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United States v. Yurek

United States District Court, D. Colorado

October 25, 2017



          William J. Martínez, United States District Judge

         This 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.

         I. BACKGROUND

         Defendant 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.)

         Prior 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.)

         Ms. 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.)


         Rule 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).

         However, “[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”).

         As to 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 539.

         III. ANALYSIS

         Defendant 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.

         A. Prejudice and “Spillover Effect”

         Defendant 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 ...

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