STATE OF DELAWARE ve. 1.D. NO. 2206000799 KATHLEEN K. McGUINESS STATE’S RESPONSE TO DEFENDANT’S MOTIONS FOR JUDGMENT. OF ACQUITTAL AND NEW TRIAL COMES NOW, the State of Delaware through Deputy Attomeys General Mark Denney, Maria Knoll, and Nicole Mozee, in response to the Defendant's Motions for Judgment of Acquittal and a New Trial. L Facts On July 1, 2022, afier eleven days of trial and approximately one day of deliberations, a Kent Court Superior Court jury found the Defendant guilty of three separate public corruption crimes: Counts One (conflict of interest), Three (violation of the procurement code), and Four (official misconduct). The jury found the Defendant not guilty on Counts Two (theft) and Five (act of intimidation). The trial followed several months of pretrial motions practice The Defendant filed twenty-four (24) motions and amendments; the Court held three (3) hearings that each lasted several hours. As a result, the Court suppressed the filtered digital materials, and much of the evidence not specifically written in the indictments. The Defendant made a Motion for Judgment of Acquittal at the close of the State’s case and the Court reserved its decision until the close of the case.) The bulk * Because the same facts underlie each of the Defendant's motions, the State has filed one Response that addresses both, ? These motions included, but are not limited to, a Motions for a Bill of Particulars, Motions to Compel, Motion to Dismiss Count Five, Motion for Sanctions, Appointment, an Unopposed Motion for Disclosure of Grand Jury Witnesses, Motion to Dismiss Count Three, Motion to Dismiss Indictment or Sanction the State, Motion to Suppress and for a Franks Hearing, Motion to Dismiss for Improper Venue, Motion to Change Venue (back to New Castle County), Motion to Reargue the denial of Dismissal of Count Three, Motion to Reargue the denial of Dismissal of the Indictment. Trial Transcript, June 28, 2022, at p, 214-15,of the in-court argument on the motion focused on Count Five, of which the Defendant was later acquitted." The legal issues the Defendant presents here were all thoroughly addressed and ruled upon by the Court before and during trial. As reflected by the verdict, the jury fully understood and parsed the evidence. Il. Legal Standards As the Third Circuit has held, “Both Rules 29 and 33 set forth particularly difficult standards.”’ The Defendant does not meet either standard. A. Rule 29 The standard for a Rule 29 motion is “whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find a defendant guilty beyond a reasonable doubt of all the elements of the crime.” The inquiry “does not distinguish between direct and circumstantial evidence of defendant's guilt.”” “The burden on a defendant who raises a challenge to the sufficiency of the evidence is extremely high”* and A court’s “review of the sufficiency of the evidence after a guilty verdict is ‘highly deferential’” to the jury’s decision.” Here, the rational trier of fact—a jury that carefully deliberated after a nearly three-week trial—found the defendant guilty on three separate charges, and not guilty on two others. The Defendant’s claims do not meet the “extremely high” burden necessary, and for the reasons set forth herein, Defendant’s motions must be denied "The day before the State closed its ease-in-chief, the Cour (in discussing the impending MJOA arguments), said “Certainly (Count) 5 is in play. Count 5.” Trial Transcript, June 27, 2022, at p. 248, The next day, MOA. arguments focused almost entirely on Count Five. Trial Transrip, June 28, 2022, at pp. 178-215. When the State asked whether it should argue on Counts One through Four, the Court indicated that was not necessary. Id. tp. 206. 5 United States. Monestime, 677 F. App’x 76, 82 (3d Cit. 2017). Monestime interprets the Federal Rules, which as this court knows, ae identical tothe Delaware Rules. See, e-., State v, Biter, 49 Del, $03, 509-10 (Del. Super. C. 1955) (“Rule 29... []dentical with Rule 29 of the Federal Rules” and “Rule 33 .. isthe same as the Federal Rule") Cline v. tate, 720 A.24 891, 892 (Del. 1998) (citing Davis v. State, Del.Supr., 106 A.2d 523, 524 (1998), Monroe ¥. State, DelSupr., 652 A.2d 560, $63 (1995)) Td * United States v. Starnes, $83 F.3d 196, 206 (3d Cir. 2009) (intemal quotation marks omitted) (quoting United States v. Iglesias, 535 F.34 150, 155 (3d Cir. 2008)) ° United Sates»: Hodge, 321 ¥.34 429, 439 (34 Cir. 2003) (quoting United States v. Hart, 273 F.3d 363,371 Gd Cir. 2001)B. Rule 33 Delaware Superior Court Criminal Rule 33 states “[t]he court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice.”"° Such a motion for a new trial “is addressed to the sound discretion of the trial court”!' and “will not be granted if there was some probative evidence upon which a verdict of guilty could reasonably be reached.”'? The Superior Court “must exercise its discretion and refrain from granting the motion”! unless the verdict is “against the great weight of the evidence,” which is “viewed in the light most favorable to the State.”"' In interpreting this standard, the Third Circuit has stated that the trial court; can order a new trial on the ground that the jury’s verdict is contrary to the weight of evidence only if it believes that there is a serious danger that a miscarriage of justice has occurred—that is, that an innocent person has been convicted. Thus, motions for a new trial based on the weight of the evidence are not favored. Such motions are to be granted sparingly and only in exceptional cases.'