United States v. Norris (753 F. Supp. 2d 492, 2010)

MEMORANDUM

EDUARDO C. ROBRENO, J.

TABLE OF CONTENTS

I. INTRODUCTION.........................................................499

II. BACKGROUND...........................................................499

III. MOTION FOR A JUDGMENT OF ACQUITTAL UNDER RULE 29 ............501

A. Legal Standard........................................................501

B. Discussion.............................................................501

1. Import of Defendant’s Acquittal on the Objects of the Charged Conspiracy ......................................................502

2. Sufficiency of the Evidence to Establish a Conspiracy Conviction for Either of the Charged Objects......................................503

i. The Evidence Pertaining to Section 1512(b)(1)......................503

a. Appropriate legal standard..................................504

b. Sufficiency of the evidence based on the applicable legal standard................................................508

ii. The Evidence Pertaining to Section 1512(b)(2)(B)...................510

3. Validity of the Charge for Which Defendant was Convicted...............512

IV. MOTION FOR A NEW TRIAL UNDER RULE 33............................514

A. Defendant’s Argument that the Verdict is Against the Weight of the Evidence............................................................514

1. Legal Standard.....................................................514

2. Discussion.........................................................514

B. Defendant’s Argument that Fundamental Errors were Committed During Trial................................................................517

1. Legal Standard.....................................................517

2. Errors in the Jury Instructions.......................................518

i. Failure to Identify the Overt Acts Defendant Took in Furtherance of the Conspiracy.................................518

ii. Alleged Constructive Amendment of the Indictment via the Preliminary Instructions ......................................520

iii. Failure to Give an Instruction on the Right to Withhold Testimony...................................................521

iv. Alleged Error in the “Nexus” Requirement Instruction..............522

v. Failure to Distinguish in the Instructions Between “Influencing” and “Preventing”.............................................523

vi. Failure to Give a Missing Witness Instruction......................524

3. Attorney Testimony in Violation of Defendant’s Attorney-Client Privilege ........................................................525

4. Failure to Comply with Discovery Obligations..........................529

i. Legal Standard ................................................529

ii. Discussion.....................................................529

5. Prosecutorial Misconduct in the Antitrust Division’s Closing..............531

Argument and Rebuttal

i. Reference to Facts Outside the Record............................532

ii. Turning the Verdict into a Referendum on the Prosecutor’s Work on the Case..................................................533

V. CONCLUSION............................................................536

I. INTRODUCTION

Defendant, Ian Norris (“Defendant”), is a national of the United Kingdom who is subject to prosecution in the United States under an extradition agreement. On September 28, 2004, a federal grand jury returned the second superseding indictment (“Indictment”) against Defendant. The Indictment followed an investigation of an international conspiracy to fix the price of carbon products. It charged Defendant with four counts: (1) Count One—violating the Sherman Act; (2) Count Two—conspiring, in violation of 18 U.S.C. § 371, to violate 18 U.S.C. § 1512(b)(1) and 18 U.S.C. § 1512(b)(2)(B); (3) Count Three-violating 18 U.S.C. § 1512(b)(1); and (4) Count Four—violating 18 U.S.C. § 1512(b)(2)(B). Because Defendant’s extradition order barred prosecution under the Sherman Act, Defendant was only tried on Counts Two, Three, and Four. Following a seven day trial, the jury found Defendant guilty on Count Two, but acquitted Defendant on Counts Three and Four. Presently before the Court is Defendant’s motion for a judgment of acquittal or, in the alternative, a new trial.

For the reasons discussed below, the Court will deny Defendant’s motion.

II. BACKGROUND

Because the Court has already outlined the background surrounding this case, see United States v. Norris, 719 F.Supp.2d 557 (E.D.Pa.2010) (“Norris I ”), it is unnecessary to recite those facts at any length. In short, Defendant was charged with obstructing justice in violation of Section 1512(b)(1) and Section 1512(b)(2)(B) and conspiring to do the same:

The Indictment alleges that, in carrying out this conspiracy, the Defendant and his co-conspirators: (1) provided false and fictitious relevant and material information in response to the grand jury investigation; (2) prepared a written “script” which contained false information which was to be followed by anyone questioned by either the Antitrust Division or the federal grand jury; and (3) distributed the script to others who had information relevant to the grand jury investigation with instructions to follow the script when answering questions posed by either the grand jury or the Antitrust Division. Moreover, the Indictment alleges that the conspirators removed, concealed, or destroyed from business files any documents which contained evidence of an anticompetitive agreement or reflected contacts between or among competitors, and persuaded, directed and instructed others to do the same.

Id. at *2. The scripts Defendant participated in creating sought to cast as legitimate price-fixing meetings between Morgan, the carbon products company for whom Defendant served as CEO during the time in question, and three of its competitors; namely, (1) Carbone; (2) Schunk; and (3) Hoffman.

Defendant’s trial began on July 13, 2010. The Antitrust Division called nine witnesses in support of its case: (1) Robin Emerson; (2) Melvin Perkins; (3) Donald Muller; (4) Jack Kroef; (5) Thomas Hoffman; (6) Heinz Volk; (7) Sutton Keany; (8) William MacFarlane; and (9) Helmut Weidlich. Perkins, Kroef, Muller, MacFarlane and Emerson were Morgan employees who worked with Defendant in varying capacities. Volk and Weidlich were Schunk employees. Hoffman was responsible for Hoffman’s United States operations. Keany was the attorney who conducted an investigation into Morgan’s price-fixing involvement after Morgan’s United States subsidiary, Morganite, was served with a grand jury subpoena on April 27, 1999.

After the Antitrust Division rested, Defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a). The Court denied Defendant’s motion. Thereafter, Defendant called one witness, Michael Cox, who was also a Morgan employee during the time in question. On July 22, 2010, the Court charged the jury. As to Count Two, the verdict form the Court provided asked the jury to determine whether Defendant was guilty of conspiracy to obstruct justice for either of the following two reasons:

(a) knowingly corruptly persuading or knowingly attempting to corruptly persuade other[ ] persons with intent to influence their testimony in the grand jury proceeding in the Eastern District of Pennsylvania; or (b) knowingly corruptly persuading or knowingly attempting to corruptly persuade other persons with intent to cause or induce those other persons to destroy or conceal records and documents with the intent to impair the availability of those records and documents for use in the grand jury proceeding.

(Doc. no. 149.)

