Government’s Opposition to Defendant’s Post-Trial Motion #1 Renewed Motion to Acquit — United States v. Tran (Dkt. 131, D. Mass.)

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The government's opposition to defendant Dean A. Tran's post-trial motion #1, a renewed motion to acquit, in United States v. Dean A. Tran, No. 23-cr-10299-FDS, in the U.S. District Court for the District of Massachusetts, filed October 18, 2024 as Document 131. Applying the Rule 29 standard, the government argues that a rational jury could find the elements proven, citing trial evidence such as Trial Exhibit 39, which showed the online steps of his Pandemic Unemployment Assistance claim. It also argues that the court did not err in giving an Allen charge after the jury asked what would happen if it could not agree on some counts, and asks that the motion be denied.

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Case 1:23-cr-10299-FDS Document 131 Filed 10/18/24 Page 1 of 11




                             UNITED STATES DISTRICT COURT
                                  DISTRICT OF MASSACHUSETTS


UNITED STATES OF AMERICA                       )
                                               )
                v.                             ) No. 23-cr-10299-FDS
                                               )
DEAN A. TRAN,                                  )
                                               )
                Defendant                      )
                                               )

                  GOVERNMENT’S OPPOSITION TO
   DEFENDANT’S POST-TRIAL MOTION #1 RENEWED MOTION TO ACQUIT

           The United States of America, by and through the undersigned assistant United States

 Attorneys, hereby opposes defendant Dean A. TRAN’s Post-Trial Motion #1 Renewed Motion to

 Acquit (ECF Dkt. No. 123 (hereinafter, the “Defendant’s Motion”)). Contrary to the defendant’s

 assertions, the quantum of proof against him was more than sufficient to satisfy each element of

 the crimes charged in the indictment, and no rational factfinder — especially viewing the evidence

 in the light most favorable to the prosecution — could find otherwise.

           For those reasons stated below, the government respectfully requests that the motion be

 denied.

                                           ARGUMENT

           I.     Rule 29 Standard.

           The Defendant’s Motion should be denied because the evidence — especially when taken

 in the light most favorable to the government — was more than sufficient to prove TRAN guilty

 beyond a reasonable doubt of the elements of the crimes with which he was charged.

           To prevail on a Rule 29 motion, “a defendant must ‘show that the evidence presented at

 trial, even when viewed in the light most favorable to the government, did not suffice to prove the

 elements of the offenses beyond a reasonable doubt.’” United States v. Vavic, 628 F. Supp.3d 330,

        Case 1:23-cr-10299-FDS Document 131 Filed 10/18/24 Page 2 of 11




358 (D. Mass. 2022) (quoting United States v. Acevedo, 882 F.3d 251, 257 (1st Cir. 2018)). The

“jury’s verdict must be upheld, unless viewing the evidence in this manner, no rational jury ‘could

have found the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)).

       II.     The Court did not err in giving the Allen charge.

               a. Factual Background

       A little more than eight hours into jury deliberation, jurors returned a question reading, “If

the jury cannot reach an agreement about some or not all counts, what will the outcome of the trial

be?” In response to this, the Court gave the jury an Allen charge.

               “Let me start by saying as to any particular count, you can vote to
               acquit or convict as you see fit or you may not reach agreement. If
               you have made a decision, a unanimous decision, on some but not
               all counts, you should report that on the jury form.

               As to the remaining counts, that is, if there are counts that you cannot
               reach agreement, I'm going to instruct you to go back and resume
               your deliberations with some instructions. At the end of the day, if
               you are not able to reach agreement as to some of the counts, you
               should leave that part of the verdict form blank and just report that
               you can’t reach agreement as to those counts.”

       Day 7 Transcript, at 6–7. The First Circuit model Allen charge followed. Id. at 7–9; see

First Circuit Pattern Jury Instructions, FEDCRIM-JIC 6.06. Ultimately, jurors found TRAN guilty

on 23 counts and they could not reach a verdict on five counts.

               b. Defendant’s motion misrepresents First Circuit precedent on Allen
                  charges.

       The defendant claims that the Allen charge given by the Court was given in error. However,

the defendant’s understanding is based on an erroneous reading of United States v. Manning, 79

F.3d 212 (1st Cir. 1996).


