Opinion
Case No.: 93-CR-50028-FL.
February 24, 2005
REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Defendant's "Revised Motion for New Trial Pursuant to Federal Rule of Criminal Procedure Rule 33," filed October 29, 1997.
II. STANDARD OF REVIEW
Motions for a new trial based on newly discovered evidence are disfavored and should be granted with caution. United States v. Turns, 198 F.3d 584, 586 (6th Cir. 2000). The defendant bears the burden of proving that a new trial should be granted for newly discovered evidence. United States v. Pierce, 62 F.3d 818, 824 (6th Cir. 1995). When a defendant makes a motion for a new trial based upon newly discovered evidence, he must show that the evidence: 1) was discovered after the trial; 2) could not have been discovered earlier with due diligence; 3) is material and not merely cumulative or impeaching; and 4) would likely produce an acquittal if the case was retried. Turns, 198 F.3d at 586-87. III. ANALYSIS A. Evidentiary Hearing
Defendant Robinson claims that he is entitled to an evidentiary hearing. Defendant first argues that the Court of Appeals ordered the district court to hold an evidentiary hearing in its Order dated October 3, 1997. I disagree.
The Order in relevant part stated that because they had already affirmed the conviction and sentence on direct appeal, we vacate the district court's order denying the motion for new trial without prejudice, and we remand to the district court for a determination of the new trial motion on the merits. The Order contains no language requiring or directing the district court to hold an evidentiary hearing.
Defendant next argues that the Court must hold an evidentiary hearing based upon the rulings in Arredondo v. United States, 178 F.3d 778, 782-83 (6th Cir. 1999) and Engelen v. United States, 68 F.3d 238 (8th Cir. 1995). Defendant's reliance of these cases to support his position is misplaced. Both of these cases involved review of prisoner petitions filed pursuant to 28 U.S.C. § 2255.
A prisoner who files a motion pursuant to § 2255 challenging a federal conviction is entitled to a prompt hearing in which the district court is to determine the issues and make findings of fact and conclusions of law with respect thereto. 28 U.S.C. § 2255. The hearing is mandatory "unless `the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . .'" Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461 (1973).
That standard does not apply to this case. Before the Court is a motion for new trial filed pursuant to Fed.R.Crim.Proc. 33. On a Rule 33 motion, "[t]he question of whether to decide the motion on the supporting evidence filed with the motion or to hold an evidentiary hearing is within the discretion of the trial court." United States v. O'Dell, 805 F.2d 637, 643 (6th Cir. 1986).
In this case an evidentiary hearing is not necessary. The supporting evidence filed with the motion are sufficient to reach a conclusion.
B. Edward Osborne
Defendant claims that the government violated his right to due process and a fair trial when it knowingly suppressed the testimony of material witness, Edward Osborne. Defendant claims that Mr. Osborne's testimony in Darrell Chambers' trial in 1995 as to when he met Defendant, made it chronologically impossible for Defendant to have instructed Osborne to transport drugs from Chambers house in Detroit to Anthony Bowling and to Cleveland, Ohio, from late 1989 until early 1990.
Defendant also claims that Mr. Bowling had advised the prosecutor, Mr. Jones, that he had only two suppliers of drugs. Defendant claims that Mr. Bowling submitted a sworn affidavit in which he testified that Mr. Jones had instructed him to provide false testimony under oath before the Grand Jury, and at trial, against Olee Robinson. Defendant claims that Mr. Jones had a scheme to have Mr. Bowling switch his original sworn statements and testimony that had previously exonerated Robinson from drug trafficking.
Defendant claims that had the government provided the prison testimony of Anthony Bowling, Edward Osborne, and Timothy Marsh, he would and could have used their prior statements and/or testimony for impeachment purposes. Defendant claims that the government's failure to turn over the testimony and documents amounted to a Brady violation. Defendant's claims are without merit.
In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct 1194 (1963), the Supreme Court held that "suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Notwithstanding a Brady request, the prosecution is under a duty to disclose exculpatory evidence that, when viewed in the context of the entire record, "creates a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392 (1976). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375 (1985). NoBrady violation occurs, however, "where a defendant `knew or should have known the essential facts permitting him to take advantage of any exculpatory information,' or where the evidence is available from another source." United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (internal citation omitted).
Defendant fails to establish a Brady violation on this case, because contrary to his claims, the government did provide him with the documentation, statements, and testimony of these witnesses prior to trial. A discovery request dated November 4, 1993, establishes that Defendant's attorney received 345 pages of discovery which included: criminal history of Edward Osborne; FBI 302's of interviews; FBI 302's cooperating witness interviews; physical surveillance; Nagra tape; and consensual telephone conversations, which all related to Osborne.
The discovery also included the criminal history of Anthony Bowling, as well as transcripts of the Grand Jury testimony of Anthony Bowling and Timothy Marsh, the Rule 11 Plea Agreements of Bowling and Osborne, and their criminal Judgments.
