires
that
the
to defraud.
United States v.
the
Government
was
required
to
prove
(1)
an
activity,
and
(3)
the
defendant
knowingly
and
prove
that
Pace
acted
with
specific
intent
to
sufficient
evidence
from
which
reasonable
juror
alleged
the
co-conspirators,
Governments
fraudulent intent.
with a copy to Pace.
strongest
Pollack
and
evidence
Brothers,
of
Paces
that
he
did
not
wish
to
disclose
confidential
what
was
told
to
investors
when
they
I am not
originally
loaned
investors
were
told
(emphasis
added).
Brothers
purpose
of
investing
into
BuildNet
IPO.
He
further
13
In
addition
Government
to
presented
this
other
co-conspirator
evidence
of
testimony,
Paces
intent.
the
One
told him in March 2001 that [the Fund Managers] had known in
the summer of 2000 that the money was gone, but were afraid to
disclose it to investors.
Moreover, financial
free
view
to
disbelieve
Pace
and,
14
moreover,
her
false
the
evidence
in
the
light
most
In short,
favorable
to
the
The district
III.
The Government next asserts that the district court erred
in conditionally granting a new trial.
We review a district
v.
Wilson,
118
F.3d
228,
237
(4th
Cir.
1997).
United
The
United States v. Campbell, 977 F.2d 854, 860 (4th Cir. 1992).
Unlike a judgment of acquittal, a district court may consider
the credibility of witnesses and need not view the evidence in
the
light
most
favorable
to
the
government
in
determining
757
F.2d
1484,
1485
(4th
Cir.
United States v.
1985).
Here,
the
that
the
evidence
in
this
case
weighs
heavily
new
trial
for
the
same
reasons
it
granted
judgment
of
Because
we
have
concluded
that
the
evidence
was
IV.
For the foregoing reasons, we reverse the district courts
judgment of acquittal and its conditional grant of a new trial.
We remand for further proceedings consistent with this opinion.
For example, the district court did not offer any reason
why it (unlike the jury) found Pace credible, or Pollack and
Brothers incredible.
16