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        Defendant’s motion selectively quotes portions of Manning in order to claim that Allen

charges are inappropriate when the jury poses a hypothetical. However, that reading is far from

accurate. In Manning, the court held that a response offering to review testimony wrongly

suggested that jurors must deliberate until a verdict is reached. Id. at 222 (“This response not only

failed to discourage the notion that the jury was bound to continue to deliberate indefinitely, it

suggested the opposite, i.e., that a jury is required to do so.”).

        What the defense fails to mention is that the instruction given in Manning was not an Allen

charge. In fact, the court in Manning goes so far as to note that “[p]roviding a modified Allen

charge at this juncture, on the other hand, would have informed the jurors that they need not

surrender an honest conviction for the mere purpose of returning a verdict” and would have been

appropriate. Id. at 222 n.11.

                c. The Allen charge followed circuit precedent.

        Defendant’s motion claims that the Allen charge “was a grave and prejudicial error” and

that it may prejudice a jury against being hung. However, given the facts of this case, that account

is far from the truth. The Court’s charge is identical to the model charge. Compare Day 7

Transcript, at 7–9, with First Circuit Pattern Jury Instructions, FEDCRIM-JIC 6.06. The language

of this charge was upheld as constitutional in United States v. Nichols, 820 F.2d 508, 511–12 (1st

Cir. 1987).

        Furthermore, the subsequent proceedings underscore the lack of coercion created by the

Allen charge. The jury did not reach a verdict on five counts, even after receiving the Allen charge.

This means that the jury did not misinterpret the Allen charge to require a verdict. “The instruction

was carefully phrased so that ‘(1) the onus of reexamination would not be on the minority alone



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...; (2) a jury would not feel compelled to reach agreement ...; and (3) jurors would be reminded of

the burden of proof.’” Id. at 112 (quoting United States v. Angiulo, 485 F.2d 37, 39 (1st Cir. 1973)).

       The jury had deliberated for eight hours at the time they asked the question. After receiving

the Allen charge, the jury deliberated for another hour and a half. The timing of the charge does

not make it coercive. See United States v. Rengifo, 789 F.2d 977, 985 (holding that a jury given a

modified Allen charge after seven and a half hours of deliberation and the verdict being returned

two hours later does show that the charge was coercive); United States v. Hernandez-Albino, 177

F.3d 33, 39 (1st Cir. 1999) (collecting cases where post-Allen charge deliberations of an hour or

less counseled against coercion).

       Furthermore, the wording of the jury’s original question strongly suggests that giving the

Allen charge was a harmless error at most. The jury’s question inquired about what would happen

if they could not “reach an agreement about some or not all counts.” Nothing in this question

indicates that at the time of the question the jury was hung on all counts. Instead, the plain language

suggests that the jury had reached a verdict on some of the charges prior to asking the question.

       Given the evidence presented at trial and the resulting jury verdict, it is clear that the Allen

charge was not sufficiently prejudicial for acquittal to be granted on Rule 29 review. See

Hernandez-Albino, 177 F.3d at 38–39 (finding an Allen charge to not be coercive where there was

significant deliberation and consistent verdict); see also United States v. Amaro-Santiago, 824

F.3d 154, 164 (1st Cir. 2016) (holding that even if the Allen charge supplemental language was in




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        Case 1:23-cr-10299-FDS Document 131 Filed 10/18/24 Page 5 of 11




error, there is no evidence of coercion given the length of deliberations and lack of evidence of

coercion). The evidence in this case counsels against a finding of coercion.1

       III.    The Court gave an appropriate reasonable doubt instruction.

       The reasonable doubt instruction given by the Court adheres to the First Circuit standard.

The first portion of the Court’s instruction only contains an unsubstantial variation from the model

jury instruction. Compare Day 6 Transcript, at 123–24, with see First Circuit Pattern Jury

Instructions, FEDCRIM-JIC 3.02. The second portion of the reasonable doubt instruction explains

reasonable doubt as the Honorable Robert Keeton, United States District Judge for the District of

Massachusetts, did, a formulation which has been upheld by the First Circuit. See First Circuit

Pattern Jury Instructions, FEDCRIM-JIC 3.02 cmt. 4.

       Furthermore, the Defendant’s Motion argues that the Court should have given a Webster

instruction. That argument fails chiefly because Commonwealth v. Webster, 5 Cush. 295 (Mass.

1850) is a state case which in no way binds this Court. That this case was praised by the California

Supreme Court and upheld by the United States Supreme Court is irrelevant here. See People v.

