United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick United States District Judge.
October 19, 2018, a jury found Defendant William H. Cook, III
guilty of wire fraud, conspiracy to commit wire fraud, and
mail fraud. Cook has filed a motion for a new trial. He
asserts his conviction should be vacated and a new trial
ordered as a result of newly discovered evidence and what he
describes as “material misrepresentations, deceits[, ]
and falsehoods” in the government's closing
argument. (Doc. No. 65 at 1). The government opposes this
motion. (Doc. No. 67). Cook filed a brief in reply. (Doc. No.
68). For the reasons stated below, I deny Cook's motion.
along with John Moon and Gerald Tillman, co-owned a business
named AlphaCare Services, Inc. AlphaCare provided payroll
processing services for its clients, including a company
called Construction Contractors Employer Group
(“CCEG”). CCEG was a professional employer
organization, an entity which provides services like payroll,
tax withholding, and worker's compensation insurance to
its members. In this case, CCEG's members were a
collection of small construction companies.
provided services to CCEG pursuant to a management services
agreement. CCEG's members sent checks to AlphaCare, which
AlphaCare was supposed to deposit into CCEG's accounts,
and with which AlphaCare was supposed to pay the payroll,
taxes, and insurance premiums for the employees of CCEG's
2012, however, the Internal Revenue Service
(“IRS”) placed liens on CCEG's bank accounts,
asserting that CCEG had failed to pay taxes. Instead, Moon,
who was the treasurer for both AlphaCare and CCEG, had been
moving money from CCEG's accounts to AlphaCare's
accounts. From there, Moon and Cook, who was AlphaCare's
president, wrote themselves checks, or withdrew cash using an
government also presented evidence that Cook fraudulently
obtained money from CCEG in connection with a third-party
company called Compensation Analysis, which was owned by
Daniel O'Brien. CCEG had entered into an agreement with
Compensation Analysis pursuant to which Compensation Analysis
would consult on CCEG's worker's compensation claims.
Compensation Analysis charged a flat fee of $2, 500 per month
for its services. Cook would submit an invoice to
Compensation Analysis, which Moon would pay, but in excess of
the invoiced sum. O'Brien would retain Compensation
Analysis's fees and forward the excess money to
AlphaCare, with Moon and Cook eventually receiving those
funds from AlphaCare.
Cook argued Moon was the sole wrong-doer, a jury disagreed
and found Cook guilty of conspiracy to commit wire fraud,
wire fraud, and mail fraud. Cook subsequently filed a motion
for a new trial, claiming the jury's verdict should be
vacated due to the discovery of new evidence and alleged
misconduct during the government's closing argument.
defendant may be entitled to set aside his conviction and
obtain a new trial based upon newly-discovered evidence
pursuant to Federal Criminal Rule 33 if “(1) the new
evidence was discovered after the trial; (2) the evidence
could not have been discovered earlier with due diligence;
(3) the evidence is material and not merely cumulative or
impeaching; and (4) the evidence would likely produce
acquittal.” United States v. Carson, 560 F.3d
566, 585 (6th Cir. 2009) (quoting United States v.
Seago, 930 F.2d 482, 488 (6th Cir.1991)).
offers, as newly-discovered evidence, records from the
Domestic Relations Division of the Wood County, Ohio Court of
Common Pleas, in which Moon's now ex-wife claimed Moon
lived in Maumee, Ohio, rather than in the Moons' marital
home in Bowling Green, Ohio. (Doc. No. 65-4). Cook argues
this information is relevant because the government argued
the jury could infer Cook, and not Moon, withdrew $500 from
an ATM located in Maumee, Ohio, because Moon lived in Bowling
Green, Ohio, and Cook lived in Maumee. (Doc. No. 65 at 3).
government notes, Cook offers no explanation as to why he
could not have discovered this evidence prior to the trial.
The divorce complaint was filed in 2009, approximately seven
years prior to Cook's indictment and nine years prior to
trial. Further, during the trial, defense counsel repeatedly
questioned Moon and other witnesses about Moon's conduct
and his divorce, arguing at one point that Moon have been
attempting to defraud his wife during their divorce
proceedings and that evidence of those actions may be
relevant to the jury's evaluation of Moon's
credibility. (Doc. No. 60 at 136). Cook therefore was fully
aware of Moon's divorce proceedings prior to his trial
but fails to show that he could not have obtained, through
due diligence, a copy of the publicly-available documents
filed in the Moons' divorce proceedings.
Cook does not establish the fourth element of the
newly-discovered evidence test - that the evidence would
likely produce an acquittal. As an initial matter, the jury
still would be free to infer that Cook, and not Moon,
withdrew the $500 from the ATM, which was located across the
street from a Speedway gas station at which Cook made
numerous purchases in the months surrounding the date of that
withdrawal. See Seago, 930 F.2d at 491 (rejecting
defendant's proffer of purported newly-discovered
evidence and holding ...