EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, May 2, 2012

Boardwalk Empire: DNJ Uses Rule 704(b) To Deny Motion For Acquittal In Atlantic City Mortgage Fraud Scheme Case

When the prosecution wants to secure a conviction, it needs to prove that the defendant satisfied the mens rea, or mental state of the crime charged. In some cases, the prosecution will have direct evidence of the defendant's mens rea, most typically when the defendant gives a confession stating what he was thinking at the time of the crime charged. In most cases, however, the prosecution won't have such direct evidence, meaning that it can only present circumstantial evidence from which the jury can infer that the defendant possessed the requisite mens rea. One tool not available to prosecutors is expert testimony concerning the defendant's mental state, which is why the defendant's motion for a judgment of acquittal was unsuccessful in United States v. Shin, 2012 WL 1377597 (D.N.J. 2012).

In Shin, Jong Shin was charged with several crimes related to an alleged mortgage fraud scheme, orchestrated by Shin, in which Shin purchased homes in Atlantic City and recruited straw purchasers to purchase the homes at fraudulently inflated prices. At trial, at the close of the prosecution's case, Shin moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), which provides that

After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government's evidence, the defendant may offer evidence without having reserved the right to do so.

One of the grounds for the motion was that that the prosecution failed to meets its burden of proof in proving her mens rea of intent to defraud because it failed to offer expert evidence on the issue. The United States District Court for the District of New Jersey disagreed, finding that

Expert testimony would have been both unnecessary and potentially improper. Expert testimony was unnecessary because it was within the jury's own competency to assess the Defendant's intent....It could also have potentially run afoul of Federal Rule of Evidence 704(b), which prohibits expert testimony opining or inferring that the defendant in a criminal case has the requisite intent for the crime charged.

Change "could also have potentially run afoul" to "would have run afoul," and I completely agree with the court's opinion.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/05/704b-us-v-shinslip-copy-2012-wl-1377597dnj2012.html

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