Strong, 30 Cal. 151, 155 (Cal. 1866); Victor v. Nebraska, 511 U.S. 1, 9 (1994). Here, First Circuit

precedent controls. Since the jury instructions given by this Court align with circuit precedent,

they can hardly be said to be inadequate. See United States v. Cleveland, 106 F.3d 1056, 1062–63

(1st Cir. 1997) (upholding a jury instruction nearly identical to the one at issue here).




1
  The defendant also argues that Allen charges are unconstitutional. He cites Third Circuit case law
to make this argument. However, the First Circuit has not joined the Third Circuit in finding Allen
charges to be plainly unconstitutional. See Amaro-Santiago, 824 F.3d at 164.



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       Moreover, the Supreme Court has established that the inquiry into whether a jury

instruction is proper “is whether there is a reasonable likelihood that the jury did apply it” “in an

unconstitutional manner.” Victor v. Nebraska, 511 U.S. 1, 6 (1994). Therefore, it is irrelevant to

the Court’s analysis whether the instruction given was the defendant’s “preferred iteration.”

In addition, the actual instruction given was sufficiently defendant friendly. Compare Day 6

Transcript, at 124–25, with United States v. Rodriguez, 735 F.3d 1, 12 & n.4 (1st Cir. 2013). In

Rodriguez, the court declared the burden of proof needed to prove an instruction was erroneous to

be a “high hurdle.” Id. at 12 (“[W]e will nevertheless sustain a conviction if we find that the result

would quite likely have been the same had the erroneous instruction not been included.”) (internal

citations and quotations omitted).

       The Defendant’s Motion fails to sufficiently prove that the actual jury instruction, though

upheld in previous cases, was in this case prejudicial such that it changed the outcome of the case.

       IV.     There was sufficient evidence of interstate transmission.

       The third prong of wire fraud—“the use of interstate wire communications in furtherance

of the scheme”— was clearly satisfied by the evidence of his use of an interstate wire. United

States v. Buoi, 84 F.4th 31, 38 (1st Cir. 2023) (internal quotations omitted) (citing United States v.

Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993)).         The use of the internet to submit the weekly

certifications means it was foreseeable to the defendant that an interstate wire was used. Trial

Exhibit 39 included the online sequences that the defendant clicked through in relation to his

Pandemic Unemployment Assistance (“PUA”) claim. Similarly, the weekly certifications clearly

stated at the top that “eServices,” i.e. the internet was used to file the certifications. See Exhibit

24.



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       The instruction the Court gave to the jury is that “the government must prove that the

defendant knew or reasonably could have foreseen that the use of a interstate wire communication

would follow in the course of the scheme.” Day 6 Transcript, at 136–37. During defendant’s

interview with the DUA hearings officer, Debra Lerner, he indicated approximately twelve times

that documents were “uploaded” to the DUA website, and thus filed online. See Exhibit 22.

Moreover, TRAN is a tech savvy man, with experience working in e-commerce for 1A and as a

quality assurance manager for the Avid Technologies. It was reasonable for the jury to find that

an internet submission required the use of an interstate wire and that the use of interstate wire was

foreseeable to TRAN given his statements, background and relative sophistication.                The

government has made a sufficient showing that an actual interstate wire communication occurred

and that the use of an interstate wire would have been reasonably foreseeable to the defendant.

       V.      The Defendant’s misrepresentations constituted wire fraud

       Wire fraud focuses on the falsehoods used to gain money or property, not whether the

money or property could have been obtained absent the falsehood. See United States v. Buoi, 84

F.4th 31, 38 (1st Cir. 2023) (citing United States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993)).

As established in the Indictment, each week that TRAN received PUA benefits, he certified that

he did not work and did not earn income, and that COVID-19 prevented him from working. Indt.

¶ 33–34 (Dkt. No. 1). It is those falsehoods which serves as the basis for the wire fraud charges.

       The defendant speculates that even if TRAN had disclosed his earning as a contractor, he

would have been eligible for PUA. However, that argument is irrelevant to the case. As discussed,

fraudulent certifications are the basis for the wire fraud charges. Therefore, it matters not whether

TRAN’s income from his contracting gig was sufficiently low enough to receive PUA because the

benefits he did receive were obtained under false pretenses.

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       It is similarly speculative and irrelevant to claim that TRAN could have received benefits

under other eligibility criteria. As detailed above, the selection of the criteria is only relevant to

the case in as much as it is a falsehood. TRAN’s potential eligibility holds no bearing on the fact

that the benefits he received were obtained fraudulently.

