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United States v. Busch

United States District Court, S.D. Ohio, Western Division, Dayton

December 6, 2019

United States of America, Plaintiff,
Michael D. Busch, et al., Defendants.



         This matter is before the Court for decision on Motion for Judgment of Acquittal as to Defendant Amanda Busch and for a New Trial as to Defendants Michael Busch And Busch's Country Corner, Inc. (and, in the Alternative, for Defendant Amanda Busch). (ECF 116). Defendants urge that a new trial should be granted because of legal error and other defects in the proceeding and that Amanda Busch is entitled to an acquittal, focusing primarily on a contention that violation of the Supplemental Nutrition Assistance Program, 7 U.S.C. § 2011, et seq., (“SNAP”) regulations does not constitute a crime.


         With respect to a motion for a judgment of acquittal under Rule 29, a court considers “whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” United States v. Mallory, 902 F.3d 584, 596 (6th Cir. 2018) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

         Under Rule 33 motions for a new trial, a court “may vacate any judgment and grant a new trial if the interest of justice so requires, ” quoting Fed. R. Crim P. 33. Such motions are “disfavored, discretionary, and granted only in the extraordinary circumstance where the evidence preponderates heavily against the verdict.” Id. (quoting United States v. Mitchell, 9 Fed.Appx. 485, 489 n.2 (6th Cir. 2001)). It is not a question of whether the evidence was sufficient but whether the evidence weighed “heavily” against the verdict. A trial court should only grant the motion when the verdict is against the “manifest weight” of the evidence. Mallory, 902 F.3d at 596 (quoting United States v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007)); see also United States v. Bowens, 938 F.3d 790, 795-96 (6th Cir. 2019).


         According to Defendants, it is improper “‘to suggest to the jury that it could find a defendant guilty by reason of his violation of [a] regulation.'” ECF 116, PageID 2007 (quoting United States v. Jakeway, 783 F.Supp. 590, 596 (M.D. Fla. 1992)). Defendants also decry the Government's use of Government exhibits 4.4-4.6 (standard SNAP vendor-authorization forms signed by Michael and Amanda). These SNAP forms included certification language indicating that, by signing the forms, Michael and Amanda “took responsibility for” any violations of the SNAP regulations by anyone at the business. (GXs 4.4-4.6). The forms go on to indicate that violations may have various consequences, to include “criminal prosecution, ” which are mentioned expressly.

         The SNAP statute itself states: “[W]hoever knowingly uses, transfers, acquires, alters, or possesses benefits in any manner contrary to this chapter or the regulations issued pursuant to this chapter shall ... be guilty of a felony ....” 7 U.S.C. § 2024(b). [Emphasis added] “[A] valid legislative rule is binding upon all persons, and on the courts, to the same extent as a congressional statute. When Congress delegates rulemaking authority to an agency, and the agency adopts legislative rules, the agency stands in the place of Congress and makes law.” National Latino Media Coalition v. Federal Communications Commission, 816 F.2d 785, 788 (D.C. Cir. 1987). Therefore, violation of a regulation can be a crime.[1]

         The SNAP regulations provide that (1) “[p]rogram benefits may be used only ... to purchase eligible food for the household, ” 7 C.F.R. § 274.7(a), and (2) food stamp benefits “may be accepted by an authorized retail food store only from eligible households or the households' authorized representative, and only in exchange for eligible food. Coupons may not be accepted in exchange for cash.” 7 C.F.R. § 278.2(a); see also United States v. Williams, 553 U.S. 285, 304 (2008); United States v. Robinson, 680 F.2d 557, 558 n.2 (8th Cir. 1982); and United States v. Jeffs, No. 2:16-CR-82 TS, 2016 WL 6760367, at *1 n.9 (D. Utah Nov. 15, 2016).

         Defendants say that they conceded they violated SNAP regulations but did so unintentionally and were improperly convicted for an unintentional violation of regulations. (See ECF 116, at PageID 2003). Yet the Jury Instructions followed the language of the SNAP statute, including mandating that the jury find that the government proved all three elements beyond a reasonable doubt-including that a violation be made knowingly-in order to find a defendant guilty of SNAP fraud.” See, e.g., Instruction 30 (second element of SNAP fraud is that the Government prove beyond a reasonable doubt “that the Defendant knew that he was acting unlawfully and intended to violate the law.”).

         Defendants next assert that it was error to allow the Government to present evidence of defendants' cash management, storage, accounting and reporting, reasoning that such evidence was “completely irrelevant, extremely prejudicial and barred by the court's pre-trial order.” The jury heard about the Buschs' pocket money, how Busch's Country Corner operated its cash register, the capabilities of the cash register, including about how the register produced end-of-day “Z-tapes, ” as well as how other businesses at Findlay Market operated their cash registers.

         While questions of law are reviewed de novo, and questions of fact for clear error, United States v. Clay, 667 F.3d 689, 694-95 (6th Cir. 2012), the Supreme Court recognizes that all evidentiary decisions are discretionary because “[a]ssessing the probative value of the proffered evidence and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (internal quotation marks omitted); see also United States v. Gibbs, 797 F.3d 416, 421 (6th Cir. 2015); and General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997).

         The Court's pre-trial ruling on Defendants' motion in limine prohibited the Government from introducing evidence that Amanda “failed to accurately report … revenue and income generated from cash sales at [BCC] to state and federal taxing authorities.” (ECF 82). The Government's questioning regarding whether all income was reported to tax authorities was permissible to show Amanda Jo's knowledge of Defendants' scheme. This evidence was also relevant because cash was allegedly used for the SNAP fraud. Defense counsel could have made-and, in fact did make--- all or most of these arguments to the jury. Neither was the evidence's probative value substantially outweighed by the ...

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