JOSEPH F. BIANCO, Circuit Judge (sitting by designation): MEMORANDUM AND ORDER On July 9, 2015, following a nine-week trial, a jury convicted defendant Phillip Kenner (“Kenner”) of one count of conspiring to commit wire fraud, in violation of 18 U.S.C. §1349 (Count One of the Superseding Indictment); four counts of wire fraud, in violation of 18 U.S.C. §§1343 and 2 (Counts Two, Three, Four, and Seven); and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. §1956(h) (Count Nine).1 (ECF No. 324.) In addition, the jury convicted defendant Tommy C. Constantine (“Constantine,” and together with Kenner, “defendants”) of one count of conspiring to commit wire fraud (Count One); five counts of wire fraud (Counts Two through Six); and one count of conspiracy to commit money laundering (Count Nine). Now pending before the Court is Kenner’s motion for a judgment of acquittal, pursuant to Rule 29, and his motion for reconsideration of his Rule 33 motion. (ECF No. 668.)2 In his Rule 29 motion, Kenner principally argues that: (1) venue was improper in the Eastern District of New York (“EDNY” or “District”); and (2) there was a prejudicial variance between the Superseding Indictment and the proof presented at trial. In his Rule 33 motion, he repeats his same arguments that served as the bases for his original motion, including newly-discovered evidence and prosecutorial misconduct. (ECF No. 668 at 6.) On July 2, 2019, Kenner filed a motion pursuant to 28 U.S.C. §2255 on the basis of ineffective assistance of counsel. (ECF No. 675.) For the reasons set forth below, the Court denies Kenner’s motions. I. BACKGROUND Familiarity with the facts of the case is presumed. Nevertheless, the Court briefly summarizes the evidence relevant to the instant motions below. The evidence is construed in the light most favorable to the government, pursuant to Rule 29 of the Federal Rules of Criminal Procedure. At trial, the government presented three theories of fraud: (1) the Hawaii Project; (2) the funds related to Eufora, LLC (“Eufora”); and (3) the Global Settlement Fund (“GSF”). With respect to the Hawaii Project, the government’s evidence demonstrated that Kenner defrauded several professional hockey players who were his clients. His clients testified that they contributed funds to the project based on Kenner’s representations that their investments would finance a real estate development in Hawaii. In reality, however, Kenner diverted his clients’ money, without authorization, to another property development in Mexico that involved Ken Jowdy (“Jowdy”). According to bank records introduced at trial, Constantine received money that was actually intended for the Hawaii Project. Similarly, with respect to the Eufora scheme, the government established at trial that Kenner sought funds from several investors who were told that their money would be used to finance the Eufora company. However, according to bank records and testimony, Constantine and Kenner converted those investments to cover personal expenses without the investors’ authorization. Finally, government witnesses testified that Kenner and Constantine convinced them to invest in the GSF because they were told that their contributions would principally finance litigation against Jowdy to recover money from him. Again, bank records and testimony demonstrated that both defendants used GSF money for personal expenses. For example, the records established that Constantine covered his rent and automotive work with funds from the GSF. 1. Relevant Procedural History By Superseding Indictment dated April 22, 2015, the government charged Kenner with conspiracy to commit wire fraud, in violation of 18 U.S.C. §1349 (Count One); conspiracy to commit money laundering, in violation of 18 U.S.C. §1956(h) (Count Nine); and seven counts of wire fraud, in violation of 18 U.S.C. §§1343 and 2 (Counts Two through Eight). (ECF No. 214.) In addition, the government charged Constantine with conspiracies to commit wire fraud and money laundering (Counts One and Nine) and five counts of wire fraud (Counts Two through Six). Following a nine-week trial, the jury returned a verdict on July 9, 2015. (ECF No. 324.) The jury found Constantine guilty on all charges and Kenner guilty on both conspiracy counts. (Id.) The jury also found Kenner guilty on the wire fraud charges in Counts Two, Three, Four, and Seven in the Superseding Indictment, but it acquitted him of the wire fraud charges in Counts Five, Six, and Eight. (Id.) Thereafter, Constantine moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 as to all counts, or, in the alternative, for a new trial, pursuant to Federal Rule of Criminal Procedure 33. (ECF No. 346.) In addition, Kenner moved for a new trial pursuant to Federal Rule of Criminal Procedure 33, on the basis of Brady violations, newly-discovered evidence, prosecutorial misconduct, and the assertion that the verdict was