United States v. Reeves (84 F. Supp. 3d 375, 2015)

OPINION

SIMANDLE, Chief Judge.

I. INTRODUCTION

This matter is before the court on four pending post-trial motions in the above criminal action. This criminal case arose out of the alleged falsification of documents relating to Delaware Bay oysters harvested, sold, and/or purchased by the respective defendants. The following defendants filed motions for judgment notwithstanding the verdict or for new trial pursuant to Federal Rules of Criminal Procedure 29 and 33: Mark Bryan and Harbor House, Inc. [Docket Items 276 and 277]; Renee Reeves [Docket Item 279]; Kenneth Bailey [Docket Items 280]; and Todd Reeves on behalf of himself, Thomas Reeves and Shellrock, LLC [Docket Item 282]. The Government filed opposition to all motions. [Docket Items 283-286.] All defendants filed a response to the Government’s opposition. [Docket Items 290-295.] Various post-argument submissions were also made and considered.

For the reasons discussed below, the Court will deny all Defendants’ post-trial motions, with the exception that the motion of Kenneth W. Bailey for judgment of acquittal will be granted as to Count 15.

A. Factual Background and Procedural History

Six individuals and two corporations involved in the oyster harvesting and distribution industry along the Delaware Bay in New Jersey and Delaware were indicted in a fifteen-count Indictment. Individual Defendants Thomas Reeves, Todd Reeves, and Todd’s wife Renee Reeves were affiliated with Defendant Shellrock, LLC, d/b/a Reeves Brothers, in Port Norris, New Jersey. Thomas and Todd Reeves are brothers who owned and operated Reeves Brothers, an oyster dealer authorized to buy and sell oysters under New Jersey law. Renee Reeves worked in the Reeves Brothers office and performed functions such as preparing invoices for oyster purchases and sales. Thomas and Todd Reeves also harvested oysters from the Delaware Bay under annual licenses with a Seaford, Delaware company, Defendant Harbor House, of which Defendant Mark Bryan was an owner and operator. Defendant Pamela Meloney was an office employee of Harbor House.

Much of the evidence in the case arose from the state and federal investigations of oyster sales by Reeves Brothers to Harbor House and a system of double-invoicing in which Harbor House could purchase a higher quantity of oysters from Reeves Brothers, as reflected in one invoice, but also maintain a second invoice showing a lower quantity. This understatement of the transaction would be reflected in other records which were required to be accurate for purposes of managing the oyster resources in the Delaware Bay and also for purposes of health monitoring and tracking the source and movement of oysters in commerce. Much of the trial evidence focused on the investigative efforts of New Jersey wildlife enforcement officers and health officers of the U.S. Food and Drug Administration (FDA) and the state health department, as well as the alleged efforts of the Reeves Brothers Defendants and the Harbor House Defendants to falsify required records and cover up violations of law.

The remaining Defendant is Kenneth W. Bailey, Sr., a licensed commercial shellfish harvester working on the Delaware Bay. Bailey also operated as an oyster dealer under his wife’s dealer license, doing business under his own name and under a business name of “Conks ‘R’ Us.” Bailey also would sell his oyster catch to Harbor House and is alleged to have kept and furnished records of his oyster transactions that falsely understated the actual quantities involved.

The regulation of oyster harvesting and sales in the Delaware Bay, as mentioned above, proceeds on both state and federal levels and serves dual purposes of natural resource conservation and protection of public health. During the period at issue, 2004-2007, New Jersey statutes empowered the Commissioner of the Department of Environmental Protection (NJDEP) to control and direct the shellfish industry and protect the shellfish resources throughout the state. N.J.S.A. 50:1-5. The Commissioner is empowered to make such rules and regulations as may be necessary for the preservation of the shellfish industry and resources after consultations with the Shell Fisheries Council, id., and it is only lawful to take oysters in certain portions of the Delaware Bay after compliance with Title 50 and the rules and regulations issued pursuant thereto. N.J.S.A. 50:3-16.3. The Shellfish Council issues an annual license for taking shellfish for each vessel engaged in oystering, N.J.S.A. 50:3-16.14. The oystering season’s start and finish on the state’s seed beds, as well as the quantities of seed bed oysters that can be harvested, is regulated by the NJDEP, in consultation with the Shell Fisheries Council and the Haskin Shellfish Research Laboratory of Rutgers University pursuant to regulations at N.J.A.C. § 7:25A-1.1 et seq. In addition, a quota for the annual harvest, applicable to the state seed beds, is set by the NJDEP after public meetings, and the per-vessel quota is simply the total seasonal quota for the seed beds divided by the number of licensed oyster dredge vessels. See United States v. Reeves, 891 F.Supp.2d 690, 693-94 (D.N.J.2012).

In addition to the public seed beds, to which the annual harvest quota applies, the Delaware Bay includes private leased oyster beds, where no quota and no closed season applies. Thus, a leased bed owner is permitted to harvest oysters from his own leased oyster beds without concern for a quota or a season. However, if a vessel visited both the seed bed and a leased bed on the same day, the entire catch would count against the seed bed quota for that vessel. Oyster dealers must account for and record all quantities of oysters that are bought or sold, regardless of origin from the public seed bed or the private leased beds, as explained below.

Oyster dealers in New Jersey are required to file a weekly dealer’s report pursuant to N.J.A.C. 7:25A-4.5(b), which includes a record of their purchases and landings of oysters from fishermen, and they are required to submit those records weekly to the state. Id. These records must include the date, the vessel harvesting, and the number of bushels harvested, among other information. Id. Thus,. a shellfish dealer who fails to keep an accurate weekly dealer’s report violates a New Jersey regulation.

The oyster license agreements had certain terms and conditions attached to them, including: (1) the seasonal oystering quota for the vessel; (2) the requirement for placing calls to the NJDEP at the beginning and end of each seed bed area harvest reporting the vessel’s name, harvest location, quantity, and intended landing area for discharge of the oysters (the “call-in” requirement); and (3) the filing of weekly harvester reports by the license holder. The Court previously held that these three terms and conditions upon the oyster license agreements during the 2004-2007 time period were not requirements enacted in New Jersey statutes or regulations, although they are binding conditions upon the licensee. United States v. Reeves, 891 F.Supp.2d at 704-709. Thus, during the 2004-2007 period, an oyster harvester who violated the quota requirement or who filed false weekly reports could be subject to administrative sanctions because of breach of the agreement, including loss of the oystering license.