> Here, there was no miscarriage of justice. The verdict is supported by ample probative evidence. The interests of justice do not require that Defendant be granted a new trial. II. Rule 29 Argument The Defendant makes several overlapping claims in her two motions. Because the standards for both Rules 29 and 33 are equally “particularly difficult” for the Defendant to meet, the State responds to the claims below. A. The evidence was overwhelming, not merely sufficient, for a rational jury to return guilty verdicts as to all three counts. "© Del. Super. Crim, R. 33. "" Hutchins v. State, 153 A.2d 204 (Del. 1959), " State v. Rebarchak, 2002 WL 1587855 *I (citing State v. Biter, 119 A.2d 894 (Del. Super. 1955)) (emphasis added), "© Id at *1 (citing Storey v. Camper, 410 A.24 458 (Del, 1979)) id at 1 (citing Price v. Stave, 1996 WL. 526013 (Del. Aug. 19, 1996). 'S United States v. Salahuddin, 765 F.3d 329, 345 (3d Cir. 2014) (Internal citations and quotation marks omitted), 3Defendant rehashes several claims made during trial and considered by the jury, trying to show that the evidence the jury carefully considered was insufficient. But the jury determined beyond a reasonable doubt that such claims failed. The same claims thus fail on the much lower Rule 29 standard (“any rational trier of fact, viewing the evidence in the light most favorable to the State”). Each guilty verdict is addressed below. 1, Count One: Conflict of Interest, Violation of the State Officials’ Code of Conduct Defendant argues that “no rational jury could convict” the Defendant of Count One on the facts and law presented, Defendant’s claim is unavailing. In order to convict the Defendant of Count One (Conflict of Interest: Violation of the State Officials’ Code of Conduct), the jury needed to find beyond a reasonable doubt that the Defendant participated in the review or disposition of a matter pending before the State in which she had a personal or private interest. As was argued during trial, the jury had several avenues through which they could find the defendant guilty of Count One The facts provided at trial established that the Defendant’s daughter was hired as a state employee at the Office of the Auditor of Accounts (“OAOA”). Several official documents, including “on-boarding” paperwork, listed the Defendant as her daughter’s supervisor — and much of the paperwork was signed by the Defendant herself. The Defendant’s daughter’s friend was also hired at the same time into state employment at the OAOA. As presented at trial, a non-exhaustive list of conflicts included: The casual-seasonal positions were not posted. Even though she initially claimed otherwise, the daughter was hired without first being interviewed by OAOA staff. © The daughter was permitted to work more hours than other employees. The daughter was given immediate access to a state vehicle when others were not. The daughter was paid more than the casual-seasonal employees who were on payroll at the beginning of daughter’s employment, but who then quickly lost available work. The daughter continued to receive state paychecks while enrolled in college in Charleston, South Carolina.The daughter was allowed to “bank”!® hours—in excess of the hourly cap on casual-seasonal employees—and apply them to weeks in which she did little or no work, while other casual-seasonal OAOA employees were not aware of or utilized this practice. * The daughter never used state Virtual Private Network to work remotely in 2020. © The daughter never accessed the office nor used office email between August 17" and December 11", 2020, during which time she was receiving paychecks from the OAOA. The daughter did send very few emails from her Gmail account. © The daughter’s paychecks were deposited into an account owned by the Defendant. © The Defendant addressed work complaints on behalf of her daughter to OAOA staff. The evidence supporting Count One was overwhelming and the jury appropriately found that the State proved that charge beyond a reasonable doubt at trial. The Defendant has provided no basis to set aside the jury’s verdict. To the extent the Defendant argues that the indictment was insufficient, she is mistaken. “An indictment serves at least two purposes, namely, to put the accused on notice of the charges he or she must defend, and to avoid subsequent prosecution for the same offense; these purposes are fulfilled if the indictment contains a plain statement of the elements or essential facts of the crime.”'7 The Defendant’s indictment included all the elements required for the charge and tracked the statute. In addition, the jury was properly instructed. Moreover, regarding any claim that there was unconstitutional encroachment on the Grand Jury proceedings, the United States Supreme Court has held that “as long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.'* ‘At trial, “banking hours” was described as staffing the Delaware State Fair for extra hours beyond a standard work ‘week, and then taking those extra or “banked” hours in subsequent weeks as payment. "7 Mot v. State, 9 A.3d 464 (Del Supe. 2010); Del, Super. Ct. Crim. Rule 7 (©). °* Dixon v, State, 2015 WL 2165387, at * 2 (Del. May 7, 2015) (quoting United Sates v Miller, 471 U.S. 130, 136 (1988).2. Count Three: Structuring - Non-Compliance with the Procurement Code The Defendant argues that “no rational jury could conclude the Defendant willfully fragmented or subdivided the My Campaign Group contract.”"9 As this Court saw, no other Count received a fraction of the testimonial, evidentiary, and argumentative attention before and during the trial than did Count Three. The “structuring charge” was amply supported by testimonial and documentary evidence at trial and the jury unanimously found the Defendant guilty. Under Delaware law, state contracts cannot be structured to avoid compliance with the procurement code.” Nor may payments within those contracts be split to avoid compliance with the procurement code2! The jury, as the independent fact finder, found that the