against the weight of the evidence. (ECF No. 416.) On October 11, 2017, this Court denied both motions, (ECF No. 501), but reserved decision on Constantine’s request for relief based on ineffective assistance of counsel, (ECF No. 483), because it was not fully briefed at the time the Order was issued (ECF No. 501 at 3 n.2). On October 4, 2019, the Court denied Constantine’s motion for a new trial on the basis of ineffective assistance of counsel. (ECF No. 729.) On June 17, 2019, Kenner filed the instant motion. (ECF No. 668.) On July 23, 2019, the government responded, alleging that Kenner had waived his venue arguments and that there was no variance at the trial. (ECF No. 681.) The government urged this Court to deny Kenner’s Rule 33 motion because all of the issues he raised were already decided by the Court in its October 11, 2017 Order. On October 17, 2019, upon direction from this Court, the government provided additional support for its venue arguments. (ECF No. 752.) Kenner submitted a reply on October 30, 2019, asserting that the government’s basis for venue is predicated on falsehoods, mere preparatory acts, and non-victim activity. (ECF No. 762.) II. STANDARD OF REVIEW 1. Rule 29 Motion for Judgment of Acquittal3 Kenner principally argues that: (1) venue was improper; and (2) there was an unconstitutional variance from the Superseding Indictment at the trial. As discussed below, the Court finds each of these arguments to be without merit. Pursuant to Rule 29(a), a district court shall enter a judgment of acquittal as to “any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). Rule 29(c) permits a defendant to “move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.” Fed. R. Crim. P. 29(c). Under Rule 29, the standard is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord United States v. Finnerty, 533 F.3d 143, 148 (2d Cir. 2008); United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008); United States v. Irving, 452 F.3d 110, 117 (2d Cir. 2006); United States v. Temple, 447 F.3d 130, 136 (2d Cir. 2006). In other words, “[a] court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.” Temple, 447 F.3d at 136 (quoting United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999)). Importantly, when evaluating the evidence under this standard, “courts must be careful to avoid usurping the role of the jury when confronted with a motion for acquittal.” United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003); see also United States v. Florez, 447 F.3d 145, 154-55 (2d Cir. 2006) (“In assessing sufficiency, we are obliged to view the evidence in its totality and in the light most favorable to the prosecution, mindful that the task of choosing among permissible competing inferences is for the jury, not a reviewing court.”); Guadagna, 183 F.3d at 130 (holding that a court must bear in mind that Rule 29 “does not provide [it] with an opportunity to substitute its own determination of…the weight of the evidence and the reasonable inferences to be drawn for that of the jury”) (citation and internal quotation marks omitted). Therefore, viewing the evidence in the light most favorable to the government means “drawing all inferences in the government’s favor and deferring to the jury’s assessments of the witnesses’ credibility.” United States v. Arena, 180 F.3d 380, 391 (2d Cir. 1999) (citation and internal quotation marks omitted). In examining the sufficiency of the evidence, the Court should not analyze pieces of evidence in isolation, but rather must consider the evidence in its totality. See United States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir. 1993); see also Guadagna, 183 F.3d at 130 (holding that sufficiency test must be applied “to the totality of the government’s case and not to each element, as each fact may gain color from others”). 2. Rule 33 Motion for a New Trial Rule 33 states, in relevant part, that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). A district court may grant a Rule 33 motion only in “extraordinary circumstances,” United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009), and only if there exists “a real concern that an innocent person may have been convicted.” United States v. Parkes, 497 F.3d 220, 232 (2d Cir. 2007) (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001)); accord United States v. Bell, 584 F.3d 478, 483 (2d Cir. 2009); see also United States v. Middlemiss, 217 F.3d 112, 122 (2d Cir. 2000) (“Granting Rule 33 motions is not favored and is done with great caution.”). “The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice.” Ferguson, 246 F.3d at 134. In deciding a Rule 33 motion, the Court “must examine the entire case, take into account all facts and circumstances, and make an objective evaluation.” United States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (citation omitted). III. VENUE Defendant Kenner appears to challenge venue on all counts. As a threshold matter, Kenner waived this argument. In any event, as discussed below, the Court concludes that venue existed in EDNY for the counts of conviction based upon, inter alia, phone calls, email communications, and wire transfers that occurred with individuals on Long Island. 