Similarly, Delaware law required a commercial purchaser and shipper of shellfish to maintain a record of shellfish purchases, including the date of purchase, the person or company from whom the purchase was made, and the quantity of shellfish that was purchased, 7 Del. Admin. Code § 7402.4.4.12.1, and such records were subject to inspection by the state agencies.

Under federal law, the FDA promulgated regulations in 21 C.F.R. § 123.28, requiring those who process, handle, store, shuck, pack, label, unload dockside, or hold oysters to maintain records of the harvest date, harvest location, quantity harvested, and harvester, id., subject to inspection by the FDA. The Indictment charged, in part, that various defendants maintained false FDA logs, sometimes referred to as “health logs,” regarding their oystering transactions.

Under federal law, it is a crime to knowingly make a false record, account, or label for fish or wildlife, including oysters, that is transported in interstate commerce involving the sale or purchase of the oysters, in violation of 16 U.S.C. §§ 3372(d)(2) and 3373(d)(3)(A)(ii). Various defendants were charged with aiding and abetting or committing this crime of false records under the Lacey Act by making or causing another to make records and logs that falsely included the amount of oysters that had been harvested, landed, sold, or purchased by the defendants, in the following counts:

Count 2: All Defendants except Kenneth Bailey (2006)

Count k- All Defendants except Kenneth Bailey (2007)

Count 11: Kenneth Bailey (2006)

Count 13: Kenneth Bailey, Pamela Me-loney, and Harbor House (2007).

Under another provision of the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A) & 3373(d)(1)(B), it is a crime to knowingly transport, sell, receive, acquire, or purchase fish or wildlife, including oysters, in interstate commerce, knowing that such fish or wildlife was possessed and transported in violation of the laws and regulations of a state. Various defendants were charged with this crime of trafficking in oysters possessed or transported in violation of New Jersey statutes and regulations, or aiding and abetting this crime, in which the oysters were not reported as required by New Jersey law, in the following counts:

Count 3: Thomas Reeves, Todd Reeves, Shellrock LLC, Mark Bryan, and Harbor House (2006)

Count 5: Thomas Reeves, Todd Reeves, Shellrock LLC, Mark Bryan, and Harbor House (2007)

Count 12: Kenneth Bailey (2006)

Count lip: Kenneth Bailey (2007).

Further, under federal law it is a crime to falsify entries in a record with intent to impede, obstruct, or influence the investigation and proper administration of a matter (or in relation to and in contemplation of such a matter) within the jurisdiction of a department or agency of the United States, pursuant to 18 U.S.C. § 1519. Various defendants were charged with falsifying entries (or aiding and abetting same) with intent to impede proper administration of a matter with the FDA, in that the defendants allegedly maintained a record of their oyster transactions required by FDA regulations that was false, in the following counts:

Count 6: Thomas Reeves, Todd Reeves, and Shellrock, LLC (2006)

Count 8: Thomas Reeves, Todd Reeves, and Shellrock, LLC (2007)

Count 15: Kenneth Bailey (2007).

Finally, the Indictment, in Count 1, charged all defendants except Bailey with a conspiracy in violation of 18 U.S.C. § 371, extending from April 19, 2004 to November 9, 2007, having four objects:

a. To make a false record or account in violation of the Lacey Act, 16 U.S.C. §§ 3372(d) & 3373(d)(3)(A);

b. To traffic in oysters possessed or transported in violation of state law, contrary to the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A) & 3373(d)(1)(B);

c. To falsify a record with intent to impede proper administration of a matter within the jurisdiction of the FDA, in violation of 18 U.S.C. § 1519;

d. To obstruct or impede a pending National Oceanic and Atmospheric Administration (“NOAA”) of the Department of Commerce, in violation of 18 U.S.C. § 1505.

The manner and means of the alleged conspiracy were spelled out in ¶¶ 18-25 of Count 1 of the Indictment. In general, Thomas and Todd Reeves used their vessels to harvest oysters from the public seed beds in excess of their quotas, allegedly exceeding their quotas by 40 percent in 2004, by 25 percent in 2005, by 90 percent in 2006, and by 40 percent in 2007. (Id. ¶ 20.) They would under-report their harvesting activities by, among other things, keeping false records in their Reeves Brothers oyster dealer weekly reports with regard to the oysters received from Thomas and Todd Reeves’ vessels; they would record that these vessels landed fewer oysters and that Reeves Brothers shipped out fewer oysters than they actually did. Id. ¶ 22. Thomas and Todd Reeves, through Reeves Brothers, sold the oysters to Harbor House, whereby Reeves Brothers would provide false invoices and copies of • certain false Reeves Brothers records to Harbor House, indicating that they were selling fewer oysters to Harbor House than they actually sold. Id. ¶ 23. Harbor House’s owner Mark Bryan and its bookkeeper, Pamela Meloney, would process these sales and make payment to Reeves Brothers for the actual quantities of oysters, which were greater than the false Reeves Brothers invoices indicated. Id. The Harbor House record of its oyster purchases, which was required to be kept by federal law and by Delaware law, contained false entries, coordinated with the false reports prepared by Thomas, Todd, and Renee Reeves. Id. ¶24. Further, Meloney and Bryan provided law enforcement officers with records of the Reeves Brothers oyster sales to Harbor House, and they presented these records as coming from Harbor House’s own historical files, when in truth they did not. Id. ¶ 25. The Indictment then alleged overt acts including hundreds of occasions during the four seasons of 2004-2007 in which the Reeves Brothers’ and Harbor House’s Oyster Dealer Weekly Reports and Oyster Logs and Reeves Brothers Invoices were falsified to record fewer bushels of oysters than had actually been transacted and transported.

Counts 7, 9, and 10 were dismissed before the case was submitted to the jury. The jury’s verdicts were as follows:

• Thomas Reeves, Todd Reeves, and Shellrock LLC were found guilty of Counts 1 through 6 and Count 8.

• Renee Reeves was found guilty of Count 1 and acquitted of Counts 2 and 4.

• Kenneth W. Bailey was found guilty of Counts 11 through 15.

• Mark Bryan was found guilty of Counts 1 through 5.

• Harbor House was found guilty of Counts 1 through 5 and acquitted of Count 13.

