Michael F. Urbanski, United States District Judge.
On December 22, 2015, a jury found defendants Felix Adriano Chujoy and Carolyn J. Edlind guilty of conspiracy to engage in witness tampering under 18 U.S.C. § 1512(k) (Count One), witness tampering under 18 U.S.C. § 1512(b)(1) (Count Two), and obstruction of justice under 18 U.S.C. § 1503 (Count Three). The jury also found Edlind guilty of perjury under 18 U.S.C. § 1623 (Count Four), and a second count of obstruction (Count Five). The final two counts concern Edlind's testimony before the grand jury on October 6, 2015.
Before the court is defendants' joint motion for acquittal, ECF No. 113.
After careful review of the trial record and the arguments of counsel, the court concludes that the government submitted sufficient evidence for a reasonable juror to find Edlind and Chujoy guilty of conspiracy, witness tampering, and obstruction as charged in Counts One, Two and Three. However, the court does not find that any of the six alleged false statements in Count Four support Edlind's perjury conviction. The court likewise finds the evidence insufficient to convict Edlind of obstruction as charged in Count Five. Accordingly, the joint motion for acquittal, ECF No. 113, is
The current indictment relates to another criminal case pending before this court:
A. Investigation of Inca's Secret Restaurant
On or about July 2014, the Department of Homeland Security began investigating the legal status of workers at the Inca's Secret Restaurant in Harrisonburg, Virginia. Trial Tr., Dec. 16, 2015, ECF No. 109, 4:16-6:22 ("12/16 Trial Tr."). Chujoy and his mother Maria Rosalba Alvarado McTague ("Alvarado") were targets of that investigation.
In early 2015, the government discovered evidence that Chujoy, Alvarado, and Chujoy's sister, Gladys Chujoy, were contacting witnesses in the Inca's Secret case. 12/16 Trial Tr. 8:18-23; 40:4-23. Agent Tami Ketcham of the Department of
Acting on evidence that Chujoy, Alvarado, and Gladys Chujoy had contacted potential witnesses, the grand jury returned a superseding indictment in the Inca's Secret case in March 2015. 12/16 Trial Tr. 40:24-41:20.
B. Witness Tampering of Kwiatkowski
After his re-arrest in March 2015, Chujoy continued to contact friends and family from prison. In particular, Chujoy made multiple attempts to speak with Kwiatkowski or have others, including Edlind, speak with Kwiatkowski on his behalf. Kwiatkowski had a "close" friendship with Chujoy for at least six years, which intensified after Kwiatkowski returned to Harrisonburg in 2013. 12/18 Trial Tr. 72:1-73:8. The two men socialized with several mutual friends, including Edlind.
As part of her investigation in the Inca's Secret case, Agent Ketcham interviewed Kwiatkowski in May 2015. 12/16 Trial Tr. 67:9-13. Kwiatkowski provided a witness statement that was disclosed to Chujoy's defense counsel.
1. "Taco Tuesday" Dinners
The first relevant contact between Chujoy, Kwiatkowski, and Edlind came in late 2014. After Chujoy's first arrest in the Inca's Secret case, he attended several dinners with Edlind, her husband Gary Edlind, Kwiatkowski, and a friend named Christina Kang. The majority of these dinners took place on "Taco Tuesdays" at the El Charro Restaurant in Harrisonburg. 12/17 Trial Tr. 179:9-180:14; 12/18 Trial Tr. 82:11-83:14. During this period — which stretched from December 2014 to March
After Chujoy was re-arrested on March 18, 2015, Edlind continued to organize "Taco Tuesdays" dinners with Kwiatkowski, Kang, and her husband to discuss Chujoy and his legal situation. Notably, Edlind asked Kang and Kwiatkowski to turn their cell phones off or leave them in the car during these dinners because Edlind believed the "government" could listen to their conversations. 12/17 Trial Tr. 184:2-6. Kang testified that this request made her feel "very uncomfortable" and like she "had to hide something."
The dinners with Edlind, Kwiatkowski, and Kang were sporadic, and occurred approximately once every two or three weeks from late March 2015 until June 2015. 12/17 Trial Tr. 180:7-185:21; 12/18 Trial Tr. 82:11-84:4; 87:16-88:20. During these meetings, Edlind, Kwiatkowski, and Kang discussed their "reactions" to Chujoy's ongoing prosecution, 12/17 Trial Tr. 183:11-22, and Edlind offered updates on Chujoy's condition in prison. 12/18 Trial Tr. 81:20-82:7. Edlind also asked Kwiatkowski to visit Chujoy at the Rockingham County Regional Jail.
2. Dinner at Edlind's Home in March 2015
In addition to the Taco Tuesday dinners, Edlind hosted at least one dinner for Kwiatkowski and Kang at her home in Harrisonburg. This dinner occurred on or about March 25, 2015, only a few weeks after Chujoy was re-arrested on the superseding indictment in the Inca's Secret case. 12/17 Trial Tr. 180:15-182:9; 12/18 Trial Tr. 84:5-85:1.
3. Jail-House Phone Calls in April and May 2015
After being re-arrested in March 2015, Chujoy tried to contact various individuals — including Kwiatkowski — from the Rockingham County Regional Jail. Chujoy used his inmate PIN number to place telephone calls to Edlind, Kwiatkowski, and three other individuals. 12/16 Trial Tr. 70:4-71:19; 12/17 Trial Tr. 9:17-25. Jail officials track phone calls using an inmate's PIN number, which allows deputies to identify which inmate placed a specific outgoing call. 12/17 Trial Tr. 148:23-149:12. Of the five people Chujoy contacted via phone, several, including Edlind and Kwiatkowski, were individuals whose numbers had previously appeared in the call records of witnesses in the Inca's Secret case. 12/17 Trial Tr. 10:1-11:15.