Three business days later, on July 27, 2010, the jury returned a verdict finding Defendant guilty on Count Two of the Indictment. Thus, the jury found Defendant conspired to violate either Section 1512(b)(1) or Section 1512(b)(2)(B). The jury, however, acquitted Defendant on the substantive charges of violating both of those statutes as charged in Counts Three and Four. Pointing to this apparent inconsistency and raising a variety of other issues for this Court to resolve, Defendant now moves for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure or, alternatively, a new trial under Rule 33 of the Federal Rules of Criminal Procedure. The respective arguments are addressed in turn.

III. MOTION FOR A JUDGMENT OF ACQUITTAL UNDER RULE 29

A. Legal Standard

In deciding a motion for a judgment of acquittal under Rule 29, the court views the evidence introduced at trial in the light most favorable to the Government and upholds the jury's verdict so long as any rational trier of fact "`could have found proof of guilt beyond a reasonable doubt based on the available evidence.'" United States v. Smith, 294 F.3d 473, 476 (3d Cir.2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir.2001)). "The court is required to `draw all reasonable inferences in favor of the jury's verdict.'" Id. (quoting United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.1996)). The court may not "usurp the role of the jury" by weighing the evidence or assessing the credibility of witnesses. United States v. Brodie, 403 F.3d 123, 133 (3d Cir.2005) (citing United States v. Jannotti, 673 F.2d 578, 581 (3d Cir.1982) (en banc); and 2A Charles A. Wright, Federal Practice & Procedure (Crim. 3d) § 467, at 311 (2000)). Thus, the defendant bears an "extremely high" burden when challenging the sufficiency of the evidence supporting a jury verdict, United States v. Iglesias, 535 F.3d 150, 155 (3d Cir.2008) (internal marks omitted) (quoting United States v. Lore, 430 F.3d 190, 203-04 (3d Cir.2005)), and the Government "may defeat a sufficiency-of-the-evidence challenge on circumstantial evidence alone." Id. at 156 (citing United States v. Bobb, 471 F.3d 491, 494 (3d Cir.2006)). A finding of insufficiency should therefore "`be confined to cases where the prosecution's failure is clear.'" Smith, 294 F.3d at 477 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir.1984)).

Where, as here, the indictment charges a conspiracy to commit several federal crimes, the jury’s verdict will be upheld so long as the jury could rationally find the defendant conspired to commit at least one of the crimes at issue. See Griffin v. United States, 502 U.S. 46, 59-60, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (concluding a general guilty verdict on a multiple-object conspiracy charge may stand even if there is insufficient evidence as to one object of the alleged conspiracy); Mod. Crim. Jury Instr. 3d Cir. 6.18.371C (“The government ... must prove that [the conspirators] agreed to commit at least one of the object crimes....”). Thus, to prevail on his motion for a judgment of acquittal, Defendant must establish that no rational jury could find beyond a reasonable doubt that Defendant conspired to violate either Section 1512(b)(1) or Section 1512(b)(2)(B). That is, that Defendant conspired to either (1) knowingly corruptly persuade or knowingly attempt to corruptly persuade other persons with the intent to influence their testimony in the relevant grand jury proceedings; or (2) knowingly corruptly persuade or knowingly attempt to corruptly persuade other persons with the intent to cause or induce those persons to destroy or conceal records and documents for use in the relevant grand jury proceedings.

B. Discussion

Defendant contends that no rational jury could find him guilty for conspiracy under this standard. Defendant advances three overarching arguments in support of this contention: (1) that Defendant’s conviction is inherently suspect in view of the jury’s acquittals on the two substantive counts comprising the objects of the conspiracy; (2) that the evidence does not suffice to establish conspiracy convictions for the objects of the charged conspiracy; and (3) that the jury may have convicted Defendant of a legally inadequate charge. These arguments are considered in that order.

1. Import of Defendant’s Acquittal on the Objects of the Charged Conspiracy

As a preliminary matter, Defendant argues that “special scrutiny is required where a defendant is acquitted of the substantive charges alleged to be the object of the conspiracy” because such acquittals suggest the government did not fulfill its obligation “to prove the intent necessary to commit the underlying substantive offense.” (Def.’s Mot. for Acquittal or, in the Alternative, a New Trial, at 12, 13.) Defendant urges this is particularly true in this case because the overt acts of the conspiracy charged in the Indictment are similar to the facts supporting the substantive offenses for which Defendant was acquitted. In essence, then, Defendant suggests the Court should be skeptical of the jury’s verdict because it is inconsistent.

However, it has never been the case that an inconsistent jury verdict is, in itself, cause for judicial skepticism. On the contrary, it is well settled that inconsistent jury verdicts in criminal cases are not subject to a heightened standard of review. See United States v. Powell, 469 U.S. 57, 64, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) ("`[T]he most that can be said . . . is that the [inconsistent] verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.'" (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932))); see also United States v. Vastola, 989 F.2d 1318, 1329 (3d Cir.1993) ("[J]ury verdicts cannot be set aside solely on the ground of inconsistency.").

Indeed, in United States v. Powell, the Supreme Court held that acquittals on charges of cocaine possession and conspiracy to possess cocaine did not require reversal of the defendant’s conviction for “using the telephone in ‘committing and in causing and facilitating’ ” the conspiracy and possession for which the defendant was acquitted. 469 U.S. at 60, 69, 105 S.Ct. 471. In so holding, the Court noted:

[I]nconsistent verdicts—even verdicts that acquit on a predicate offense while convicting on the compound offense— should not necessarily be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.

Id. at 65, 105 S.Ct. 471.

This rule is no different in conspiracy cases. In United States v. Vastine, for example, the defendant attacked the jury’s verdict arguing that a conspiracy conviction should be set aside insofar as the defendant was found not guilty on the substantive offenses. 363 F.2d 853, 854 (3d Cir.1966). As in this case, the conspiracy charge in Vastine charged the defendant with conspiracy to commit the substantive offenses for which the defendant was acquitted. Id. Nevertheless, the Vastine Court refused to reverse the jury’s verdict and rejected the defendant’s chailenge. Thus, the fact that the jury acquitted Defendant on the objects of the charged conspiracy neither triggers any heightened standard of review nor requires this Court to enter a judgment of acquittal.

