When a Judgment of Acquittal is Not Enough 

A district court’s grant of a judgment of acquittal after jury verdict of guilty is so rare that a case discussing the appellate court’s standard of review of the government’s appeal has merely academic interest for trial lawyers.  Read the opinion of a panel of the Eighth Circuit in United States v. Boesen, No. 06-3290 (filed 6/22/07) and just be glad the government can’t appeal verdicts of “Not Guilty”.  The health care fraud case against Jim Boesen was so weak, even judged in the favorable light employed by the Court of Appeals, the panel was compelled to do some analysis; it could not simply declare the evidence of guilt “overwhelming” and move on.

Boesen is a pretty garden variety health care services fraud case except for the fact the trial court, after hearing the evidence and the jury’s verdict of ‘guilty’ on 82 counts, decided no reasonable jury could have reached such results.  The trial court entered judgments of acquittal for Jim Boesen, the office manager of a medical clinic owned by Dr. Peter Boesen, Jim’s brother and co-defendant.  Jim's crime was to finalize and submitt clinic bills to insurers, including Medicare, based on  billing codes and other instructions given him by Peter. The trial court sustained the jury’s guilty verdicts against  Peter on the substantive counts, but concluded that Jim Boesen, a non-medical professional, relied on the expertise of his brother for coding decisions and that no reasonable jury could find that Jim conspired or acted knowingly and willfully to commit health care fraud.

In this circuit, the analysis of the sufficiency of the evidence where a jury has reached a guilty verdict is always the same, even where the appeals court is reviewing the district court’s decision to enter a post-verdict judgment of acquittal.  The appellate judges apply the same standards as the district court when considering a motion for judgment of acquittal; i.e., “A motion for judgment of acquittal should be granted only if there is no interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt,” Boesen, citing United States v. Cacioppo, 460 F.3d 1012, 1021 (8th Cir. 2006).

The appellate review is unaffected by the circumstance that the trial judge, who has observed the witnesses and heard the live testimony just as the jury has, and who is in a better position than the appellate judges to evaluate demeanor and credibility, and who presumably has given due deference to the jury determination,  has felt compelled to reject the verdict and grant judgment of acquittal – the Court of Appeals can substitute its second hand assessment of the evidence for the first hand assessment of the trial court.

What is most interesting about the case is the court’s discussion of the defense proposition that where the government’s evidence is “equally consistent” with innocence or the charged conduct, a conviction cannot stand.  As the court in Boesen observes, the proposition is fully articulated in United States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996).  The court further observes, however, that it has also “made clear” that if the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction, and cites United States v. Baker, 98 F.3d 330, 338 (8th Cir. 1996).

To the extent that Boesen has significance to us, it lies in the opinion’s re-affirmation that Davis and Baker can be reconciled, and therefore the good decision in Davis is still, at least arguably, good law.  The distinction, according to Boesen, was articulated in United States v. Flores, 362 F.3d 1030, 1035 n. 1 (8th Cir. 2004), as follows:

“Sereno-Arreola argues that because his defense was a plausible alternative explanation for the evidence against him, his conviction must be overturned. He cites United States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996), for the proposition that if the "government's evidence is equally strong to infer innocence as to infer guilt, the verdict must be one of not guilty and the court has a duty to direct an acquittal."  Davis expressly applies to the situation in which the government's evidence is equally suggestive of guilt and innocence. Any evidence that supports Sereno-Arreola's claim of innocence comes not from the government, but from his own testimony. Therefore, Davis does not control. More applicable to this case is United States v. Baker, 98 F.3d 330, 338 (8th Cir. 1996), which states that if all of the evidence presented by the prosecution and the defense could rationally support two conflicting hypotheses, the reviewing court will not disturb the conviction. Though subsequent cases have stated that Baker and Davis appear to be in conflict, they have chosen to follow Baker, as do we. See, e.g., United States v. Butler, 238 F.3d 1001, 1004 (8th Cir. 2001).”

In other words, if the “equal” inference of innocence is  manifest in the government’s own case, you still have a shot at getting and keeping a post-verdict judgment of acquittal.  If the court can find a way to show the innocent inferences arise only from defense evidence, or perhaps even from defense cross examination, you’ll almost certainly lose your argument.

The district court in Boesen made the mistake of justifying its judgment of acquittal on the ground that Jim Boesen might have relied upon his brother’s expertise in assigning billing codes that were sent off to the insurance companies.  That reliance was a ‘good faith’ defense apparently rejected by the jury.  The trial court could not grant judgment of acquittal based on the defense evidence if the government’s evidence alone supported the jury’s guilty verdict.

Drafting Plea Agreements 

Just a brief word about United States v. Leach, No. 06-1471 (filed June 22, 2007):  When you write a will and want to be sure your deadbeat son doesn't get a penny of your estate, you make sure to mention him and specifically state he gets nothing.  This may be an idea worth pursuing in working out the terms of a plea agreement and sentencing stipulation.  Leach and the government made a plea agreement in a sex abuse case which dealt specifically with certain provisions of the U.S.S.G. but said nothing about several others which might be relevant but didn't seem to apply.  Probation, however, came up with with some dandy enhancements relevant to repeat offenders which the government decided should be applied despite its agreement that the proper range was several levels (and years) lower.  This may have made no difference to what the courts utlimately decided, but it is worth noting that the Court of Appeals concluded the government was not estopped and did not waive the issue for appellate purposes with the plea agreement.  The failure of the agreement to reference a provision of the Guidelines was not an enforcible agreement that the provision did not apply.

James Ostgard 2007-06-25