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Appeal: 17-4266 Doc: 63 Filed: 11/13/2017 Pg: 1 of 71

RECORD NUMBER: 17-4266

United States Court of Appeals


for the

Fourth Circuit

UNITED STATES OF AMERICA,


Plaintiff/Appellee,

– v. –

ANTHONY L. BURFOOT,
Defendant/Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF VIRGINIA AT NORFOLK

CORRECTED OPENING BRIEF OF


APPELLANT

ANDREW M. SACKS
SACKS & SACKS
150 Boush Street, Suite 501
Norfolk, VA 23514
(757) 623-2753

Counsel for Appellant

COUNSEL PRESS • VA – (800) 275-0668


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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ....................................................................................iv


JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF THE ISSUES............................................................................... 1
STATEMENT OF THE CASE .................................................................................. 3
The Nature of the Case, The Course of Proceedings, and the
Disposition in the District Court ......................................................... 3
STATEMENT OF FACTS ........................................................................................ 5

STANDARD OF REVIEW ....................................................................................... 8


SUMMARY OF ARGUMENT ................................................................................. 9
ARGUMENT ........................................................................................................... 12
I. THE DISTRICT COURT ERRED IN OVERRULING
DEFENDANT’S RULE 33 MOTION FOR A NEW TRIAL ON ALL
COUNTS OF CONVICTION FOR THE JURY’S FAILURE TO
DELIBERATE FULLY AND TO FOLLOW THE JURY
INSTRUCTIONS REGARDING DELIBERATIONS ...................... 12
II. THE DISTRICT COURT ERRED IN OVERRULING
DEFENDANT’S RULE 29 MOTION AND SUPPLEMENTAL
MOTION FOR A JUDGMENT OF ACQUITTAL AS TO COUNTS
ONE AND TWO (AND THREE AND FOUR) ON THE GROUNDS
THAT THE EVIDENCE, AT BEST, ESTABLISHED THAT
DEFENDANT ENGAGED IN A CONFLICT OF INTEREST, AS
OPPOSED TO A BRIBERY SCHEME, INVOLVING HIS
ALLEGED FORMER ROLE WITH TIVEST ................................... 17

III. THE DISTRICT COURT ERRED IN OVERRULING


DEFENDANT’S RULE 33 MOTION FOR A NEW TRIAL ON ALL
COUNTS OF CONVICTION, AND RENEWAL OF MOTION FOR
MISTRIAL, FOR INADMISSIBLE OPINION AND HEARSAY
TESTIMONY REGARDING GOVERNMENT WITNESS RONALD
BOONE, SR.’S PERCEIVED INFLUENCE WITH THE CITY OF
NORFOLK .......................................................................................... 20

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IV. THE DISTRICT COURT ERRED IN OVERRULING


DEFENDANT’S RULE 29 MOTION FOR A JUDGMENT OF
ACQUITTAL AS TO COUNT ONE FOR INSUFFICIENCY OF
THE EVIDENCE TO ESTABLISH THAT THERE WAS A
CONSPIRACY TO COMMIT WIRE FRAUD ................................ 22
V. THE DISTRICT COURT ERRED IN OVERRULING
DEFENDANT’S RULE 29 MOTION FOR A JUDGMENT OF
ACQUITTAL AS TO COUNT TWO FOR INSUFFICIENCY OF
THE EVIDENCE TO ESTABLISH THAT THE DEFENDANT
TRANSMITTED OR CAUSED TO BE TRANSMITTED A WIRE
COMMUNICATION .......................................................................... 24

VI. THE DISTRICT COURT ERRED IN OVERRULING


DEFENDANT’S RULE 29 MOTION TO DISMISS COUNT TWO
ON THE GROUNDS THAT THE WIRE COMMUNICATION
ALLEGED WAS NOT IN FURTHERANCE OF THE SCHEME TO
DEFRAUD .......................................................................................... 26
VII. THE DISTRICT COURT ERRED IN OVERRULING
DEFENDANT’S PRETRIAL AND RULE 29 MOTIONS TO
DISMISS COUNT FOUR ON THE GROUNDS OF DUPLICITOUS
INDICTMENT AND STATUTE OF LIMITATIONS ..................... 32

VIII. THE DISTRICT COURT ERRED IN OVERRULING


DEFENDANT’S RULE 33 MOTION FOR A NEW TRIAL, OR, IN
THE ALTERNATIVE, RULE 29 MOTION FOR A JUDGMENT OF
ACQUITTAL, ON COUNT FOUR, BASED ON A
CONSTRUCTIVE AMENDMENT OF COUNT FOUR .................. 36
IX. THE DISTRICT COURT ERRED IN OVERRULING
DEFENDANT’S RULE 29 MOTION TO DISMISS PERJURY
COUNTS SEVEN AND EIGHT ON THE GROUNDS OF LACK OF
MATERIALITY ................................................................................. 39
X. THE DISTRICT COURT ERRED IN OVERRULING
DEFENDANT’S RULE 33 MOTION FOR A NEW TRIAL ON THE
GROUNDS OF NEWLY DISCOVERED EVIDENCE ................... 44

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CONCLUSION ........................................................................................................ 61
STATEMENT REGARDING ORAL ARGUMENT ............................................. 62
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases

Davis v. Alaska,
415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed. 2d 347 (1974) ..................... 53, 59, 60

Jackson v. Virginia,
443 U.S. 307 (1979)........................................................................................ 8

Parr v. United States,


363 U.S. 370, 80 S. Ct. 1171, 4 L. Ed. 2d 1277 (1960) ......................... 27, 28

Skilling v. United States,


561 U.S. 358 (2010)................................................................................ 18, 19

United States v. Bales,


813 F.2d 1289 (1987) ............................................................................ passim

United States v. Brown,


823 F.2d 591 (D.C. Cir. 1987) ..................................................................... 13

United States v. Chavis,


880 F.2d 788 (4th Cir. 1989) .................................................................. 51, 58

United States v. Custis,


988 F.2d 1355 (4th Cir. 1993) ....................................................................... 58

United States v. Dunnigan,


507 U.S. 87 (1983)........................................................................................ 39

United States v. Hancock,


512 Fed. Appx. 266 (4th Cir. 2013) ........................................................ 27, 28

United States v. Littleton,


76 F.3d 614 (4th Cir. 1996) ............................................................... 40, 41, 43

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United States v. McDonnell,


No. 15-4019 (4th Cir., July 10. 2015) ........................................................... 33

United States v. Nyman,


649 F.2d 208 (4th Cir. 1980) ........................................................................ 21

United States v. Robinson,


627 F. 3d 941 (4th Cir. 2010) .................................................................. 34, 35

United States v. Sampson,


140 F.3d 585 (4th Cir. 1998) ......................................................................... 37

United States v. Seeright,


978 F.2d 842 (4th Cir. 1992) ......................................................................... 21

United States v. Spencer,


592 F. 3d 866 (8th Cir. 2010) ........................................................................ 34

United States v. Stotts,


113 F.3d 493 (4th Cir. 1997) ......................................................................... 39

United States v. Symington,


195 F.3d 1080 (9th Cir. 1999) ....................................................................... 13

United States v. Thomas,


116 F.3d 606 (2nd Cir. 1997) ......................................................................... 13

United States v. Tresvant,


677 F.2d 1018 (4th Cir. 1982) ......................................................................... 8

United States v. Wilkinson,


137 F.3d 214 (4th Cir. 1998), cert. denied, 525 U.S. 873 (1998) ................. 40

United States v. Wynn,


684 F.3d 473 (4th Cir. 2012) ......................................................................... 28

Rules and Statutes

18 U.S.C. § 1001 (a) (2) ............................................................................................ 1

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18 U.S.C. § 1343 ..................................................................................................... 27

18 U.S.C. § 1623 ............................................................................................... 39, 40

18 U.S.C. § 1952 ..................................................................................................... 32

18 U.S.C. § 2241 (b) ................................................................................................. 1

18 U.S.C. § 3282 ..................................................................................................... 36

28 U.S.C. § 1291 ....................................................................................................... 1

Fed. R. Crim. P. 29........................................................................................... passim

Fed. R. Crim. P. 33........................................................................................... passim

Fed. R. Evid. 403 .................................................................................................... 21

Fed. R. Evid. 404(b) ...................................................................................... 6, 42, 44

Fed. R. Evid. 701 .................................................................................................... 20

Fed. R. Evid. 801 .................................................................................................... 20

Virginia Code § 58.1-3000 ..................................................................................... 31

Virginia Code § 58.1-3127 ..................................................................................... 31

Virginia Code § 58.1-3919 ..................................................................................... 31

U.S.S.G. § 5K1.1..................................................................................................... 54

Other Authorities

U.S. Const. amend VI .............................................................................................. 13

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JURISDICTIONAL STATEMENT

The District Court possessed subject matter jurisdiction over this criminal

case against defendant-appellant Anthony L. Burfoot (hereinafter “defendant”)

under 18 U.S.C. § 2241 (b) and 18 U.S.C. § 1001 (a) (2). This is an appeal from a

final judgment of conviction entered on April 17, 2017. (JA 7421-7426).

Defendant timely noticed this appeal (JA 7449-7451), giving this Court jurisdiction

under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

I. Whether The District Court erred in overruling Defendant’s Rule 33

Motion For A New Trial On All Counts Of Conviction For The Jury’s Failure To

Deliberate Fully And To Follow The Jury Instructions Regarding Deliberations?

(JA7107-7114, 7199-7209, 7211-7214).

II. Whether The District Court erred in overruling Defendant’s Rule 29

Motion and Supplemental Motion For A Judgment Of Acquittal As To Counts One

And Two (and Three and Four) On The Grounds That The Evidence, At Best,

Established That Defendant Engaged In A Conflict Of Interest, As Opposed To A

Bribery Scheme, Involving His Alleged Former Role With Tivest? (JA 7149-7154,

7160-7164, 7249-7253, 7255-7258).

III. Whether The District Court erred in overruling Defendant’s Rule 33

Motion For A New Trial On All Counts Of Conviction, And Renewal Of Motion

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For Mistrial, For Inadmissible Opinion And Hearsay Testimony Regarding

Government Witness Ronald Boone, Sr.’s Perceived Influence With The City of

Norfolk? (JA 7115-7123).

IV. Whether The District Court erred in overruling Defendant’s Rule 29

Motion For A Judgment Of Acquittal As To Count One For Insufficiency Of The

Evidence To Establish That There Was A Conspiracy To Commit Wire Fraud? (JA

7137-7142, 7232-7239, 7244-7248).

V. Whether The District Court erred in overruling Defendant’s Rule 29

Motion For Judgment Of Acquittal As To Count Two For Insufficiency Of The

Evidence To Establish That The Defendant Transmitted Or Caused To Be

Transmitted A Wire Communication? (JA 7143-7148, 7232-7239, 7244-7249).

VI. Whether The District Court erred in overruling Defendant’s Rule 29

Motion To Dismiss Count Two On The Grounds That The Wire Communication

Alleged Was Not In Furtherance Of the Scheme To Defraud? (JA 68-78, SA 17-

34, JA 7155-7159, 7258-7260).

