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United States of America v. Bradley H. Pemberton

August 1, 2011

UNITED STATES OF AMERICA,
v.
BRADLEY H. PEMBERTON



The opinion of the court was delivered by: W. Harold Albritton Senior United States District Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This case is before the court on a Motion for Judgment of Acquittal (Doc. #64) and Motion to Set Aside Judgment and Motion for a New Trial (Doc. #65).

On June 29, 2011, Defendant Bradley H. Pemberton ("Pemberton") was convicted of (1) wire fraud, pursuant to 18 U.S.C. § 1343; and (2) aggravated identity theft, pursuant to 18 U.S.C. § 1028A(a)(1). During the trial, the Government alleged that, on December 2, 2008, Pemberton applied for a Discover credit card using his own address, but the name, social security number, and date of birth of another individual named Bradley N. Pemberton ("Bradley N."). The Government further alleged that, during the relevant times of this case, Pemberton worked as a sergeant with the Montgomery Police Department, and that Pemberton obtained Bradley N.'s identifying information using the Montgomery Police Department's Law Enforcement Tactical System ("LETS") on December 2, 2008. At trial, the Government not only introduced evidence of the charged conduct of December 2, 2008, but also evidence that Pemberton applied for an American Express card, after accessing LETS, using Bradley N.'s identifying information and Pemberton's own address.

In his Motions, Pemberton requests a judgment of acquittal or, in the alternative, a new trial. For reasons to be discussed, Pemberton's Motions are due to be DENIED.

II. LEGAL STANDARDS

A. Motion for Judgment of Acquittal

A defendant carries a heavy burden in challenging the sufficiency of evidence supporting a conviction. United States v. McCarrick, 294 F.3d 1286, 1290 (11th Cir. 2002). The court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Hernandez, 433 F.3d 1328, 1335 (11th Cir. 2005).

The court views the evidence in the light most favorable to the Government, making all inferences and credibility determinations in the Government's favor. United States v. Majors, 196 F.3d 1206, 1210 (11th Cir. 1999). Accepting all reasonable inferences from the evidence which support the verdict, the court will uphold the convictions if a reasonable fact-finder could have reached a conclusion of guilt beyond a reasonable doubt. United States v. Lopez, 985 F.2d 520, 524 (11th Cir.1993). It is not necessary for the Government to disprove every reasonable hypothesis of innocence, as a jury is "free to choose among reasonable constructions of the evidence." United States v. Jones, 913 F.2d 1552, 1557 (11th Cir. 1990).

B. Motion for New Trial

Rule 33 states 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." Fed. R. Crim. P. 33(a). It is the defendant's burden to justify a motion for new trial. United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006).

III. DISCUSSION

A. Motion for Judgment of Acquittal and Motion for New Trial due to Weight of Evidence Pemberton argues that this court must grant a judgment of acquittal. In the alternative,

Pemberton argues that, based on the weight of the evidence, he is entitled to a new trial. Pemberton proffers three major reasons in support. The court finds Pemberton's arguments to be without merit.

First, Pemberton argues that the IP address that was used to apply for the Discover card could only establish that the application for the Discover Card came from a Brighthouse Communications customer in Elmore County, and could not be narrowed down to Pemberton's house.

Second, Pemberton points to evidence that his wife, rather than he, may have committed the crime. Pemberton notes that (1) his wife, or some other person, could have logged on to LETS and applied for the Discover Card, because Pemberton left the password to his LETS account on his ...


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