United States District Court, E.D. Kentucky, Central Division, Lexington.
MEMORANDUM, OPINION, & ORDER
KAREN K. CALDWELL, District Judge.
This matter is before the Court on Defendant Sheryl Bruner's motion for a new trial (DE 70) and Bruner's motion to dismiss Count 15 of the First Superseding Indictment (DE 55). For the reasons explained below, the Court will deny Bruner's motion for a new trial (DE 70), and will grant Bruner's motion to dismiss Count 15 of the first superseding indictment (DE 55).
A jury found Bruner guilty (DE 66) on fourteen counts of the superseding indictment, including charges of stealing money from the United States, Social Security fraud, making false statements in relation to her Social Security disability application and renewal, knowingly and fraudulently making a false declaration in a bankruptcy proceeding, and several counts of laundering money. (DE 28, 65). The United States presented evidence that between 2003 and 2013 Bruner applied for and received Social Security Disability benefits even though she was gainfully employed and was running her own business during much of that time. The United States also presented evidence that Bruner made false declarations when she filed for bankruptcy. The Government then showed that Bruner engaged or attempted to engage in several financial transactions with proceeds from bankruptcy fraud.
During trial, Bruner's counsel attempted - unsuccessfully - to produce evidence of an advice of counsel defense. Bruner invoked her Fifth Amendment right not to testify at trial. While the Court agreed to give the "good faith instruction" as to the bankruptcy count, it declined to instruct the jury as to the advice of counsel defense. (DE 65, Instruction 19); (DE 82, p. 260). The Court also granted the United States' motion to exclude video clips of Bruner's mother and sister. (DE 57). Bruner now moves this Court for a new trial based on the Court's refusal to instruct the injury on the advice of counsel defense and the Court's decision to exclude video clips of Bruner's disabled sister and elderly mother.
A. Fed. R. Crim. P. Rule 33 Standard
"Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. R. 33. Whether to grant a defendant's motion for new trial is within "the sound discretion of the trial judge." United States v. Barlow, 693 F.2d 954, 966 (6th Cir 1982). Bruner bears the burden of showing that a new trial should be granted. United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991).
B. Advice of Counsel Instruction
An advice of counsel instruction requires a showing of "(1) full disclosure of all pertinent facts to counsel, and (2) good faith reliance on counsel's advice." United States v. Lindo, 18 F.3d, 353, 356 (6th Cir. 1994). "[A] defendant who identifies any evidence supporting the conclusion that he or she has fully disclosed all pertinent facts to counsel, and that he or she has relied in good faith on counsel's advice, is entitled to a reliance jury instruction." Id. "It is well established than an [advice of counsel] instruction should not be given if it lacks evidentiary support or if it's based on mere suspicion or speculation." Id. (internal citations and quotations omitted), Here, Bruner failed to lay a sufficient evidentiary foundation to merit the instruction.
Bruner's argument for an advice of counsel instruction is complicated in that she insists she relied on a patchwork of advice from two separate attorneys who worked on two very different matters several years apart. The factual applicability of an advice of counsel defense is further obscured by the fact that Bruner was charged with several separate crimes. In her motion, Bruner lumps her arguments together, as though she had only one attorney and was charged with only one crime. In her motion, she insists, "The trial transcript contains a plethora of support for both required elements to merit the advice to [sic] counsel instruction." (DE 86, p. 3). Bruner's argument is misplaced. Bruner failed to present any evidence at trial to establish either element of the advice of counsel instruction as to any particular charge.
While the Sixth Circuit enumerates only two elements of the advice of counsel defense - (1) disclosure of all pertinent facts to counsel and (2) good faith reliance on counsel's advice - such full disclosure and reliance on advice must be related to the particular wrongful action for which a defendant is charged. As the Government pointed out in its brief, it would be nonsensical to suggest otherwise. Although the various circuits describe the elements of the advice of counsel defense in different ways, courts generally agree that the advice and good faith reliance must relate to the wrongful acts at issue in the case. See United States v. West, 392 F.3d 450, 457 (D.C. Cir. 2004) (requiring that an attorney advise the defendant that the specific contemplated action is legal); Markowski v. S.E.C., 34 F.3d 99, 105 (2d Cir. 1994) (requiring a defendant to show that he sought and received advice as to the legality of his conduct); United States v. Al-Shahin, 474 F.3d 941, 947 (7th Cir. 2007) (requiring a defendant to show that he sought advice about the lawfulness of his future conduct and an accurate disclosure of material facts); United States v. Smith, 7 Fed.Appx. 772, at *1 (9th Cir. 2001) (requiring a defendant to show that he received advice "as to the specific course of conduct that he followed"); United States lJ. Polytarides, 584 F.2d 1350, 1352 (4th Cir. 1978) (requiring that the defendant show that he secured the advice of the lawfulness of his conduct at issue).
Similarly, the Sixth Circuit in United States v. Lindo affirmed the district court's decision not to include the advice of counsel jury instruction because the defendant failed to link counsel's advice to the conduct of the defendant at issue. 18 F.3d, at 356. The Court reasoned, "At best, Lindo has shown only that he has in the past relied on Osserman's advice concerning stock sales. No evidence establishes, however, that Lindo provided all of the pertinent facts regarding the stock sales at issue in this case. ..." Lindo, 18 F.3d at 356-57 (emphasis added). Thus, to receive an advice of counsel instruction, a defendant must show that he disclosed all relevant facts relating to his wrongful acts and that he relied on counsel's advice with regard to those acts.
Here, the charges against Bruner can be separated into two distinct categories. Counts one through three relate to social security fraud, and counts four through fourteen relate to bankruptcy fraud and subsequent money laundering. To receive the advice of counsel instruction, Bruner needed to show that ...