• Pamela Meloney was acquitted of all counts against her, Counts 1, 2, and 4.

II. STANDARD OF REVIEW

Under Rule 29(c) of the Federal Rules of Criminal Procedure,

a court may enter a judgment of acquittal if it finds that as a matter of law the evidence is insufficient to sustain a conviction. In reviewing a motion for Judgment of Acquittal, the court must “ ‘review the record in the light most favorable to the prosecution to determine whether 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)). Further, the court is required to draw “ ‘all reasonable inferences in favor of the jury’s verdict.’” Smith, 294 F.3d at 476-77 (quoting United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.1996)).

The defendant must also overcome the jury’s special province in evaluating witness credibility and conflicting testimony. United States v. Hakim, 2002 U.S. Dist. LEXIS 18151, No. 02-CR-131, 2002 WL 31151174, at *6 (E.D.Pa. Sept. 24, 2002) (citing United States v. McGlory, 968 F.2d 309, 321 (3d Cir.1992)). Further, the court in United States v. Scarfo, 711 F.Supp. 1315, 1334 (E.D.Pa.1989) held that “a court may not grant a motion for acquittal based on conflicting testimony, that is, testimony of a questionable quality; it is up to the jury to weigh conflicting testimony, determine credibility, and ultimately draw factual inferences.” Thus, “a finding of insufficiency should 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)).

United States v. Carmichael, 269 F.Supp.2d 588, 594-595 (D.N.J.2003).

[A] trial court’s ruling on the sufficiency of the evidence is governed by strict principles of deference to a jury’s findings. In deciding whether to grant the motions for acquittal, the trial court [is] required to view the evidence in the light most favorable to the prosecution and to draw all reasonable inferences therefrom in the government’s favor.

United States v. Ashfield, 735 F.2d 101, 106 (3d Cir.1984) (citations omitted). More recently, in reversing a district court’s granting of a judgment of acquittal, the Court of Appeals found: “The evidence was not overwhelming, but all that was required was that “any rational juror could have found the elements of the crime beyond a reasonable doubt.” ” United States v. Carbo, 572 F.3d 112, 119 (3d Cir.2009) (quoting United States v. Cartwright, 359 F.3d 281, 286 (3d Cir.2004)).

Federal Rule of Criminal Procedure 33(a) states that “upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Such a remedy is available in exceptional cases where an injustice would occur if the court failed to act. United States v. Lebovitz, 586 F.Supp. 265, 267 (W.D.Pa.), aff'd, 746 F.2d 1468 (3d Cir.1984); United States v. Phifer, 400 F.Supp. 719, 722 (E.D.Pa.1975), aff'd, 532 F.2d 747 (3d Cir.1976). Rule 33 affords relief if, for example, the trial court finds prosecutorial misconduct or when the trial court does not believe the evidence supports'the jury’s verdict. United States v. Dixon, 658 F.2d 181, 193 (3d Cir.1981) (reversing judgment of acquittal but remanding for consideration whether to grant new trial under Rule 33 on grounds of juror confusion and insufficient limiting instructions).

This Circuit has described a district court’s consideration of a Fed’.R.Crim.P. 33 motion for a new trial based on the “weight of the evidence” as follows: A district court can order a new trial on the ground that the jury’s verdict is contrary to the weight of the evidence 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. Santos, 20 F.3d 280, 285 (7th Cir.1994) (quoting United States v. Morales, 902 F.2d 604, 606 (7th Cir.1990)). Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion it does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government’s case. See United States v. Lacey, 219 F.3d 779, 783-84 (8th Cir.2000); United States v. Ashworth, 836 F.2d 260, 266 (6th Cir.1988). United States v. Johnson, 302 F.3d 139, 150 (3d Cir.2002). Thus, “motions for a new trial based on the weight of the evidence are not favored. Such motions are to be granted sparingly and only in exceptional cases.” Government of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir.1987) (citations omitted).

United States v. Brennan, 326 F.3d 176, 188-89 (3d Cir.2003).

III. HARBOR HOUSE DEFENDANTS’ MOTION FOR JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL

Defendants Mark Bryan and Harbor House (“Harbor House Defendants”) were convicted of conspiracy (Count 1), making false records related to the sale or purchase of oysters (Counts 2, 4), and trafficking in oysters possessed or transported in violation of New Jersey law (Counts 3, 5). Harbor House was acquitted of making false records from April 24, 2007 through October 24, 2007 in connection with Kenneth Bailey’s oyster transactions with Harbor House (Count 13). The obstruction of justice counts against the Harbor House Defendants were dismissed for lack of venue prior to the jury deliberation.

A. Summary of the Motion

Harbor House Defendants filed the instant motion pursuant to Fed.R.Crim.P. 29 for judgment notwithstanding the verdict as to Counts 1-5 based primarily on the argument that the Government failed to prove the original allegations in these counts of the Indictment. [Docket Items 276 and 277.] Alternatively, the Harbor House Defendants argue a new trial is warranted pursuant to Fed.R.Crim.P. 33 because the proofs varied from the Indictment and in effect constructively amended the Indictment during trial leading to unfair surprise and a violation of these Defendants’ Fifth and Sixth Amendment Rights.

First, the Harbor House Defendants argue that the Indictment returned by the grand jury in essence charged these defendants with assisting the Reeves brothers in violating the quota and falsifying documents in order to conceal oysters harvested in excess of the quota. In particular, the Indictment described violations of the daily call-in requirement and weekly harvester reports. The Court subsequently held, upon all defendants’ motions made after trial commenced, that these requirements were not part of New Jersey law during the relevant time period and therefore could not serve as a basis for the Lacey Act trafficking and falsification offenses charged in this case, United States v. Reeves, 891 F.Supp.2d 690 (D.N.J.2012), while falsifying the New Jersey weekly dealer’s report, required by N.J.A.C. 7:25A-4.5, could serve as the basis for a Lacey Act crime. Id. The Harbor House Defendants argue that the Court’s curative instructions were insufficient to cure the prejudice and the jury was unable to evaluate the evidence presented against each defendant fairly.

The Harbor House Defendants maintain that if the verdicts against them were based in any part on the quota system, the verdicts are constitutionally suspect. The defendants further maintain that the quota evidence could not be recharacterized as motive evidence after it was already proffered by the Government in its opening statement and through its witnesses as a violation of New Jersey law. The defendants argue this prejudice cannot be dismissed as harmless and requires, at minimum, a new trial.