VII. Whether The District Court erred in overruling Defendant’s pretrial

and Rule 29 Motions To Dismiss Count Four On The Grounds Of Duplicitous

Indictment And Statute Of Limitations? (JA 79-86, SA 34-47, 50, JA 7155-7159,

7258-7260).

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VIII. Whether The District Court erred in overruling Defendant’s Rule 33

Motion For A New Trial, Or, In The Alternative, Rule 29 Motion For A Judgment

Of Acquittal, On Count Four, Based On A Constructive Amendment Of Count

Four? (JA 7124-7136, 7223-7227, 7229-7232).

IX. Whether The District Court erred in overruling Defendant’s Rule 29

Motion To Dismiss Perjury Counts Seven And Eight On The Grounds Of Lack Of

Materiality? (JA 93-203, SA 50-54, JA 7155-7159, 7258-7260).

X. Whether The District Court erred in overruling Defendant’s Rule 33

Motion For A New Trial On The Grounds Of Newly Discovered Evidence? (JA

7271-7315, 7452-7503).

STATEMENT OF THE CASE

The Nature of the Case, the Course of Proceedings, and the Disposition in the
District Court

On January 7, 2016, the defendant was indicted in an Indictment charging

that he committed conspiracy to commit honest services wire fraud (Count One);

honest services wire fraud (Count Two); conspiracy to obtain property under color

of official right (Count Three); obtaining property under color of official right

(Count Four); and perjury (Counts Five through Eight). (JA 38- 67).

On January 20, 2016, the defendant appeared at his arraignment, entered

pleas of not guilty, and requested a trial by jury. (JA 4).

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On October 12, 2016, the District Court heard argument in connection with

certain pertinent pretrial motions (SA 1-80), and entered an Order dated October

17, 2016 memorializing the actions of the Court. (JA 461-463).

On November 7 – December 9, 2016, defendant was tried by a jury at the

conclusion of which he was found guilty of Counts One, Two, Three, Four, Seven,

and Eight, and not guilty of Counts Five and Six. (JA 18).

On April 12, 2017, the District Court heard argument in connection with

certain pertinent post-trial motions (JA 7199 -7270), overruled all such motions,

and entered an Opinion and Order dated April 19, 2017 memorializing the actions

of the Court. (JA 7427-7448).

On April 17, 2017, the defendant was sentenced to imprisonment for a term

of 72 months each on Count One through Four, and 60 months each on Counts

Seven and Eight, to be served concurrently, for an active term of imprisonment of

72 months. (JA 7422).

On April 28, 2017, defendant timely noted his appeal to this Honorable

Court. (JA 7449).

On June 21, 2017, the District Court received evidence and argument in

connection with defendant’s Motion for a New Trial on the Grounds of Newly

Discovered Evidence (JA 7452-7503), overruled the motion and entered an

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Opinion Order dated June 26, 2017 memorializing the actions of the Court. (JA

7504-7513).

STATEMENT OF FACTS

The defendant was a member of the Norfolk City Council from 2002 to

2013. (JA 3508, 3515). The defendant also served as Vice Mayor of the City of

Norfolk from 2008-2013. In addition, he was employed in the Office of the City

Treasurer of Norfolk from 2008-2013, including as the Chief Deputy Treasurer.

(JA 3512-3514). Ultimately, he was elected to the position of the City Treasurer of

Norfolk in 2013. (JA 3515).

The Government’s evidence, stripped to its essence, consisted of testimony

from three local developers, to-wit, Dwight Etheridge (JA 940-1377), Ronald

Boone, Sr. (JA 2014-2141) and Thomas E. Arney (JA 2207-2353), that at certain

times alleged in the Indictment, the defendant received money and/or other things

of value from each of them in consideration for official acts by the defendant while

a member of City Council, including casting certain votes on Ordinances which

votes were favorable to the developers.

More specifically, Mr. Etheridge testified that the defendant was a silent

partner member of a development partnership known as Tivest.

Mr. Etheridge further testified that in or around 2005, while the defendant

was a member of City Council, the defendant expressed to other members of

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Tivest that “he wanted out of Tivest, and he said he wanted me to buy him out of

his interest in Tivest.” (JA 948-953).

Mr. Etheridge further testified that the defendant offered his share of Tivest

for $250,000. (JA 953-954). The purchase price of the defendant’s interest would

be paid back over time by Dwight Etheridge through income generated by Dwight

Etheridge from projects that the defendant supposedly could support that would

benefit Mr. Etheridge and Tivest from a financial standpoint. (JA 954-957).

Thereafter, Mr. Etheridge testified that he made a series of payments over

time and provided other things of value to the defendant in consideration for the

defendant’s support of projects for Tivest, the income from which would generate

the repayment of the defendant’s cashed out silent interest.

The testimony of Dwight Etheridge related to Counts One through Four,

upon which Counts the defendant was convicted.

Developer Ronald Boone, Sr. testified that he also provided money and other

things of value including the free use of a beach home on the Outer Banks of North

Carolina to the defendant in exchange for the defendant’s support on City Council.

No Counts charged specific conduct of the defendant with Mr. Boone, but, rather,

Mr. Boone’s testimony was offered as Rule 404(b)-type “other wrongs” testimony.

Thomas Arney testified that he agreed to provide the mother of certain of the

defendant’s children a $25,000 benefit to assist that mother in purchasing a

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condominium that Mr. Arney had for sale in consideration for the defendant’s

support on City Council of a gentlemen’s club, also knows as a strip club.

Although no specific Counts were charged alleging this agreement as a substantive

charge, Counts Five and Six allege that the defendant was asked about this alleged

agreement as a witness in an earlier bank fraud trial and falsely denied the

agreement. The instant jury found the defendant not guilty of Counts Five and Six,

thereby rejecting Mr. Arney’s testimony that the defendant and he had such an

agreement (and that the defendant had lied under oath about it previously).

The defendant presented a robust defense including 57 witnesses. In

addition, the defendant testified in his own behalf. (JA 3497-4125).

Moreover, the defendant presented dozens and dozens of present or former

City officials, as well as other professionals, such as attorneys, who all testified

that during the pertinent period of time, the defendant never advocated for,

solicited for, or otherwise sought help or assistance for Tivest, Mr. Etheridge, Mr.

Boone, or Mr. Arney, including seven City Council members with whom the

defendant had served (JA 2568-2667, 3098-3107); two present or former attorneys

for the Norfolk Redevelopment and Housing Authority (NRHA) (JA 2668-2691,

2703-2730); six present or former officials associated with the NRHA including a

former and a present executive director and two former Commissioners, as well as

other NRHA officials (JA 3130-3209, 3229-3408); attorneys who represented

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Tivest in City negotiations (JA 2731-2752); and nine former or present City

officials including former City Managers, the City Attorney and one of his

assistants, and other City officials. (JA 2753-2830, 2884-2893, 3015-3037, 3045-

3093, 4149-4155).

In his own testimony, the defendant denied the accusations of Messrs.

Etheridge, Arney and Boone, and testified consistent with that testimony described

above of the dozens of present and former City and NRHA-related persons and

attorneys.

STANDARD OF REVIEW

Where an issue raises a pure question of law, a de novo standard of review is

employed.

Where an issue raises or a mixed question of law and fact, a de novo

standard of review is employed, but with deference to the Court’s factual findings.

Where an issue raises a question of whether a new trial should have been

granted, the standard of review is abuse of discretion.

Where the sufficiency of the evidence supporting a conviction is challenged:

the relevant question is 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.

Jackson v. Virginia, 443 U.S. 307, 319 (1979). See also United States v. Tresvant,

677 F.2d 1018, 1021 (4th Cir. 1982) (reviewing Court should “allow the
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government the benefit of all reasonable inferences from the facts proven to those

sought to be established.”

SUMMARY OF ARGUMENT

I. The District Court erred in overruling Defendant’s Rule 33 Motion

For A New Trial On All Counts Of Conviction For The Jury’s Failure To

Deliberate Fully And Follow The Jury Instructions Regarding Deliberations (JA

7107-7114, 7199-7209, 7211-7214), because the jury deliberated so quickly that it

could not have possibly followed the Court’s instructions regarding deliberations.

II. The District Court erred in overruling Defendant’s Rule 29 Motion

and Supplemental Motion For A Judgment Of Acquittal As To Counts One And

Two (and Three and Four) On The Grounds That The Evidence, At Best,

Established That Defendant Engaged In A Conflict Of Interest, As Opposed To A

Bribery Scheme, Involving His Alleged Former Role With Tivest (JA 7149-7154,

7160-7164, 7249-7253, 7255-7258), because the Government’s evidence only

established that the defendant sold his alleged silent partnership interest in Tivest

to be paid back over time for that sale through profits generated to Tivest through

defendant’s undisclosed assistance as a City Council member.

III. The District Court erred in overruling Defendant’s Rule 33 Motion

For A New Trial On All Counts Of Conviction, And Renewal Of Motion For

Mistrial, For Inadmissible Opinion And Hearsay Testimony Regarding

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Government Witness Ronald Boone, Sr.’s Perceived Influence With The City of

Norfolk (JA 7115-7123), because witness Boone’s inadmissible testimony was so

prejudicial as to fundamentally undermine the defendant’s right to a fair trial.

IV. The District Court erred in overruling Defendant’s Rule 29 Motion

For A Judgment Of Acquittal As To Count One For Insufficiency Of The Evidence

To Establish That There Was A Conspiracy To Commit Wire Fraud (JA 7137-

7142, 7232-7239, 7244-7248), because the Government’s evidence failed to

establish any agreement, to which the defendant was a party, to utilize interstate

wires.

V. The District Court erred in overruling Defendant’s Rule 29 Motion

For Judgment Of Acquittal As To Count Two For Insufficiency Of The Evidence

To Establish That The Defendant Transmitted Or Caused To Be Transmitted A

Wire Communication (JA 7143-7148, 7232-7239, 7244-7249), because there was

no evidence that the defendant directly used an interstate wire, or that any such use

was otherwise foreseeable to the defendant.

VI. The District Court erred in overruling Defendant’s Rule 29 Motion To

Dismiss Count Two On The Grounds That The Wire Communication Alleged Was

Not In Furtherance Of the Scheme To Defraud (JA 68-78, SA 17-34, JA 7155-

7159, 7258-7260), because the wire communication in question, a credit card

payment to the Treasurer’s Office for delinquent taxes, was a legally compelled act

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outside the scope of what can comprise a communication in furtherance of a

scheme to defraud.

VII. The District Court erred in overruling Defendant’s pretrial and Rule

29 Motions To Dismiss Count Four On The Grounds Of Duplicitous Indictment

And Statute Of Limitations (JA 79-86, SA 34-47, 50, JA 7155-7159, 7258-7260),

because Count Four sought to merge multiple alleged Hobbs Act violations into a

single Count, and because Count Four also alleged Hobbs Act violations barred by

the statute of limitations.