       Moreover, the defendant errs in describing the government’s case as existing solely on

omission. Each week that TRAN certified his PUA benefits, he was affirmatively stating that the

application was true. The government has provided evidence proving that TRAN was certifying

that he had not worked or earned income in a given week for 25 weeks during which he was

working. This is not a mere omission, as the defendant characterizes it, but instead an affirmative

misrepresentation for which the jury could utter a conviction.

       The First Circuit application of the fraud statute is broader than common law fraud, but

even the narrow definition at common law recognizes a misrepresentation of fact as sufficient

evidence of a scheme to defraud. See McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904

F.2d 786, 791 (1st Cir. 1990) (“We recognize that the scope of fraud under these statutes is broader

than common law fraud, and that no misrepresentation of fact is required in order to establish a

scheme to defraud.”). It is sufficiently clear that the affirmative weekly certifications made by the

defendant make the charges appropriate.

       VI.     The Defendant received a fair trial by a jury representative of a cross-section
               of the community.

       The defendant claims that he was denied a fair trial by a jury representative of a cross-

section of the community given the racial composition of the jury. The defendant’s argument is

without merit. First, the defendant’s claim that the government improperly challenged jurors on




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         Case 1:23-cr-10299-FDS Document 131 Filed 10/18/24 Page 9 of 11




the basis of race was not raised at trial. Therefore, the claim stands unpreserved and waived by

the defendant.

        To assert a prima facie case of purposeful discrimination in jury selection “the defendant

first must show that he is a member of a cognizable racial group, and that the prosecutor has

exercised peremptory challenges to remove from the venire members of the defendant’s race.”

Batson v. Kentucky, 476 U.S. 79, 96 (1986) (citations omitted); See United States v. Pulgarin,

955 F.2d 1, 2 (1st Cir. 1992) (finding no objection to be made when defense counsel stopped short

of making an objection at a bench trial during voir dire).

        Here, the Batson objection was not raised during the voir dire process. Prior to the start of

jury selection, the defendant raised an advisory warning that the jury pool may be racially

unrepresentative. Day 1 Transcript, at 6 (“And the second argument we’re going to make, this is

a little—this is sort of more advisory, is that we anticipate that the jury pool will not adequately

reflect a racial cross-section of Mr. Tran’s background, so we ask the Court to take notice of that

and, we’ll be watching that as we seat the jurors.”). No further mention of the racial composition

of the jury was made during voir dire, and no formal Batson claim was made. Therefore, the claim

is not preserved. United States v. Charlton, 600 F.3d 43, 50 (1st Cir. 2010) (quoting United States

v. Girouard, 521 F.3d 110, 115 (1st Cir. 2008) (“We . . . apply plain error review to unpreserved

Batson claims. . . .”).

        Furthermore, the defendant must show that the government used the practice of peremptory

challenges “to exclude veniremen from the petit jury on account of their race.” Id. Defendant has

offered no evidence of questions asked during jury selection which support his inference on

discrimination. See id. at 97. Indeed, of the five individuals for which the government exercised

peremptory challenges (Juror Numbers 5, 23, 36, 44 and 45), five of them were Caucasian. Juror

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45 was the only person of color challenged by the government and there was a non-race based

reason for that juror’s exclusion as Juror Number 45 claimed to have been “wrongfully arrested,

convicted and sentenced for a crime that [he] didn’t commit.” Juror Number 45 also advised the

Court had he had “mixed feelings” about law enforcement. Day 1 Transcript, at 90.

       Moreover, the defendant’s argument is also infirm because the defendant himself excluded

people of color from the jury, a fact that he neglects to mention in his memorandum. The defendant

excluded Juror Number 31, who appears to be a Middle Eastern male, and Juror Number 46, who

appears to be an Asian female. Day 1 Transcript, at 112-113, 117

                                                    Respectfully submitted,



                                                    JOSHUA S. LEVY
                                                    Acting United States Attorney

                                             By:    /s/ John T. Mulcahy
                                                    John T. Mulcahy
                                                    Dustin Chao
                                                    Assistant U.S. Attorneys


Date: October 18, 2024




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        Case 1:23-cr-10299-FDS Document 131 Filed 10/18/24 Page 11 of 11




                                 CERTIFICATE OF SERVICE

        I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non- registered participants.


                                              By:     /s/ John T. Mulcahy
                                                      John T. Mulcahy


Date: October 18, 2024




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