Defendant, the Auditor of Accounts for the State of Delaware, engaged in a no-bid contract with her former political campaign consultant who owned a company called My Campaign Group. The evidence showed that the Defendant personally engaged directly with the consultant. She approved all payments to the consultant. In addition, the Defendant offered the consultant a second no-bid contract. My Campaign Group has never, in Delaware or in any other state, had another government contract. The jury further heard that the campaign consultant formed a second company—Innovate Consulting—when preparing to engage in that second OAOA contract. The State awarded Innovate Consulting that contract, to perform the same services. The jury heard testimony from the Defendant’s chief of staff at the time, that the Defendant wanted to make sure Innovate Consulting won the contract. That witness testified that he then contacted the Department of Justice because of his concern with how the Defendant handled the My Campaign Group and Innovate Consulting contracts. As presented at trial, in September of 2020, My Campaign Group submitted an invoice for $11,250.00. This invoice was split by the Defendant, and in addition, the Defendant ordered her chief of staff to make a payment to the My Campaign Group founder’s PayPal account with his state credit card. Before that, the Defendant asked her staff whether $4,900 of a $6,900 balance could be paid.”* Thus, ' Defendant’s Motion for Judgment of Acquitta, at p. 19, 229 Del. Code Del. C. § 6903, 2 State of Delaware's Budget and Accounting Manual, Chapter 7 ~ Purchasing and Disbursements ~ No. | under “General” ~ See htps://budget.delaware gov/accounting-manual/documents/chapter07.pdf?ver=0316 at Page 5. ® $6,900 was the remaining balance for the September 2020 invoice because OAOA already arranged for $4,350 (the remaining balance of the purchase order) to be paid. 6the jury heard evidence that the Defendant knew she needed to obtain approval for going outside of the purchase order to satisfy the final payment, but she did not obtain that approval. As former employee Andrena Burd testified, the Defendant knew first-hand about the procurement violations that could exist in the context of LLCs, splitting payments, and state credit card usage from her 2018 and 2019 conversations with Burd. The State provided text messages of these conversations as evidence. As the jury found, the Defendant's attempt to argue lack of intent or mere mistake is unavailing. The trial evidence showed she, as the State Auditor, had the knowledge and direct involvement, and gave specific instructions regarding payments to My Campaign Group ‘The jury also heard evidence that the Defendant, as Auditor, was the recipient of virtually every after-the-fact waiver submitted by Delaware state agencies. And there were many. Yet the Defendant did not submit an after-the-fact waiver for My Campaign Group. The fact that the Defendant submitted an after-the-fact waiver for Innovate Consulting further shows her knowledge and lack of mistake. As the State Auditor, the Defendant had the responsibility to correctly handle her contracts. It cannot be overstated that the manner in which the consultant, as a function of the accounting systems, received her money was never pertinent to the case. As charged, the issue was the Defendant’s actions and the Defendant’s state of mind in directing those payments to avoid oversight. The jury found the evidence of the Defendant’s guilt was clear. Despite the Defendant’s severe and relentless attacks before and during the trial, the State presented more than sufficient evidence on Count Three to which the jury, after hearing the evidence, unanimously found the Defendant guilty beyond a reasonable doubt. The Defendant has provided no legitimate basis to set aside the jury’s verdict — especially not when viewed “in the light most favorable to the State.” 3. Count Four: Official Misconduct The Defendant claims that the trial showed “no evidence of either an ‘unauthorized act’ for purposes of 11 Del. C. § 1211(1) or an official function performed ‘in a way intended to benefit the Defendant’s own property or financial interests’ for purposes of 11 Del C. § 1211(3).”® The Defendant is incorrect. ‘The ® Defendant's Motion for Judgment of Acquittal, at p. 23. To the extent the Defendant also claims multiplicity and spillover grounds in her two motions, the Defendant failed to raise this issue pretrial, waiving it. In any ease, these 7jury heard ample evidence to support Count Four, and this Court read the jury clear instructions on the law. Thereafter, the jury found her guilty beyond a reasonable doubt. The Defendant’s Motions ignore the meaning of “personal benefit” under the law. This Court instructed the jury that “personal benefit” means “a personal gain or advantage or anything the recipient considers to be a gain or advantage. The term includes a gain or advantage conferred on the Defendant’s behalf or at the Defendant's request upon a third person.” In closing, the State urged the jury to consider the definition of “personal benefit” as set forth in the instruction: Personal benefit -- when you get the precise definition on the law, please pay close attention to that because personal benefit includes a benefit given to a third person. So in other words, the Defendant benefits if she confers it upon a third person. In this case you can easily find beyond a reasonable doubt that that happened with either her daughter or Christie Gross. Think of how the defendant’s daughter described her work and think of how Christie Gross described her work when you're evaluating “did the Defendant intend to gain some benefit?”