At trial, the government introduced recordings of eight phone calls Chujoy made using his inmate PIN number. Gov't Exs. 37-54. The first call was to Kwiatkowski on March 31, 2015. Gov't Exs. 37-38. In that call, Chujoy briefly asked Kwiatkowski to visit him at the jail. Gov't Ex. 38. Kwiatkowski testified that Chujoy also called him on several other occasions to encourage him to visit the jail. 12/18 Trial Tr. 79:17-82:9. Recordings of those calls were not introduced at trial.
The other seven recorded phone calls were to Edlind, and took place between April 5, 2015 and May 1, 2015. Gov't Exs. 41-54.
4. Chujoy Receives Kwiatkowski's Witness Statement in June 2015
On or about June 2, 2015, Chujoy met with his defense counsel to prepare for trial in the Inca's Secret case, then scheduled to begin on June 22, 2015. During this meeting, Chujoy was given a copy of Kwiatkowski's interview with federal investigators. Gov't Ex. 28.2. Chujoy was disturbed by Kwiatkowski's statements; he stated in a letter sent to Edlind on June 3, 2015 that he was "pretty shocked" by Kwiatkowski's interview and that he hoped "it [was] either a big misunderstanding or that the feds are twisting it around."
5. Jail-House Phone Calls in June 2015
At some point, Chujoy began using PIN numbers from other inmates to make phone calls. Using another inmate's PIN number makes it more difficult to track jail phone calls, since calls made using another inmate's PIN number are logged to the owner's account, not the account of the inmate placing the call. 12/17 Trial Tr. 148:23-149:12. The government offered evidence that Chujoy knew his jail phone calls were being recorded, and that Chujoy's jail commissary balance — from which the cost of phone calls are deducted — showed a positive balance on days when
In total, the government obtained eleven calls Chujoy made using another inmate's PIN numbers. 12/17 Trial Tr. at 24:19-26:9. Of these eleven calls, ten were made to Donald Smith, Chujoy's friend and then-deputy sheriff in Augusta County, Virginia.
The government offered recordings from four of these calls, which were placed between May 29, 2015, and June 14, 2015. Gov't Exs. 56.1-63. In the first call from May 29, Chujoy and Smith briefly discussed Smith's previous interview with law enforcement about the Inca's Secret case. Gov't Ex. 57. During the second call — which occurred on June 2 — Chujoy told Smith that "Mike" was the reason federal agents had interviewed Smith and encouraged Smith to contact "Mike." Gov't Ex. 59. Subsequent evidence made it clear that "Mike" was Michael Kwiatkowski.
The third call came two days later, on June 5, 2015. Gov't Ex. 61. Chujoy discussed Kwiatkowski's interview with federal agents, including statements Kwiatkowski made about Chujoy's ownership of a home in Harrisonburg and Alvarado's ownership of other homes abroad. Gov't Ex. 60.1 3:15-4:02. Chujoy was concerned Kwiatkowski was mistaken about the ownership of these homes.
Gov't Ex. 61. At trial, Smith testified that he never spoke with Kwiatkowski and stated that "pressur[ing]" Kwiatkowski would be "against the law." 12/17 Trial Tr. 219:15-22; 223:2-224:17. However, Smith also believed Chujoy was trying to get Kwiatkowski to tell the truth about the ownership of these homes.
Finally, Chujoy told Smith on the June 5 call that he had sent Smith a letter about Kwiatkowski, and asked if Smith had received it. Gov't Ex. 61. Smith told Chujoy that he had not, and stated he had also not spoken with Kwiatkowski.
A fourth call between Chujoy and Smith occurred on June 14, 2015. Gov't Ex. 63. Chujoy again asked if Smith had received his letter about Kwiatkowski, and Smith said he had not.
6. Letter from Chujoy to Edlind Dated June 3, 2015
Chujoy also maintained a steady contact with Edlind from jail. In addition to jail phone calls, Edlind visited Chujoy in the jail at least nine times between April and June 2015. Gov't Ex. 35. Chujoy also wrote several letters to Edlind. Of particular importance is a letter dated June 3, 2015. In the June 3 letter, Chujoy described Kwiatkowski's interview with federal agents and asked Edlind to contact Kwiatkowski. The letter stated:
Gov't Ex. 28.2 (emphasis in original). This letter was dated two days before Chujoy's June 5 phone call to Smith, in which Chujoy also asked Smith to speak with Kwiatkowski. Gov't Exs. 60.1, 61.
After receiving the June 3 letter, Edlind reached out to Kwiatkowski. First, Edlind contacted Kwiatkowski by phone — though Kwiatkowski could not recall the exact date of this phone call — and stated that Chujoy had written Kwiatkowski a letter. 12/18 Trial Tr. 96:5-97:8. However, Edlind refused to read the letter to Kwiatkowski or describe its contents.
On June 6, 2015 — three days after Chujoy wrote Edlind — Edlind visited Chujoy in the Rockingham County Regional Jail. Gov't Ex. 35. A few hours later, Edlind sent Kwiatkowski and Kang a text message to arrange a meeting. Gov't Ex. 30. In her initial text message, Edlind stated that it was "very important we meet this week!!!! please [sic] contact me if you can't do Tuesday" and hinted that there was "serious stuff to discuss."
Despite his reservations, Kwiatkowski made plans to meet with Edlind on June 16, 2015 at the El Charro Restaurant. Gov't Ex. 31. This meeting was six days before Chujoy's June 22 trial in the Inca's Secret case. Kang did not respond further to Edlind's June 6 text message, and did not attend the subsequent dinner meeting. Kang testified that Edlind's message made her feel "uncomfortable" and "like we were being put in a situation where we had to be secretive about things that were either allowed to be discussed or weren't, but the fact that we had to put out phones in the car, there's this feeling of secrecy that I felt uncomfortable participating in ... I didn't want to go." 12/17 Trial Tr. 189:20-190:14.
