Case 3:07-cr-00289-M Document 969 Filed 09/02/2009 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA §

§
Plaintiff, §
§
v. § CRIMINAL ACTION NO.
§
SHEILA D. FARRINGTON (03) § 3:07-CR-289-M
a/k/a “Sheila Hill,” et al. §
§
Defendant.
§

DEFENDANT SHEILA HILL’S MOTION FOR JUDGMENT OF ACQUITTAL

ON COUNT 16 AND BRIEF IN SUPPORT

Pursuant to Federal Rule of Criminal Procedure 29, Defendant Sheila Hill files this

motion for judgment of acquittal with brief in support as to the charge against her in Count 16.

In support, she states as follows:

INTRODUCTION

Count 16 of the Indictment charges that Sheila Hill aided and abetted Don Hill and

D’Angelo Lee in an alleged extortion scheme to take $22,500 from Bill Fisher, through Darren

Reagan (of BSEAT). The Government has not, however, presented even a theory as to exactly

how Sheila Hill aided and abetted this crime, much less any evidence to support it. The only

facts proven during its case that even involve Mrs. Hill are that she received $5,000 from Darren

Reagan, and that a BSEAT invoice was found at her apartment. This creates more questions for

the Government’s case than it answers. The Government could not possibly contend that she

received the money in order to launder it for Don Hill or D’Angelo Lee, because Hill had the

money first, when it was already in cash form (the money was part of the $10,000 he received

from Reagan at Friendship West Baptist Church). Her deposit of the cash would only serve to

document it and would have done nothing to advance any criminal scheme. Because there is no
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possible explanation for how this deposit advanced the alleged criminal scheme, the only rational

one is that Sheila Hill believed the payment to be for legitimate services. The evidence—

specifically, a recorded conversation—affirmatively supports this. Moreover, the mere

possession of a BSEAT invoice means absolutely nothing.

Even if Mrs. Hill’s deposit of the money did somehow advance the scheme, it is not

nearly enough to prove “purposeful” participation in the crime, as required. Fifth Circuit case

law demonstrates that mere proof that she picked up money that happened to advance an alleged

crime, without more, is insufficient to support a conviction. The Government cannot build its

case on “inference upon inference . . . mere suspicion[,] and innuendo.” United States v.

Menesses, 962 F.2d 420, 427 (5th Cir. 1992).

BACKGROUND

Count 16 charges Defendants Don Hill and D’Angelo Lee with extorting $22,500 from

Bill Fisher by threats of economic harm and under color of official right, in violation of 18

U.S.C. § 1951. See Indict., Count 16, ¶ 2. Based on the evidence presented in the Government’s

case in chief, this refers to money that Mr. Hill received on February 22, 2005 from Darren

Reagan in the parking lot of Friendship West Baptist Church (“Friendship West”). The

indictment also charges Mrs. Hill with aiding and abetting the same offense in violation of 18

U.S.C. §§ 1951 and 2. See Indict., Count 16, ¶ 3. The Government proved two facts in support

of its view that Mrs. Hill was somehow involved with the crime: a deposit by Mrs. Hill of $5,000

into the Farrington & Associates bank account, which Don Hill initially received from Reagan at

Friendship West, and that a BSEAT invoice was found at her apartment.

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STANDARD OF REVIEW

A motion for judgment of acquittal should be granted if the court determines that a

rational trier of fact could not find “the essential elements of the offense to be satisfied beyond a

reasonable doubt” based on the evidence presented in the Government’s case in chief. United

States v. Armstrong, 550 F.3d 382, 388 (5th Cir. 2008); see also Fed. R. Crim. P. 29(a) (“After

the government closes its evidence or after the close of all the evidence, the court on the

defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is

insufficient to sustain a conviction.”). A motion for judgment of acquittal “tests the sufficiency

of the evidence against [the defendant], and avoids the risk that a jury may capriciously find him

guilty though there is no legally sufficient evidence of his guilt.” 2 Charles Alan Wright, Federal

Practice and Procedure, Criminal 2d § 461, pp. 637-38 (West 1982). The role of the court in a

Rule 29 motion is to provide a vital check against jury irrationality and safeguard the defendant’s

rights. Id.