The Government opposed the Harbor House Defendants’ motion for a new trial. [Docket Item 290.] The Government argues the Harbor House Defendants have not met their burdens under Rule 29 or Rule 33. First, the Government maintains the defendants are essentially arguing that a variance occurred between the Indictment and the crimes prosecuted. The Government argues it provided substantial notice of its intent to prove health-related record-keeping violations in the Indictment, pre-trial discovery, pre-trial exhibits and pre-trial motions. Therefore, the Government contends that the Harbor House Defendants had ample notice that the Government was prosecuting them based on falsification of health records, not just trafficking in oysters that violated the permitted quotas for the Delaware Bay dredgers.

In addition, the Government maintains that the Court properly instructed the jury on the limited use of the quota evidence and these instructions cured any prejudice or confusion that may have resulted from this evidence. The Government also argues that this evidence was relevant for motive and as evidence of overt acts of the conspiracy and was properly admitted. Therefore, the Government maintains this cannot be a basis for a new trial under Rule 33.

B. Analysis

Mark Bryan and Harbor House were convicted on each of Counts 1-5. The Court finds the Harbor House Defendants have failed to meet their burden under Rules 29 and 33. The Harbor House Defendants are essentially arguing that a variance occurred between the Indictment and the evidence presented at trial. The court finds this argument without merit. The record of the case, particularly the Indictment, discovery and pre-trial motions, gave the defendants adequate notice that the Government was seeking to prosecute them on health-related records offenses arising out of the falsification of FDA logs, in addition to trafficking in oysters in connection with knowingly false oyster dealer logs in which the quantity of the dealer’s transaction was intentionally falsified.

The Defendants have a Fifth Amendment right to be triecl only on the charges indicted by the grand jury. See U.S. Const, amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”).

A constructive amendment occurs where a defendant is deprived of his “substantial right to be tried only on charges presented in an indictment returned by a' grand jury.” United States v. Miller, 471 U.S. 130, 140, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985) (quoting Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)) (internal quotation marks omitted). A constructive amendment to the indictment constitutes “a per se violation of the fifth amendment’s grand jury clause.” United States v. Castro, 776 F.2d 1118, 1121-22 (3d Cir.1985).

United States v. Syme, 276 F.3d 131, 148 (3d Cir.2002). “Moreover, the Sixth Amendment guarantees that criminal defendants be given sufficient notice of the nature of the charges in order to defend against them.” United States v. Thomas, 610 F.2d 1166, 1173 (3d Cir.1979).

[T]wo types of variations between thé indictment and evidence exist: amendments, which occur when the charging terms of the indictment are altered, and variances, where the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment. [United States v. Somers, 496 F.2d 723, 743 n. 38 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974) ] (quoting Gaither v. United States, 134 U.S.App. D.C. 154, 413 F.2d 1061, 1071 (D.C.Cir.1969)). The difference between these variations is not merely academic, for we observed that Supreme Court precedent indicated that if the variation were characterized as an amendment, it would constitute a per se violation of the fifth amendment’s grand jury clause. Somers, 496 F.2d at 743. Variances, however, are subject to less strict case-by-case inquiry, and would only constitute reversible error in those cases where the variance prejudiced the defendant’s defense. Id. at 743-44. Our analysis led us to conclude that:

in evaluating variances, we must first determine whether there has been a modification in the elements of the crime charged .... If such a modification exists, we will apply the per se rule of [Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (I960) ] so as to preserve the shielding function of the grand jury. If, on the other hand, the variance does not alter the elements of the offense charged, we will focus upon whether or not there has been prejudice to the defendant....

Somers, 496 F.2d at 744 (citations omitted). United States v. Castro, 776 F.2d 1118, 1122 (3d Cir.1985).

In this case, there has been no modification of the elements of the charged crimes. The Court’s ruling precluded a Lacey Act •conviction based solely on evidence that certain oyster permit requirements for harvesting quotas, daily call-ins, and weekly harvester logs were violated; the Court did not expand the basis for the Lacey Act charge, but instead narrowed it to those records explicitly required by New Jersey’s statutes or regulations during that 2004-2007 time period including the weekly oyster dealer’s report. The Court’s analysis consequently focuses on whether there was any prejudice to the Defendants as a result of the Court’s ruling that over-harvesting was not a violation of New Jersey law that could form the basis for a Lacey Act violation.

In the beginning of trial, the Government presented overharvesting to the jury during the Government’s opening as unlawful and the first several government witnesses presented quota violations as unlawful conduct. No defendant objected to the Indictment’s characterization of harvesting oysters in excess of the seasonal quota as a violation of New Jersey law, either during pretrial motions, or during the Government’s opening statement, or during the course of testimony of these early witnesses. Ultimately, upon motion by Defendant Thomas Reeves, joined by others, the Court ruled that quotas, daily call-ins, and weekly harvester logs were not part of the laws and regulations of the state of New Jersey during the time period covered by the Indictment, and a violation of the permitting standards for oysters quotas, call-ins,' and weekly harvest logs could not be a basis for a Lacey Act prosecution. United States v. Reeves, 891 F.Supp.2d at 704-709. Consequently, the court issued a curative instruction informing the jury that this evidence of harvesting oysters in excess of permit requirements could only be considered for the limited purpose of considering whether defendants had a motive and lack of mistake for the crimes charged, and that ov-erharvesting itself could not be a basis for finding the Defendants guilty of criminal conduct. The jury was instructed that violations of the permitting standards for oyster quotas, for call-ins of the day’s activity and catch, and the weekly harvest logs, if any, did not constitute violations of New Jersey law, and could not be considered in determining whether the defendants trafficked in oysters that have been taken in violation of a New Jersey law or regulation for purposes of the Lacey Act, 16 U.S.C. § 3372(a)(2)(A). The Court also clarified that the jury could consider the weekly harvest log (but not seed bed quotas or daily call-in reports) as a “record” in connection with the Lacey Act false records crimes charged in Counts 2, 4, 11, and 13 in violation of 16 U.S.C. § 3372(d)(2). The limiting instruction given by the Court after reviewing with all counsel, was as follows:'

i. Evidence of the New Jersey oyster license terms and conditions on seedbed quotas, call-in reports and submitting weekly harvest logs, and any breaches of those license conditions, may be considered for only limited purposes as I will explain to you now. The jury may consider such evidence as it pertains to a motive for the various crimes charged, or as it relates to a lack of inadvertence or mistake in compiling subsequent oyster dealer receiving and shipping logs.