7. Dinner at El Charro on June 16, 2015
Prior to June 16, Kwiatkowski told federal agents about Edlind's text message and agreed to wear a recording device to the El Charro dinner. 12/18 Trial Tr. 98:13-100:24. The government introduced a full recording of the dinner, as well as various excerpts. Gov't Exs. 66-92. Three people attended the June 16 dinner: Edlind, her husband Gary Edlind, and Kwiatkowski. 12/18 Trial Tr. 101:16-17. As Kwiatkowski arrived, Edlind told him to sit on his phone or leave it outside. 12/18 Trial Tr. 101:19-24. Kwiatkowski complied, and left his phone outside.
The Edlinds and Kwiatkowski then engaged in a somewhat meandering conversation that lasted approximately an hour.
Both Edlind and her husband also discussed facts relevant to the Inca's Secret case, including that Chujoy and Alvarado had used friends' cell phones to contact witnesses, and that Edlind thought some of the charges had been a set-up. Gov't Exs. 77, 79, 81, 87, 89. At one point, Edlind corrected Kwiatkowski when he stated that Chujoy was a manager at Inca's Secret, stating that Chujoy was only a "volunteer" at the restaurant. Gov't Ex. 83. Edlind then described how hard it was to tell when Chujoy was joking, called both Alvarado and Chujoy liars, and stated that "you can tell them nothing." Gov't Ex. 85.
At the conclusion of the meeting, Edlind told Kwiatkowski that he did not need to meet with prosecutors if they offered to speak with him before trial. Gov't Ex. 91. However, Edlind encouraged Kwiatkowski to abide by his trial subpoena and assured him that he was not a target of the pending prosecution. Gov't Ex. 92 43:05-49:10. Both Edlinds also told Kwiatkowski to "tell the truth" and to not worry if his testimony was damaging to Chujoy.
8. Continuance of the Inca's Secret Trial
Following the June 16 dinner, the June 22 trial in the Inca's Secret case was continued for reasons unrelated to the instant case. 12/16 Trial Tr. 43:16-45:25. After the continuance, Chujoy was re-released on bond and again ordered to have no contact with potential witnesses.
Chujoy also contacted Smith and Kang after his release in late June. While recovering several personal items from Smith, Chujoy mentioned again that Kwiatkowski had "said a bunch of stuff that wasn't true." 12/17 Trial Tr. 238:20-241:1. However, Smith testified that he never "sat down and plotted anything with [Chujoy]" and stated that he never "talked to [Chujoy] about going and talking to Mike."
C. Edlind's Alleged Perjury on October 6, 2015
Following the continuance of the June 22 Inca's Secret trial, the government re-opened its investigation of witness tampering. As part of this new investigation, the government collected the prison calls Chujoy made to Edlind, Kwiatkowski, and Smith during his time in the Rockingham County Regional Jail. A new grand jury investigation followed, and Edlind was called to testify. On October 6, 2015, Edlind appeared before the grand jury and answered questions about her contact with
D. Trial of the Current Case and Post-Trial Motions
Trial in this case began on December 16, 2015. At the close of the government's evidence, defendants jointly moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The court reserved decision, and the trial continued. The defendants renewed their Rule 29 motion at the close of all the evidence. The court granted the motion in part, striking two of the false statements alleged in Count Four. Nevertheless, the court continued to reserve decision on all counts — including the six remaining false statements alleged in Count Four — and submitted the case to the jury. The jury returned a verdict finding both defendants guilty on Counts One, Two, and Three, and finding Edlind guilty on Counts Four and Five.
After the jury returned its verdict, defendants again renewed their Rule 29 motion. The court ordered them to submit written briefs, and set a deadline thirty days after filing of the trial transcript. Defendants timely filed a joint brief in support of their Rule 29 motion, ECF No. 113, and the court heard oral argument on May 11, 2016.
During argument, several issues were raised regarding Count Four, and the court ordered the government and Edlind to file supplemental briefs. These briefs were filed on June 1, 2016. Two days later, Edlind filed a Rule 33 motion. The court heard a second round of argument on July 20, 2016, during which Chujoy orally joined Edlind's motion for new trial. The timeliness of this Rule 33 motion is addressed in a separate memorandum opinion.
The court now turns to the merits of the joint motion for acquittal. Rule 29 of the Federal Rules of Criminal Procedure states that, "[a]fter 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." Fed. R. Crim. P. 29(a). The Rule further provides that a court can reserve decision on a motion for acquittal until after the jury returns a verdict or is otherwise discharged. Fed. R. Crim. P. 29(b). When, as here, the court reserves decision on a Rule 29 motion made at the close of the government's case, the court "must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R. Crim. P. 29(b).
A. Count Two: Witness Tampering
Counts One, Two, and Three involve various charges associated with defendants' alleged tampering of Kwiatkowski. Because the crux of defendants' argument deals with the allegations of witness tampering in Count Two, the court begins here. To prove witness tampering, the government must show: (1) that a defendant used intimidation, threats, corrupt persuasion, or misleading conduct against Kwiatkowski; (2) that the defendant acted knowingly; and (3) that the defendant acted with the intent to influence, delay, or prevent Kwiatkowski's testimony with respect to the Inca's Secret case. 18 U.S.C. § 1512(b)(1). The government need not show that defendants succeeded in influencing Kwiatkowski's testimony, only that they "act[ed] for the purpose of getting the
1. Standard for Corrupt Persuasion and Misleading Conduct
The government concedes that the alleged witness tampering of Kwiatkowski was not done by threat or intimidation. Thus, the key issues are the meaning of "corrupt persuasion" and "misleading conduct."