Defendant's motion also fails because he has not satisfied the requirement of the newly discovered evidence rule. With the exception of Osborne's testimony at Chamber's trial, none of the discovery was newly discovered. Defendant had the material prior to trial.
Furthermore, the material provided allowed Defendant to fully cross exam Osborne about the dates in which he and Defendant were alleged to have met, and Osborne's sources of cocaine. Osborne's statements at Chamber's trial would also fail to meet the requirements because they are not material and are merely cumulative or impeaching.
C. Government's Willful Use of False Testimony
Defendant alleges that his right to a fair trial was violated when the prosecutor for the government knowingly, willfully, and intentionally instructed government witness Edward Osborne to provide false testimony to obtain the Defendant's indictment and conviction.
In support of this claim, Defendant again raises Osborne's testimony at Chambers' trial concerning the time frame in which Osborne testified differently at Chambers' trial as to who was giving instructions to the drug organization. Defendant claims that the information which was contained in FBI 302's and Osborne's plea hearing was suppressed from the defense before trial. Defendant's claim is patently false.
The discovery request provided as an exhibit clearly establishes that Defendant had all of the information which he claims was suppressed prior to trial. Defendant, therefore, fails to meet the first requirement that the evidence be newly discovered.
Defendant's complaints about the government alleging dual supervision is also without merit. The Sixth Circuit addressed this very issue in denying Darrell Chambers appeal of the denial of his motion for a new trial. In that decision dated August 5, 1997, the court held:
The district court ultimately concluded that the evidence regarding Robinson in his trial included Chambers as one of the listed individuals for the continuing criminal enterprise charge, and similarly Robinson was listed as one of the individuals in Chambers' later trial. Appellant appears to argue that it is inconsistent for the government to take the position in the first case that Robinson managed Chambers and in the second case that Chambers managed Robinson. However, this argument misstates the government's position. Rather, the govern-ment's [sic] position was that Robinson and Chambers were organizers in both trials, consistent with Davis, 809 F.2d at 1204. There is nothing inconsistent in a criminal organization having more than one manager or organizer. We are in agreement with the district court that even if Agent Reincke made an incorrect statement, there is no evidence that the prosecutor knew it was false or that it was material. Moreover, we cannot say that evidence of such a misstatement would likely produce an acquittal if the case were retried.United States v. Chambers, 121 F.3d 710, 1997 WL 441801, *7 (6th Cir. 1997) (Table, unpublished disposition). The same holds true here. Even if Osborne gave conflicting evidence at the two trials, that evidence would not likely produce an acquittal if the case were retried. In this case, the government argued that Defendant Robinson was an organizer.
In United States v. Butler, 885 F.2d 195 (4th Cir. 1989), the court reviewed what the government must prove to be a § 848 case. The court stated that a
defendant's relationship with other persons need not have existed at the same time, the five persons involved need not have acted in concert at the same time or with each other, and the same type of relationship need not exist between defendant and each of the five. Nor need the defendant have personal contact with the five persons because organizational authority and responsibility may be delegated. And while some proof of a supervisory or managerial relationship requires a showing of some degree of control by the defendant over the other persons, such proof is not required to show that a defendant acted as an organizer.Id. at 200-01. (internal citations omitted).
Further closing the door on Defendant's argument is the Court's ruling denying his appeal. The Sixth Circuit in an opinion dated September 5, 1996, noted that Robinson conceded on appeal that there was sufficient evidence that he controlled Osborne and Bonds for the purposes of a continuing criminal enterprise ["CCE"]. The Court found ten people of whom the evidence supported that Robinson controlled or supervised.
D. Government Misconduct
Defendant claims that the prosecutor committed prosecutorial misconduct by deliberately misleading or installing false impressions to the Grand Jury in his efforts to obtain an indictment. Defendant claims that the government's witness, Anthony Bowling, had previously advised the government prosecutor and witnesses that Defendant was not involved with drug trafficking. Defendant claims that he was denied all of this information, specifically Bowling's plea and sentencing transcripts, and that if he had them he could have exposed the perjury and been exonerated.
Defendant also claims that Mr. Jones instructed Mr. Bowling to provide false testimony to the Grand Jury by implicating him in a drug conspiracy that the prosecution knew did not exist. Defendant claims that Bowling gave a sworn affidavit of the criminal misconduct by Mr. Jones, but later recanted it.
Defendant's allegations are without merit. As previously noted, his arguments are based upon a false premise, that he failed to get this information prior to trial. None of this evidence is newly discovered. Furthermore, at page 36 of his motion, Defendant states that "during the Robinson trial, Robinson['s] defense attorney questioned Bowling concerning his prior conflicting testimony."
