Motions for judgments of acquittal (JOA); Wire fraud; Double jeopardy; Whether the government “goaded” defendant into requesting a mistrial; Waiver; Whether the district court should have granted a mistrial with prejudice; Whether the government “constructively amended” the indictment; Whether there was a “material variance”; Denial of a motion for a new trial; FedRCrimP 33

In these consolidated appeals, the court reversed the district court’s grant of JOA for defendant-Robinson on one of her convictions for wire fraud related to a government grant. It affirmed the denial of JOA on the remaining counts and the denial of a mistrial with prejudice and motion for a new trial. Robinson was the founder and director of a for-profit LLC. A jury convicted her of four counts of wire fraud arising from her administration of a federal grant, which included “multiple discrepancies” in Annual Performance Reports (APRs). After her convictions, she moved for JOA on all counts. The district court granted it on one count, which the government appealed. Robinson appealed the denial of JOA on the remaining two counts, as well as the denial of her motions for a mistrial and for a new trial. The court first addressed the grant of Robinson’s post-verdict motion for JOA on Count 19. The government argued that a reasonable juror could find that “Robinson’s submission of the false 2017–2018 APR constituted a course of conduct intended to deprive the government of money[,]” and that the government had established its case beyond a reasonable doubt. The court held that the government showed the necessary “scheme to defraud” where it “proved that the 2017-2018 APR contained false representations.” It also established that the misrepresentations were material, and that she intended to deprive the government of money. The court held that the JOA was improperly granted. Robinson argued that the district court erred by denying her a mistrial with prejudice based on her claims that the government prosecuted her “in bad faith” where the indictment contained several counts that it could not prove. She also alleged that the government tried “to goad her into requesting a mistrial.” The court found that even if Robinson did not waive her argument for a mistrial, “the district court did not err by failing to grant a mistrial with prejudice” where she did not show that “the government acted with ill will.” The court also rejected her claims that the district court erred by not granting JOA on the other two wire fraud counts, and that the government “constructively amended” the indictment or it was subject to a material variance. The grant of a new trial was not warranted. Remanded.