18 U.S.C. § 1515 (a)(3)(A-E). In contrast, the term "corrupt persuasion" is undefined — the statute notes only that this term "does not include conduct which would be misleading conduct but for a lack of state of mind."
For their part, the Third and Ninth Circuits carve out exceptions for witnesses who have a legal right to avoid cooperating with law enforcement. Specifically, this second line of cases holds that a defendant does not run afoul of § 1512 if he encourages witnesses to invoke their Fifth Amendment rights or the marital privilege, even if the defendant intends to hinder a criminal investigation.
To the court's knowledge, the Fourth Circuit has not yet addressed this circuit split. However, the Supreme Court's decision in
In light of
ECF No. 79, at 3. The government noted no opposition, ECF No. 85, at 2, and the jury was so instructed. Jury Instr., ECF No. 100, at 36.
2. The Evidence is Sufficient to Support a Conviction on Count Two
Having set the relevant legal framework, the court turns to the facts presented at trial. The government cites a slew of evidence to support Count Two, but its case boils down to two dinner conversations between Edlind and Kwiatkowski: (1) a dinner at Edlind's home on or about March 25, 2015 and (2) a dinner on June 16, 2015 at the El Charro Restaurant
Standing alone, the March dinner is unconvincing. Edlind hosted this dinner in her home, inviting both Kwiatkowski and Kang. 12/17 Trial Tr. 180:15-182:9; 12/18 Trial Tr. 84:5-85:1. At some point, Edlind told Kwiatkowski and Kang they should say that they "d[id]n't know anything because [they] d[id]n't know anything" if federal agents contacted them about the Inca's Secret case. 12/18 Trial Tr. 85:10-86:22. Kwiatkowski found it "kind of shock[ing]" and "weird" that Edlind would tell him to "just say you don't know anything" if contacted by the police.
First, Chujoy had no role in the March dinner. At this point, he was imprisoned in the Rockingham County Regional Jail after his arrest on the superseding indictment in the Inca's Secret case. No evidence showed that he had any role in organizing this dinner, or otherwise encouraged Edlind to speak with Kwiatkowski. While Chujoy and Edlind had a long-standing friendship prior to his second arrest — including multiple dinners at which Chujoy's case was discussed — there is no evidence that Chujoy and Edlind formed a conspiracy to witness tamper as early as March 2015. At best, the government's evidence showed that any conspiracy began in April 2015, when Chujoy began calling Edlind to enlist her help in encouraging Kwiatkowski to visit him in prison. 12/18 Trial Tr. 81:20-82:7; Gov't Exs. 41-54. As a result, Edlind's statements at the March 25 dinner cannot be connected to Chujoy.
This is not to say that the March dinner is irrelevant. While the March episode, standing alone, is insufficient to sustain a witness tampering conviction against Edlind, it remains a part of the mosaic of evidence presented by the government as to Edlind's intent;
By June 2015, the evidence established that Kwiatkowski had information relevant to the Inca's Secret case, causing Chujoy to reach out to Smith and Edlind about his testimony. Agent Ketchum testified that she interviewed Kwiatkowski on May 14, 2015, and turned over the notes of that meeting for disclosure to defense counsel. 12/17 Trial Tr. 53:16-55:10. Sometime in
Chujoy also wrote a letter to Edlind on June 3, raising concerns about Kwiatkowski's interview and the damage his statements might cause. Gov't Ex. 61. Chujoy wrote that Kwiatkowski "could not understand/differentiate when I was joking and when I was being serious" and asked Edlind to meet with Kwiatkowski and "clarify" things with him because he was giving out information that could get Chujoy "into a
Moreover, Chujoy's communication with Edlind — and Edlind's later conversation with Kwiatkowski — came mere weeks before the June 22 trial in the Inca's Secret case. The proximity of trial was reflected in the June 3 letter — Chujoy wrote Edlind that he "hop[ed] you get to meet w[ith] [Kwiatkowski and Kang] ASAP, as clarifying all this is pretty crucial." Gov't Ex. 28.2. Edlind's subsequent messages to Kwiatkowski were similarly urgent. First, Edlind called Kwiatkowski, telling him that Chujoy had written him a letter. 12/18 Trial Tr. 96:5-97:8. However, Edlind refused to read the letter to Kwiatkowski or describe its contents and instead asked him to pick the letter up in person.
Kang ignored Edlind's request to meet because "there [was] this feeling of secrecy that I felt uncomfortable participating in...." 12/17 Trial Tr. 189:20-190:14. For his part, Kwiatkowski told Edlind that he "probably shouldn't be talking about" things that could not be discussed via phone, Gov't Ex. 30, but ultimately agreed to meet with Edlind six days before Chujoy's trial. 12/18 Trial Tr. 98:13-100:24; Gov't Ex. 31. Taking this chain of evidence as a whole — and construing it in the light most favorable to the government — a reasonable juror could conclude that Chujoy enlisted Edlind to persuade Kwiatkowski to change his testimony prior to trial in the Inca's Secret case.
Thus, the central question is whether Edlind engaged in corrupt persuasion at the June 16 dinner as required by 18 U.S.C. § 1512(b)(1).
Of particular concern are Edlind's instructions in the first excerpt. A reasonable juror could interpret Edlind's instruction "not to say anything" and "not to mention anything about that" as attempts to silence Kwiatkowski and persuade him to deny knowledge of certain facts. These statements parrot Chujoy's June 3 letter, in which he asked Edlind to "clarify"
To be sure, there is some question about the precise facts Edlind and Chujoy wanted Kwiatkowski to deny. For example, Edlind's first statement was couched in general terms — she told Kwiatkowski "not to say anything, don't write him, or do nothing" without specifying what Kwiatkowski should avoid saying. Her second statement was also unspecific, telling Kwiatkowski "not to mention anything about that" without making clear what Kwiatkowski was to avoid saying. However, this second statement came moments after Edlind asked Kwiatkowski whether Chujoy had told him that he had murdered someone. Gov't Exs. 71-73. In fact, Edlind asked Kwiatkowski directly if federal agents wanted to know about this. Gov't Ex. 73. When Kwiatkowski said no, Edlind explained that "you see, [Chujoy] has nothing to do but sit in that jail cell and obsess."