2. Sufficiency of the Evidence to Establish a Conspiracy Conviction for Either of the Charged Objects

Defendant next argues that the evidence was not sufficient for a rational jury to find Defendant guilty on the conspiracy charge. The grounds raised by Defendant are substantially similar to those made in the Rule 29 motion this Court denied after the Antitrust Division rested. Although the Court’s denial of that motion does not preclude the Court from granting the instant Rule 29 motion, see generally Fed. R.Crim.P. 29, the Court will deny Defendant’s motion for the same reasons it denied Defendant’s earlier motion for a judgment of acquittal; namely, because the facts at trial sxifficiently support the conclusion that Defendant conspired, within the meaning of 18 U.S.C. § 371, to violate either Section 1512(b)(1) or Section 1512(b)(2)(B).

Under Section 371, a defendant is guilty of conspiracy where:

[T]wo or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more such persons do any act to effect the object of the conspiracy....

18 U.S.C. § 371. Accordingly, to convict a defendant of conspiracy, the jury must find beyond a reasonable doubt: (1) "an agreement, either explicit or implicit"; (2) "to commit an unlawful act"; (3) "with intent to commit an unlawful act"; and (4) "intent to commit the underlying offense." Brodie, 403 F.3d at 134 (internal marks omitted) (quoting United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.1986)). With these elements in mind, the analysis that follows considers whether, viewing the facts at trial in the light most favorable to the Antitrust Division, a rational jury could find beyond a reasonable doubt that Defendant conspired to violate either Section 1512(b)(1) or Section 1512(b)(2)(B).

i. The Evidence Pertaining to Section 1512(b)(1)

The Indictment charged Defendant with conspiring to violate Section 1512(b)(1) by agreeing with others “to corruptly persuade and attempt to corruptly persuade other persons known to the Grand Jury with intent to influence their testimony in an official proceeding.” (Indictment ¶ 13.) Defendant asserts that the evidence was insufficient to establish such a conspiracy because the evidence did not show (1) an agreement to influence grand jury testimony; or (2) the requisite intent to commit the underlying offense. Relying on United States v. Schramm, 75 F.3d 156 (3d Cir.1996), Defendant principally contends that he could not be guilty because the evidence at trial demonstrated-at most-an agreement to lie to the Antitrust Division or to Morgan’s lawyers. This evidence, Defendant reasons, does not suffice because it does not show that Defendant targeted the grand jury investigation in the Eastern District of Pennsylvania. See id. at 159 (holding that a defendant subject to a conspiracy prosecution must know that the agreement “had the specific unlawful purpose charged in the indictment”).

Although presented as a novel legal issue for this Court’s consideration, Defendant’s argument boils down to how one interprets the facts proven at trial: Defendant believes they do not tend to show the conspiracy charged. This belief is rooted, in part, in a faulty conception of what a violation of Section 1512(b)(1) entails. The Court thus begins by laying out the appropriate legal standard.

a. Appropriate legal standard

Defendant’s first argument that there was no evidence of an agreement is based on the terms “other persons” and “Grand Jury” as used in the Indictment. (See Indictment ¶ 13.) Emphasizing these terms, Defendant asserts that the evidence at trial merely demonstrated an agreement amongst the co-conspirators as to what they would say if questioned by the Antitrust Division or their own lawyers. Thus, according to Defendant, there was no evidence of an agreement to corruptly persuade other persons to influence the grand jury proceedings in the Eastern District of Pennsylvania.

Defendant’s second argument that the evidence did not sufficiently demonstrate the intent necessary to commit the underlying offense is grounded in Defendant’s insistence that United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995) governs and requires a defendant to know his or her actions will affect an official proceeding for a Section 1512(b) violation to lie. In that case, the Supreme Court held that the intent required for a violation of 18 U.S.C. § 1503 was not established where the defendant made a false statement to an investigating agent who had alerted the defendant to the existence of a grand jury investigation. The Court held as much because the connection between the defendant’s statement and the grand jury investigation was tenuous; the statement was a mere lie to an investigating agent who had “not been subpoenaed or otherwise directed to appear before the grand jury.” Aguilar, 515 U.S. at 601, 115 S.Ct. 2357. Applying Aguilar, Defendant contends he could not have had the intent required because he and his co-conspirators did not know their actions would influence grand jury testimony.

As noted, the legal underpinnings upon which both of Defendant’s Section 1512(b)(1) arguments depend are flawed. First, Defendant’s contention that there was no agreement to corruptly persuade another person to influence grand jury proceedings draws too narrow an interpretation of Section 1512(b)(1). Indeed, by-stating the conspiracy charge cannot lie because the evidence merely showed that Defendant and his co-conspirators agreed to mislead the company lawyers or the Antitrust Division, Defendant appears to assume that Section 1512(b)(1) cannot be violated by deliberately using such parties as a conduit to ultimately influence testimony at contemplated grand jury proceedings. But there is no reason it could not be.

After all, the statute expressly provides “an official proceeding need not be pending or about to be instituted at the time of the offense.” 18 U.S.C. § 1512(f)(1). For this reason, a defendant violates Section 1512(b)(1) when he or she corruptly persuades another person with the intent to influence testimony in an official proceeding—not when the testimony of the party in question is actually used in the official proceeding. Cf. United States v. DiSalvo, 631 F.Supp. 1398, 1402 (E.D.Pa.1986) (discussing statutory change in Section 1512 from proscribing persuasion of “any witness” to “any person”), aff’d, 826 F.2d 1057 (3d Cir.1987). And, as the statute itself reveals, a defendant who seeks to influence testimony at a proceeding by corruptly persuading that person through another could be guilty under the statute. See 18 U.S.C. § 1512(b)(1) (defendant violates the statute if he or she “corruptly persuade[s] another person ... with intent to ... influence, delay, or prevent the testimony of any person .... ” (emphasis added)).

Second, although the parties vigorously argue over whether United States v. Aguilar is controlling as to the nexus required in the instant case, the Court need not conclusively resolve this issue because Defendant misconstrues Aguilar to require a greater knowledge of likelihood to affect official proceedings. In United States v. Aguilar, the defendant was charged with violating Section 1503 by lying to an FBI agent. The Court ruled that a violation under Section 1503 required a “nexus” with judicial proceedings—namely, that the defendant’s criminal conduct “have a relationship in time, causation, or logic with the judicial proceedings” such that there is a “natural and probable ... interference] with the due administration of justice.” 515 U.S. at 599, 115 S.Ct. 2357 (internal marks omitted) (quoting United States v. Wood, 6 F.3d 692, 695 (10th Cir. 1993)).

