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A U.S. Army supply sergeant who was convicted of stealing body armor and then selling it on eBay has lost his bid to have the jury verdict overturned. After a trial this spring in Eastern District federal court, the defendant, St. Clarence D. Avery, was convicted on charges of unauthorized sale of government property and mail fraud. The judge in the case recently rejected Avery’s motions for dismissal of the criminal charges or to get a new trial. Assistant U.S. Attorney Joan E. Burnes told the jury that Avery, who worked at the military base at Fort Bragg, N.C., stole and sold five military-issue “point-blank interceptor outer tactical vests,” or OTVs, and one pair of military issue “small-arms protective inserts,” or SAPI plates. Burnes told the jury that OTVs and SAPI plates are body armor used to protect and save the lives of U.S. soldiers in Afghanistan and Iraq. They may not legally be sold to the public, she said, and were in short supply in the military. In a motion for judgment of acquittal, Avery’s lawyer, Patrick J. Egan, argued that the government never proved one of the critical elements in its case — that the equipment was stolen. “No witness testified that Avery took the body armor or SAPI plates. There was no evidence that any equipment was missing or taken from Avery’s battalion, or even from Fort Bragg itself,” Egan wrote. “Quite simply there was no evidence that the vests ever even went to Fort Bragg,” Egan wrote. As a result, Egan argued that the jury’s conclusion that Avery stole the vests from the military base “could only be determined by speculation.” Speculation, Egan said, is not enough to support a criminal conviction because “when the evidence of a crime is non-existent or so meager that no reasonable person could find guilt, judgment for acquittal should be granted.” In his 19-page opinion in United States v. Avery, U.S. District Judge John R. Padova disagreed, saying the jury’s verdict was supported by ample circumstantial evidence. The evidence, Padova said, showed that Avery had “direct access to and control over hundreds of pieces of body armor prior,” and that there were “strict control measures employed by the military and defense contractors to prevent civilians from gaining access to body armor.” Although prosecutors never conclusively proved that Avery could not have obtained the body armor from another source, Padova found that “the vast array of circumstantial evidence presented by the government at trial was collectively sufficient to permit a reasonable juror to conclude beyond a reasonable doubt that defendant took the body armor at issue from the United States military.” Egan also complained that he was precluded at trial from presenting evidence that Avery had admitted, when he was first confronted, that he had sold the items on eBay, but told his superiors that he had purchased the items from a man in downtown Fayetteville, N.C. Padova erred, Egan argued, by refusing to allow Egan to confront First Sgt. Bruce Meyers, one of Avery’s supervisors, with a document that proved Avery’s claim. Meyers testified that Avery had denied selling the body armor on eBay. On cross-examination, Egan wanted to challenge Meyers’ testimony by showing that it conflicted with a document that showed another officer who participated in the interview of Avery had said that Avery had admitted buying the body armor in Fayetteville. Padova found that the document was hearsay and therefore inadmissible. Egan argued in his post-trial motion that the document should have been admitted because the document was a statement made by a sergeant major in the U.S. Army to federal investigators about an issue in which he had no basis for fabrication. “Such a statement is inherently trustworthy and should have been allowed. The court’s rigid application of the hearsay rules worked to deny the defendant a fair trial,” Egan wrote. Prosecutors “took unfair advantage” of the error, Egan said, arguing in his closing speech that Avery had denied his crime to both officers when they knew that the second officer’s statement “contradicted this fact.” Padova disagreed, saying the “trustworthiness” of the second officer’s statement was “compromised” by the fact that it concerned events that took place 10 months earlier and while he was deployed in Iraq, and was contained in an interview report “that he did not himself prepare.” Since the court could not conclude that the trustworthiness of the second officer’s hearsay statement was “so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility,” Padova found that Avery was properly barred from admitting the statement into evidence.

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