?5 As with Counts One and Three, the jury had multiple ways to unanimously find the defendant guilty of this charge, any one of which is sufficient. Two of the several avenues presented to the jury were: 1. A“gain or advantage” conferred at the Defendant’s request upon a third person: the job given to the daughter and the nature of her job; 2. A “gain or advantage” conferred at the Defendant’s request upon a third person: the contracts given to the Defendant’s political campaign consultant; When viewed in the light most favorable to the State, the jury verdict of guilt was amply supported by the evidence and the Defendant’s claim fails. arguments do not pertain to the standard of “whether any rational fact-finder could find her guilty.” Regardless, the State addresses these claims in the Rule 33 context below. Even if the Court analyzed them in a Rule 29 MJOA context, they fail for the same reasons, 2 See Court's Jury Instructions on Count Four, Official Misconduct, at Page 16 (emphasis added), % Trial Transcript, June 30, 2022, at pp. 22-23. 8Because this Rule 29 motion is made post-verdict, the ultimate question— whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find a defendant guilty beyond a reasonable doubt—is not theoretical. Here, a rational trier of fact did find the defendant guilty three separate times—and after hearing days of cross-examination and several witnesses presented by the Defendant. For the many reasons listed above, Defendant’s Rule 29 motion does not meet the “extremely high” burden that is “highly deferential” to the jury’s decision. IV. Rule 33 Argument A. The Defendant was informed of the structuring charge The Defendant claims that she “was not plainly and fully informed of the accusations in Count Three{,]” the structuring count. To the contrary, the State’s theory was consistent throughout the case, the Defendant was provided with ample materials regarding its theory, pretrial motions practice clearly indicated that Defendant had an understanding of the charge, and the jury understood it. In October of 2021 (first indictment), March of 2022 (superseding indictment), and May of 2022 (Kent County indictment), the Defendant was charged as follows: DEFENDANT, on or between the 28"" day of December, 2018, and the 1* day of August, 2021, as an Delaware elected official and a public servant for all three counties, and with intent to avoid compliance with Chapter 69 of Title 29 of the Delaware Code, did willfully fragment or subdivide at least one contract for the purchase of professional services, by initially structuring at least one contract at an amount under fifty thousand dollars ($50,000.00), and structuring some payments under those contracts to be less than five thousand dollars ($5,000.00). The charging paragraphs were identical in all three indictments. When the Grand Jury returned amended surplusage, the State highlighted it for the Defendant and the Court and explained it.2” Moreover, as discussed in the context of the Bill 2 Defendant's Motion for a New Trial, at p. 45. * See State’s March 28, 2022 letter announcing Superseding Indictment: “paragraphs 31, 32, 33 and 37 have been amended to provide more precise notice as to what the State is alleging in support of Count Thrce.” 9of Particulars, the State need not announce its legal theory to the defendant.?*> The Defendant repeatedly attacked the State’s credibility, because the State provided much more detail in its indictment than Delaware Superior Court Criminal Rule 7 requires. But the attacks were meritless and the jury understood the evidence and the elements needed to convict the Defendant of the crime. Indeed, more than one month before trial, this Court ruled on this issue, finding “that the Defendant has adequate notice of the conduct she must defend[.]"? The Court continued: Defendant is sufficiently informed that she is charged with fragmenting payments under a contract, the specific dates, payments, and vendor relevant to the charge, and that she intended to do so in conflict with Chapter 69. As such, the Defendant has the necessary information to construct her defense of Court Three.*? In addition, this Court previously held that Count Three was “not a complex financial crime that was executed over multiple years with extensive financial documents to review and analyze . . . . In fact, the case is rather simplistic in its allegations[.|”! Thus, the Defendant’s claim was extensively litigated pretrial and argued before the jury. The Defendant has no basis to argue that the Defendant was not provided with “adequate notice.” The Court’s pretrial ruling that the Defendant was “sufficiently informed” of the theory underpinning the structuring charge, remains accurate, The structuring charge was completely presented to jury, who found the Defendant guilty. The Defendant's request for a new trial or judgment of acquittal on this charge fails. B. Official Misconduct does not implicate “Multiplicity.” Defendant claims that Counts One (Conflict of Interest) and Three (Structuring) are lesser-included offenses of Count Four (Official Misconduct) and thus “Count Four was multiplicitous in violation of the Double Jeopardy Clauses of the United States Constitution and the Delaware Constitution.” See State v. Phillips, 2004 WL 909557, at *2 (Del. Super. Apr. 21, 2004), ® Memorandum Order, May 13, 2022, at p. 11 mid °! Memorandum Opinion, May 18, 2022, at p. 13. ® Defendant's Motion for a New Trial at p. 55. 10Double jeopardy, as a constitutional principle, provides protections against (1) successive prosecutions, (2) multiple charges under separate state statutes; and (3) being charged multiple times under the same statute. Multiplicity is the “charging of a single offense in more than one count of the indictment.”** The Blockburger standard is “whether each [statutory] provision requires proof of a fact which the other does not.”