In reaching this conclusion, the Court rejected the government’s contention that the defendant in Aguilar had the knowledge required for a Section 1503 violation based on a conversation between the defendant and an FBI agent in which the agent stated, in response to the defendant’s inquiry concerning a grand jury investigation, that a grand jury would indeed be convening. Id. at 600, 115 S.Ct. 2357. According to the Court, this conversation did not demonstrate that the defendant “knew his false statement would be provided to the grand jury.” Id. at 601, 115 S.Ct. 2357. Thus, the Court concluded the probability of the defendant’s lie reaching the grand jury was too speculative as to have the required relationship with the proceeding in question. Id.

Defendant, pointing to the language in Aguilar concerning the defendant’s lack of knowledge that the false statement to the FBI agent would be conveyed to the grand jury, appears to read Aguilar to impose a nexus whereby a defendant must know grand jury testimony will be impacted by his or her conduct. Aguilar, however, quite clearly held the nexus merely requires a “ ‘natural and probable effect’ of interfering with the due administration of justice.” Id. A defendant, therefore, need not—as Defendant suggests—affirmatively “kn[ow] that his conduct would affect grand jury testimony.” (Def.’s Mot. for Acquittal or, in the Alternative, a New Trial, at 35; see also id. (“There was no evidence that Mr. Norris or any alleged co-conspirator had knowledge that the statements they made ... would somehow morph into testimony before the grand jury.”).) It is enough for that to be the defendant’s intention where he or she acts in a way that is likely to achieve the desired objective. See United States v. Kumar, 617 F.3d 612, 621 (2d Cir.2010) (interpreting Section 1503 and explaining “a defendant does not need to know with certainty that his conduct would affect judicial proceedings”); United States v. Macari, 453 F.3d 926, 940 (7th Cir.2006) (applying Aguilar in evaluating defendant’s motion for a judgment of acquittal and holding the evidence sufficed because the defendant “made the statements with the intention of obstructing the grand jury’s investigation because there was a logical relationship between his knowing conduct ... and the effect it was likely to have”).

Moreover, it is not clear that the nexus articulated in Aguilar applies to the instant statute at all. In Arthur Andersen LLP v. United States, the Court determined that Section 1512(b) requires a nexus as a condition precedent to criminal punishment. 544 U.S. at 708, 125 S.Ct. 2129. In support of this conclusion, the Court cited Aguilar and clarified that the Aguilar decision had "required something more—specifically, a `nexus' between the obstructive act and the proceeding." 544 U.S. at 708, 125 S.Ct. 2129 (citing Aguilar, 515 U.S. at 599-600, 115 S.Ct. 2357). Some courts have concluded the nexus required by Arthur Andersen is substantially similar to that in Aguilar. See United States v. Hayes, No. 09-397, 2010 WL 2696894, at *4 (M.D.Pa. July 7, 2010) (stating Arthur Andersen requires "essentially the nexus mandated by Aguilar"). However, the Arthur Andersen Court did not adopt precisely the same nexus requirement—it merely stated that one is required and that the defendant must have some contemplation of the official proceeding he or she is charged with obstructing. See Arthur Andersen, 544 U.S. at 708, 125 S.Ct. 2129 (explaining there must be some "contemplation [of an] official proceeding"); United States v. Byrne, 435 F.3d 16, 25 (1st Cir.2006) ("[T]he Arthur Andersen court did not elaborate on the particularity required by the nexus requirement in subsection (b)(2).").

Based on the considerable difference between the two statutes, it is debatable whether the nexus required for a Section 1512(b) violation is the same as that associated with a Section 1503 violation. For one, as Section 1512 expressly instructs, “an official proceeding need not be pending or about to be instituted at the time of the offense.” 18 U.S.C. § 1512(f)(1). There is no such statutory prescription with respect to Section 1503. Indeed, in ruling that a nexus was required for a Section 1512(b) violation, the Arthur Andersen Court acknowledged this very point. See Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129 (“It is, however, one thing to say that a proceeding ‘need not be pending or about to be instituted at the time of the offense,’ and quite another to say a proceeding need not even be foreseen.”).

In addition, the provision of Section 1503 dealt with in Aguilar is considerably broader than Section 1512(b) in terms of what it allows the government to punish. See Aguilar, 515 U.S. at 598, 115 S.Ct. 2357 (explaining that the Section 1503 provision being interpreted “serves as a catchall” and contains portions that are “general in scope”). This breadth, which Section 1512(b) plainly does not share, was one of the reasons the Aguilar Court required the nexus that it did. See id. at 600, 115 S.Ct. 2357 (“We have traditionally exercised restraint in assessing the reach of a federal criminal statute.... We do not believe that uttering false statements to an investigating agent ... who might or might not testify ... is sufficient to make out a violation of the catchall provision.”).

Thus, the Court disagrees with Defendant’s interpretation that the Aguilar nexus requires a defendant to have actual knowledge that his or her actions will end up affecting the relevant official proceeding. However, to the extent Aguilar requires such a nexus, the Court deems it inapplicable here because Defendant was charged with violating (and conspiring to violate) Section 1512(b) rather than Section 1503. Consequently, Defendant and his co-conspirators need not have known with certainty that their actions would influence grand jury testimony for a violation of the statute to lie.

b. Sufficiency of the evidence based on the applicable legal standard

With the appropriate legal framework in mind, it is evident that a rational jury could, viewing the facts in the light most favorable to the Antitrust Division, find beyond a reasonable doubt that Defendant conspired to violate Section 1512(b)(1). The evidence produced at trial readily demonstrates that, after learning of the grand jury investigation, Defendant and others agreed to misrepresent Morgan’s meetings with competitors via false non-contemporaneous scripts they and others were to parrot when questioned. Thus, a rational jury could find these scripts were for the express purpose of influencing testimony that might be presented to the grand jury.

It could do so because the script production described by the Antitrust Division’s nine witnesses is traceable to the April 27, 1999 grand jury subpoena that was served on Morganite. The subpoena, titled “SUBPOENA TO TESTIFY BEFORE GRAND JURY” indicated that the company was to turn over responsive “documents or object(s).” (See GX-05.) After the subpoena was served, a meeting was arranged in Defendant’s office to discuss the subpoena. (See Tr. 4:7-11 (July 14, 2010 P.M.).) Several Morgan employees attended this meeting and, upon arriving, were shown a copy of the subpoena. (See id. 4:20-22.)

