United States District Court, D. Colorado
ORDER DENYING REQUEST FOR NEW TRIAL
William J. Martínez, United States District Judge
matter is before the Court on Defendant Wendy Marie
Yurek's (“Defendant” or “Ms.
Yurek”) Motion for New Trial Pursuant to Rule 33 of the
Federal Rules of Criminal Procedure. (ECF No. 261(the
“Motion”).) For the reasons explained below, the
Motion is denied.
was jointly indicted along with her husband, Daryl Francis
Yurek (“Daryl Yurek, ” or “Mr.
Yurek”). (ECF No. 1.) Both were jointly charged in
Counts One and Two, with tax evasion, 26 U.S.C. § 7201,
and bankruptcy fraud, 18 U.S.C. § 157(1), respectively.
(ECF No. 1.) Daryl Yurek was also charged in Counts Three,
Four, and Five, of falsely testifying under oath in
bankruptcy proceedings, and of making misstatements in a
submission under penalty of perjury to the Internal Revenue
Service (“IRS”). (Id.) The factual
background of the case and the charges has been set out in
prior Orders and is not repeated here, and familiarity with
this case is presumed. (See, e.g., ECF Nos.
142, 174, 195, 196.)
to trial, Ms. Yurek filed a Motion for Severance requesting a
separate trial from her husband. (ECF No. 163.) The Court
denied that request. (ECF No. 196.) Following a nine-day
joint trial, both Defendants were convicted on all the counts
charged against each of them. (ECF Nos. 252, 253.)
Yurek now moves for a new trial pursuant to Rule 33, arguing
that she was “severely prejudiced by the joint trial
with her husband” and by the admission at trial of Mr.
Yurek's testimony in a Bankruptcy Rule 2004 hearing,
without opportunity for her to cross-examine him. (ECF No.
261 at 2, 5-7.)
33(a) of the Federal Rules of Criminal Procedure provides
that, “[u]pon the defendant's motion, the court may
vacate any judgment and grant a new trial if the interest of
justice so requires.” “[I]n deciding a motion for
new trial, the court may weigh the evidence and consider the
credibility of witnesses in determining whether the verdict
is contrary to the weight of the evidence such that a
miscarriage of justice may have occurred.” United
States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994)
(internal quotation marks and citation omitted). “The
Court's broad discretion empowers it to grant relief
based not only on the sufficiency vel non of the
evidence at trial but on any other circumstance that might
render the trial ‘essentially unfair, ' including
trial errors.” United States v. D'Amelio,
636 F.Supp.2d 234, 238 (S.D.N.Y. 2009).
“[d]istrict courts view motions for new trials with
disfavor.” United States v. Lamy, 521 F.3d
1257, 1266 (10th Cir. 2008). “[A] litigant is entitled
to a fair trial but not a perfect one, for there are no
perfect trials.” McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 553 (1984) (alteration,
internal quotation marks, and citation omitted). “[T]he
authority to grant a new trial should be exercised sparingly
and with caution.” United States v.
Sturdivant, 513 F.3d 795, 802 (8th Cir. 2008); see
also Richins v. Deere & Co., 231 F.R.D. 623, 625
(D.N.M. 2004) (an “alleged error by the trial court
constitutes grounds for . . . a new trial only where the
trial court concludes that, absent the alleged error, a jury
would likely have reached a contrary result”).
requests for a separate trial, the relevant portion of Rule
14 provides: “If the joinder of offenses or defendants
in an indictment, an information, or a consolidation for
trial appears to prejudice a defendant or the government, the
court may order separate trials of counts, sever the
defendants' trials, or provide any other relief that
justice requires.” Fed. R. Crim. P. 14(a). To obtain a
severance, a defendant must show either a “serious
risk” of actual prejudice to a specific protected right
or a likelihood that a jury would be unable to make a
reliable decision in a joint trial. Zafiro v. United
States, 506 U.S. 534, 539 (1993); United States v.
Williams, 45 F.3d 1481, 1484 (10th Cir. 1995). A showing
of potential prejudice is not enough to require separate
trials, recognizing the public interest in economy and
expedition in judicial administration. United States v.
Dirden, 38 F.3d 1131, 1140 (10th Cir. 1994).
“There is a preference in the federal system for joint
trials of defendants who are indicted together.”
Zafiro, 506 U.S. at 537. Like the decision to grant
a new trial, the decision whether to grant a motion to sever
lies within the Court's sound discretion. Id. at
argues for a new trial, presumably apart from her husband
(who has not joined in the request for a new trial, or made
one of his own), on the same two grounds on which she
requested severance before trial. The Court previously
addressed and rejected both arguments, and herein reaffirms
its pretrial reasoning and rulings, and incorporates that
analysis by reference (ECF No. 196), while offering the
following additional post-trial analysis.
Prejudice and “Spillover Effect”
first argues that “it was clear from the evidence at
trial that Mrs. Yurek was severely prejudiced by the joint
trial with her husband, ” that a “majority of
witnesses testified primarily about their interactions with
Daryl Yurek or about information that they claimed was
provided or withheld by Daryl Yurek, ” rather than Ms.
Yurek, and that the Government presented some evidence of
acts taken by Mr. Yurek without evidence that Ms. Yurek was
aware of them. (ECF No. 261 at 2-3.) Defendant also argues
that the prejudice of being jointly tried with her husband
was exacerbated because Defendants ...