ARGUMENT

The evidence linking Mrs. Hill to the extortion alleged in Count 16 is simply too

attenuated to establish that she knowingly aided and abetted the crime beyond a reasonable

doubt. A finding of guilt would be “based on inference upon inference,” which is legally

impermissible. Menesses, 962 F.2d at 427 (5th Cir. 1992) (reversing aiding and abetting

conviction on this basis).

A. The Hobbs Act, 18 U.S.C. § 1951.

To prove an offense under the Hobbs Act, 18 U.S.C. § 1951, the Government must prove

beyond a reasonable doubt that: “(1) the defendant induced a person to part with property; (2) the

defendant acted knowingly and willfully by means of extortion; and (3) the extortionate

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transaction delayed, interrupted, or adversely affected interstate commerce.” United States v.

Stephens, 964 F.2d 424, 429 (5th Cir. 1992); United States v. Robinson, 119 F.3d 1205, 1212

(5th Cir. 1997). Congress’s definition of extortion draws a distinction between two different

types of extortion: those in which actual or threatened force, violence, or fear is wrongfully used

(including fear of economic harm); and those which are committed “under color of official

right.” See United States v. McClain, 934 F.2d 822, 830 (7th Cir. 1991). In this case, the

Government has alleged both fear of economic harm and color of official right.

B. The connection between Mrs. Hill and the alleged extortion of Count 16 is too
tenuous to support a conviction for aiding and abetting.

To “aid and abet” means to assist the actual perpetrator of the crime while sharing the

perpetrator’s criminal intent. United States v. Jarmillo, 42 F.3d 920, 923 (5th Cir. 1995). In

order to convict Mrs. Hill of aiding and abetting the crime charged in Count 16, the jury would

have to conclude beyond reasonable doubt that (1) Mrs. Hill intentionally associated with the

alleged criminal venture; (2) purposefully participated in it as something she wished to bring

about, and (3) sought by her actions to make it succeed. United States v. McDowell, 498 F.3d

308, 313 (5th Cir. 2007); United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001).

Taking these elements in reverse, there is absolutely no proof that Sheila Hill sought by

her “actions” to make the alleged extortion scheme “succeed.” In fact, it is unclear exactly how

her receipt of $5,000 did anything to make the scheme succeed. Don Hill already had the

$10,000 (in cash) after receiving in from Darren Reagan, so Sheila Hill’s deposit of half that

money did nothing to help. In fact, it only served to document the money and create a trail. The

Government has introduced zero evidence that the alleged perpetrators knew they were being

photographed, but even if they had known, it is unimaginable how Sheila Hill’s deposit of some

of the money would have concealed it or otherwise advanced the alleged crime. If the money

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was for D’Angelo Lee, they could have given the cash to him directly. There was no need for

Mrs. Hill’s involvement. It only hindered the alleged scheme; it did not help.

Turning to the purposeful participation and association elements, Fifth Circuit law is

clear that mere presence or association with the alleged perpetrators is insufficient to sustain a

conviction for aiding and abetting, even if the defendant knows that a crime is being committed.

See United States v. Martiarena, 955 F.2d 363, 366-67 (5th Cir. 1992); United States Fifth

Circuit District Judges Association, Pattern Jury Instructions (Criminal Cases) 86 (2001)

(instruction 2:06) (“Of course, mere presence at the scene of a crime and knowledge that a crime

is being committed are not sufficient to establish that a defendant either directed or aided and

abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant

and not merely a knowing spectator.”). In order to prove that Mrs. Hill criminally “associated”

with the venture, the Government must establish that she acted knowingly and willfully to

accomplish the crime of extortion. See Stephens, 964 F.2d at 429 (describing necessary intent

behind extortion); Garcia, 242 F.3d at 596 (holding that aider and abettor must share the

principal’s intent). The meager evidence presented by the Government’s case-in-chief does not

do this.

The Government offered no evidence during its case-in-chief regarding Mrs. Hill’s state

of mind with respect to the $5,000, a deficiency which alone dictates acquittal. The only

evidence on this issue has been offered by the defense—an FBI wire tap of a phone call that Mrs.