VIII. The District Court erred in overruling Defendant’s Rule 33 Motion

For A New Trial, Or, In The Alternative, Rule 29 Motion For A Judgment Of

Acquittal On, Count Four, Based On A Constructive Amendment Of Count Four

(JA 7124-7136, 7223-7227,7229-7232), because the District Court responded to a

jury question during deliberations in a manner which broadened the bases for

conviction under Count Four beyond what the Grand Jury had charged.

IX. The District Court erred in overruling Defendant’s Rule 29 Motion To

Dismiss Perjury Counts Seven And Eight On The Grounds Of Lack Of Materiality

(JA 93-203, SA 50-54, JA 7155-7159, 7258-7260), because the subject of Counts

Seven and Eight was prior sworn testimony by the defendant that, even if

arguendo untrue, was not material to the prior proceeding in which the sworn

testimony was given by the defendant.

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X. The District Court erred in overruling Defendant’s Rule 33 Motion

For A New Trial On The Grounds Of Newly Discovered Evidence (JA 7271-7315,

7452-7503), because the defendant discovered significant new evidence after trial

bearing on the testimony of material Government witnesses Ronald Boone, Sr. and

Paul Riddick.

ARGUMENT
I.
THE DISTRICT COURT ERRED IN OVERRULING DEFENDANT’S
RULE 33 MOTION FOR A NEW TRIAL ON ALL COUNTS OF
CONVICTION FOR THE JURY’S FAILURE TO DELIBERATE FULLY
AND TO FOLLOW THE JURY INSTRUCTIONS REGARDING
DELIBERATIONS
(JA7107-7114, 7199-7209, 7211-7214).

Trial required five weeks, comprised 91 witnesses (including 87 different

individuals and 4 individuals who were called twice), over 270 exhibits

(comprising approximately several thousand individual pages), one hour and 44

minutes of jury instructions, five hours of closing arguments, and 56 separate

written jury instructions. Once receiving the instructions, exhibits, and verdict

form, the jury deliberated approximately four hours and 49 minutes before

reaching verdicts of guilty on six of eight counts.

The Court instructed the jury, inter alia, that the jury was expected to

“consider all of the evidence in the case,” (JA 4386); to “carefully scrutinize all the

testimony given,” (JA 4390); to “[c]onsider each witness’s” credibility, (JA 4390);

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and to engage in a “consideration of all the evidence in the case with your fellow

jurors.” (emphasis added). (JA 4631).

Given the quantum of evidence, argument, and jury instructions in the case,

as compared to the length of the deliberations prior to reaching guilty verdicts, the

defendant respectfully submits that it is a fair and circumstantial inference that the

jury did not deliberate fully and did not follow the Court’s instructions with regard

to a consideration of all of the evidence.

For these reasons, the defendant respectfully submits that the verdicts of

guilty are the result of a defective deliberation process, thereby requiring the

District Court to vacate the verdicts of guilty and grant the defendant a new trial

thereon pursuant to Rule 33, which the District Court declined to do.

It is axiomatic that a fundamental tenet of a defendant’s right to a fair trial

and an impartial jury under the Sixth Amendment of the United States Constitution

is that a jury deliberate fully and follow the Court’s instructions on such full

deliberations. See generally, United States v. Symington, 195 F.3d 1080, 1084-87

(9th Cir. 1999) (discussing “allegations that a juror was unwilling or unable to

apply the law as instructed by a judge.”); United States v. Thomas, 116 F.3d 606,

613-618 (2nd Cir. 1997) (discussing “a juror…who refuses to follow the court’s

instructions on the law…”); and United States v. Brown, 823 F.2d 591, 595-597

(D.C. Cir. 1987).

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While each of the foregoing cases discusses a juror’s duty to deliberate and

to follow the Court’s instructions of law during the deliberations in the context of

jurors who were dismissed by Courts during the trials for alleged failure to

properly deliberate or to follow the instructions, the defendant respectfully submits

that the principles set forth and discussed in those cases apply with equal force to a

jury that appears to fail to fully deliberate or to follow the Court’s instructions on

deliberations.

The Court read the jury instructions on Day 19 from 9:03 a.m. to 10:48 a.m.

(one hour and 44 minutes). (JA 4383, 4424). Each side was allotted two and a half

hours for closing arguments and each side took the full amount of their permitted

time .

Thus, it took over an hour and a half just to have the jury instructions read

once without any discussion thereof; and five hours for counsel merely to

summarize weeks of testimony, 91 witnesses, and hundreds of exhibits.

On Day 20, the jury entered the deliberation room at 11:03 a.m. (JA 4646),

but the jury instructions, verdict form and actual exhibits were only received by

them at 11:26 a.m. (JA 4647) after counsel had been permitted an opportunity to

review same one last time. Accordingly, no effective deliberations could really

have begun until 11:26 a.m.

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At approximately 4:15 p.m., based upon counsel’s recollection (since the

official court reporter did not record this time), the Courtroom Deputy Clerk called

counsel to advise that the jury had reached a verdict. The jury verdict was received

in open Court at approximately 4:36 p.m. (JA 465).

Thus, the jury effectively deliberated from 11:26 a.m. when it received

instructions, the verdict form, and exhibits, until approximately 4:15 p.m., when it

indicated it had reached a verdict, or approximately 4 hours and 49 minutes .This

deliberation time does not take into account any bathroom breaks any juror may

have taken, during which time deliberations would have to cease until the juror

returned. This deliberation time also included some period during which the

Court and jury considered a question from the jury.

The Court instructed the jury as follows:

Both the parties and the public expect that you will
carefully and impartially consider all of the evidence in
the case, follow the law as stated by the judge, and reach
a just verdict regardless of the consequences.
The evidence in the case consists of the sworn
testimony of the witnesses… and all exhibits received in
evidence…

(Jury Instruction No. 2, second and third paragraphs) (emphasis added) (JA 4685-

4386).

The Court also instructed the jury as follows:

You should carefully scrutinize all the testimony


given, the circumstances under which each witness has
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testified… Consider each witness’s intelligence, motive,


state of mind, and demeanor and manner while on the
stand. Consider the witness’s ability to observe the
matters as to which he or she has testified, and whether
he or she impresses you as having an accurate
recollection of these matters. Consider also any relation
each witness may bear to either side of the case…
and the extent to which, if at all, each witness is either
supported or contradicted by other evidence in the case.

(Jury Instruction No. 6, second paragraph) (emphasis added (JA 4390-4391).

Likewise, the Court instructed the jury that, “Each of you must decide the

case for yourself, but only after an impartial consideration of all the evidence in the

case with your fellow jurors.” (Jury Instruction No. 56, second paragraph)

(emphasis added) (JA 4631).

A fair reading of these jury instruction excerpts clearly reveals that the jury

was instructed to discuss and consider carefully and impartially all of the evidence,

consisting of each of the 91 witnesses and hundreds of exhibits, with each other,

before reaching a verdict.

However, based on the sheer quantity of evidence alone, the length of time

required to read the jury instructions once, and the length of time that it required

the parties merely to summarize key points of the evidence alone (cumulatively

over 6 hours and 40 minutes), the defendant respectfully submits that it is clear that

a jury simply could not fully deliberate in the fashion it was instructed in 4 hours

and 49 minutes. Thus, the defendant respectfully submits that a fair and

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circumstantial inference from the foregoing facts and circumstances is that the jury

failed to deliberate fully or to follow the Court’s instructions regarding such full

deliberations, in reaching their verdicts of guilty.

Accordingly, the defendant respectfully submits that the guilty verdicts are

defective; that they must be vacated by the Court; that a new trial must be ordered

thereon; and that the District Court erred in denying defendant’s Rule 33 Motion

on this ground.

II.
THE DISTRICT COURT ERRED IN OVERRULING DEFENDANT’S
RULE 29 MOTION AND SUPPLEMENTAL MOTION FOR A JUDGMENT
OF ACQUITTAL AS TO COUNTS ONE AND TWO (AND THREE AND
FOUR) ON THE GROUNDS THAT THE EVIDENCE, AT BEST,
ESTABLISHED THAT DEFENDANT ENGAGED IN A CONFLICT OF
INTEREST, AS OPPOSED TO A BRIBERY SCHEME, INVOLVING HIS
ALLEGED FORMER ROLE WITH TIVEST
(JA 7149-7154, 7160-7164, 7249-7253, 7255-7258).

The Government‘s evidence, was that the defendant was a “silent partner” in

the Tivest company in 2005.

The Government‘s evidence was further that, sometime later in 2005, the

defendant agreed to divest his silent interest in Tivest, in exchange for $250,000.

Dwight Etheridge testified that the defendant’s $250,000 interest would be

paid through ensuing profits that Tivest would receive from future City projects for

which the defendant could provide support for Tivest. (JA 948-957).

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In Skilling v. United States, 561 U.S. 358, 408-09 (2010), the Supreme Court

restricted the federal honest-services wire fraud statute, which forms the basis of

Counts One and Two, to only bribes or kick-backs. Likewise, the same restrictions

would obviously apply to the Hobbs Act violations alleged in Counts Three and

Four, thereby, again, requiring that the criminally actionable conduct under Counts

Three and Four comprise bribery as opposed to some other alleged wrong.

The Court specifically rejected a further broadening of the statute, as urged

by the Government in that case, to conflict-of-interest matters, rejecting as a basis

for criminal liability under the statute:

“undisclosed self-dealing by a public official or a private


employee - - i.e., the taking of an official action by the
employee that furthers his own undisclosed financial
interests while purporting to act in the interests of those
to whom he owes a fiduciary duty.”

Id. at 409. The Court rejected “‘nondisclosure of a conflicting financial interest’”

as a basis for honest-services fraud liability. Id. at 410.

The defendant respectfully submits that the Government’s evidence

disclosed, not a bribe scheme as permitted to be prosecuted under the statutes by

Skilling, supra, but, rather, the very “‘undisclosed self-dealing… the taking of an

official action… that furthers his own undisclosed financial interests while

purporting to act in the interests of those to whom he owes a fiduciary duty,’” that

Skilling, supra, did not criminalize.

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The evidence is that the defendant had a residual financial interest in Tivest

in the form of a $250,000.00 “cash out” that Tivest agreed to pay from proceeds of

City projects they believed the defendant could assist with. Thus, the votes and

other official actions ascribed to the defendant were not the result of bribes but,

rather, the “‘nondisclosure of a conflicting financial interest,’” which he had in the

projects at issue. The defendant, according to the Government’s evidence, was not

acting on bribes, but was voting on projects in which he had an undisclosed

financial interest, since it was from those projects that Tivest intended to pay his

“cash out “ debt owed by Tivest.

The defendant respectfully submits the Government’s case criminalizes the

very conduct that Skilling, supra held was beyond the reach of the federal honest-

services wire fraud statute (and, necessarily, of the Hobbs Act as well). While

potentially violative of state conflict of interest laws, or other legal norms, Skilling

does not permit the Government to use these statutes to reach the conduct it proved

in this case.

For the foregoing reasons, the defendant respectfully submits that Rule 29

required the Court to vacate the defendant’s convictions on Counts One, Two,

Three and Four, and enter judgments of acquittal thereon, and that the District

Court erred in overruling this Motion.

