Flawed Rule 29 Analysis Requires Reversal of Post-Trial Judgment of Acquittal

US v. Millender: Millender and his wife, Brenda, were each charged with dozens of counts of fraud, money laundering, and conspiracy arising from their operation of a pair of investment schemes related to the church where Millender was a pastor. A coconspirator pleaded guilty, but Millender and Brenda went to trial, where he was convicted on all 31 counts and she was convicted on seven (of 24 charged). After the verdict, the Millenders moved for a Rule 29 judgment of acquittal or new trial. The district court granted the motion as to Brenda, acquitting her on all seven counts on which she was convicted, along with a “conditional” order granting her a new trial. As to Millender, the court granted his motion as to ten counts of concealment money laundering.

The Government appealed the district court’s rulings, but the district court proceeded with sentencing, imposing upon Millener a 96-month term of imprisonment. As a result, Millener cross appealed. However, while the appeals were pending, Millender passed away and his appeal was dismissed. The appeal as to Brenda continued.

The Fourth Circuit reversed the district court’s decision granting Brenda a judgment of acquittal and a new trial. The court noted that the district court “systematically reviewed” the evidence against Brenda and it “perceive[d] no error in this district court’s thorough reasoning about most of this evidence,” but “cannot agree with the court’s assessment” of the testifying coconspirator’s testimony. In doing so, the district court “assessed [his] credibility and failed to construe the evidence in the Government’s favor,” as required in the Rule 29 analysis. The coconspirator’s testimony, when considered in that light, could provide a basis for the jury’s convictions. The court also concluded that the district court erred in analyzing the money laundering counts, looking to whether the source of the funds were concealed, versus the nature of those proceeds. The court remanded for further proceedings on Brenda’s motion for a new trial, holding that there was no legal basis for the district court to have issued a “conditional” grant of a new trial.