ii. These terms and conditions (seed bed quotas, call-in reports and submitting weekly harvest logs) were not provisions of New Jersey statutes or regulations in 2004-2007, and any violation of these terms or conditions cannot serve as a basis for finding any Defendant guilty of trafficking in oysters that have been taken in violation of a law or regulation of New Jersey, as charged in Counts 3, 5, 12 and 14 under the Lacey Act trafficking statute, 16 U.S.C. § 3372(a)(2)(A);

iii. The jury may, but is not required to, consider the weekly harvest log (but not seed bed quotas or daily call-in reports) as a “record” in connection with determining whether a Defendant has knowingly made a false record of the amount of oysters that had been harvested, landed, sold and purchased, as charged in Counts 2, 4, 11 and 13 under the Lacey Act false records statute, 16 U.S.C. § 3372(d)(2);

iv. The commingling of oysters harvested by the same vessel from seed beds and leased beds on the same day is precluded by a New Jersey regulation, N.J.A.C. § 7:25A-1.9(m) which states:

“No vessel shall take or possess seed oysters from the natural seed beds above the southwest line on the same day such vessel works or harvests on leased shellfish grounds.”

v. Another regulation, under N.J.A.C. § 7:25A-1.9(o), states how commingled oysters are to be treated under the regulations, providing as follows:

“If a vessel works any part of the day on the seed beds, all oysters in possession shall be deemed seed oysters, and must be planted as required in (c) above and in accordance with this chapter before the vessel may return to harvesting from the seed beds.”

vi. Whether or not oysters were actually harvested from the leased beds and whether any defendant, who failed to record commingled oysters in a weekly vessel harvest log or dealer log acted knowingly are among the issues for you, the jury, to determine.

vii. The Indictment does not allege that any Defendant commingled oysters in violation of New Jersey regulations, and any such commingling shall not be a basis for finding that oysters were possessed or transported in violation of New Jersey law or regulations.

viii. Evidence of commingling is relevant for limited purposes, namely, in determining whether records in dealer receiving and shipping logs (which were required to state the total quantity of oysters from all sources that were being purchased or sold) were knowingly false, as well as in considering any explanation offered on behalf of any Defendant regarding oysters from leased beds being bought or sold together with oysters from seed beds.

This instruction was given after lengthy consultation with all counsel, immediately after the Court issued its opinion finding violations of the quota, the weekly harvester log and the call-in requirements were not violations of New Jersey laws or regulations and consequently could not form the basis of the Lacey Act charges in this case. No defendant moved for a mistrial at this time or argued that the limiting instruction was insufficient to cure the prejudice resulting from the Government’s submission of overharvesting as substantive evidence of guilt rather than motive evidence.

At the close of the case, the Court reiterated its limiting instruction while charging the jury. Specifically, the court instructed the jury:

There are additional New Jersey provisions which may be considered only for limited purposes with respect to Counts Three, Five, Twelve, and Fourteen. Those provisions are:

1) A vessel may not take or possess oysters harvested from seed beds on the same day such vessel works or harvests on leased shellfish grounds. If a vessel works any part of the day on the seed beds, all oysters in possession shall be deemed seed oysters, and shall be planted back on the seed beds before the harvester returns to harvest further from seed beds, as set forth in New Jersey Administrative Code 7:25A-1.9.

2) A licensed New Jersey harvester shall not harvest more than his allocated quota from the state seed beds.

3) A licensed New Jersey harvester must call-in to the New Jersey Bureau of Shellfisheries his intent to work on seed beds, and must call-in to report the amount of oysters actually harvested from the seed beds.

4) A licensed New Jersey harvester must submit a weekly harvest report which includes the total number of oysters harvested from the seed beds that week.

You may not use these additional provisions as a basis to find that the oysters were possessed or transported in violation of New Jersey law or regulation. The purposes for which you may use these additional provisions are limited:

1) As evidence of whether the defendants’ dealer reports, charged as a requirement of underlying law or regulation in these counts, were false;

2) As evidence of a lack of mistake or inadvertence in compiling those same oyster dealer reports as charged in these counts; and

3)As to whether a motive to commit any of the various crimes charged existed.

You may not use a violation of these provisions as evidence that any. defendant has a bad character or propensity to commit crimes.

[Docket Item 261, Jury Instructions, Instruction No. 33.] Thus, the jury was focused upon the key issue of whether the dealer reports were false, and not the product of inadvertence or mistake, as well as whether the defendants were instructed to fabricate the dealer reports to hide ov-erharvesting activity as shown by other evidence, such as false daily call-ins or false weekly harvest reports of oysters harvested from seed beds. The closing arguments of all counsel, delivered after the Court’s final jury instructions, also proceeded carefully along these lines.

This was sufficient to cure any prejudice suffered by the Defendants and as a result, the Defendants’ argument regarding a variance is without merit. There can scarcely be prejudice to a defendant when the Court acts, upon defendants’ motion, to narrow the evidence which the jury can consider as a violation of the underlying state oyster regulations. Moreover, there was no basis for striking evidence of the underlying overharvesting when the purpose for which it could be considered was relevant but limited to supplying a motive for the undercounting in the required oyster dealer records, namely, to hide the fact of overharvesting the oysters that were being transacted, as well as being probative of the lack of mistake in the falsified dealer reports. To have stricken evidence of the violations of oyster license conditions, such as the overhar-vesting beyond the vessel’s quota, would have eliminated from the case evidence that was highly probative and intrinsic to the jury’s determination of whether the eventual dealer reports were knowingly false and the motive for such falsification. As explained above, the jury was duly instructed, on multiple occasions, regarding the limited purposes for which evidence of the quotas, the call-ins, and the weekly vessel log requirement could be considered in determining whether the required dealer logs were falsified. Therefore, the Harbor House Defendants’ post-trial motions will be denied as they have failed to meet their burden under Rule 29 and Rule 33.