As Perkins, Morganite’s Vice President of Sales and Marketing stated, he met with Defendant, MacFarlane, and Kroef after the issuance of the subpoena and was told “the potential problem ... was the investigation, and the concern that there were no written notes or documents ... relative to the meetings.” (Id. 113:24-114:3.) To remedy this problem, Defendant suggested that false meeting summaries be manufactured:

There was a decision taken that we should draft some notes of the meetings which involved really digging—digging a lot of information up first of all to find out when the meetings were, who the potential attendees were, and then to draft meetings but on instruction to be very careful what we wrote, how we phrased things and what we included in the drafts we were going to prepare.

[W]e were to de-emphasize references to any pricing involvement or pricing arrangements .... The emphasis was to make it more seem as though they were joint venture meetings.

(Id. 114:14-20; 115:22-23; 115:25-116:1.) The purpose of these scripts were to “help each of us that were—attended the meetings in terms of misleading the Department of Justice.” (Tr. 31:21-23 (July 20, 2010 A.M.).) They were, in Kroef s words, to form a “new memory” in the event “you would be questioned” in connection with the investigation. (Tr. 12:23-13:3, 14:7-8 (July 16, 2010 A.M.).)

Several other witnesses told the same story at trial. (See, e.g., Tr. 109:1-10; 112:8-12 (July 15, 2010 P.M.) (Kroefs testimony that, after receiving the grand jury subpoena, there were meetings between Defendant and others in which it was determined evidence should be created to show that “it wasn’t cartel meetings, that these were meetings on other topics which were allowed to take place”); Tr. 4:20-22, 28:17-19 (July 20, 2010 A.M.) (MacFarlane’s testimony that Defendant had the grand jury subpoena at the initial meeting and that the set of notes prepared were “designed to mislead the—investigation by the U.S. Department of Justice”).) This evidence supports a jury finding that Defendant and others took actions to prevent the grand jury’s information gathering process after learning about the grand jury investigation for the purpose of influencing testimony they believed might be given to the grand jury—i.e., with the knowledge required to effectuate a violation of Section 1512(b)(1).

The jury’s verdict is also supported by much of the other testimony elicited at trial. As Kroef and Weidlich both testified, Kroef met with Weidlich at Defendant’s direction and on Morgan’s accord to persuade Schunk to perpetuate the lies relayed on the scripts if questioned. Kroef testified that, after the grand jury investigation began, Defendant asked him to find out what Schunk was “going to do about the investigation. A, were they under investigation? B, what was their proceeding? What was their strategy.” (Tr. 33:19-21 (July 16, 2010 A.M.).) Defendant further requested that Kroef arrange a meeting with Weidlich. (Id. 39:5-7.) Kroef held the meeting with Weidlich on November 30, 2000 to convey the “Morgan strategy” to “use joint venture discussions, acquisition discussions, all sort of legal possible activities to explain the meetings.” (Id. 37:23-25.) Kroefs discussion with Weidlich was not purely informational. Rather, as Weidlich testified:

Mr. Kroef told me that ... that the Morgan people had been interviewed by the United States authorities already. And he told me that certainly at some given time the Schunk people will be interviewed as well. And for that, he told me that they have made a kind of protocol after those interviews. And he wanted me to—to send me that—that protocol, in order that I distribute it to the Schunk and Hoffman people, in order to make to—in order to—to make sure that the testimony that they would be giving would be the same as or similar to what the Morgan people have said.

(Tr. 9:6-18 (July 20, 2010 P.M.).)

After this meeting, Kroef informed Defendant that Weidlich was not "really grasping the importance of what was happening." (Tr. 39:23-40:6 (July 16, 2010 A.M.).) Thus, Defendant decided he needed to speak with Schunk's CEO, Dagobert Kotzur. (Id.) A follow-up meeting between Defendant, Weidlich, Kotzur and Kroef was held on February 26, 2001. As Weidlich testified, Defendant and Kroef urged the same conduct of Schunk at this second meeting:

[Defendant] strongly suggested that we make sure that our people answer in the same way, on the one hand because that would help to convince the U.S. authorities that the Morgan story was right. And that could be an instrument in order to—to slaughter Carbone. And on the other hand, he drew our attention to the fact that if the investigation into the carbon brush business cannot be stopped in the United States, then, for sure, an investigation in Europe will start as well.

(Tr. 20:16-23 (July 20, 2010 P.M.).) This evidence could lead a rational jury to convict Defendant of Count Two.

So too could the testimony from two of the Antitrust Division’s witnesses regarding how Defendant and others sought the retirement of Emerson, a British national residing in the United Kingdom, who served as a pricing officer at Morgan. At trial, evidence was presented that Emerson’s retirement was sought for the express purpose of preventing him from testifying against Morgan in the proceedings after it became apparent that any testimony Emerson might give could not be readily influenced. Indeed, MacParlane testified that, after learning of the grand jury investigation, a concern arose that Emerson would not be able to stick to the story in the scripts if questioned:

[Defendant] emerged [from a meeting] saying that Mr. Emerson would not stand the questioning of his role in any of these activities going forward.... [I]f he were questioned by the Department of Justice either in Canada or yourselves on his role, he would perhaps not be able to stay to the story. He would—he would have to tell the truth.

(Tr. 43:12-16, 44:1-4 (July 20, 2010 A.M.).) Accordingly, Emerson’s retirement from Morgan was pursued. (See id. 44:7-9 (“It was our view that as a retired employee, [Emerson] would be inaccessible to either [sic] Department of Justice or Canada’s Department of Justice”).) Kroef also testified to this effect. (See Tr. 31:6-25 (July 16, 2010 A.M.) (explaining that “the company believed, at that time, if Mr. Emerson was no longer in the company, he could not be told to testify in a case against the company” and elaborating on how Defendant and others went about procuring Emerson’s retirement).) This evidence supports the jury’s verdict.

Accordingly, the Court concludes there was sufficient evidence for a rational jury to conclude that Defendant conspired to violate Section 1512(b)(1).

ii. The Evidence Pertaining to Section 1512(b)(2)(B)

Because a rational jury could conclude that Defendant conspired with others to violate Section 1512(b)(1), it is technically unnecessary to consider whether the evidence at trial also supported a conspiracy conviction for the other object charged in the Indictment. See Griffin, 502 U.S. at 59-60, 112 S.Ct. 466. However, the evidence presented at trial provides a sufficient basis for a rational jury to have found Defendant guilty of a conspiracy to violate Section 1512(b)(2)(B) as well. Thus, in the interest of completeness, the Court will also discuss the arguments pertaining to Section 1512(b)(2)(B).