Furthermore, Defendant offers no evidence to support his claims that Mr. Jones instructed Anthony Bowling to commit perjury or to establish drug conspiracy which did not exist. To the contrary, the evidence overwhelmingly supports Defendant's conviction. To establish prosecutorial misconduct in introducing false testimony, Defendant must prove three elements: "(1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false." See United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989) (citations omitted). The prosecution's knowing introduction of false "testimony constitutes a denial of due process if there is a reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. Defendant's claim fails at all of these elements. First, Defendant fails to establish that the statements introduced to the Grand Jury were actually false, or that the prosecution knew that they were false. Defendant argues that Mr. Bowling supplied an affidavit to support his claim. The affidavit, however, is from Michelle West, a co-defendant. Mr. Bowling did not support Mr. Robinson's claim.
Secondly, Defendant cannot establish that the testimony is material, or that there is any reasonable likelihood that the false testimony could have affected the judgement of the jury. Defendant's counsel extensively cross examined Mr. Bowling concerning all of the issues which Defendant raises. Defendant is not entitled to a new trial on this claim.
E. Agent Reinecke
Defendant claims that the prosecutor committed prosecutorial misconduct by instructing Reinecke to provide false testimony to the Grand Jury to obtain an indictment. Defendant claims that Reineeke was instructed to tell the Grand Jury that the defendants had taken out a $100,000.00 insurance policy on the life of Sherman Christian after being robbed by Mr. Christian, when they knew it was false.
Defendant claims that the testimony is false because Sandra Curtis, the Insurance Agent provided an affidavit which stated that she advised government agents before trial that Sherman Christian had opened up his own insurance policy for himself, Cynthia Horry, and his children.
Defendant is not entitled to a new trial on this claim based on newly discovered evidence. Defendant had the information about the insurance policy prior to trial, so the evidence is not newly discovered. Defendant is also not entitled to relief on the grounds that the testimony was false, because Defendant cannot establish that the testimony was actually false.
The evidence establishes that the original insurance policy was changed or falsified to list some of the defendants as beneficiaries. Defendant himself received proceeds from the insurance policy. Finally, Defendant cannot establish that the evidence was material. Defendant's counsel had the opportunity to cross examine the issue at trial.
F. Wiretap
Defendant claims that introduction of illegally obtained wiretap evidence denied him a fair trial. The convictions in this case were consensually recorded. The Supreme Court has held that "federal statutes impose no restrictions on recording a conversation with the consent of one of the conversants." United States v. Caceres, 440 U.S. 741, 750, 99 S.Ct. 1465 (1979); see also United States v. Barone, 913 F.2d 46, 49 (2nd Cir. 1990) ("Because the Government made the recording with the consent and cooperation of [the informant] there was no need to inform [the defendant] or obtain a court order."(citations omitted)). Defendant is not entitled to relief on this claim.
G. Interference with Witnesses
Defendant claims that he was denied due process when the government advised witnesses Marbury and Hodge that they would be indicted if they testified. Defendant's claim should be denied. A prosecutor may properly caution a defense witness about the risk of testifying, e.g., the danger of self-incrimination, but the prosecution cannot "interfere with a defense witnesses' free and unhampered choice to testify." United States v. Jackson, 935 F.2d 832, 846 (7th Cir. 1991) (citations omitted). Defendant's claim only establishes that the prosecution advised the witnesses about the risk of testifying.
H. Pretrial Publicity
Defendant claims he was denied his right to a fair trial when the government prosecutor made knowing and intentional false statements to the press; Defendant claims that the statements caused incalculable prejudice to him in the community. Pretrial publicity under certain circumstances can deprive a defendant of his right to a fair trial. However, for pretrial publicity to undermine the fairness of the judicial process it must be either inherently prejudicial or result in actual prejudice. See Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417 (1963); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031 (1975).
Publicity surrounding a judicial proceeding is inherently prejudicial when it fosters a circus-like atmosphere in a courtroom draining the proceeding of the "solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob."Murphy, 421 U.S. at 799. No evidence exists of inherent prejudice in this case. Actual prejudice may exist if the nature and extent of the pretrial publicity may have such a substantial effect on prospective jurors as evidenced by the voir dire testimony that a fair trial was impossible. Id. at 798. Defendant makes no showing of actual prejudice. The Defendant complains about one newspaper article, and not extensive publicity. Furthermore, he does not argue that he was unable to select a fair jury or that potential jurors were influenced in any way by the article. Defendant establishes no evidence of prejudice in this case resulting from pretrial publicity other than his cursory allegations.
I. Jencks Act
Defendant claims that the government violated the Jencks Act by failing to produce Bowling and Osborne's prior statements. Defendant's claim is without merit. The discovery receipt clearly establishes that the statements given to Defendant prior to trial.
IV. CONCLUSION
For the reasons stated above, I respectfully recommend that Defendant's motion be DENIED.
Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the parties are hereby notified that within ten days after being served with a copy of this recommendation they may serve and file specific, written objections to the proposed findings and recommendations. Further, either party may respond to another party's objections within ten days after being served with a copy thereof. The parties are further informed that failure to timely file objections may constitute a waiver of any further right of appeal to the United States Court of Appeals. United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
In accordance with the provisions of Rule 6(b) of the Federal Rules of Civil Procedure, the Court, in its discretion, may enlarge the period of time in which to file objections to the report.