IV. DEFENDANTS TODD REEVES, THOMAS REEVES AND SHELL-ROCK, LLC’S MOTION FOR JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL

Todd Reeves, Thomas Reeves and Shell-rock, LLC (“Reeves Defendants”) were found guilty of all charges against them in the Indictment. These charges include: conspiracy (Count 1); false records related to oysters (Counts 2, 4); unlawful trafficking in oysters (Counts 3, 5); and obstruction of justice (Count 6, 8). The motion of Defendant Renee Reeves, who was found guilty of conspiracy (Count 1), is considered separately below in Part V.

A. Summary of Motion

The Reeves Defendants move for a judgment of acquittal or in the alternative, a new trial pursuant to Rule 29 and Rule 33. The Reeves Defendants contend that the grand jury presentation and the Indictment were limited to seed-bed oysters only. Relying on this limited presentation, the Defendants argue they crafted a defense intending to show that the oysters allegedly not reported were not seed bed oysters but in fact came from their own private leased bed grounds. Midway through the trial, Defendants maintain the Government changed its trial strategy and used their defense against them arguing that the Indictment and charges encompassed all oysters in the Delaware Bay, not just seed bed oysters. The Defendants argue they were then convicted for failing to report or record the harvest of oysters from their private leased beds and this charge is outside the scope of the Indictment.

The Reeves Defendants argue that the Government’s change in theory resulted in a constructive amendment which requires at minimum a new trial. The Reeves Defendants argue they relied on the Indictment which was narrowly tailored to oysters from the public seed beds. During the course of trial, Defendants argue the Indictment was constructively amended through evidentiary testimony, prosecuto-rial arguments and jury instructions which supported alternative theories not alleged in the Indictment.

The Reeves Defendants further argue that the Government engaged in two willful acts of prosecutorial misconduct. First, the Defendants point to Mr. Dug-gan’s opening statement where he told the jury Rosemary Rahe would testify at trial that Mark Bryan ordered her to fill out false invoices to help Defendants in their conspiracy to overharvest' seed bed oysters. The Defendants maintain that Ms. Rahe never made such a statement to the grand jury or in any Jencks material. The Defendants also state that no such statement was ever proved up at trial. The Reeves Defendants argue this prejudicial statement was willfully injected into the trial by Mr. Duggan when Mr. Duggan knew he could not prove such a statement occurred and this is a basis for prosecuto-rial misconduct.

Second, the Reeves Defendants argue that Mr. Hettenbach improperly cross examined Todd Reeves by stating that Todd Reeves was not mentioned in any of the corporate records of Longreaeh Marina, Inc. In fact, Todd Reeves was listed as Vice President from 2002 onward for this corporation and government witness Craig Tomlin previously testified that Todd Reeves owned and cultivated 4,000 acres of leased grounds during 2007. The Defendants argue Mr. Hettenbach improperly stated that Todd Reeves had no connection with Longreaeh, Inc., in order to cast doubt on his ownership of the additional 3,000 acres of leased oyster grounds. The Defendants argue' that Mr. Hettenbach wanted the jury to infer something he knew to be false and this is a basis for prosecutorial misconduct.

Therefore, Defendants argue their motion for acquittal or a new trial should be granted.

The Government opposes the Reeves Defendants’ motion and first lays out an analysis of the relevant law regarding constructive amendment. The Government relies on United States v. Lee, 359 F.3d 194, 208 (3d Cir.2004) as providing a narrow standard for what constitutes a constructive amendment. The Government argues this case held that “in order to rise .to the level of an impermissible amendment, a variance must act to modify the indictment so that the defendant is convicted of a crime that involves elements distinct from those of the crimes with which he was originally charged.” Id. While this language is included in the court’s holding, the Government omits the paragraph immediately following wherein the Court of Appeals explains this holding. Specifically, the Third Circuit reasoned:

Thus, where trial evidence [has] amended the indictment -by broadening the possible bases for conviction from that which appeared in the indictment, the variance violates the defendant’s substantial right to be tried only on charges returned.by a grand jury. If, on the other hand, the variance does not alter the elements of the offense charged, [courts] focus upon whether or not there has been prejudice to the defendant. Id.

Id. (citations omitted).

The Government maintains that none of the Reeves Defendants’ bases for arguing a constructive amendment satisfy this standard. First, the Government argues the Indictment was never limited to seed bed oysters and none of the charges limited the Lacey Act violations to seed bed oysters. Further; the Government argues there was not sufficient evidence for a jury to find that any leased bed oysters were harvested by the Reeves brothers during the time period charged in the.Indictment and that the evidence supported a finding that all the oysters falsely reported came from the seed beds.

With respect to the trafficking counts, the Government argues these charges were permissibly narrowed, not broadened. The Government maintains that the elimination of the overharvesting aspect of the trafficking offense was permissible, did not constitute an unconstitutional amendment to the Indictment and did not impact the Government’s ability to proceed against the Defendants on the false reporting aspect of the trafficking charge.

Similarly, the Government argues the Lacey Act reporting violations were not limited to seed bed oysters. Instead, the Government contends that these charges reached all oysters, regardless of location of harvest. The Government relies on ¶ 11 of the Indictment, which cites the obligation of oyster dealers to report all oysters landed, even oysters harvested from the leased beds. The Government also argues that the court properly struck any reference in the Indictment to “Bay Direct Market Season” which was irrelevant for the years charged and would only have confused the jury. This striking, the Government maintains, did not result in a constructive amendment, but it narrowed the charges.

The Government also argues that all documents relied upon during trial — weekly oyster harvest reports, dealer reports, health records, invoices and bills of lading — were encompassed within the Indictment, provided to the Defendants during discovery, and served as a proper basis for the Lacey Act charges. The Government argued that it did not introduce harvest tags as false reports but rather introduced altered tags as circumstantial evidence supporting their case that public seed bed oysters were harvested but not reported.

The Government summarizes its opposition by stating that the defendants argued that they commingled leased bed oysters and seed bed oysters and were unaware that this defense would not exculpate them from the charges in the Indictment. Now the Government maintains that the Reeves Defendants are trying to recharacterize their unsuccessful defense as a constructive amendment by the Government.

As to the prosecutorial misconduct aspect of Defendants’ motion, the Government. argues that Defendants’ claims are meritless. The Government points out that none of the bases for prosecutorial misconduct ’ were raised at trial and are thus subject to plain error review.