In addition, the government offered evidence about other facts known to Kwiatkowski that Chujoy hoped to influence. For example, Chujoy complained to Smith during their June 5 phone call that Kwiatkowski told federal agents that Chujoy and his mother owned several homes both in Virginia and abroad. Similarly, Chujoy's June 3 letter gave examples of statements Chujoy wanted Edlind to "clarify" with Kwiatkowski, including Kwiatkowski's claim that Chujoy "couldn't be trusted" and "is always lying" and that Chujoy's mother was "very intimidating." Gov't Ex. 28.2. Chujoy also objected to certain "specific stories and examples" Kwiatkowski shared with investigators.
Moreover, there is other evidence to support a finding of corrupt persuasion. For example, the government claims Edlind and Chujoy used the June 16 dinner to plant key facts in Kwiatkowski's mind in hopes that Kwiatkowski's later trial testimony would support Chujoy's defense. Specifically, the government cites Edlind's discussion on June 16 about Chujoy's habit of joking and lying. In his June 3 letter, Chujoy told Edlind to inform Kwiatkowski that he could not tell when Chujoy was joking and when he was being serious. Gov't Ex. 28.2. Channeling this instruction, Edlind engaged in a detailed conversation about times Kwiatkowski failed to recognize when Chujoy was joking. The government theorizes that Edlind sought to convince Kwiatkowski that Chujoy often said things in jest or embellished his stories,
This view of witness tampering is novel, but finds support in the case law. Courts have found that witness tampering (either by means of corrupt persuasion or misleading conduct) includes a defendant "reminding" or "coaching" a witness about certain facts — which were false or misleading — in hopes the witness would adopt that false account as his own.
Admittedly, the government's evidence of witness tampering is largely circumstantial. Moreover, there is contrary evidence suggesting Edlind never intended to influence Kwiatkowski's testimony. For example, Edlind encouraged Kwiatkowski to abide by his trial subpoena and assured him he was not a target of the pending prosecution. Gov't Ex. 92 43:05-49:10. Both Edlind and her husband also told Kwiatkowski at one point to "tell the truth" and to not worry if his testimony was damaging to Chujoy.
Nevertheless, the circumstances surrounding the June 16 dinner contradict defendants' claim of innocent intent. First, the proximity of trial: trial in the Inca's Secret case was set for June 22, 2015. A few weeks before this trial date, Chujoy received Kwiatkowski's interview with federal agents, and took immediate steps to contact Kwiatkowski through Smith and Edlind. Chujoy's June 3 letter to Edlind strikes an urgent tone — Chujoy asked Edlind to speak with Kwiatkowski "ASAP" and stated that it was "crucial" she clarify his testimony. Gov't Ex. 28.2. This same sense of urgency is reflected in Edlind's subsequent effort to arrange a June 16 dinner meeting with Kwiatkowski. On these facts, a reasonable juror could conclude that Chujoy and Edlind were attempting
Second, both Chujoy and Edlind took active steps to conceal their behavior. Chujoy hid his phone calls to Smith using another inmate's PIN number, and placed his instructions to Edlind in hard-to-monitor jail letters. For her part, Edlind refused to discuss Chujoy's June 3 letter over the phone because she believed the government might be listening. Instead, she required an in-person meeting with Kwiatkowski. She went so far as to require Kwiatkowski to keep his cell phone outside during the June 16 dinner conversation.
Third, Donald Smith's reaction to the June 5 phone call is telling. As he did with Edlind, Chujoy reached out to Smith to encourage him to "clarify" things with Kwiatkowski. Smith refused, stating he did not want to do anything that could be seen as "chang[ing] [Kwiatkowski's] testimony." Gov't Ex. 61. While Smith's personal discomfort with Chujoy's request does not, by itself, prove that Chujoy's request was improper, it does push against any claim of innocent intent.
Finally, Edlind and Chujoy were aware in June 2015 that it was problematic for Chujoy to communicate with witnesses. Edlind knew Chujoy had been instructed, as a condition of his bond, to have no contact with potential witnesses. Edlind also knew that Chujoy had been re-indicted on new charges of witness tampering. Edlind nevertheless chose to contact Kwiatkowski on Chujoy's behalf — and pass messages related to Kwiatkowski's interview with federal agents — mere days before the June 22 trial. Further, Chujoy continued to contact Kwiatkowski via text after he was released from jail a second time in late June 2015, even after being ordered again to have no contact with witnesses. He stopped only after Kwiatkowski made it clear he would not talk with him until after trial.
While this evidence is highly circumstantial and sometimes contradictory, when viewed in context and construed in the government's favor, it is sufficient to support a finding that Edlind and Chujoy were "conscious of [their] wrongdoing" and acted with the "specific intent to subvert or undermine the due administration of justice."
B. Count 1: Conspiracy to Witness Tamper
Count One alleges that Chujoy and Edlind conspired to tamper with witnesses in the Inca's Secret case in violation of 18 U.S.C. § 1512(k). Notably, § 1512(k) does not require proof of an overt act.