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III.
THE DISTRICT COURT ERRED IN OVERRULING DEFENDANT’S
RULE 33 MOTION FOR A NEW TRIAL ON ALL COUNTS OF
CONVICTION, AND RENEWAL OF MOTION FOR MISTRIAL, FOR
INADMISSIBLE OPINION AND HEARSAY TESTIMONY REGARDING
GOVERNMENT WITNESS RONALD BOONE, SR.’S PERCEIVED
INFLUENCE WITH THE CITY OF NORFOLK
(JA 7115-7123).

During the prosecution’s case-in-chief, City Council member Tommy

Smigiel, on direct examination, testified:

there has always been a perception, since I have been on


council, that Ronald Boone and the Boone family have
been able to get whatever they want, and it doesn’t matter
that they aren’t following the same rules as everybody
else.

(JA 2157).

The defendant objected to this testimony, and urged that it was inadmissible

hearsay and opinion testimony. The defendant requested a mistrial and, while the

Court denied the motion for a mistrial, the Court sustained the defendant’s

objection and, at the defendant’s request, delivered a cautionary instruction to the

jury to disregard the testimony. (JA 2156-2159).

The defendant respectfully submits that the testimony presented by the

Government through Councilman Smigiel that Ronald Boone and his “family have

been able to get whatever they want” was clearly inadmissible testimony. It

constituted an improper opinion under Federal Rule of Evidence 701 and

comprised inadmissible hearsay under Federal Rule of Evidence 801. Moreover,


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any possible probative value was certainly outweighed by the prejudice to the

defendant under Federal Rule of Evidence 403.

Indeed, the defendant respectfully submits that to elicit an opinion from a

Council member that a key Government witness against the defendant is, in effect,

in an ongoing corrupt of relationship with other City Council members or City

officials is highly prejudicial to the defendant. As held in United States v.

Seeright, 978 F.2d 842, 849 (4th Cir. 1992), a mistrial should be granted where:

there is “a reasonable possibility that the jury’s verdict


was influenced by the material that improperly came
before it.”

That such improper testimony could reasonably possibly prejudice the jury

is clear, given the centrality of Mr. Boone, Sr.’s alleged corrupt relationship with

then-Councilman Burfoot, to the Government’s case.

As pointed out in United States v. Nyman, 649 F.2d 208, 213 (4th Cir. 1980),

this Court must consider:

“the closeness of the case, the centrality of the issue


affected by the error, and the steps taken to mitigate the
effects of the error.”

Notwithstanding that the Court did all it could to “mitigate” the prejudice of the

inadmissible testimony, the defendant respectfully submits that “the closeness of

the case” and “the centrality of the issue affected by the error” outweigh the

curative instruction’s intended effect.

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Accordingly, the defendant respectfully submits that a mistrial should have

been granted based on this highly prejudicial inadmissible evidence; that the

District Court erred in overruling defendant’s Motion for a mistrial and his

renewed Rule 33 Motion thereon; and that the defendant is entitled to a new trial as

a result thereof.

IV.
THE DISTRICT COURT ERRED IN OVERRULING DEFENDANT’S
RULE 29 MOTION FOR A JUDGMENT OF ACQUITTAL AS TO COUNT
ONE FOR INSUFFICIENCY OF THE EVIDENCE TO ESTABLISH THAT
THERE WAS A CONSPIRACY TO COMMIT WIRE FRAUD
(JA 7137-7142, 7232-7239, 7244-7248).

Instruction No. 16 advised, in pertinent part, that Count One charged a

conspiracy between the defendant and others:

to commit wire fraud, that is: having devised and


intending to devise a scheme and artifice to defraud,
through bribery… by transmitting and causing to be
transmitted by means of wire communication…for the
purpose of the execution of such scheme and artifice…

(JA 4396).

Instruction No. 18 stated the elements of the offense as follows:

First: That the conspiracy, agreement, or


understanding to commit honest-services
wire fraud through bribery, as charged in the
indictment, was formed, reached, or entered
into by two or more persons; and
Second: That at some time during the existence or
life of the conspiracy, agreement, or
understanding, the defendant knew the
purpose of the agreement, which was that
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the defendant would solicit, accept or agree


to accept a thing of value in return for his
performance or promise to perform an
official act; and one or more of the co-
conspirators agreed to use a wire in
interstate commerce to further the purpose
of the conspiracy; and
Third: That with knowledge of the purpose of the
conspiracy, agreement, or understanding, the
defendant then deliberately joined the
conspiracy, agreement, or understanding.

(JA 4398-4399).

The defendant respectfully submits that the trial evidence was insufficient to

establish any of the three elements for honest-services wire fraud conspiracy as set

out in Instruction No. 18.

As to the first element, there is no evidence that two or more people agreed

to use interstate wire communications to commit honest-services fraud. The

evidence, in the light most favorable to the Government, was that the defendant

told Dwight Etheridge that before a Council vote on the Midtown Office Tower

project scheduled for February 15, 2011, Mr. Etheridge needed to satisfy a Tivest

tax delinquency in order for the project to be considered. There was no discussion

about the means of payment, the use of a credit card, or any other aspect of

utilization of wires. Moreover, there is no evidence that Mr. Etheridge discussed a

wire communication with any other person in the alleged conspiracy.

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As to the second element, there is, again, no evidence, that the defendant

“knew the purpose of the agreement” included that “one or more of the co-

conspirators agreed to use a wire in interstate commerce to further the purpose of

the conspiracy.” As pointed out above, the record is devoid of any evidence that

the defendant discussed the use of wires, such as a credit card, with Mr. Etheridge,

or that Mr. Etheridge agreed with any other alleged co-conspirator to use a wire.

As to the third element, the defendant lacked “knowledge of the purpose of

the conspiracy, agreement, or understanding,” as there is simply no evidence of

any knowledge by the defendant of any intention by Mr. Etheridge or anyone else

to utilize the wires.

For the foregoing reasons, the defendant respectfully submits that Rule 29

required the Court to vacate the defendant’s conviction on Count One and enter a

judgment of acquittal thereon, and the District Court erred in denying such Motion.

V.
THE DISTRICT COURT ERRED IN OVERRULING DEFENDANT’S
RULE 29 MOTION FOR A JUDGMENT OF ACQUITTAL AS TO COUNT
TWO FOR INSUFFICIENCY OF THE EVIDENCE TO ESTABLISH THAT
THE DEFENDANT TRANSMITTED OR CAUSED TO BE TRANSMITTED
A WIRE COMMUNICATION.
(JA 7143-7148, 7232-7239, 7244-7249).

Instruction No. 35 states, in pertinent part, as follows:

The phrase “transmits or causes to be transmitted


by means of wire communication in interstate
commerce” means to send or cause to be sent from one
state to another by means of telephone or telegraph lines.
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….
….
Evidence that the defendant agreed to cause a
communication by others is sufficient. This does not
mean that the defendant must specifically have
authorized others to do the communication. When one
does an act with knowledge that the use of a wire
communication will follow in the ordinary course of
business or where such use of a communication can
reasonably be foreseen even though not actually
intended, then one causes an interstate wire
communication to be used.

(JA 4412-4413 ).

As stated in Instruction No. 22, Count Two involves Dwight Etheridge’s

sister’s use of a credit card to partially satisfy a Tivest tax delinquency on February

14, 2011 at the Norfolk City Treasurer’s Office. (JA 4405).

The defendant respectfully submits that the trial evidence was insufficient to

establish that the defendant “transmitted and caused to be transmitted” Dwight

Etheridge’s sister’s credit card payment as alleged in Instruction No. 22.

First, the Government’s evidence was that the defendant told Dwight

Etheridge that before a Council vote on the Midtown Office Tower project

scheduled for February 15, 2011, Mr. Etheridge needed to satisfy a Tivest tax

delinquency in order for the project to be considered. There was no discussion

about the means of payment, the use of a credit card, or any other aspect of

utilization of wires. The record is simply devoid of any evidence that the

defendant discussed the use of wires, such as a credit card, with Mr. Etheridge.
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Second, there is no evidence that the defendant urged Mr. Etheridge to pay

the delinquency “with knowledge that the use of a wire communication will follow

in the ordinary course of business,” as set forth in Instruction No. 35. Again, the

record is bare as to any evidence of defendant’s knowledge as to who or how Mr.

Etheridge would satisfy the Tivest debt.

Nor can it be said that “such use of a communication can reasonably be

foreseen” as permitted by Instruction No. 35. While it was possible that Mr.

Etheridge could use a credit card to pay his debt, there is no evidence that the

defendant himself could reasonably foresee such use as it was never discussed, the

defendant had no personal knowledge of how the debt was to be paid, and nothing

beyond speculation or guesswork exists as to any foreseeability by the defendant of

the use of a credit card.

For the foregoing reasons, the defendant respectfully submits that Rule 29

required the District Court to vacate the defendant’s conviction on Count Two and

enter a judgment of acquittal thereon, and that the District Court erred in

overruling the Motion.

VI.
THE DISTRICT COURT ERRED IN OVERRULING DEFENDANT’S
RULE 29 MOTION TO DISMISS COUNT TWO ON THE GROUNDS
THAT THE WIRE COMMUNICATION ALLEGED WAS NOT IN
FURTHERANCE OF THE SCHEME TO DEFRAUD
(JA 68-78, SA 17-34, JA 7155-7159, 7258-7260)).

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As noted, Count Two of the Indictment charged the use of an interstate wire

communication to further a scheme to defraud the citizens of the City of Norfolk of

their right to honest services, in violation of 18 U.S.C. Section 1343.

Defendant respectfully submits that his conviction on Count Two should

have been set aside as a matter of law on the grounds that the wire communication

comprising the alleged violation of law in Count Two could legally not be in

furtherance of the scheme to defraud because the wire communication was legally

compelled, by the Virginia Constitution and state and local law.

In United States v. Wynn, 684 F.3d 473, 477 (4th Cir. 2012), this Court noted
that:

to convict a person of mail fraud or wire fraud, the


government must show that the defendant (1) devised or
intended to devise a scheme to defraud and (2) used the
mail or wire communications in furtherance of the
scheme.

(emphasis added). The defendant respectfully submits that the evidence

demonstrates that the defendant did not use a wire communication “in furtherance

of the scheme.”

Guidance on this issue can be found from the treatment of the analogous

mail fraud statute in United States v. Hancock, 512 Fed. Appx. 266, 268 (4th Cir.

2013)(unpublished). In that case, this Court noted that:

In Parr v. United States, the Supreme Court


espoused that “‘[t]he federal mail fraud statute does not
purport to reach all frauds, but only those limited
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instances in which the use of the mails is a part of the


execution of the fraud….”363 U.S. 370, 389-90, 80 S. Ct.
1171, 4 L. Ed. 2d 1277 (1960) (quoting Kann v. United
States, 323 U.S. 88, 95, 65 S. Ct. 189 L. Ed. 88 (1944)).

In Parr v. United States, supra, 363 U.S. at 391, cited with approval in

Hancock, supra, 512 Fed. Appx. at 269, the Supreme Court reversed mail fraud

convictions of certain public officials and a private banker involving the theft and

misappropriation of public school taxpayer-paid monies after the taxes were

assessed by the mails and paid by taxpayers by mail, which mailings were in

accordance with mandated state law.