*> In other words, the multiplicity doctrine prohibits the State from dividing one crime into multiple counts by splitting it into a series of temporal or spatial units.** The question is whether a defendant committed one as opposed to two discrete violations of the same statute, not whether the defendant was charged twice for the same violation.” That did not happen here. A conviction for Count Four required the jury to find elements that were not contained in either Counts One or Three. Thus, Count Four is an entirely separate charge from Counts One and Three. And Counts One and Three are not lesser- included offenses of Count Four. One of the ways the indictment stated that the Defendant committed official misconduct was, in part, by committing an unauthorized act. These acts were limited to what had been alleged in the prior counts of the indictment—this is no different than establishing predicate acts for gang participation or racketeering, or conspiracy charges for agreeing to commit criminal conduct alleged elsewhere in an indictment and does not implicate multiplicity. The State appropriately argued “[i] the members of the jury agree on any one act, and find that the defendant intended to gain a personal benefit, then she is guilty of official misconduct.” The Court instructed the jury properly by identifying the “acts” and instructing the jury as to the specific unanimity requirement. This claim by the Defendant is without merit. C. The State did not commit any Brady violations. The Defendant claims, as she has throughout the case, that the State “with[held] material exculpatory and impeachment evidence” in violation of its obligations as outlined in Brady v, Maryland and its progeny.** She is wrong. The Defendant's claims are nearly identical to those made in her pretrial Motion to Dismiss, which the Court denied on May 18. Prior to trial, the Defendant ® See Williams v, State, 796 A.2d 1281, 1285 (Del. 2002), * See Id, ® Blockburger v. United States, 284 U.S. 299, 304 (1932). % See White v. State, 243 A.3d 381, 386 (Del. 2020). fd. (citing United States v. Forman, 180 F.3d 766, 769 (6th Cir. 1999), Mid at pA,requested a dismissal or sanctions as a result of the alleged breach. Now, her requested remedy is a new trial. But this Court has previously found that the State had not committed any Brady violations.” Post-verdict, the Defendant’s claims remain meritless and she cannot show prejudice.” “There are three components of a Brady violation: (1) evidence exists that is favorable to the accused, because it is either exculpatory or impeaching; (2) that evidence is suppressed by the State, and (3) its suppression prejudices the defendant." Whether a Brady violation has occurred often turns on the third component—materiality.*? While materiality does not require the defendant to show that the disclosure of the suppressed evidence would have resulted in an acquittal," a reviewing court is not required to order a “new trial whenever ‘a combing of the prosecutors’ files afier the trial has disclosed evidence possibly useful to the defendant but not likely to have changed the verdict. The Defendant's claims fail to meet this standard, nor can the Defendant show there was a “miscarriage of justice,” which warrants a new trial. New trials are “granted sparingly and only in exceptional cases.” The Defendant’s case is not one of those exceptions. i, The Defendant’s examples of “exculpatory” evidence are not, in fact, exculpatory. The State diligently searched filtered material for exculpatory and relevant evidence throughout this case—and provided it to the Defendant. Nonsensically, the defense insists no search ever occurred.° The Defendant need look no further than the discovery material she received from the State. Specifically, the December 17, 2021 production included filtered evidence in the form of email communications.”* In addition, out of an abundance of caution, the State provided the Defendant with email communications—including internal Department of Even ifthe Court found they had, the appropriate remedy would have been addtional time o review and prepare a defense—which the defendant rejected multiple times, citing a nebulous claim of prejudice aera mere seven (7) months of pre-trial practice. “© The Defendant also repeats speculative and nonsensical “vindictive prosecution” claim that was raised and rejected by this Court at trial. (Defendant's Motion for a New Trial, p, 26.) Its entirely unsupported and barely Warrants response, other than echoing the Coutts statement that iis common for supervisors to review eases, especially high-profile cases. Further, nothing about the State's wording of the search warrant benefitted the Stat. Moreover, the State could have —and did—obtain the search warrant materials through other admissible means. “Wright v, State, 91 8.34 972, 988 (2014) (citing Starling v. State, 882 A.2d 747, 756 (Del, 2005) (citing Strickler ¥, Greene, 527 U.S, 263, 281-82 (1999) © Wright 91 A.3d at 988 (citing Atkinson v. State, 78 A.2d 1088, 1063 (Del, 2001). oid Giglio, 405 U.S. a 154 © Defendant's Motion fora New Trial stp. 2. “ See State's Discovery Leter, item 41 “Email correspondence which cleared the State's Filter Protocols.” 