Section 1512(b)(2)(B) punishes those who “corruptly persuade! ] another person ... with intent to ... cause or induce any person to ... alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding.” 18 U.S.C. § 1512(b)(2)(B). As discussed above in the context of Section 1512(b)(1), a nexus—albeit not necessarily the same nexus required under Section 1503—is required for a violation of Section 1512(b)(2)(B). Thus, a defendant cannot be convicted under Section 1512(b)(2)(B) unless the document destruction occurs “in contemplation [of] any particular official proceeding in which those documents might be material.” Arthur Andersen, 544 U.S. at 708, 125 S.Ct. 2129. The indictment charged Defendant with conspiring to violate this statute by agreeing with others to:

corruptly persuade and attempt to corruptly persuade other persons known to the Grand Jury with intent to cause or induce those other persons to alter, destroy, mutilate or conceal records and documents with the intent to impair their availability for use in an official proceeding; that is, a federal grand jury sitting in the Eastern District of Pennsylvania, conducting a price-fixing investigation of the carbon products industry. ...

(Indictment ¶ 13.)

Defendant asserts the evidence at trial was insufficient to establish a conspiracy to violate Section 1512(b)(2)(B) because (1) there was no document destruction in the United States; (2) the documents destroyed were European documents only which were destroyed with no intent to affect the grand jury proceeding in the United States; (3) the document destruction occurred before the grand jury subpoena was issued; and (4) the documents in Europe were, based on Defendant’s understanding from legal counsel, beyond the power of the grand jury subpoena. These arguments lack merit.

First, this Court has already resolved the issue of whether a Section 1512(b)(2)(B) violation can lie where the document destruction occurred (1) outside of the United States; and (2) before the issuance of the grand jury subpoena. In Norris I, Defendant sought to dismiss Count IV of the indictment—the Count charging him with actually violating Section 1512(b)(2)(B)—on these same grounds. In rejecting these arguments, the Court explained:

Defendant’s contention that he could not have impaired the availability of foreign-based documents because they were beyond the grand jury subpoena power is irrelevant. The statute requires only that Defendant’s action be taken “with intent to impair the object’s integrity or availability for use in an official proceeding.” The offense could have occurred even before the grand jury was empaneled and had authority to issue subpoenas. Here, the relevance of the Morganite subpoena (which also sought Morgan documents) is that it allegedly informed Defendant of the existence of the federal grant jury’s price-fixing investigation. As explained earlier, it is for the jury to decide if Defendant and his co-conspirator’s actions to destroy or conceal documents were taken with intent to impair their availability in the grand jury investigation.

719 F.Supp.2d at 566-67 (internal citations omitted); see 18 U.S.C. § 1512(h) (providing for “extraterritorial Federal jurisdiction over an offense under this section”); 18 U.S.C. § 1512(f) (“[A]n official proceeding need not be pending or about to be instituted at the time of the offense.”). Thus, a rational jury could have convicted Defendant even if the only document destruction that took place occurred outside the United States and before the grand jury subpoena was issued.

Second, the evidence supports a jury finding that document destruction took place with the intent to affect the grand jury proceeding in the United States. This evidence is not negated by Defendant’s understanding of what the grand jury could legally compel. The grand jury subpoena was, as noted, served on Morganite on April 27, 1999. (See GX-05.) This subpoena requested production of “all responsive documents ... of [the] company without regard to the physical location of said documents.” (Id.) It clarified that it sought Morgan documents. (See id. (instructing that the subpoena covered Morganite’s “divisions and affiliates”).) Testimony was heard at trial that, after receiving the subpoena, Defendant ordered the destruction of responsive files. As Kroef testified:

[I]f you’re going to be subpoenaed in the United States—so if you’re under investigation on something very minor in the United States, that could be a serious risk of things coming to Europe.

And of course, in Europe, we had an elaborate cartel system. So I recall a very, very short discussion with [Defendant] where he said, what was the last time you did a check on the—on the files in the companies? And I said, ooh, that’s been a long time. And he said, do you think it’s wise to do another one? And I said, yeah, not a bad idea. That was triggered by the investigation here in the U.S.

(Tr. 28:5-16 (July 16, 2010 A.M.).)

Kroef further testified that, following this conversation with Defendant, the document destruction was actually carried out:

I selected three people [to review the files because] all three were involved in the cartel activities, because you didn’t—you wanted to keep the number of people involved as small as you possibly can .... [s]o they went to all our own offices in Europe, and did—did the check. They just checked all the files.... Every time they found a copy of, let’s say a quotation to a customer, which had some, let’s say, indication of cartel activities handwritten on them, they would take them out of the file, and throw them away, destroy them.

(Id. 28:19-23, 29:3-18.) Emerson testified similarly. (See 17:1-19:25, 50:9-12 (July 14, 2010 A.M.) (Emerson’s testimony that he was summoned by Kroef to destroy files in light of the subpoena and that files-—-including notes “relating to competitor meetings with the U.S. market”—were destroyed after the subpoena was served).)

Defendant takes exception to Kroefs testimony insofar as Kroef revealed on cross-examination that he could not recall the year in which Defendant instructed him to destroy the documents. However, Kroef did clearly testify that the conversation with Defendant occurred after the subpoena was served and was triggered by the same. This evidence thus supports a jury finding that Defendant and others agreed to destroy responsive documents for the purpose of preventing the grand jury from procuring them.

Thus, a rational jury could find that Defendant conspired to violate Section 1512(b)(2)(B) by impairing the availability of documents for the grand jury proceeding.

3. Validity of the Charge for Which Defendant was Convicted

Finally, Defendant argues that the Court must enter a judgment of acquittal because the jury may have convicted him of the legally inadequate charge of “conspiracy to attempt” obstruction of justice. It is true, as Defendant points out, that the verdict form provided to the jury allowed them to find Defendant guilty if he conspired to attempt to corruptly persuade other persons with intent to influence their testimony in violation of Section 1512(b)(1) or conspired to attempt to corruptly persuade other persons with intent to cause or induce them to destroy documents in violation of Section 1512(b)(2)(B). (See doc. no. 149.) It is also true that a general verdict should be set aside where one of several bases for conviction is unconstitutional or illegal as opposed to supported by insufficient evidence. See Griffin, 502 U.S. at 56, 59-60, 112 S.Ct. 466 (explaining that a general verdict should be set aside if one of the bases is unconstitutional or illegal, but holding a guilty verdict on a multiple-object conspiracy is valid even if there is insufficient evidence concerning one of the conspiracy’s alleged objects). However, the charge Defendant complains of is neither unconstitutional nor illegal.