First, the Government states that Mr. Duggan properly characterized Rosemary Rahe’s testimony — that she would testify to filling out tbe blank invoices given to her by Mark Bryan. The Government further argues it proved up this evidence when questioning Rosemary Rahe, even though Rosemary Rahe testified that she could not remember the act of filling out the forms and instead verified her handwriting. • The Government contends that it presented sufficient evidence throughout the trial to support Mr. Duggan’s remarks in his opening statement.

Second, the Government argues that Mr. Hettenbach properly cross-examined Todd Reeves and did not raise any improper inferences from his questions about Lon-greach, Inc. Since the corporate records of Longreach Marina and an online search of New Jersey corporation records revealed no connection with Todd Reeves, the Government argues Mr. Hettenbach had a good faith basis to ask Todd Reeves about his affiliation with this corporation. Further, the documents now attached by the Reeves Defendants in their post-trial motion showing Todd Reeves was the Vice President of Longreach Marina were not produced .to the prosecution during trial or offered as exhibits at trial, despite the Defendants’ opportunity to do so. The United States was entitled to reciprocal discovery of documents supporting Todd Reeves’ defense, and this type of document identifying Todd Reeves as a Longreach Marina corporate officer would have been among them but was not furnished. These additional documents are meeting minutes, and the Government argues these are not public records. Since Mr. Hettenbach had a good faith basis for his question and defense counsel had an opportunity.to object or present evidence and did not, the Government maintains that there was no prosecutorial misconduct.

B. Analysis

The Court finds the Government’s arguments persuasive. This motion lacks merit because it relies on the incorrect premise that the Defendants were convicted for misconduct relating to their leased bed oysters. In fact, the evidence presented by the Government against the Reeves Defendants showed that all oysters that were the subject of false reporting and subsequent illegal trafficking came from the public seed beds. There appears to be no evidence introduced at trial that any particular bushel of oysters was harvested by Reeves Brothers from the leased beds. By introducing volumes of evidence of seed bed harvesting of oysters, the Government did not vary from the charges set forth in the Indictment. The Indictment, as the Government points out, did not limit the charges only to seed bed oysters, and indeed pointed out that the accurate recording of the harvest location is part of the FDA record-keeping regulations, see Indictment ¶ 14, and that oyster dealer logs must report all oyster transactions, whether from seed beds or leased beds.

Defendants Todd and Thomas Reeves also argued that the jury’s verdicts on all counts involving allegedly falsified records of oyster transactions were against the weight of the evidence because other records in the dealer reports and the health logs were not incorrect. They argue, essentially, that they were required to report only on the transactions of oysters harvested from the seed beds, and they did so, while they actually also transacted oysters from the Reeves’ private leased beds which did not have to be recorded. Thus, according to this argument, the Reeves could sell to Harbor House a shipment of oysters, some which were from leased beds and some of which were from seed beds, and be paid for the higher total quantity, while reporting only the lower quantity comprised only of seed bed oysters. Thus, at trial, Todd Reeves testified that they would harvest from the public seed beds, and then harvest from the Reeves’ leased beds, and return to port with the whole catch. (See Todd Reeves Testimony, Tr. July 11, 2012 at 20:3-15.)

Other than Todd Reeves’ testimony and a few scant records indicating some oysters originated at the Reeves’ private leased beds, the evidence of any substantial leased bed oystering activity is contradicted by the surveillance evidence, documentary evidence, statements of defendants in interviews, and testimony of Eugene Givens, a Reeves employee. The jury was free to accept the evidence that the Reeves engaged in essentially no leased bed oyster harvesting from their private beds during the years in question, and to reject Todd Reeves’ testimony that leased bed harvesting was the norm.

For example, Eugene Givens, an experienced deck hand for years on Reeves’ vessels, testified that he did not go even once to the leased beds in 2007, and that during the years 2003 to 2006, he might have gone to the leased beds only a couple of times. (See Eugene Givens Testimony, Tr. June 27, 2012 at 8:12 and 21:2.)

The evidence also showed that Defendant Mark Bryan had been questioned by law enforcement agents about the discrepancies in the records and specifically why Harbor House was paying Reeves Brothers more than was due on the invoiced oysters. Bryan never said that the discrepancy was due to the presence of leased bed oysters; instead, he stated on two occasions that he was actually “tipping” Reeves Brothers for their oysters, which the jury was free to find was a ludicrous attempt at a self-exculpatory statement that fails to explain the discrepancy.

Also during the investigation, when agents covertly surveilled the offloading of the Reeves vessel Brandy Lee Bateman, they counted 126 bushels of oysters being offloaded from the vessel onto the Harbor House truck, unbeknownst to the Reeves, who reported only 76 bushels for that day. The evidence showed that Todd and Thomas Reeves were both asked how many bushels of oysters they landed that day, and both stated that the. Brady Lee Bate-man had landed only 76 bushels, as they reported, and they claimed that the other 50 bushels came from the day before harvested by their vessel Miss Lil. But the Miss Lil’s harvest from October 3 had already been inspected and documented in its shipment records to Harbor House, so the excess oysters could not have been from that source. Instead, the evidence showed that all 126 bushels on the intercepted vehicle on October 4 were tagged by the Reeves as public seed bed oysters in origin, according to Captain Mark Ca-nale, and the evidence showed that such tags were only used for seed bed oysters. The evidence also showed that, following the questioning of the Reeves on October 4, 2007, the Reeves’ record (Ex. 353) was whited out to obscure the actual entry, and new information — that the 50 bushels were harvested from leased beds by the vessel Martha Meerwald — was added. The jury could conclude that all 126 bushels were from public seed beds, as observed in the surveillance and as marked with the seed bed tags, and that the story about leased bed oysters was a fabrication.

There was also no confirmatory evidence of Reeves’ alleged lease bed activity in the records of Harbor House. Although Harbor House’s dealer logs contained numerous references to leased bed origins for other companies, there was almost none for Reeves in the four years at issue. If Reeves had identified the excess oysters as coming from leased beds, presumably Harbor House would have made the proper notation in its records as it did other oyster purveyors.

Harbor House records also showed that the Reeves had no sales of oysters outside the public seed bed season, which typically runs from April to early November. If the Reeves were harvesting from their private leased beds, which have no closed season, those sales would have shown up in the off season when the seed beds were closed, but there were none. Again, the jury could easily find that the notion that their so-called surplus oysters came from leased beds to be untrue.