1. Waiver The government contends in its letter that Kenner waived his venue argument by failing to raise it during the trial. In particular, the government argues that, because Kenner provided specific grounds for a motion for acquittal after the government’s case but failed to include any objection to venue, he waived his venue claim. (ECF No. 681 at 2.) As set forth below, the Court agrees. The Second Circuit has “identified two situations where a finding of waiver is proper: (a) when the indictment or statements by the prosecutor clearly reveal this defect but the defendant fails to object; and (b) when, after the government has concluded its case, the defendant specifies grounds for acquittal but is silent as to venue.” United States v. Price, 447 F.2d 23, 27 (2d Cir. 1971) (citing United States v. Rivera, 388 F.2d 545, 548 (2d Cir. 1968)). At the same time, however, “the constitutional underpinning and importance of proper venue dictate that waiver of objections to venue should not be readily inferred.” Id. Here, after the government rested its case, Kenner moved for acquittal pursuant to Rule 29. (Tr. at 5632-37; see also id. at 5679.) He argued that there was no proof presented connecting Kenner to the Eufora scheme in which Constantine convinced Nicholas Privitello (“Privitello”), an electrician from Long Island, to invest in the company. (Id. at 5633-34.) He also contended that there was no evidence that Timothy Gaarn (“Gaarn”) was a co-conspirator, as alleged in the indictment. (Id. at 5635.) Although Constantine raised that there was no venue with respect to the Hawaii Project, Kenner did not raise the issue. (Id. at 5632.) Kenner and Constantine both requested to include a jury instruction on venue, (id. at 5680), but such a request is not sufficient for Kenner to preserve his objection. See United States v. Potamitis, 739 F.2d 784, 791 (2d Cir. 1984) (noting that “the fact that counsel requested a venue instruction, is not enough to prevent waiver of the venue objection”). Thus, although Constantine raised the venue argument, Kenner did not and has therefore waived the issue of venue. However, even assuming arguendo that venue was not waived, the Court concludes that this argument is without merit. 2. Legal Standard Two provisions of the United States Constitution guarantee that the defendant must be tried in the place where the crime was committed. Article III, section 2, provides in relevant part that criminal trials “shall be held in the State where the said Crimes shall have been committed.” U.S. CONST. art. III, §2, cl. 3. The Sixth Amendment guarantees that a criminal defendant shall be tried “by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. CONST. amend. VI. In addition, Rule 18 of the Federal Rules of Criminal Procedure requires that, “[u]nless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.” Fed. R. Crim. P. 18. The Second Circuit has provided that: [T]here is no single defined policy or mechanical test to determine constitutional venue. Rather, the test is best described as a substantial contacts rule that takes into account a number of factors-the site of the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding…. United States v. Reed, 773 F.2d 477, 481 (2d Cir. 1985); accord United States v. Royer, 549 F.3d 886, 893 (2d Cir. 2008). The government bears the burden of proving venue by a preponderance of the evidence. United States v. Smith, 198 F.3d 377, 382 (2d Cir. 1999); United States v. Naranjo, 14 F.3d 145, 146 (2d Cir. 1994). Courts “review the sufficiency of the evidence as to venue in the light most favorable to the government, crediting every inference that could have been drawn in its favor.” Smith, 198 F.3d at 382 (internal quotations omitted). Under 18 U.S.C. §3237(a), venue properly lies in “any district in which such offense was begun, continued, or completed.” With respect to conspiracy, the Second Circuit “has held that venue may lie in any district in which the conspiracy was formed or in any district in which a conspirator committed an overt act in furtherance of the criminal scheme.” United States v. Rommy, 506 F.3d 108, 119 (2d Cir. 2007). Any “act performed by any conspirator for the purpose of accomplishing the objectives of the conspiracy” is an overt act, whether it is “innocent or illegal.” United States v. Tzolov, 642 F.3d 314, 320 (2d Cir. 2011). Phone calls can constitute overt acts in furtherance of a conspiracy. See Rommy, 506 F.3d at 120 (“It is beyond question that telephone calls can constitute overt acts in furtherance of a conspiracy.”); Smith, 198 F.3d at 382; United