In a post-verdict filing, O’Neal argues prosecutors failed to prove criminal intent, relied on prejudicial evidence tied to Ray Martinez, and presented insufficient proof of bribery or quid pro quo, urging the court to acquit her or order a retrial. Photo: VI Consortium

A motion from her attorney, filed on December 24, argues that “the Government's evidence presented at trial is insufficient to establish the essential elements of the crimes charged beyond a reasonable doubt.”

That claim is centered around Ms. O'Neal's express belief that money paid on her behalf as a security deposit for a coffee shop came only from Mr. Martinez. The motion says that the “undisputed evidence” at trial was that both Mr. Martinez and David Whitaker, the fraudster-turned-government witness instrumental in making the case for prosecutors, informed Ms. O'Neal that the money came from Mr. Martinez. She was not “made aware by anyone that MARTINEZ was involved in a conspiracy,” the motion states. “The Government failed to prove beyond a reasonable doubt that she possessed the required state of mind for committing any of the crimes charged in the indictment,” it continued. 

The motion for acquittal or a new trial also points to an assertion by Mr. Whitaker that he adjusted an invoice upwards on his own, an action counsel for Ms. O'Neal says is “insufficient to prove the exchange of something of value for an official act or the quid pro quo essential elements. 

Counsel for Ms. O'Neal also wants the court to examine the grand jury process, suggesting there may have been “misconduct mandating a dismissal of the charges.” The motion alleges leading questions being asked of the grand jury witness as the predicate for an investigation into the record of proceedings before the grand jury. 

'Unduly prejudiced'

Ms. O'Neal's conviction, her lawyer claims, comes as a result of her being tried together with Mr. Martinez. In that trial, she was “unduly prejudiced by the overwhelming evidence of a long-running and unrelated conspiracy between WHITAKER and MARTINEZ of which she was never made aware.” This state of affairs meant that the former OMB director was “deprived of her constitutional right to a fair trial, which could have only been provided to her by a trial separate and apart from Martinez.” 

Whether Ms. O'Neal's bid for acquittal will be successful on these grounds remains to be seen, particularly as her attorney did not attempt to sever the prosecutions at any time following her indictment. Indeed, attorney Dale Lionel Smith – Ms. O'Neal's counsel for the majority of the prosecution – told the court during a status hearing in October that he would not pursue a move to sever the cases. It is unclear how the court will now view his seeming reversal of course.