In U.S. v. Finazzo, 10-CR-457 (RRM)(RML) (E.D.N.Y. Jan. 14, 2014), Judge Roslynn Mauskopf denied three post-trial motions by Defendant Christopher Finazzo: (1) for judgment of acquittal (under Fed. R. Crim. P. 29); (2) to vacate the judgment (under Fed. R. Crim. P. 33); and (3) to arrest the judgment (under Fed. R. Crim. P. 34).
Finazzo was an executive at the clothing retailer Aeropostale who was accused of funneling some of Aeropostale’s graphic t-shirt business to a vendor (“South Bay”) that gave him kickbacks by sharing its profits from the referred business. According to the government, Aeropostale lost profits because it could have paid less to other suppliers if Finazzo had not improperly diverted the accounts to South Bay, in which he owned an undisclosed interest. Interestingly, Aeropostale discovered the fraud during a separate investigation into Finazzo’s conduct, when it uncovered an email from Finazzo’s personal attorney that referred to a list of assets in his “revised wills” that included his interest in South Bay.
After trial, Finazzo challenged his convictions on over a dozen counts of mail and wire fraud. He essentially claimed that the government had failed to offer “solid proof of the actual, identifiable, monetarily better deal” Aeropostale could have gotten elsewhere. Op. at 27. Judge Mauskopf rejected that argument. She held that the applicable mail and wire fraud statutes did not impose such a requirement, and even if they did, there was evidence introduced at trial sufficient to show that the company would have paid lower prices for t-shirts from other vendors.