The Supreme Court noted the question presented as follows:

The crucial question, respecting Counts 1 through 16 of


the indictment, then comes down to whether the legally
compelled mailings of the lawful—or, more properly,
what are not charged or shown to have been unlawful—
letters, tax statements, checks and receipts, complained
of in those counts, properly may be said to have been for
the purpose of executing a scheme to defraud because
those legally compelled to cause and causing those
mailings planned to steal an indefinite part of the
receipts.

Parr, supra, 363 U.S. at 389 (emphasis added).

In addressing this question, the Supreme Court again noted the limitations

on the mail fraud statute:

Thus, as its terms and purpose make clear, "[t]he federal


mail fraud statute does not purport to reach all frauds, but
only those limited instances in which the use of the mails
is a part of the execution of the fraud, leaving all other
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cases to be dealt with by appropriate state law." Kann v.


United States, 323 U.S. 88, 95. Therefore, only if the
mailings were "a part of the execution of the fraud," or,
as we said in Pereira v. United States, 347 U.S. 1,8, were
"incident to an essential part of the scheme," do they fall
within the ban of the federal mail fraud statute.

Parr, supra, 363 U.S. at 389-90.

The Court found significant that the Government “cites no case holding that

the mailing of a thing which the law required to be mailed may be regarded as

mailed for the purpose of executing a plot or scheme to defraud.” Id. at 390

(emphasis added).

The Court ultimately held as follows:

But in the light of the particular circumstances of this


case, and especially of the facts (1) that the School Board
was legally required to assess and collect taxes, (2) that
the indictment did not charge nor the proofs show that
the taxes assessed and collected were in excess of the
District's needs or that they were "padded" or in any way
unlawful, (3) that no such issue was submitted to, nor,
hence, determined by, the jury, (4) that the Board was
compelled to collect and receipt for the taxes by state
law, which, in the circumstances here, compelled it to use
and cause (here, principally by permitting) the use of the
mails for those purposes, we must conclude that the
legally compelled mailings, complained of in the first 16
counts of the indictment, were not shown to have been
unlawful "step[s] in a plot," Badders v. United States,
supra, 240 U.S. at 394, "part[s] of the execution of the
fraud," Kann v. United States, supra, 323 U.S. at 95,
"incident to an essential part of the scheme," Pereira v.
United States, supra, 347 U.S. at 8, or to have been made
"for the purpose of executing such scheme," within the
meaning of § 1341, for we think it cannot be said that
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mailings made or caused to be made under the imperative


command of duty imposed by state law are criminal
under the federal mail fraud statute, even though some of
those who are so required to do the mailing for the
District plan to steal, when or after received, some
indefinite part of its moneys.

Id. at 391 (emphasis added).

Like the school district in Parr, the Norfolk City Treasurer and his

employees are legally required and compelled to collect delinquent taxes, thereby

compelling that office to use, inter alia, the mails and/or wires to do so. Like the

taxpayers in Parr, supra, Dwight Etheridge was legally required and compelled to

pay local taxes to the Norfolk City Treasurer, both individually and in a corporate

capacity, thereby again compelling him to use, inter alia, the mails and/or wires.

Accordingly, just as the legally compelled use of the mails in the Parr, supra case

could not as a matter of law be for the purpose of executing the scheme to defraud,

so is the legally compelled wire communication in Count Two as a matter of law

not for the purpose of executing the honest-services scheme to defraud either.

The compelled legal authority for the required payment to and collection by

the Norfolk City Treasurer of delinquent taxes by Dwight Etheridge is manifest.

First, the general taxation authority is found in the Constitution of Virginia,

Article X, Section 1, which states that, “All property, except as hereinafter

provided shall be taxed. All taxes shall be levied and collected under general

laws…” (JA 7065).


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The Constitution of Virginia further commits to local taxation, such as by

the City of Norfolk, certain property, as follows:

Real estate, coal and other mineral lands, and tangible


personal property…are hereby segregated for, and made
subject to, local taxation only, and shall be assessed for
local taxation in such manner and at such times as the
General Assembly may prescribe by general law.

(JA 7065). Accord Code of Virginia Section 58.1-3000(“All taxable real estate

and all tangible personal property…are hereby segregated and made subject to

local taxation only.”) . (JA 7066).

Virginia Code Section 58.1-3127 mandates that the City Treasurer shall be

responsible for the receipt of such locally taxed property, stating, in pertinent part,

that:

A. Each treasurer shall receive the state revenue and the


levies and other amounts payable into the treasury of the
political subdivision of the Commonwealth served by the
treasurer.

(JA 7067).

Finally, as to delinquent taxes, such as those owed and payable by Dwight

Etheridge as identified as the subject of the wire communication in Count Two,

Virginia Code Section 58.1-3919 legally compels the City Treasurer to collect and

receive such delinquent taxes, directing, in pertinent part, as follows:

The treasurer, after the due date of any tax or other


charge collected by such treasurer, shall call upon each
person chargeable with such tax or other charge who has
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not paid the same prior to that time, or upon the agent, if
any, of such person resident within the county, city or
town for payment thereof; and upon failure or refusal of
such person or agent to pay the same he shall proceed to
collect by distress or otherwise.

(emphasis added) (JA 7068).

Thus, just as the positive law of the State of Texas legally compelled the tax-

related mailings in Parr, supra, and thereby excluded them from serving as

mailings in furtherance of a fraudulent scheme, so did the positive law of the

Commonwealth of Virginia legally compel the delinquent tax payment by Dwight

Etheridge to the Norfolk City Treasurer under Count Two and similarly excludes it

from serving as a wire communication in furtherance of a scheme to defraud.

For the foregoing reasons, the defendant respectfully submits that the wire

communication underlying Count Two as a matter of law cannot serve as a wire

communication in furtherance of the alleged scheme to defraud, and the District

Court erred in declining to set aside that conviction.

VII.
THE DISTRICT COURT ERRED IN OVERRULING DEFENDANT’S
PRETRIAL AND RULE 29 MOTIONS TO DISMISS COUNT FOUR ON
THE GROUNDS OF DUPLICITOUS INDICTMENT AND STATUTE OF
LIMITATIONS
(JA 79-86, SA 34-47, 50, JA 7155-7159, 7258-7260)).

As noted, Count Four of the Indictment charged the defendant with a

violation of Title 18 U.S.C. Section 1952 ( Hobbs Act).

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Duplicity

Count Four alleges, in pertinent part, as follows:

From in or about October 2008 through in or about


February 2011…defendant…and other persons…did and
caused each other and others to obstruct, delay and
affect…commerce by extortion…,that is: ANTHONY L.
BURFOOT obtained approximately $50,000.00 and
other things of value not due ANTHONY L. BURFOOT
or his office and to which ANTHONY L. BURFOOT
was not entitled, from CE, DE, RL and Tivest,…under
color of official right.

Indictment, COUNT FOUR, Paragraph 2, p. 24 (JA 61).

In United States v. McDonnell, No. 15-4019 (4th Cir., July 10. 2015), this

Court recognized that a Hobbs Act violation such as that charged in Count Four is

comprised of four elements:

The Government must prove beyond a reasonable doubt


that the defendant (1) was a public official; (2) “obtained
a thing of value not due him or his [office]”; (3) “did so
knowing that the thing of value was given in return for
official action”; and (4) “did or attempted in any way or
degree to delay, obstruct, or affect interstate commerce,
or an item moving in interstate commerce.”

Id. at 52-53.

Thus, a Hobbs Act violation occurs at the moment interstate commerce is

affected by a public official’s obtention of a thing of value with the requisite

knowledge that it was given in return for official action.

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Count Four incorporates by reference preceding Paragraphs 1 through 95 of

the Indictment. Indictment, COUNT FOUR, Paragraph 1, p. 24 at JA 61.

Paragraphs 1 through 95 (JA 39-56) recite multiple instances where things of value

were supposedly obtained by the defendant with knowledge that they were

purportedly given in return for official action, including during the October 2008-

February 2011 time period spanning Count Four. Moreover, the phraseology of

Count Four itself implies multiple instances of the obtaining by defendant of things

of value during the October 2008-February 2011 time period of Count Four.

Likewise, the very recitation of a nearly 2 ½-year time period for the alleged

commission of Count Four, versus a single, discrete date (as alleged, for example

in Count Two’s honest-services wire fraud offense) further reflects the intention of

the pleader to sweep a multiplicity of obtentions of things of value by the

defendant within the ambit of Count Four.

An indictment count which seeks to charge multiple offenses within a single

count is improperly duplicitous, defective as a matter of law, and must be

dismissed. As the Eighth Circuit noted in United States v. Spencer, 592 F. 3d 866,

874 (8th Cir. 2010), cited with approval by United States v. Robinson, 627 F. 3d

941, 957 (4th Cir. 2010):

Antwoyn and Derrick contend that if the jury instructions


do not constructively amend the indictment, then Count 1
of the indictment is duplicitous, inappropriately joining
multiple offenses in a single count. See United States v.
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Moore, 184 F. 3d 790, 793 (8th Cir. 1999( (“ ‘Duplicity’


is the joining in a single count of two or more distinct
and separate offenses”. United States v. Karam, 37 F. 3d
1280, 1286 (8th Cir. 1994) (“The principal vice of a
duplicitous indictment is that the jury may convict a
defendant without unanimous agreement on the
defendant’s guilt with respect to a particular offense.”).

(emphasis added). Accord Robinson, supra., 627 F.3d at 957(“Duplicitous

indictments present the risk that a jury divided on two different offenses could

nonetheless convict for the improperly fused double count.”).

The defendant respectfully submits that Count Four seeks to join multiple

Hobbs Act offenses in a single count. Such a lumping of multiple offenses in a

single count violates the rule against duplicitous indictment counts and renders

Count Four defective. Such a grouping risks the very evil that the rule against

duplicitous pleading seeks to prevent: the conviction by a jury without unanimous

agreement on the defendant’s guilt with respect to a single offense. As drawn,

Count Four allows a jury to convict the defendant of violating the Hobbs Act so

long as some jurors agree on some act in violation of the Count, even if all jurors

do not agree on the same act in violation of the Count. Count Four is therefore

defective, should have been dismissed pretrial, and the District Court erred in

declining to do so both pretrial and upon a post-verdict Rule 29 Motion to set aside

the verdict of guilty under Count Four.

Statute of Limitations

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18 U.S.C. § 3282 states as follows:

Except as otherwise expressly provided by law, no


person shall be prosecuted, tried, or punished for any
offense, not capital, unless the indictment is
found…within five years next after such offense shall
have been committed.

(emphasis added).

The Indictment in this case was filed on January 7, 2016. Accordingly, any

Hobbs Act offense alleged therein must have occurred on or after January 7, 2011

(five years back from the date of the Indictment), or such offense is time-barred.

However, in contravention of the statute of limitations, Count Four alleges

an offense date of October 2008-February 2011, all of which is beyond the

applicable statute of limitations except approximately a one-month period spanning

January 7-February, 2011.