As in Count Two, the events surrounding the June 16 dinner are dispositive of Count One. The government offered evidence that Edlind and Chujoy maintained a steady contact while Chujoy was in Rockingham County Regional Jail, including conversations about Kwiatkowski. There was farther evidence that both Edlind and Chujoy knew that Kwiatkowski was a potential witness in the Inca's Secret case, as evidenced by Chujoy's June 3 letter to Edlind. Disclosure of Kwiatkowski's witness interview set off a flurry of activity, culminating in the June 16 dinner in which Edlind parroted statements from Chujoy's June 3 letter and twice told Kwiatkowski "not to say anything" or "not to mention" things about Chujoy. Taking this evidence in context — especially considering the proximity of the Inca's Secret trial and defendants' efforts to conceal their behavior — the trial record is sufficient for a reasonable juror to conclude that the defendants knowingly and voluntarily formed a conspiracy to tamper with Kwiatkowski's trial testimony in the Inca's Secret case. Accordingly, defendants' motion for acquittal on Count One is
C. Count 3: Obstruction
Count Three alleges that Chujoy and Edlind obstructed justice by attempting to influence the testimony and statements of Kwiatkowski in violation of 18 U.S.C. § 1503(a). Obstruction requires proof: (1) that there was proceeding pending before a federal court; (2) that the defendant knew of the pending judicial proceeding; (3) that the defendant endeavored to influence, obstruct, or impede the due administration of justice in that judicial proceeding; and (4) that the defendant's act was done "corruptly," that is, that the defendant acted knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice.
While obstruction and witness tampering contain different elements, they often rely on similar evidence.
D. Count Four: Perjury
The two remaining counts involve Edlind and her alleged perjury before the grand jury. Unlike Counts One, Two, and Three, the court finds the evidence on these remaining counts insufficient to sustain a conviction. The government's evidence from the October 6 grand jury session is simply too slim to satisfy the requirements of Rule 29.
Perjury under 18 U.S.C. § 1623 requires proof that (1) Edlind gave sworn testimony before a federal grand jury; (2) that her testimony was false; (3) that she knew the testimony was false when she gave it; and (4) that the subject matter of the testimony was material to the grand jury investigation.
Elements (1) and (4) are not in dispute, but Edlind raises four arguments on elements (2) and (3). First, she alleges that some of her answers were literally true. Second, she claims the government asked fundamentally ambiguous questions. Third, she generally claims the evidence at trial was insufficient to show that her statements were false, or that she knew her testimony was false when she gave it. Finally, Edlind objects to the absence of a special unanimity instruction in Count Four. For the reasons stated below, the court finds several of these arguments well-taken.
1. Literal Truth and Fundamental Ambiguity
Two defenses raised by Edlind require further explanation. As a matter of law, a defendant is not guilty of perjury where her allegedly false statement is "literally true but not responsive to the question asked and arguably misleading by negative implication."
However, the literal truth defense is a "narrow one ... [that] applies only where a defendant's allegedly false statements were undisputedly literally true."
Likewise, answers to fundamentally ambiguous questions cannot support a perjury conviction.
However, "[f]undamental ambiguity is the exception, not the rule."
2. Statement One Does Not Support a Perjury Conviction
Statement One includes the following exchange:
12/18 Trial Tr. 59:12-16; Gov't Ex. 27 132:1-4. The government claims this question is broadly worded to capture any written communication Edlind received between Chujoy's arrest in March 2015 and her testimony in October 2015. Under this interpretation, Edlind's answer in Statement One is false because Chujoy sent Edlind a letter dated June 3, 2015, in which he asked Edlind to speak with Kwiatkowski about statements Kwiatkowski made to law enforcement. Gov't Ex. 28.2.
For her part, Edlind argues that Statement One is fundamentally ambiguous, since the phrase "after Mr. Chujoy's arrest in March 2015" can have two meanings. On the one hand, the phrase could refer to any period between Chujoy's arrest in March 2015 and Edlind's grand jury testimony in October 2015. On the other hand, the phrase could refer only to the period immediately following Chujoy's arrest. Because
In the alternative, Edlind argues there is no evidence that she knowingly lied in Statement One. She notes that she turned over the June 3 letter — which is the only evidence of falsity for Statement One — earlier in her October grand jury testimony. She finds it inconceivable that a reasonable juror could conclude, beyond a reasonable doubt, that she gave a knowingly false answer when she voluntarily provided the government that same day with the very letter that gave rise to her perjury prosecution.
Edlind's arguments are well-taken. First, the ambiguity of the question. It is difficult — if not impossible — to distinguish between questions that are fundamentally ambiguous and questions that are merely arguably ambiguous.
Thus, it was incumbent on the government to show that Edlind understood the question in the same way as the government.
In this case, the government offered no evidence to suggest what Statement One meant to Edlind when she answered it. The grand jury transcript provides little context, as the grand jury prosecutor did not probe further about written communications Edlind received, nor attempted to pin Edlind down with specific questions about the June 3 letter. Moreover, Edlind's answers elsewhere in her grand jury testimony shed no light on her interpretation of Statement One. On this record, "[o]nly by surmise and conjecture could the jury conclude that [Edlind] understood the question as the prosecutor did."
More to the point, the government offered no proof to the contrary. While issues of intent are typically resolved by the fact-finder, a jury may not rely on pure speculation to convict. As the Fifth Circuit aptly noted, "[e]specially in perjury cases, defendants may not be assumed into the penitentiary."
In sum, the evidence is insufficient to establish beyond a reasonable doubt that Edlind gave a knowingly false answer in Statement One. Whether framed in terms of ambiguous questions or evidence of knowing falsity, the trial record is simply insufficient for a reasonable juror to find, beyond a reasonable doubt, that Edlind's answer in Statement One was perjurious. Accordingly, Statement One cannot support a conviction on Count Four.
