United States v. Davis

United States v. Davis

Opinion

OPINION & ORDER

TABLE OF CONTENTS

I. BACKGROUND

A. The Defendants

B. Port Authority MWBE Program

C. Solera/DCM Joint Venture

D. GLS Subcontract

E. The WTC contracts with Port Authority

F. The Indictment

G. Trial

H. The Post-Trial Motions

II. DISCUSSION

A. Rule 29 Motion for Acquittal

1. Standard Of Review

2. Wire Fraud and Conspiracy to Commit Wire Fraud-Elements.

3. Sufficiency of the Evidence.

a. Defendants' misrepresentations did not go to an

essential element of the contract

i. The Port Authority received the full benefit of

its bargain with Defendants

ii. The MWBE sections were not essential elements of

the contracts

(a) A breach of the MWBE sections of the contracts

were not violations of law

(b) The MWBE sections of the contracts were merely

"aspirational" [*2] 

b. Defendants' misrepresentations did not expose the

Port Authority to potential or actual economic harm

c. Much of the Government's evidence was legally

irrelevant

B. Rule 29(d) Conditional Determination of New Trial

(Rule 33)

C. Sufficiency of the Indictment, Constructive Amendment and

Variance

1. Sufficiency of the Indictment

2. Constructive Amendment/Prejudicial Variance

III. CONCLUSIONS

LORETTA A. PRESKA, Senior United States District Judge:

The Court entered a judgment of conviction as to Defendants Larry Davis ("Davis") and DCM Erectors, Inc. ("DCM") (collectively, the "Defendants") on August 10, 2016 following a jury trial. Both Defendants were found guilty of one count of Wire Fraud in violation of Title 18, United States Code, Section 1343 and one count of Conspiracy to Commit Wire Fraud in violation of Title 18, United States Code, Section 1349. 18 U.S.C. 1343 (2012); 18 U.S.C. §1349 (2012).

Defendants move, pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure, for a judgment of acquittal or a new trial. The Defendants also seek to dismiss the indictment, S3 13 Cr. 123 (LAP), and to vacate the convictions on the grounds of constructive amendment and prejudicial variance.

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