Defendant cites a Fifth Circuit case from 1980, United States v. Meacham, 626 F.2d 503 (5th Cir.1980), for the proposition that a conspiracy to attempt charge is illegal. (See Def.’s Mot. for Acquittal or, in the Alternative, a New Trial, at 55.)' In Meacham, the defendant was charged with conspiring to attempt a violation of two identical statutes which proscribed either attempt or conspiracy. Id. at 506. Noting that a successful conspiracy prosecution requires both a statute making the conspiracy a crime and a statute making the object of the conspiracy a crime, see id. at 507 (“In order successfully to prosecute a conspiracy, the government must be able to point to two separate provisions: one making the act of conspiring a crime and one making the object of the conspiring a crime.”), the Meacham Court concluded the indictment failed because the statutes at issue could only be read to permit a prosecution for either conspiracy or attempt:

The government seeks yeoman’s performance out of [the statutes] by using them as conspiracy statutes and as substantive-offense statutes through which the conspiracy statutes can be applied.

Acceptance of the government’s position would lead to the conclusion that [the statutes at issue] describe four separate crimes apiece: conspiracy, attempt, conspiracy to attempt and attempt to conspire. We do not believe Congress intended to create four discrete crimes with the three words “attempts or conspires.”

Id. at 508 (internal footnote omitted). Thus, Meacham does not support Defendant’s contention that a charge of conspiracy to attempt is illegal. The Meacham Court did criticize such a charge, see id. at 509 & n. 7 (calling conspiracy to attempt “conceptually bizarre” and noting “it would be the height of absurdity to conspire to commit an attempt, an inchoate offense, and simultaneously conspire to fail at the effort”), but never had occasion to reach the issue. See id. at 509 (“Because we hold [the statutes] do not authorize conspiracy-to-attempt prosecutions, we need not reach the more elusive question ... whether the government may prosecute the ... crime of conspiracy to attempt in instances where separate provisions make both the conspiracy and the attempt criminal offenses.”).

Instead, as the Meacham Court acknowledged, courts have permitted conspiracy to attempt prosecutions where defendants were prosecuted for conspiracy "in conjunction with other statutes expressly making attempts criminal." Id. at 508. That is precisely the situation in the instant case: Defendant was indicted for conspiracy in violation of Section 371 to attempt (or commit) violations of either Section 1512(b)(1), Section 1512(b)(2)(B) or both. And, notwithstanding the criticism lodged by the Fifth Circuit in dicta three decades ago, such a charge is hardly illegal. See, e.g., United States v. Clay, 495 F.2d 700, 710 (7th Cir.) (rejecting argument that conspiracy to attempt charge was legally invalid: "[w]hile entering the savings and loan was obviously an objective of the conspiracy and a federal crime, the men necessarily contemplated their attempting to gain entry into the building, and such attempts are [also] expressly proscribed"), cert. denied, 419 U.S. 937, 95 S.Ct. 207, 42 L.Ed.2d 164 (1974). Defendant cites no cases that come close to establishing otherwise.

Therefore, because the jury convicted Defendant on a legally adequate charge and could rationally conclude that Defendant conspired to violate either Section 1512(b)(1) or Section 1512(b)(2)(B), the Court will deny Defendant’s motion for a judgment of acquittal under Rule 29.

IV. MOTION FOR A NEW TRIAL UNDER RULE 33

Rule 33 allows the Court to grant a new trial upon the defendant’s motion “if the interest of justice so requires.” Fed. R.Crim.P. 33. Defendant asks the Court to vacate the jury’s conviction and grant a new trial under Rule 33 for two reasons. First, Defendant claims the jury’s guilty verdict is against the weight of the evidence. Second, Defendant argues that fundamental errors throughout the trial tainted the jury’s verdict. These contentions are addressed in turn.

A. Defendant’s Argument that the Verdict is Against the Weight of the Evidence

1. Legal Standard

Defendant first argues that the Court should order a new trial under Rule 33 because the jury’s verdict was against the weight of the evidence. In evaluating whether a jury’s verdict was against the weight of the evidence, the court does not view the evidence in the light most favorable to the government as it does when considering a motion for a judgment of acquittal under Rule 29. Instead, the court exercises its own judgment in evaluating the government’s case. See United States v. Johnson, 302 F.3d 139, 150 (3d Cir.2002). However, motions for a new trial based on the weight of the evidence “are not favored” and should “be granted sparingly and only in exceptional cases.” United States v. Brennan, 326 F.3d 176, 189 (3d Cir.2003) (quoting Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir.1987)). Indeed, “even if a district court believes that the jury verdict is contrary to the weight of the evidence, it can order a new trial ‘only if it believes that there is a serious danger that a miscarriage of justice has occurred—that is, that an innocent person has been convicted.’ ” United States v. Silveus, 542 F.3d 993, 1004-05 (3d Cir.2008) (quoting Johnson, 302 F.3d at 150).

2. Discussion

The theme of Defendant’s weight-of-the-evidence argument is that the seemingly damning evidence presented at trial is not actually incriminating but, when properly construed and analyzed, demonstrates Defendant’s innocence. To that end, Defendant primarily advances four contentions: (1) that the scripts were not materially false because joint ventures were actually discussed at the meetings; (2) that the scripts were merely produced to marshal a legitimate legal defense; (3) that Emerson’s retirement was legitimate and not the product of a scheme of obstruction; and (4) that some of the witnesses were not credible because they testified years later pursuant to corporate or personal plea agreements and selectively remembered details of past events.

In so doing, Defendant advances a fanciful story of innocence, drawing the most innocuous interpretation of the multitude of facts presented to the jury over the course of the seven day trial. However, as the evidence outlined above in examining Defendant’s Rule 29 challenge confirms, the facts of this case hardly lead one to believe that “an innocent person has been convicted.” Id. (internal marks omitted). Nevertheless, because the standard of review for a weight of the evidence challenge under Rule 33 differs from that conducted above in evaluating the facts for the purpose of considering Defendant’s Rule 29 arguments, the analysis that follows briefly addresses, in turn, Defendant’s professed bases of innocence.