3. Statement Two Does Not Support a Perjury Conviction
Statements Two and Three also do not support a perjury conviction. Statement Two cites the following grand jury testimony:
12/18 Trial Tr. 60:21-63.3; Gov't Ex. 27 123:8-124:9. As to Edlind's first two answers, the government faults her for not mentioning the March dinner at her home and the June 16 dinner at El Charro. As to Edlind's third answer, the government claims she intentionally misled the grand jury by not admitting that she discussed Chujoy's ongoing prosecution with Kwiatkowski and Kang during the dinners in March and June. Based on this evidence, the government claims a reasonable juror could find Edlind guilty of perjury. The court disagrees.
First, the court observes that the trial record is unclear about dates and times for many of the dinners at El Charro. Kwiatkowski and Kang testified that they had regular dinners with Edlind. Most occurred at El Charro, and were usually attended by Edlind, her husband Gary Edlind, Kwiatkowski, and Kang. 12/17 Trial Tr. 180:7-185:21; 12/18 Trial Tr. 82:11-84:4; 87:16-88:20. However, neither Kwiatkowski nor Kang could remember the dates for every dinner. Kang described them as "sporadic," and recalled that the last dinner she attended was on May 12, 2015. 12/17 Trial Tr. 180:7-185:21. Kwiatkowski was more specific, testifying that the El Charro dinners occurred once every two or three weeks after Chujoy's March arrest, which would place at least one dinner in April. 12/18 Trial Tr. 88:15-20. There was also direct testimony about the June 16 dinner at El Charro, as well as the March dinner at Edlind's home.
Critically, there is no evidence that Edlind's first two answers — that she had dinner with Kwiatkowski and Kang in April — were false. In fact, the record strongly suggests that Edlind's answers were truthful. Kwiatkowski's estimate about the frequency of the El Charro dinners places one dinner squarely in April. The government offered no evidence to the contrary. Thus, there is nothing to support a conclusion that Edlind lied when she spoke about an April dinner at El Charro.
Instead, the government focuses on Edlind's omission of the March dinner at her home and the June 16 dinner at El Charro. However, Edlind was not asked about dinners in March and June. She was asked generally if she had dinner with Kwiatkowski after Chujoy's arrest. She answered in the affirmative, describing an April dinner with Kwiatkowski and Kang. Nothing introduced at trial implies that this answer is false.
Moreover, it is not perjurious for Edlind to give an evasive answer to a broadly-worded question, so long as her response was not false.
Edlind's answer to the third question is no different. Edlind was asked about the discussion at "this dinner." Of course, "this dinner" can only refer to the April dinner mentioned in Edlind's prior answers.
The government claims this third answer is also false. It again points to the March and June 16 dinners, noting that Edlind told Kwiatkowski "not to know anything" during the March dinner and talked about Kwiatkowski's trial testimony during the June dinner. 12/18 Trial Tr. 85:10-86:2; Gov't Exs. 71, 73. Citing this evidence, the government claims Edlind lied because she failed to disclose the full scope of her conversations with Kwiatkowski.
However, as noted above, Statement Two focuses on an April dinner at El Charro. Evidence from dinners in March and June is irrelevant. To prove perjury, the government needed some evidence, however slight, from which a jury could find beyond a reasonable doubt that Edlind falsely described the conversation that occurred during an April dinner at El Charro. No such evidence exists in the record.
In fact, the record supports Edlind's description of the April dinner. Edlind told the grand jury that she talked about "being careful," "telling the truth," and "just the normal parental advice" at the April dinner. When asked to elaborate, she explained that she discussed Kwiatkowski's and Kang's "well-being" and "working life," as well as newspaper reports about Chujoy's case. Gov't Ex. 27 123:8-125:19. This description tracks Kwiatkowski's and Kang's description of the usual El Charro dinner conversation. Kwiatkowski and Kang testified that the typical El Charro dinner — which, based on Kwiatkowski's estimate, would include a dinner in April — included discussions about their "reactions" to the events surrounding Chujoy's case, their feelings towards Chujoy and his family, and Chujoy's condition in prison. 12/17 Trial Tr. 183:11-22; 12/18 Trial Tr. 81:20-82:7. This testimony tracks Edlind's description of the April dinner conversation.
As an aside, the court recognizes that Edlind's answers do not fit squarely into
4. Statement Three Does Not Support a Perjury Conviction
The government fares no better in Statement Three. Statement Three cites a single question and answer:
12/18 Trial Tr. 62:23-63:5; Gov't Ex. 27 125:20-23. Importantly, Statements Two and Three come from the same three pages of Edlind's grand jury testimony. 12/18 Trial Tr. 59:10-63:3; Gov't Ex. 27 123:8-125:23. Viewed in context, it is clear that the dinner referenced in Statement Three is the same April dinner at El Charro referenced in Statement Two. And, as with Statement Two, the government offered no evidence that Edlind testified falsely about this particular dinner. Evidence about what Edlind said in other conversations at other times is unavailing. Thus, Statement Three also cannot support a perjury conviction.
5. Statements Four, Five, and Six Do Not Support a Perjury Conviction
Both Edlind and the government analyzed Statements Four, Five, and Six together. Statements Five and Six come in succession, and include the following exchange:
12/18 Trial Tr. 59:12-16; Gov't Ex. 76:21-77:1. In the government's view, these two questions are broadly worded questions targeting any communication between Edlind and Chujoy. Based on this interpretation, the government claims Edlind lied because she failed to mention Chujoy's June 3 letter asking her to speak with Kwiatkowski and the June 16 dinner where she conveyed Chujoy's message to Kwiatkowski.
For her part, Edlind argues these two questions are arguably ambiguous and should be read in context. Edlind claims the grand jury prosecutor was asking questions only about in-person conversations between Edlind and Chujoy during her visits to the jail. She suggests this line of questioning never asked about letters from Chujoy.