12Justice communications—on March 30, 2022.47 Finally, the State’s May 12, 2022, response highlighted that when the Defense asked for what it claimed was Brady, the State provided it in a May 9, 2022 production. In response, the Defendant complained about getting what it asked for, arguing the production was untimely and again moving to dismiss the case. ® Now, the Defendant argues that she has uncovered irrelevant personnel facts related to two employees—both of whom were discussed in a September 2021 interview with the Defendant’s then (and current) chief of staff, Ms. Sewell, and provided to the Defendant along with all other relevant recorded statements on March 31,2022. The defendant is thus unable to establish a Brady violation. Indeed, the Defendant created a transcript of that precise interview with Ms. Sewell, listed her as a potential defense witness, and the interview was discussed before the jury at trial“? The Defendant knew about the circumstances of other employees (her own employees) before the trial and tried to advance similar evidence throughout the trial—but the circumstances of casual seasonal employees not on staff when the daughter began her employment were, and are, irrelevant to the charges. This is especially true when considering that the evidence demonstrated the Defendant knew she was under investigation by the summer of 2021, and the evidence further showed the Defendant undertook defensive measures regarding her daughter’s employment, indicative of consciousness of guilt. In one example, in August of 2021, the Defendant’s chief of staff contacted DTI to downgrade the daughter’s title to “intern” from “PIO” in the State system. In another, an employee urged the Defendant to seek Public Integrity Commission (PIC) guidance on her hiring her daughter.®” After contacting the PIC, the Defendant declined to pursue the advice because she did not want the advice to be “on the record.”>! ii, The Defendant has failed to show that the State suppressed any evidence — all of it was available for use by the Defendant. The Defendant claims that the State “suppressed” evidence throughout the trial and the months leading up to iS? The Defendant raised this argument and the © The State did not, and does not, waive its privilege in those communications—but still provided it in ease the Defendant somehow believed any were exculpatory. “* Defendant's May 10, 2022 Letter to the Court, supplementing her Motion to Dismiss. Re-direct examination of witness Franklin Robinson, Trial Transcript, lune 28, 2022, at pp. 142-144 Testimony of witness Laura Horsey, Trial Transcript, June 27, 2022, at p. 109. *! Testimony of witness Deborah Moreau, Trial Transeript, une 28, 2022 at p. 164 ® Defendant's Motion for New Trial, at pp. 7-18. 1BCourt rejected it prior to trial? The State provided filtered materials to the Defendant in December of 2021 and March of 2022. The Filter Team returned to the Defendant the digital material it was able to access — “in a functional and searchable format” more than two months before the start of the trial.‘ The State digitally rebuilt the Defendant’s computer and provided it to her so she could easily search her desktop materials. The State, playing catch-up to the Defendant, received her desktop materials from the Filter Team weeks after she did, was able to search them within one day, and excerpted everything that appeared relevant to again provide it to the Defendant on May 9, 2022, The Court prohibited the State from using these materials at trial, but the Defendant was able to make full use if desired.®> Additionally, the discovery, unlike in most cases, tracked each supporting fact in a detailed indictment with corresponding electronic folders. Even though the Delaware Supreme Court has said that the Defendant is not entitled to a CliffsNotes version of the discovery—especially when so much of it is the Defendant’s own communications*—the Defendant essentially had just that from the State by as early as December of 2021. Moreover, by way of pre-indictment materials and the speaking indictment itself, the Defendant had an outline of the entire case from the very beginning. And as previously stated, arguments that the indictment was insufficient or that the Grand Jury did not consider some facts, are meritless. Finally, virtually every piece of evidence offered by the State was public record.” Much of it—any email involving the Defendant or her daughter, or anyone else in her office—as this Court observed was available to the Defendant before and during trial even had the State not produced it.* Indeed, the State did produce it, as this Court wrote, in a timeline that “plays in the State’s favor as to their Brady obligation.” There existed no State “suppression” of evidence. Quite the opposite, which is why this claim fails, too. © Memorandum Opinion, dated May 18, 2022, at p. 13 Memorandum Opinion, dated May 18, 2022, at p. 13. 5 See Memorandum Opinion, May 18, 2022, pp. 9-10 (“If documents from the laptops are used by the Defendant in her ease, the Court will consider to what extent the State may use the excluded documents in rebutal during wil”) 5 See Wharton v. State, 246 A.3d 110, 118 (Del. 2021). See also United States v. Levine, 983 F.2d 165, 167 (10th Cir. 1992) (holding that “the defendant is not entitled to know all the evidence the government intends to produce, but only the sheory of the government's case”) (intemal quotations and citations omitted) (emphasis in original). © The State understands tha the existence of public record does not completely absolve it of its Brady obligations; it does, however, make the Defendants argument strain credulity See Memorandum Opinion, May 18, 2022, at p. 13 (“tis aso important to note, the files in dispute here are from the Defendant's and her daughter's own laptops to which they should reasonably have some idea as to what is contained therein.”) % Id at. 12. 14iii, Defendant suffered no prejudice The Defendant complains that she received exculpatory evidence “six weeks before the scheduled start of trial” and thus was prejudiced by effective preclusion because trial too soon approached.” ‘The trial actually began more than two months from the complained production. Moreover, the Court granted at the Defendant’s request to suppress the referenced evidence, but in so doing, offered the Defendant “additional time to search and review the documents,” which the Defendant declined.