First, the evidence at trial readily demonstrates that the scripts were materially false. Several witnesses testified to this effect. (See Tr. 30: 16-20 (July 15, 2010 A.M.) (Perkins’ testimony that the “headline approach to [the minutes produced] was that the meetings were primarily about joint ventures” and that this was not true); id. 111:17 (Muller’s testimony that the scripts were “a cover story”); Tr. 15:12-15 (July 14, 2010 P.M.) (Emerson’s testimony regarding a conversation between Perkins and Emerson in which both acknowledged the minutes were “false”).)

Defendant attempts to discredit the falsity of the scripts by arguing that there were, in fact, discussions pertaining to joint ventures at the meetings for which the scripts were ultimately produced. Thus, according to Defendant, the omission of price-fixing in the notes was not materially false as to show Defendant’s intent to obstruct justice. But, as noted, several witnesses explicitly described the notes as false, explaining that they were created for the express purpose of misleading the grand jury investigation in one way or another. Moreover, Defendant’s handwritten notes from one of the alleged joint venture meetings clearly show that price-fixing, at a minimum, predominated. (See, e.g., GX-01.)

Second, the facts do not support the benign interpretation of the scripts’ creation Defendant advances. Defendant, pointing to testimony that the scripts were to “account for” and “justify” certain meetings, claims the evidence shows that the scripts were a component of Morgan’s efforts to develop a legitimate legal defense. Defendant supports this interpretation by noting that most of the summaries are labeled “Attorney Privileged Information.” Moreover, Defendant rationalizes the above-described meetings with Schunk in November 2000 and February 2001 as “simpl[e] ... attempts] to discovert ] what strategy Schunk was employing with respect to the grand jury investigation.” (Def.’s Mot. for Acquittal or, in the Alternative, a New Trial, at 79.) Viewed as a whole, the evidence at trial does not support Defendant’s contention.

As a legal matter, the fact that the scripts may have been produced at the behest of attorneys is—for the reasons discussed in evaluating Defendant’s motion for a judgment of acquittal—irrelevant provided the purpose of the scripts’ production was to influence grand jury testimony. And, factually, the evidence at trial strongly supports the conclusion that was precisely their purpose. Several witnesses testified that the scripts were developed to be a cover story for the parties who price-fixed. (See Tr. 31:21-23 (July 20, 2010 A.M.); id. 28:17-19; Tr. 109:1-10; 112:8-12 (July 15, 2010 P.M.).) Indeed, as Kroef explained it, the scripts were designed to form a “new memory” that was to be memorized “if you would be questioned” by anybody with respect to the investigation. (Tr. 12:23-13:3, 14:7-8 (July 16, 2010 A.M.).) And, as the accounts of the Schunk meetings confirm, others were persuaded in order to facilitate this goal. (See Tr. 9:6-18 (July 20, 2010 P.M.); id. 20:16-23.)

Third, the evidence concerning Emerson’s retirement does not support Defendant’s claim of innocence. Defendant, citing United States v. Farrell, 126 F.3d 484 (3d Cir.1997), contends that persuading Emerson to retire early was lawful. In Farrell, the Court held that corruptly persuading under Section 1512(b) “does not include a noncoercive attempt to persuade a coconspirator who enjoys a Fifth Amendment right not to disclose self-incriminating information.” Id. at 488. According to Defendant, Emerson’s retirement was within the lawful conduct defined in Farrell because Emerson was (at worst) merely advised not to voluntarily disclose information. Defendant claims that counsel’s involvement in advising Emerson that he could not be forced to testify if he retired confirms this account.

However, the evidence at trial showed that the purpose of Emerson’s retirement was not merely to advise or encourage him not to speak on a matter he had no legal duty to discuss with'the government—it was to induce Emerson into not offering testimony that would incriminate Morgan. This activity, as Farrell acknowledges and Arthur Andersen confirms, is illegal under Section 1512(b). See Arthur Andersen, 544 U.S. at 706, 125 S.Ct. 2129 (corrupt persuasion requires criminal culpability); Farrell, 126 F.3d at 488 (“[W]e are confident that ... attempting to persuade someone to provide false information” would constitute “corrupt persuasion punishable under § 1512(b)” (internal marks omitted)).

In particular, testimony was heard at trial that Emerson’s retirement was sought when it became apparent Emerson might be unable to stick to the scripts when questioned. (Tr. 43:12-16, 44:1-4, 44:7-9 (July 20, 2010 A.M.).) At the time of his retirement, Emerson was making about £32,000 and would not have been able to retire on a full pension. (Tr. 24:18-21, 25:14 (July 14, 2010 P.M.).) Nevertheless, he requested and was granted a pension of £150,000 without any negotiation whatsoever. (Id. 25:8-22.) Thereafter, Emerson received a letter explaining that Keany, in connection with the internal investigation “should simply like to confirm with you, your role in the many meetings we held to exit our joint ventures with Le Carbone.” (GX-07.) However, Emerson had no involvement in the Carbone joint venture. (Tr. 29:19-23 (July 14, 2010 P.M.).) Taken together, this evidence strongly indicates that Emerson’s retirement was affirmatively designed to influence him not to offer incriminating testimony.

Finally, Defendant’s attempts to discredit the witnesses who offered incriminating testimony are without foundation. Defendant, citing the fact that the government witnesses testified pursuant to plea agreements, intimates that the Antitrust Division improperly influenced the testimony of the witnesses. For example, Defendant notes that “Kroef took every opportunity to quarrel and shade the evidence toward impropriety” and that the witnesses called by the Antitrust Division “dutifully provided conclusory testimony that the meeting summaries were false.” (Def.’s Mot. for Acquittal or, in the Alternative, a New Trial, at 88.) Defendant further questions the credibility of the witnesses, noting they selectively remembered certain details that were favorable to the Antitrust Division’s theory of the case. However, the Court is persuaded that the witnesses were credible. In addition, the exhibits entered into evidence readily support the testimony advanced. Consequently, the Court concludes, for the purpose of its Rule 33 analysis, that Defendant has failed to show the witnesses were not credible.

Thus, because the evidence does not support Defendant’s contention that his conviction was a miscarriage of justice, the Court will deny Defendant’s motion for a new trial based on the weight of the evidence.

B. Defendant’s Argument that Fundamental Errors were Committed During Trial

Defendant also contends that he should receive a new trial under Rule 33 because fundamental errors at trial—on their own and coupled with others—prejudiced his case. Specifically, Defendant claims that a new trial should be ordere