Edlind's argument is on point. Read in context, Statements Five and Six address conversations between Edlind and Chujoy during her jail visits. For example, Edlind was asked the following questions moments before Statements Five and Six:
Gov't Ex. 27 75:4-24.
Statements Five and Six come after this exchange. The grand jury prosecutor then stopped the examination to allow for a bathroom break. When she resumed, the prosecutor summarized where her questioning left off:
Gov't Ex. 27 78:18-80:12.
The context is clear — when read in its entirety, this portion of the grand jury session is focused only on Edlind's jail visits with Chujoy. Even the grand jury prosecutor understood that Statements Five and Six were probing in-person jail conversations between Edlind and Chujoy. Thus, to show that Edlind's answers were knowingly false, the government needed evidence that Chujoy and Edlind discussed witness tampering during Edlind's jail visits. No such evidence was admitted.
In short, the government cannot "lift a statement of the accused out of its immediate context and thus giv[e] it a meaning wholly different than that which its context clearly shows."
Statement Four is a different animal altogether. This statement includes the following exchange:
12/18 Trial Tr. 59:12-16; Gov't Ex. 27 122:2-8. The government maintains that the two questions in Statement Four are general questions about any instructions Chujoy gave Edlind during his time in jail. To prove falsity, the government again points to evidence from Chujoy's June 3 letter. It argues that Edlind's first answer in Statement Four — that Chujoy only asked Edlind to check in with Kwiatkowski — is plainly false in light of Chujoy's instructions in the June 3 letter.
For her part, Edlind argues context is still important. She claims the questions in Statement Four are similar to those in Statements Five and Six and circle back to questions she was asked earlier in her testimony. Specifically, she believes Statement Four asks only about jail visits and jail phone calls between her and Chujoy.
The court agrees that Statement Four must be read in context. However, the redactions to Edlind's grand jury transcript make it impossible to fairly analyze this statement. At trial, the government initially tried to introduce an unredacted transcript of Edlind's grand jury transcript. After a sustained objection by Chujoy, the government redacted sections of the transcript. Because Chujoy's objection was unexpected and came in the middle of trial, no one (including the court) considered how these redactions would affect Statement Four.
A close reading shows that the redactions fundamentally alter the context of Statement Four. Whole stretches of relevant testimony are excluded. The five pages immediately preceding Statement Four are entirely blacked out. This missing testimony gives the false impression that the questions in Statement Four were asked in a vacuum and leaves Edlind and the government without a leg to stand on. Absent the full transcript, neither Edlind nor the government could have effectively argued their respective interpretations of Statement Four to the jury. Nor could the jury fairly judge whether Edlind's interpretation of Statement Four was reasonable and, if not, whether the government submitted sufficient evidence that she gave knowingly false answers.
This flaw is not present elsewhere in Count Four. The context for Statements One, Two, Three, Five, and Six is unchanged in the redacted transcript, and the court remains confident in its analysis of those statements. Only Statement Four is affected. Accordingly, the court finds it necessary to strike this statement. In the event Edlind is granted a new trial on Count Four, the parties are instructed to carefully review the unredacted transcript to ensure all relevant information is provided to the jury.
In sum, the court concludes that none of the six statements submitted to the jury support a conviction for perjury. Accordingly, Edlind's motion for acquittal on Count Four must be granted.
6. Alleged Error in the Jury Instructions
Edlind also claims error in the jury instructions for Count Four, citing the lack of a special unanimity instruction. In contrast to a general unanimity instruction — which was given in this case — a special unanimity instruction requires that the jury not only unanimously agree that Edlind made a knowingly false statement, but also unanimously concur in the knowing falsity of at least one specific statement made before the grand jury. Because a judgment of acquittal on Count Four is warranted on other grounds, the court need not reach this alleged error. Nevertheless, two observations are warranted.
First, the court doubts its authority to entertain objections to the jury instructions. The only pending motion is defendants' joint motion for acquittal under
Second, assuming the court has authority to review the jury instructions, Edlind's claim of error faces an uphill battle. Edlind did not request a special unanimity instruction and did not object to its omission. Indeed, this issue arose only after the court required the parties to file supplemental briefs on Count Four after the May 11 hearing. Accordingly, Edlind's challenge to the jury instructions — if it can be addressed at all — can only be reviewed for plain error. And controlling and persuasive precedent is mixed on special unanimity instructions.
On the one hand, both the Sixth Amendment and Rule 31(a) afford Edlind the right to a unanimous jury verdict.
Accordingly, Edlind's claim of plain error rests on shaky ground. Edlind's failure to request a special unanimity instruction at trial and her failure to file a timely Rule 33 motion leave little hope of relief. Nevertheless, the court need not finally determine the merits of Edlind's objection. The government's evidence is insufficient to sustain a conviction for perjury, and Edlind's motion for acquittal on Count Four is therefore
E. Count Five: Obstruction
Count Five alleges that Edlind's false statements before the grand jury also constitute obstruction of justice under 18 U.S.C. § 1503(a). However, the government rests its argument for obstruction on the same evidence of perjury cited in Count Four. For the reasons stated above, the government failed to offer adequate evidence that any of the six false statements alleged in Count Four were perjurious. Absent this evidence, the government has no proof of obstruction.
For the reasons set forth above, the court will
Finally, Rule 29(d) of the Federal Rules of Criminal Procedure requires the court to make a conditional ruling on any motion for new trial when, as here, it enters a judgment of acquittal. Defendants filed a joint motion for new trial, ECF No. 127, which the court has addressed in a separate memorandum opinion. Because that joint motion for new trial is untimely and defendants fail to show excusable neglect for the filing delay, the court cannot consider it. Thus, no conditional ruling is possible under Rule 29(d).
An appropriate Order will be entered.