*' ‘This Court further found that, “in providing the files to the defense, the State has done so in a functional and searchable format which the Defendant has already utilized to support her Motion.”® Finally, much of the complained-of, suppressed “discovery contains information belonging to the Defendant, of which she has had continuous access to, including her State of Delaware email and State of, Delaware OAOA network.” Defendant cannot show prejudice based upon the scheduling of the trial date. In fact, the Defendant asked for expedited scheduling. As the Court repeatedly stated, Defendant’s trial occurred sooner that similarly situated defendants. The Defendant “fared better than most, and the critical timing of whether she can seek reelection has prioritized her case over many others.”** Indeed, when the Court offered a later trial date in response to her pretrial Brady and other claims, Defendant's counsel responded: “The defendant is going to object strenuously . . . to any continuance of the trial date much past the end of June.”°> While the Court acquiesced to the Defendant’s trial scheduling requests, on the eve of trial, Defendant raised a venue challenge, which provided her an extra two weeks to prepare for trial—with no change to the evidence. As this Court wrote on May 13, 20220, “[T]he Defendant has not been prejudiced or delayed any more than other defendants navigating the criminal justice system's post-pandemic landscape.”® © Defendant's Motion for a New Trial, at p. 16. 5 Memorandum Opinion, dated May 18, 2022, at pp. 9,13. © fd. atp. 13. “id Memorandum Opinion, May 13, 2022, a p. 12. © Motions Transeript, April 7, 2022, at p. 84. Memorandum Opinion, May 13, 2022, at p. 12.The Court further observed, “She has no basis to complain [about the pace of the litigation] and this assertion by the Defendant is totally without merit.”"” The trial occurred within one year of indictment, an amount of time which is presumptively not prejudicial.* The State cannot find a single case in which a defendant was prejudiced by a trial occurring too quickly at her own request, after rejecting an offer of additional time.” The Defendant’s Brady arguments fail for the reasons stated above. She cannot demonstrate that any Brady violations occurred, and she cannot assert any credible basis for a new trial. D. No improper character evidence was admitted in this case. Next, the Defendant claims that because the Court admitted “what can now only be described as inadmissible character evidence, the Defendant’s right to a fair trial on all of the charges against her was fatally compromised.” Defendant complains about the evidence introduced as it relates to Count Five. The Defendant’s email monitoring was a feature of the case from the beginning — it was apparent in the discovery, discussed in pre-trial motions and arguments, and directly relevant to the grand jury’s indictment. However, the Defendant was not unfairly prejudiced by this evidence — she was acquitted of Count Five. Of course, just because the Defendant was acquitted of that particular count does not render the evidence inadmissible.” Here, the verdict suggests that the jury parsed the evidence objectively and consistent with the jury instructions.” In other words, the jury did their duty in impartially considering the evidence. oa “Unless the length of delay is determined to be “presumptively prejudicial” the court does not assess the additional factors.” Land v. State, 154 A.3d 590 (Del. 2017), ® Moreover, prejudice to a defendant is not measured by prejudice to them specifically, but rather “should be assessed in light of the interests... the speedy trial right was designed to protect.” Those interests are specifically (i) to prevent oppressive pretrial incarceration, (i) to minimize anxiety and concern of the accused; and (ii) to limit the possibility thatthe defense will be impaired.” Barker v. Wingo, 407 U.S. 514, $32 (1972). While being charged witha crime is inconvenient, the defendant has no grounds to complain that she was prejudiced, % Defendant's Motion for a New Trial, at p. 28 See, €.,, United States v. Barksdale-Contreras, 972 F-24 111, 115 (Sth Cir. 1992) (“The evidence does not become inadmissible because ofthe acquittal ofthe defendant on the charge. 1") ® See State v. Berry, 201S WL 5156865, at * (Del. Super. Mar. 31, 2015). 16i. “Prejudicial Spillover” did not exist. The Defendant claims that “the admission of this uncharged misconduct evidence” caused “prejudicial spillover” and “tainted the jury’s consideration of Counts One, Three, and Four.””? The Defendant's claim is purely speculative and is not supported by the record. Defendant attempts to advance a novel argument that her acquittal on Count Five somehow unfairly prejudiced her on separate charges—each with separate elements and distinct, overwhelming evidence—by creating “spillover.” No improper evidence was admitted in this trial. And no “spillover” occurred. Moreover, the Court’s instructions in this case cured any potential for spillover. The Court instructed the jury: “[y]ou will be required to reach a separate verdict for each offense. Each verdict must be independent of your decision on any other.” In Skinner v. State, the Delaware Supreme Court found jury instructions in the context of a codefendant trial “were sufficient to eliminate the potential ‘spillover’ effect resulting from the joint trial.” E. The Court made no “unconstitutional” comment and did not unfairly prejudice the defendant. The Defendant claims that the Court made an “unconstitutional” and “prohibited comment” in “defense of” the Chief Investigator, it “violated the Delaware Constitution[.]”” After the State