Count Four is therefore defective. If permitted to stand, it would allow a jury

to convict the defendant of Hobbs Act violations which are barred by the statute of

limitations. Accordingly, Count Four should have been dismissed on this ground as

well, and the District Court erred in declining to do so both pretrial and upon a

post-verdict Rule 29 Motion to set aside the verdict of guilty under Count Four.

VIII.
THE DISTRICT COURT ERRED IN OVERRULING DEFENDANT’S
RULE 33 MOTION FOR A NEW TRIAL, OR, IN THE ALTERNATIVE,
RULE 29 MOTION FOR A JUDGMENT OF ACQUITTAL, ON COUNT
FOUR, BASED ON A CONSTRUCTIVE AMENDMENT OF COUNT FOUR
(JA 7124-7136, 7223-7227, 7229-7232)
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Instruction No. 40 advised the jury that Count Four charged a violation of:

Title 18, United States Code, Section 1951, that is:


Anthony L. Burfoot obtained approximately $50,000, and
other things of value not due Anthony L. Burfoot or his
office and to which Anthony L. Burfoot was not entitled,
from Curtis Etheridge, Dwight Etheridge, Recardo
Lewis, and Tivest, with their consent, under color of
official right…

(JA 4415-4416).

The jury posed the following question:

“For Count 4, do we need to prove Anthony


Burfoot obtained $50,000 cash and something of value?
or something of value and cash equating to $50,000?”

(JA 7439).

The Court gave the jury the following instruction, to which the defendant

objected, stating:

Ladies and gentlemen, in further response to your


question, the Government must prove that the defendant
received something of value. The Government does not
have to prove what that amount of value was or doesn’t
have to quantify it. They have to prove that he received
something of value.

(JA 4650-4656).

In United States v. Sampson, 140 F.3d 585, 589 (4th Cir. 1998), for a

constructive amendment to occur, the Court:

must find that “either the government (usually during its


presentation of the evidence and/or its argument, [or] the
court (usually through its instructions to the jury), or
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both, broadens the possible bases for conviction beyond


those presented by the grand jury.”

As noted in Instruction No. 40 (JA 4415-4416), the grand jury charged that

the defendant “obtained approximately $50,000 and other things of value.”

Therefore, in order to convict the defendant of Count Four, the defendant

respectfully submits that the Government was required to prove beyond a

reasonable doubt that the defendant obtained that specific amount of money and

other things of value. However, the Court’s instruction in response to the question

allowed the jury to find the defendant guilty so long as he received anything of

value, regardless of whether he received $50,000 or not, in contravention of the

specific allegation in the Indictment.

The defendant respectfully submits that by instructing the jury in the manner

that it did, the Court unintentionally changed what was charged in Court Four,

thereby broadening “the possible bases for conviction beyond those presented by

the grand jury.”

Accordingly, the defendant respectfully submits that the Court’s instruction

constituted a constructive amendment of Count Four, that the defendant’s objection

to the Court’s instruction should have been sustained, and the defendant’s

subsequent Rule 33 and/or 29 Motion should have been granted thereon.

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IX.
THE DISTRICT COURT ERRED IN OVERRULING DEFENDANT’S
RULE 29 MOTION TO DISMISS PERJURY COUNTS SEVEN AND
EIGHT ON THE GROUNDS OF LACK OF MATERIALITY
(JA 93-203, SA 50-54, JA 7155-7159,7258-7260).

Counts Seven and Eight charged the defendant with giving perjured

testimony during the trial of United States v. Edward J. Woodard, et. al., Case No.

2:12cr105, in the Eastern District of Virginia (also known as “the Bank of the

Commonwealth” trial).

Counts Seven and Eight allege that defendant gave perjured testimony

during that trial when he denied ever soliciting “anything of value in exchange for

an official act,” Indictment, COUNT SEVEN, Paragraph 2., p. 27 (JA 64); and

when he denied ever accepting “anything of value in exchange for an official act.”

Indictment, COUNT EIGHT, Paragraph 2., p. 28. (JA 65).

Materiality is an element of perjury:

A witness that testifies under oath or affirmation commits


perjury if he: (1) gives false testimony; (2) concerning a
material matter; (3) with the willful intent to deceive,
rather than as a result of confusion or mistake.

United States v. Stotts, 113 F.3d 493, 497 (4th Cir. 1997), citing with approval

United States v. Dunnigan, 507 U.S. 87, 94 (1983) (emphasis added).

More specifically, materiality is an element of a perjury offense under 18

U.S.C. § 1623, charged under Counts Seven and Eight, as follows:

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The elements of perjury under Section 1623 are that a


defendant “(1) knowingly made a (2) false (3) material
declaration (4) under oath (5) in a proceeding before or
ancillary to any court of the United States.

United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998), cert. denied, 525

U.S. 873 (1998) (emphasis added).

In United States v. Littleton, 76 F.3d 614, 617 (4th Cir. 1996), this Court

noted that, “Not every untrue declaration before a court or grand jury violates the

statute; it is essential that the statement also be material to the government’s

inquiry.” The Littleton Court defined materiality as follows:

A statement is material if it has a natural tendency, or is


capable of influencing, the decision-making body to
which it was addressed.

Id. at 618.

Littleton reversed a perjury conviction where the defendant was convicted of

giving false testimony at a suppression hearing. The Court held that even if the

defendant had testified untruthfully at the hearing, such testimony lacked sufficient

materiality in that case as a matter of law, stating:

We reach the inescapable conclusion that Littleton


testified to nothing at the suppression hearing that could
have conceivably influenced the district court to suppress
her son’s confession. Her entire testimony was, therefore,
immaterial to the court’s inquiry, and, as a result, her
perjury conviction must be reversed.
Id.

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Defendant’s testimony at the Bank of the Commonwealth trial suffers from

the same lack of materiality infirmity as the defendant’s testimony in Littleton.

The Bank of the Commonwealth trial was a 5-defendant trial upon a 25-

Count, 50-page Indictment, alleging conspiracy to commit bank fraud, false entries

in a bank record, false statements to a financial institution, unlawful participation

in a loan, bank fraud, and misapplication of bank funds. See Indictment, United

States v. Edward J. Woodard, et. al., Case No. 2:12cr105, Eastern District of

Virginia, Norfolk Division. (JA 101-151).

The trial spanned approximately forty (40) trial days, and featured in excess

of approximately sixty (60) witnesses, and thousands upon thousands of

documentary evidence.

During the trial, one of the Government witnesses was Tommy Arney. Mr.

Arney testified to a wide-ranging series of transactions which comprised various

Counts of the Indictment. At one point during his direct examination by the

Government, Mr. Arney also briefly testified that the instant defendant had

approached him at a City function and requested that Mr. Arney front $25,000 to

one Tammy Sansbury to allow her to pay off credit card debt and thereby qualify

for a loan from the Bank of the Commonwealth to purchase an Arney-developed

condominium unit at a project known as Widgeon Pointe. Mr. Arney further

testified that the instant defendant allegedly stated that in exchange for this

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$25,000 remittance to Ms. Sansbury, defendant Burfoot would deliver sufficient

City Council votes to approve a strip club Arney sought to develop in downtown

Norfolk. (See Transcript of proceedings in the Bank of the Commonwealth Trial,

March 26, 2013, Tommy Arney direct testimony excerpt, at pp. 891-907). (JA 152-

172) (See also Tommy Arney’s instant trial testimony at JA 2226 -2249).

Significantly, none of the 25 Counts in the Indictment alleged this purported

promise by defendant Burfoot to Mr. Arney as a charged offense. Nor was this

alleged transaction the subject of any Rule 404 (b) Notice of uncharged

misconduct against any of the named defendants. No triable issue as to the guilt or

innocence of the named 5 defendants was presented by this testimony. The fact, or

not, as to whether defendant Burfoot promised City Council votes in exchange for

Mr. Arney giving Tammy Sansbury $25,000 to qualify for a condominium

purchase at Widgeon Point was utterly immaterial to the 25 Counts of the Bank of

the Commonwealth Indictment.

Defendant Burfoot was called as a defense witness by Bank of the

Commonwealth defendant Stephen Fields to refute the testimony of Mr. Arney on

this point. Mr. Burfoot denied the allegations of any such exchange of a promise of

votes for $25,000.00 for Ms. Sansbury. (See JA 4671- 4699 - Burfoot testimony

from Bank of the Commonwealth trial, May 6, 2013).

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Whether Mr. Burfoot did make such a promise to Mr. Arney, or whether he

did not, however, had absolutely nothing to do with the guilt or innocence of the 5

defendants on the 25 Indictment Counts. Whatever the actual state of affairs on this

allegation, neither version made any difference as to the ultimate outcome of the

jury’s decision-making on the issues of guilt or innocence at the core of the Bank

of the Commonwealth trial.

In the words of this Court in Littleton, supra, nothing defendant Burfoot

said about this subject in the Bank of the Commonwealth trial had “a natural

tendency to influence” or was “capable of influencing, the decision-making body

to which it was addressed.” Just like the suppression hearing testimony of the

Littleton defendant, nothing that Burfoot testified to on this issue “could have

conceivably influenced the district court” in its decision-making. Id. at 618. Just as

with defendant’s testimony in the Bank of the Commonwealth trial, so was

Littleton’s “entire testimony…immaterial to the court’s inquiry…” Id., on the core

issues of guilt or innocence on the 25 Indictment charges leveled against the 5

defendants, none of which charges had anything to do with whether defendant

Burfoot did, or did not, solicit $25,000 in exchange for City Council votes. 1

1
Allegations that the defendant perjured himself as to the Arney strip club
agreement comprised Counts Five and Six of the instant Indictment, of which
Counts the defendant was found not guilty.
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For the foregoing reasons, the defendant respectfully submits that his

testimony in the Bank of the Commonwealth trial pertaining to Tommy Arney’s

alleged effort to bribe the defendant, was immaterial as a matter of law to the

issues before the jury in that trial, thereby requiring that the verdicts of guilty as to

Counts Seven and Eight be set aside; and the District Court erred in overruling the

Motion to do so.

X.
THE DISTRICT COURT ERRED IN OVERRULING DEFENDANT’S
RULE 33 MOTION FOR A NEW TRIAL ON THE GROUNDS OF NEWLY
DISCOVERED EVIDENCE
(JA 7271-7315, 7452-7503).

Facts Pertinent to this Motion

Newly discovered evidence as to Government witness Ronald Boone, Sr.

As noted, Ronald Boone, Sr., was one of three (3) critical Government

witnesses against the defendant, along with Dwight Etheridge and Tommy Arney.

The Government contended at trial that Ronald Boone, Sr.’s testimony established

that he bribed the defendant to take official actions as a public official in favor or

Mr. Boone and his interests, and offered this evidence both as 404(b) “other

crimes” evidence as well as actual evidence of offense conduct that the

Government contended was a part and parcel of the cornerstone charge of the

Indictment, to-wit, Count One, charging Conspiracy to Commit Honest Services

Wire Fraud.

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Mr. Boone was sentenced on March 20, 2017 in connection with his earlier

guilty pleas to substantial Bank Fraud, and Conspiracy To Commit Honest

Services Wire Fraud, during which the following critical proffer was made on the

record by Mr. Boone’s counsel:

He [cardiologist] is working hand-in-hand with Dr.