Hill placed to D’Angelo Lee shortly after receiving the money. In that call, she tells Lee that she

understood the money to be a payment for work. See Sheila Hill Ex. 12611-T (“[H]e mentioned

that this is the work we’re supposed to, not that we have done but that we are going to do.”).

There is no evidence that she believed there to be any nefarious purpose.

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The location of the BSEAT invoice at her apartment does nothing to affect the analysis.

There are non-criminal explanations for why this invoice would be found there, and the

Government has not disproved any of them. It would require too much conjecture and

speculation to infer from the mere location of this invoice that Sheila Hill had criminal intent:

specifically, that Sheila knew the invoice concerned alleged criminal conduct, and then sought to

assist that conduct. Agent Sherman himself testified that he was speculating on this.

In Martiarena, the Fifth Circuit affirmed a judgment of acquittal for a woman who was

charged with aiding and abetting the willful failure to file a currency transaction report (CTR).

See Martiarena, 955 F.2d at 364. The defendant’s father, who operated a currency exchange at

the United States/Mexico border and was charged with the underlying offense, had agreed to

exchange $12,000 dollars (for undercover agents) for pesos without filing a currency transaction

report. The stated purpose of the money was to pay a bribe. Id. at 365. Although the defendant

(“Monica”) worked at the exchange for her father, and had initially telephoned her father to tell

him that the undercover agents wanted to do business with him, the Government (as here)

offered no evidence that she was either present during or aware of the alleged criminal

discussion. Id.

Pursuant to the scheme, her father had gone to Mexico to retrieve the necessary pesos

and, at Monica’s request, her boyfriend met him there to retrieve half the money so that neither

of them would have $10,000 to report to customs agents at the border. Id. When the boyfriend

arrived at the exchange, the undercover agents were waiting, and voiced concern about the

balance of pesos. Id. Monica responded by explaining that her father had divided the pesos

“half and half so they didn’t have to report it.” Id. One agent then told Monica that they wished

to avoid any documentation on the currency. The record did not indicate that she responded to

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this statement. Id. When her father arrived with the balance of the pesos, he did not request the

information needed to complete the CTR, and no such report was filed. Id. at 366.

The Government charged Monica with aiding and abetting this willful failure to file a

CTR. Id. The jury returned a verdict of guilty, and on a post-conviction motion, the trial court

granted a judgment of acquittal. The Court of Appeals affirmed. Id. The court explained that

there was no evidence that “she lied about the amount involved, [had] given assurances that no

CTR would be filed, or otherwise actively aided her father’s failure.” Id. at 367. Therefore, the

conviction could not stand.

Thus Sheila Hill’s mere association with the alleged offense is insufficient to support a

guilty verdict. Had the Government offered any evidence that she knowingly did something to

assist with the crime, this case would be different. But they did not. While the Government’s

case-in-chief may lead one to “suspect that [Sheila Hill] may have been aware of the conspiracy,

juries must not be allowed to convict on mere suspicion and innuendo.” Menesses, 962 F.2d at

427 (5th Cir. 1992) (reversing aiding and abetting conviction on this basis). Mere suspicion and

innuendo is all we have here. The Government is not allowed to build its case on “inference

upon inference.” Id.

Accordingly, a judgment of acquittal must be granted.

CONCLUSION

Because the Government’s case against Sheila Hill is too attenuated to allow a jury to

find her guilty beyond all reasonable doubt, she requests that the Court grant her motion for

judgment of acquittal.

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September 1, 2009 Respectfully submitted,

/s/ Victor D. Vital

Victor D. Vital
State Bar No. 00794798
Jon Mureen
State Bar No. 24060313
BAKER BOTTS L.L.P.
2001 Ross Avenue
Dallas, Texas 75201-2980
Telephone: (214) 953-6500

CERTIFICATE OF SERVICE

This is to certify that on September 1, 2009, I electronically filed the foregoing

document and all parties of records were served view the court’s ECF system.

/s/ Victor Vital

Victor Vital

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