The Court therefore finds that ample evidence supported the convictions of Todd Reeves, Thomas Reeves, and Shell-rock, LLC d/b/a Reeves Brothers and that their Rule 29 motion should be denied.

Further, the Reeves Defendants’ prose-cutorial misconduct claims are without merit as Mr. Duggan’s and Mr. Hetten-bach’s conduct was proper. As to E>ug-gan’s opening statement, the Government indeed presented evidence .from which a jury could reasonably find that Rosemary Rahe filled out false invoices that were instrumental in the conspiracy of her employer, Mark Bryan (who was also her brother) and Harbor House, with the other defendants to violate the various reporting and record keeping requirements. That Rahe professed an absence of recollection on 14 examples of false invoices presented at most a jury question regarding Rahe’s testimony and not a failure of proof. As for Hettenbach’s cross-examination, he indeed had a good faith basis for the questions pertaining to Todd Reeves’ affiliation with Longreach Marina, since the available corporate records and New Jersey incorporation documents revealed none, and Todd Reeves had the opportunity to respond in his testimony that Hettenbach was mistaken in his premise. Moreover, the Court instructed the jury on multiple occasions in the initial instructions and the final instructions that statements of attorneys in openings, closings, and questioning of witnesses are not evidence and may not be considered as proof by the jury. The Court assumes that the jury followed this and all other instructions. Therefore, the Court will deny the Reeves Defendants’ motion for acquittal and motion for a new trial.

V. RENEE REEVES’ MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL

Renee Reeves was convicted of conspiracy as charged in Count 1 and acquitted of the false records charges against her in Counts 2 and 4. The conspiracy count on the jury verdict form did not include a special interrogatory regarding the object of the conspiracy. Four possible objects were charged to the jury:

1) knowingly making or submitting false records for oysters that move in interstate commerce with a value of over $350;

2) knowingly trafficking, in interstate commerce, in oysters that were known to have been possessed or transported in violation of New Jersey law or regulations and which had a value of over $350;

3) knowingly falsifying entries in a record with the intent to impede, obstruct, or influence the investigation and proper administration of a matter within the jurisdiction of the United States Food and Drug Administration; and

4) corruptly influencing, obstructing or impeding the due and proper administration of law under which there was an investigation by the United States National Oceanic and Atmospheric Administration (“NOAA”)

[Docket Item 261, Jury Charges As Delivered July 18, 2012 at 36-37.]

A. Summary of Motion

Renee Reeves moves for judgment of acquittal pursuant to Rule 29 or in the alternative, a motion for new trial pursuant to Rule 33. Renee Reeves supports her motion by arguing three grounds for relief: (1) the verdict was contrary to the weight of the evidence; (2) there was insufficient evidence to show Renee Reeves was connected to the conspiracy or acted with the requisite knowledge; and (3) the Government failed to prove Renee Reeves acted knowingly because the Government did not offer evidence of Defendant’s actions or failure to act in relation, to the conspiracy.

Renee Reeves argues that she was acquitted of both substantive counts against her which included two false records charges in Counts 2 and 4 pertaining to 2006 and 2007 respectively. With regard to the objects of the conspiracy charging trafficking and obstruction of justice, Renee Reeves argues that the Government failed to piove that these offenses were reasonably foreseeable to her or a necessary or natural consequence of the unlawful agreement. Renee Reeves relies on the testimony of Russell Babb, which stated that from 2004 to 2007 there was no state requirement to call-in dredging for •oysters on the owner’s leased beds and that the laws and regulations were confusing and complex. She also relies on Lt. Karl Yunghans’ testimony which confirmed that from 2004 to 2007 oystermen were only required to call-in seed bed,oysters and Lt. Yunghans’ testimony that Renee Reeves was not present for his conversation between Todd Reeves, Thomas Reeves, Officer Trembly, and Lt. Yun-ghans on May 13, 2004 wherein Todd and Thomas were warned about following reporting requirements. Lt. Yunghans also testified that when Renee Reeves prepared a bill of lading for him, it was true and accurate. Finally, in his investigative report following the May 13, 2004 meeting, Lt. Yunghans listed six persons who appeared to be culpable of record-keeping violations and Renee Reeves was not one of them.

Next, Renee Reeves maintains the Government did not prove that she acted knowingly. The jury was instructed to consider evidence about what the Defendant said, what she did and failed to do and how the Defendant acted in order to prove the mens rea element of the conspiracy. Renee Reeves maintains that the Government put forth no evidence against her in its case-in-chief as to how she acted or how she failed to act in order to establish that she had knowledge of the unlawful objective of the conspiracy.

Renee Reeves further emphasizes that her family relationship to her husband and brother-in-law alone are insufficient to satisfy the mens rea requirement or membership requirement for conspiracy. The Defendant relies on United States v. Ritz, 548 F.2d 510, 522 (5th Cir.1977) and United States v. Wexler, 838 F.2d 88 (3d Cir.1988) (“the inferences rising from keeping bad company are not enough to convict a defendant for conspiracy.”) The Defendant also specifically relies on United States v. Thomas, wherein the Third Circuit held “in order to sustain a conspiracy conviction, the Government must put forth evidence tending to prove that defendant entered into an agreement and knew that the agreement had the specific unlawful purpose charged in the indictment.” 114 F.3d 403, 405 (3d Cir.1997).

Renee Reeves contends that the Government failed to put forth any evidence in its case-in-chief that she knew the unlawful objective of the conspiracy. Accordingly, Renee Reeves argues for a judgment of acquittal or a new trial.

In its opposition to Renee Reeves’ Rule 29 and Rule 33 motion, the Government maintains that there was sufficient evidence for a jury to convict Renee Reeves of conspiracy and her motion must be denied.

The Government generally points to the evidence supporting a conspiracy charge for Mark Bryan, Todd Reeves and Thomas Reeves, and cites specific examples of Renee Reeves’ knowledge and conduct, especially in 2004, and argues that consequently there was enough evidence to demonstrate the existence of the charged conspiracy at the time Renee Reeves joined it in 2004.

In terms of her membership, the Government argues Rosemary Rahe’s testimony of 14 instances where Renee had authored two inconsistent invoices for the same shipment of oysters on the same day in 2004 and furnished same to Harbor House was sufficient to connect h