Marie Holland, who is a neurologist of Neurology
Specialists in the workup and the evaluation of Ronald
Boone’s medical and psychological health at the present
time.

(United States v. Ronald Boone, Sr., U.S. District Court, Norfolk Division, Case

No.: 2:16cr126 - 3/20/2017 tr. at 10-11) (bracketed language, emphasis added).

Additionally, Mr. Boone’s defense counsel proffered at his sentencing that:

It was found during the pendency of these


proceedings, based upon some issues, that Mr. Boone
was experiencing some cognitive difficulties. He had an
MRI which showed that he had a stroke. It was a minor
stroke but, all the same, a stroke, which then caused the
doctors to continue to look further at issues related to his
physical and mental, psychological, health.

(United States v. Ronald Boone, Sr., U.S. District Court, Norfolk Division, Case

No.: 2:16cr126 - 03/20/2017 tr. at 11) (emphasis added).

Additionally, Mr. Boone’s defense counsel further proffered on the record at

sentencing that:

Dr. Holland [neurologist] is in the process of


evaluating him on a number of levels. One, she’s seen
him, and she’s made an initial finding that he has mild

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cognitive impairment as a result of the stroke and is


evaluating him for early onset of dementia.

(United States v. Ronald Boone, Sr., U.S. District Court, Norfolk Division, Case

No.: 2:16cr126 - 03/20/2017 tr. at 12) (bracketed language, emphasis added).

Finally, Mr. Boone’s counsel represented at sentencing that:

I say all of that, Judge, and offer that in light of the


fact that Mr. Fiorella and I have filed the motion relative
to his physical and mental condition, and at the
appropriate time I will tie that all into the argument and
the application of the guidelines.

(United States v. Ronald Boone, Sr., U.S. District Court, Norfolk Division, Case

No.: 2:16cr126 - 03/20/2017 tr. at 13) (emphasis added).

Newly discovered evidence as to Government witness Paul Riddick

Norfolk City Councilman Paul Riddick testified as a critical Government

witness in purported corroboration of key Government witness Dwight Etheridge.

More specifically, Mr. Riddick testified, in pertinent part, on Government

direct examination, as follows:

Q. Now I want to direct your attention to around


2010.
Do you recall having a conversation with Dwight
Etheridge about his relationship with Mr. Burfoot?
A. Yes.
Q. And what do you recall Mr. Etheridge telling you,
generally?
A. Mr. Etheridge said to me that Mr. Burfoot was
asking for money to support the project.
Q. And were you troubled by that?
A. Yes.
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Q. Why were you troubled by the fact that Mr.
Etheridge told you Mr. Burfoot was asking for money for
the project?
A. Historically, African-Americans have not played a
significant role in development in the City of Norfolk,
and when we finally get an opportunity to be a part of the
economy in Norfolk, I thought it was just unconscionable
for one African-American to ask another African-
American for money to support a project.
Q. After Dwight Etheridge raised his concern to you,
what did you tell him?
A. I told him he didn’t have to pay Burfoot one red
cent to do business in Norfolk.

(JA 1534-1535) (emphasis added).

The defendant testified on direct examination, without contradiction and

without Government rebuttal, as follows:

Q. All right. Now, do you recall Paul Riddick, Mr.


Paul Riddick, the councilman testifying in the case?
A. Yes, sir.

Q. And when you ran for city council in 2002, who
was your opponent?
A. Herbert Collins.
Q. Was Mr. Collins someone who was an incumbent,
had been on the council previously?
A. Yes, sir.
Q. Was Mr. Collins, from what you observed, were he
and Mr. Riddick allies politically?
A. Yes, sir.
Q. Were you challenging a close ally of Mr. Riddick?
A. I was challenging the establishment at that time.
Q. And did you win?
A. Yes, sir.

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A. Yes. He was vice mayor. At some point - - I think


Daun Hester was vice mayor, and then Riddick, Mr.
Riddick became vice mayor.
Q. When you came in 2002, beating Mr. Collins, Mr.
Riddick’s ally, was Ms. Hester the vice mayor, as you
recall?
A. Yes.
Q. And when did Mr. Riddick, did he succeed her as
vice mayor?
A. He succeeded her as vice mayor.

Q. All right. And at some point did you challenge
Paul Riddick to become vice mayor?
A. Well, I didn’t challenge him to become vice
mayor. He had made some comments that - -

Q. Tell us but don’t tell us what was said.
A. I won’t tell what was said. It didn’t set well with
other council people.
Q. Were these comments in public or were they in
private?
A. They were in public and the community.
Q. In meeting?
A. Yes.
Q. Council meeting?
A. Yes. The community were - - it wasn’t happening,
and so they decided, the council, certain people on the
council decided that enough was enough. And so - -
THE COURT: We are not going into his opinion
of what other people did. This is totally inappropriate.
MR. SACKS: Well, I’m not trying to do that. I’m
trying to get to the number.
THE COURT: What happened is he ran for vice
mayor and he won.
BY MR. SACKS:
Q. Did you run for vice mayor?
A. I didn’t run.
Q. How did you get - - what was the process?
A. Well, Barclay - -
Q. Don’t tell us what anybody - -
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A. Once Barclay nominated me.


Q. All right.
A. And I had to make a decision at that council
meeting whether or not I was going to accept that
nomination. And I made the decision that night at that
council meeting to accept that nomination, and they
voted, and I think it was a 5-2 vote that, you know, I
became the vice mayor.
Q. Now, did you, in effect, succeed Mr. Riddick?
A. Yes, sir.
Q. Was he nominated, as well for that? Was he in
contention? Did he want to stay vice mayor?
A. Well, they didn’t nominate him.
MS. O’BOYLE: Objection to what Mr. Riddick
wanted.
THE WITNESS: Well, they didn’t nominate him.
They just nominated me to replace him.
BY MR. SACKS:
Q. And after you replaced him, what did you observe
about your relationship with Mr. Riddick? Don’t tell us
what he said, just tell us what you observed.
A. Well, we didn’t really have one.
Q. Did he react to your becoming vice mayor?
A. Yes.
Q. How did he react?
A. I don’t want to - -
Q. Don’t tell us what he said. What did you observe
about his demeanor? Was he happy? Was he sad?
THE COURT: Well, he said they didn’t have any
relationship. I think that answers your question.

(JA 3779-3784) (emphasis added).

Defense counsel was first advised after trial but before sentencing of certain

information indicating that, subsequent to the trial, upon Mr. Etheridge’s release

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from custody sometime after the trial, 2Mr. Riddick had raised money for Mr.

Etheridge and had provided him with employment. See copy of Affidavit Of

Joseph E. Wadsworth dated April 13, 2017 (JA 7295-7300), and copy of

Supplemental Addendum To Affidavit Of Joseph E. Wadsworth dated April 14

(JA 7301-7315).

Likewise, at an evidentiary hearing on this issue, Mr. Wadsworth testified

similarly under oath. (JA 7458-7468).

In sum, Mr. Wadsworth provided both affidavit and in-Court testimony that

establishes that key Government witness Paul Riddick raised money for and

provided a job to key Government witness Dwight Etheridge upon Mr. Etheridge’s

post-trial release from custody back into the community.

Moreover, Mr. Riddick, called as a witness at the same evidentiary hearing,

likewise confirmed that in December, 2016, after the defendant’s trial had

concluded, and when Mr. Etheridge (in custody at the time of his trial testimony)

had been “released back into the community” Mr. Riddick hired him as a paid

employee in Mr. Riddick’s funeral home business. (JA 74-76).

In addition, Mr. Riddick gave the recently released Mr. Etheridge additional

financial support in the amount of $100.00. (JA 74-76).

ARGUMENT

2
Upon information and belief, Mr. Etheridge was released from BOP custody
sometime in December, 2016, back to the community after the trial.
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Introduction

Fed. R. Crim. P. 33 states, in pertinent part, that:

(a) Defendant’s Motion. Upon the defendant’s


motion, the court may vacate any judgment and grant a
new trial if the interest of justice so requires….

In United States v. Bales, 813 F.2d 1289, 1295 (1987), the late Judge Ervin

wrote for this Court as follows:

This circuit has enumerated five requirements for


granting a new trial under Fed.R.Crim.P. 33:
(a) the evidence must be, in fact, newly discovered, i.e.,
discovered since the trial; (b) facts must be alleged from
which the court may infer diligence on the part of the
movant; (c) the evidence relied on must not be merely
cumulative or impeaching; (d) it must be material to the
issues involved; and (e) it must be such, and of such
nature, as that, on a new trial, the newly discovered
evidence would probably produce an acquittal. Mills v.
United States,281 F.2d 736,738 (4th Cir.1960), quoting
Johnson v. United States, 32 F.2d 127, 130 (8th
Cir.1929).

Accord United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989).

Ronald Boone, Sr.

Applying the Bales, supra five-part test, the newly discovered evidence

regarding Ronald Boone, Sr.’s cognitive impairment and early dementia meets

each of the five necessary elements.

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First, this evidence clearly has been “discovered since the trial. “Bales.

supra, 813 F.2d at 1295. No evidence of this condition was known to the

defendant at trial. It was first publicly disclosed only on March 20, 2017, through

Mr. Boone’s counsel’s proffer at Mr. Boone’s sentencing, of the contents of

medical records filed apparently under seal and inaccessible to the public

generally.

Second, the defendant has clearly met the next element, requiring that “facts

must be alleged from which the court may infer diligence on the part of the

movant.” Id. Although Rule 33 (b) (1) permits a defendant up to 3 years after the

return of the verdicts to file such a motion , defendant filed this motion on April

14, 2017, prior to sentencing.

Third, this evidence satisfies the third element that “the evidence relied on

must not be merely cumulative or impeaching.” Id. Clearly, this information is not

cumulative. Problems with memory or memory impairment as a cognitive matter

as to several Government witnesses was explored and admitted during the

examination of Government witness Ken Roberts (JA 2896-2897) upon recall by

the defense, as well as during the cross-examination of Government rebuttal

witness Keith McNair (JA 4331-4332, 4341), but it was not something explored

with, (or even at the time known about), Mr. Boone.

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Nor is this evidence “merely impeaching.” 3 The evidence in question goes

well beyond mere impeachment, but, rather, to the very heart of the competency or

capacity of a witness to have an adequate memory and mental state to serve as a

witness. Indeed, the United States Supreme Court itself has clearly recognized the

distinction between evidence which impeaches (or discredits) a witness’ veracity,

as opposed to that which goes to the very heart of the witness’ memory or

perception.

In Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed. 2d 347,

353 (1974), while discussing the centrality of a defendant’s right to confront and

cross-examine a witness against him, the Court noted the distinction between

testing the witness’ memory and perception, and the separate and distinct

impeachment or discrediting of a witness as follows:

Cross-examination is the principal means by which the


believability of a witness and the truth of his testimony
are tested. Subject always to the broad discretion of a
trial judge to preclude repetitive and unduly harassing
interrogation, the cross-examiner is not only permitted to
delve into the witness' story to test the witness'
perceptions and memory, but the cross-examiner has

3
Even as to this element, this Court refers to this element as “the general rule,” but
does not rule definitively that even newly discovered evidence “solely on the basis
of newly discovered impeachment evidence” could never be the basis for a new
trial. United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993). In any event,
because the newly discovered Boone-related evidence goes well beyond “merely
impeaching” evidence, the Court need not concern itself with the Custis, supra,
discussion about the possibility that “merely impeaching” evidence could also
satisfy this element.
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traditionally been allowed to impeach, i. e., discredit, the


witness.

(emphasis added).

Thus, the Supreme Court itself has clearly identified a “witness’ perceptions

and memory” as a category of relevant evidence to the guilt or innocence of a

defendant going well beyond evidence designed solely “to impeach, i.e., discredit,

the witness.” Id. The newly discovered Boone-related evidence therefore meets

that portion of the third element that “the evidence relied on must not be merely…

impeaching.” Bales, supra, 813 F. 2d at 1295.

Fourth, the evidence is certainly “material to the issues involved.” Id. The

Government relied heavily on Mr. Boone’s testimony against the defendant.

According to Mr. Boone’s sentencing hearing transcript, the Government filed a

U.S.S.G. § 5K1.1 motion for a departure from the applicable guidelines, which

motion can only be filed upon the Government’s determination “that the defendant

has provided substantial assistance in the investigation or prosecution of another

person who has committed an offense.” Id. Government counsel stated at that

sentencing hearing as follows:

as the government explained in its motion, and as the


Court saw with its own eyes as it presided over Mr.
Burfoot’s five-week jury trial, this defendant has
provided and continues to provide substantial assistance
to the government.

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(United States v. Ronald Boone, Sr., U.S. District Court, Norfolk Division, Case

No.: 2:16cr126-03/20/17 tr. at p. 23). The Government further argued “that Mr.

Boone’s testimony was both candid and compelling.” Id. at 24.

Likewise, Mr. Boone’s defense counsel equally highlighted the perceived

centrality and materiality of Mr. Boone’s trial testimony, stating that, “The

government refers to substantial assistance in this case. I prefer to refer to it as

extraordinary assistance.” Id. at 29.

Likewise, Mr. Boone’s counsel stated as follows:

It can only be said that Ronald Bone has


affirmatively and boldly aided the United States Attorney
and the FBI in rooting out and attacking public
corruption, I don’t think anyone else can say anything
different than that. And, of course, Your Honor was in
the unique position to preside over the Anthony Burfoot
trial and hear Mr. Boone testify.
(Id. at p. 31).

Finally, defense counsel noted that:

I think you will find that the information not spoken


about but written is both compelling and extraordinary,
which is exactly what we would have expected, because
Mr. Boone’s prior public testimony was compelling and
extraordinary.

(Id. at 35).

In sum, the foregoing characterizations clearly confirm that Mr. Boone’s

trial testimony was “material to the issues involved,” Bales, supra, 813 F. 2d at

1295; that this newly discovered evidence undermining his memory and perception
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would likewise be extremely “material to the issues involved;” and that it therefore

satisfies this fourth element of the newly discovered evidence test.

Fifth, and last, the evidence meets the element that “it must be such, and of

such nature, as that, on a new trial, the newly discovered evidence would probably

produce an acquittal.” Id.

Given the admitted centrality of Mr. Boone’s testimony against the

defendant as discussed above, the defendant respectfully submits that in its

absence, there would likely have been an acquittal. Otherwise stated, the above-

described assertions of its importance also imply that in its absence, a different

result would likely inhere. Exposure of Mr. Boone’s testimony as the result, not of

an accurate, clear memory, but of a cognitively impaired individual with memory

problems and early dementia, would likely dramatically change its acceptability to

a jury and, with it, the jury’s confidence in its accuracy. Without its reliability, the

defendant respectfully submits that an acquittal is likely.

Paul Riddick

Applying, again, the Bales, supra five-part test, the newly discovered

evidence regarding Paul Riddick’s post-trial relationship with Dwight Etheridge,

including employing Mr. Etheridge, and giving money to him, also, as with the

Boone-related newly discovered evidence, meets each of the five necessary

elements as well.

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First, this evidence clearly also has been “discovered since the trial. “Bales,

supra, 813 F.2d at 1295. In fact, the events comprising this particular newly

discovered evidence had not even in fact occurred, nor did they exist, until after the

trial, so they certainly could not have been discovered prior to the trial.

Second, the defendant has clearly met the next element, requiring that “facts

must be alleged from which the court may infer diligence on the part of the

movant.” Id. Although, as already noted, Rule 33 (b) (1) permits a defendant up to

3 years after the return of the verdicts to file such a motion, again, defendant filed

this motion on April 14, 2017, prior to sentencing.

Third, this evidence also satisfies the third element that “the evidence relied

on must not be merely cumulative or impeaching.” Id. Clearly, again, this

information is not cumulative. There was no evidence presented at the trial as to

any special relationship between Government witnesses Paul Riddick and Dwight

Etheridge that would suggest in any way what this newly discovered evidence

implies about the closeness of these two Government witnesses.

Nor, again, is this evidence “merely impeaching.” Again, the evidence in

question goes well beyond mere impeachment, but, rather, to the very heart of the

defense theory in this case that Dwight Etheridge bought into a false narrative

about the defendant’s alleged bribery activities with Mr. Etheridge. As argued at

the beginning of this Brief, if true, this newly discovered evidence raises a vital

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substantive inference that political adversaries of the defendant helped foment

Dwight Etheridge’s false narrative against the defendant, and thereby providing

Mr. Etheridge with strong support to promulgate that false narrative against the

defendant.

Moreover, even if, arguendo, the evidence at issue is “merely impeaching”

(which defendant again respectfully submits is not the case), this Court, as

previously noted, has not definitively precluded a new trial in the interest of justice

where the newly discovered evidence is “merely impeaching,” but has left the door

open for such an application.

In Custis, supra, 988 F. 2d at 1359, the Court noted as follows:

While we have found no exception in this circuit to the


general rule that a motion for a new trial requires a
defendant to establish each of the five elements, see
United States v. Chavis, 880 F.2d 788, 793 (4th
Cir.1989), we need not rule that there can never be such
an exception. There may be an exceptional "rare case"
that would justify granting a new trial solely on the basis
of newly discovered impeachment evidence. See United
States v. Taglia, 922 F.2d at 413, 415-16 (7th Cir.1991)
(noting possible exception, but finding requirements for
exception not satisfied).

(emphasis added).

The defendant respectfully submits that even if this newly discovered

evidence is “merely impeaching,” it is the paradigm scenario falling into the

“exceptional ‘rare case’” to which Custis, supra, refers. The trial testimony offered

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by Mr. Riddick that in 2010, years before the Indictment in this case and during a

time period when the alleged bribery scheme was supposedly in place, Mr.

Etheridge complained to him “that Mr. Burfoot was asking for money to support

the project,” was a vital piece of corroborative evidence going to the heart of the

Government’s case against the defendant in connection with the Tivest alleged

bribery scheme.

Moreover, again, even if “merely impeaching,” this newly discovered

evidence provides exceptional proof of a dramatically strong bias by Mr. Riddick

in favor of Mr. Etheridge and against his political adversary (who replaced him as

vice mayor), the defendant. In Davis v. Alaska, supra, 415 U.S. at 316, 94 S.Ct. at

1105, 39 L.Ed. 2d at 353, the Supreme Court elevated the right to confront and

cross-examine an adverse Government witness about the witness’ bias, to a

constitutionally protected level. As the Court stated about this specific type of

evidence:

A more particular attack on the witness' credibility is


effected by means of cross-examination directed toward
revealing possible biases, prejudices, or ulterior motives
of the witness as they may relate directly to issues or
personalities in the case at hand. The partiality of a
witness is subject to exploration at trial, and is "always
relevant as discrediting the witness and affecting the
weight of his testimony." 3A J. Wigmore, Evidence §
940, p. 775 (Chadbourn rev. 1970). We have recognized
that the exposure of a witness' motivation in testifying is
a proper and important function of the constitutionally

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protected right of cross-examination. Greene v. McElroy,


360 U.S. 474, 496 (1959).

(emphasis added).

Thus, the combination of the critical importance of Mr. Riddick’s testimony

to the Government’s case, and Davis, supra’s encasement of this type of bias

evidence in a sacred constitutionally protected right of exploration by a defendant,

renders this newly discovered evidence, even if “merely impeaching,” sufficient to

meet the third element of the Bales, supra, test.

Fourth, the evidence is certainly “material to the issues involved.” Id. There

can be no doubt, as with Mr. Boone’s testimony, that the Government relied

significantly on Mr. Riddick’s testimony. Its materiality to the issues in this case is

manifest.

Fifth, and last, the evidence, again, meets the element that “it must be such,

and of such nature, as that, on a new trial, the newly discovered evidence would

probably produce an acquittal.” Id.

As with Mr. Boone’s testimony, given the centrality of Mr. Riddick’s

testimony against the defendant as discussed above, the defendant again

respectfully submits that in its absence, there would likely have been an acquittal.

Exposure of Mr. Riddick’s testimony as affected by a strong bias in favor of Mr.

Etheridge and against the defendant, as evidenced by the substantial post-trial

assistance to Mr. Etheridge with a job, and donated funds, would, again, likely
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dramatically change its acceptability to a jury and, with it, the jury’s confidence in

its accuracy. Without its reliability, the defendant respectfully submits that an

acquittal is likely.

Conclusion

For the foregoing reasons, the defendant respectfully submits that the

Boone-related and Riddick-related newly discovered evidence each, on their own,

require a new trial in the interest of justice under Rule 33 as that Rule’s newly

discovered evidence requirements have been interpreted by this Court.

Moreover, in the alternative, even if, arguendo, each of these pieces of

newly discovered evidence, standing alone, would not justify a new trial (which

defendant respectfully submits each would), the cumulative and combined effect of

the existence of each of these bodies of newly discovered evidence would

nevertheless require a new trial in the interest of justice as well.

Accordingly, for the above reasons, the defendant respectfully submits that

that the District Court erred in overruling his Motion for a new trial on newly

discovered evidence grounds.

CONCLUSION

For the above reasons, therefore, the defendant respectfully submits that

each of his convictions on Counts One through Four, Seven and Eight should be

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reversed and the charges dismissed, or, in the alternative, a new trial granted

thereon.

STATEMENT REGARDING ORAL ARGUMENT

Defendant respectfully requests oral argument. Defendant respectfully

submits that oral argument is essential to assist the Court in reviewing the record

and the specific evidence cited, and to aiding the decisional process in this case.

Respectfully submitted

By: /s/ Andrew M. Sacks

Andrew Michael Sacks, VSB # 20082


Sacks & Sacks, P.C.
150 Boush Street, Suite 801
Norfolk, VA 23510-3874
Telephone: (757) 623-2753
Facsimile: (757) 274-0148
sacks@lawfirmofsacksandsacks.com
Counsel for Appellant Anthony J., Burfoot

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT


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Dated: 
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CERTIFICATE OF SERVICE

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