States v. Naranjo, 14 F.3d 145, 147 (2d. Cir. 1994); see also United States v. Christo, 413 Fed. App’x 375, 376 (2d Cir. 2011) (stating that “the overt act can be something as simple as a phone call in furtherance of the conspiracy”). Moreover, it is not legally significant whether the defendant is the conspirator in the district where venue is being sought, or whether the defendant initiated or received the call. Indeed, phone calls into or out of a district can establish venue in that district so long as they further the ends of the conspiracy. See Rommy, 506 F.3d at 120 (venue proper based on calls from undercover government agent inside the venue to out-of-venue defendant); Smith, 198 F.3d at 382 (venue proper based on co-conspirator’s calls from inside venue to victim outside of venue); United States v. Friedman, 998 F.2d 53, 57 (2d Cir. 1993) (venue proper based on out-of-venue conspirator, even though charges against inside-venue co-conspirator were later dropped). With respect to the offense of wire fraud, 18 U.S.C. §3237(a) states that “[a]ny offense involving the use of the mails [or] transportation in interstate or foreign commerce…may be inquired of and prosecuted in any district from, through, or into which such commerce [or] mail matter…moves.” 18 U.S.C. §3237(a). The Second Circuit has held that this statute applies when determining the appropriate venue for wire fraud offenses. United States v. Kim, 246 F.3d 186, 191-92 (2d Cir. 2001) (affirming the district court’s conclusion that venue was proper in the district where wires were sent and received because “the act of causing a wire to be transmitted in furtherance of a fraud is criminalized by the statute, and…a wire is ‘transmitted’ both where it was sent and where it was received”); United States v. Gilboe, 684 F.2d 235, 239 (2d Cir. 1982) (finding phone calls to and from New York that defendant “caused,” as well as transfer of proceeds of fraud through New York so that “such commerce” moved “from, through, or into” New York, pursuant to 18 U.S.C. §3237(a), properly established venue). Finally, for conspiracy to commit money laundering, venue lies wherever “an act in furtherance of the…conspiracy took place” or “the financial or monetary transaction is conducted.” 18 U.S.C. §1956(i). Because “venue must be proper with respect to each count,” the Court reviews each count separately. Tzolov, 642 F.3d at 318 (quoting United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1188 (2d Cir. 1989)). 3. Application The jury found both Kenner and Constantine guilty of Count One, conspiracy to commit wire fraud. As set forth in the Superseding Indictment, Count One alleges that defendants conspired to commit wire fraud “within the Eastern District of New York and elsewhere.” (Superseding Ind. 17). With respect to the substantive crime of wire fraud, the jury also found Kenner guilty of Counts Two, Three, Four, and Seven, and Constantine guilty of Counts Two through Six. For these charges, the Superseding Indictment refers to multiple wire transfers that involved accounts in EDNY. For example, in Count Two, the Superseding Indictment alleges that there was a $30,000 wire transfer from an account at Wachovia Bank in Closter, New Jersey to John Kaiser’s TD Bank account in EDNY, on or around February 12, 2009. (Id. 19; see also Tr. at 1047-48; GX-1603; GX-1721.) For Count Three, the Superseding Indictment alleges that on or about February 26, 2009, there was a $40,300 wire transfer from John Kaiser’s account at TD Bank in EDNY to Kenner’s account at Bank of America in Scottsdale, Arizona. (Superseding Ind. 19; see also Tr. at 1049-50; GX-1724; GX-1604.) For Count Four, the Superseding Indictment alleges that there was a $25,000 wire transfer from Kenner’s account to Kaiser’s account in EDNY on or about May 22, 2009. (Superseding Ind. 19; see also Tr. at 1050-51; GX-1727.) Testimony from Kaiser and Gaarn established that these transfers pertained to the Eufora fraud. (Tr. at 1045-51; 2501; 2629; 2632-33; see also GX-1603; GX-1604; GX-1721; GX-1724; GX-1727.) For Count Five, the Superseding Indictment alleges that there was a $150,000 wire transfer from Privitello’s account in EDNY to an account in California on or about December 7, 2009. (Superseding Ind. 19.) The Superseding Indictment also alleges that on or about that same date, there was a $50,000 wire transfer from Privitello’s account in EDNY to an account in California, which provided the basis for Count Six. (Id.; see also Tr. at 1432-33, 1435, 1442-43; GX-208.1; GX-3302; GX-3306.) Privitello testified that he executed these two transfers for a 1.5 percent stake in Eufora. (Tr. at 1432-33, 1435.) For Counts Seven and Eight, the Superseding Indictment alleges that Kenner devised and executed a scheme to purchase real property located in Sag Harbor on Long Island, New York (referred to as the “Led Better Scheme”). (Superseding Ind.