presented the State’s Chief Investigator during its case-in- chief, and the Defendant submitted him to vigorous cross-examination, the defense then called the Investigator when presenting its case. Specifically, the Defendant's prior witness, Lydia August, had just offered testimony that supported the State’s evidence. In an effort to alleviate the damage, the Defendant called the Chief Investigator and returned to the oft-repeated line of questioning suggesting that the Investigator “lie[d].””” This time, the “lie” the Defendant wanted to explore was the Chief Investigator telling Ms. August in an investigatory phone interview that questions were based on a review of casual-seasonal employees throughout state ® Defendant's Motion fora New Trial, at p. 41 Jury Instruction, p. 4 (emphasis added), ® Skinner, 575 A.2d 1108, 1120 (Del. 1990) (citing Lampkins v. State, Del Supr., 465 A.2d 785, 795 (1983) and United States v. Cresta, Ist Ci, 825 F.2d 538, 54-55 (1987) % Defendant's Motion fora New Trial, at pp. 51-53. * Trial Transerip, June 29,2022, at J-86.government. Once the Defendant’s motives were clear, the State objected to the repetitive nature of the questioning. The Court said: If you want to pursue this, we all know what it is. It’s an investigative technique used by the officer. You want to ask him that, that’s fine. But to imply that because this is false, he is lying. That’s simply unfair, Mr. Wood. So you can ask him about investigation techniques if you'd like. But to imply it otherwise is not acceptable.”* ‘The Court prevented the Defendant from pursuing a fruitless argument on a minor, commonly-understood investigative technique that was not coercive and in no way affected the voluntariness of the witness’s statement.’? The Defendant cannot show unfair prejudice and a new trial is not warranted. Here, throughout the trial, defense counsel elicited myriad statements regarding the veracity of claims made in the search warrant and during the State’s case, and made several disparaging comments. The Court’s singular statement regarding an irrelevant line of questioning, did little to alter or effect the defense’s narrative. No cumulative error — the Defendant received a fair trial Finally, the Defendant argues that “[t]he cumulative effect” of the Court's alleged errors “cinches the matter” and requires a new trial.*° Because the Defendant has failed to show even one error, she cannot establish cumulative error. The Defendant’s case featured countless pretrial and trial decisions that were made by this Court. Some of the rulings were in the State’s favor, and some were not. The Defendant’s claim that she did not receive a fair trial ignores the many evidentiary decisions made in her favor. A non-exhaustive list of the evidence that the Defendant was able to successfully exclude or suppress is as follows: © State’s evidence that the Defendant, in the summer of 2020, engaged in a second no-bid contract, with a company called Belfint, where the Defendant orchestrated a re-submission of an old invoice under a new fd. at 3-88. » See Taylor v. State, 23 A.34 851, 854 (Del. 2011) ({I]Cis settled law thatthe police may use tactics such as deceit, threats, and promises without necessarily rendering the witness's statement involuntary.” (citing Baynard v. ‘State, $18 A.2d 682, 690 (Del. 1986). * Defendant’s Motion for a New Trial, at p. $6. 18purchase order to avoid compliance with the Procurement Code. This conduct was in the same time period as the My Campaign Group Contract and was identical to the charged conduct. © State’s evidence regarding the Defendant’s political and campaign work on the job, including creating political ads at the office, creating spreadsheets with campaign contacts, and rewarding employees who marched in political events and parades with office “comp time.” © State’s evidence of a former employee’s EEOC Complaint and Demand Letter detailing her settlement with the OAOA. The exclusion of this evidence allowed the defense to suggest the Defendant was somehow “surprised” by that employee’s exit and no one could pick up that employee’s work, thereby advancing the theory that the Defendant did not intentionally structure the My Campaign Group payments. © State’s evidence of numerous e-record requests that would have allowed, and in some cases did allow, the Defendant to read the emails of her employees and others, even outside the State enterprise. © State’s evidence of one former employee’s testimony in its entirety, which would have covered her political work at the office, and her mistreatment upon trying to leave the office. © State’s evidence consisting of portions of the testimony of several whistleblowers, related to office spending. © State’s evidence from the Defendant's and her daughter’s computers. The Court has wide discretion to decide evidentiary matters.! Any claim of unfair trial based on the cumulative effect of the Court’s rulings overlooks those many decisions and ignores the Court’s observation, late in the trial: [The Defendant] is getting as about as fair and appropriate and clear trial as one can imagine. If anyone is being hamstrung here, it’s the State and not the defense. And I want that record to be clear that she’s getting as clean and as effective trial as she can imagine. ©? "1A trial judge’s evidentiary rulings will not be set aside by this Court absent an abuse of discretion.” Manna v. State, 945 A.2d 1149, 1153 (Del. 2008). ® Trial Transcript, June 28, 2022, pp. 40-41 19WHEREFORE, in concert with the steep burdens of Rule 29 and Rule 33, and in the interest of justice, the State respectfully requests that the defendant’s motions be denied. Mark A. Denney, Jr. Maria Knoll Nicole M. Mozee Deputy Attorneys General Delaware Department of Justice Date: July 25, 2022 20