Case No. 01-40020-01-RDR
November 21, 2002.
MEMORANDUM AND ORDER
This case is now before the court upon defendant's motion for new trial and supplement to that motion following his conviction on four counts by a jury.
REVIEW OF THE INDICTMENT AND THE VERDICT
The indictment in Count 1 alleged a continuing criminal enterprise from on or about January 1, 1994 until early 2001 in violation of 21 U.S.C. § 848. Twelve predicate acts were alleged as part of Count 1. Count 2 alleged a conspiracy to possess with intent to distribute in excess of 50 grams of cocaine base in violation of 21 U.S.C. § 846. Count 3 alleged a conspiracy to possess with intent to distribute in excess of 5 kilograms of cocaine hydrochloride in violation of 21 U.S.C. § 846. Count 4 alleged a conspiracy to launder money in violation of 18 U.S.C. § 1956(h) and 1957(a).
The predicate acts alleged as part of Count 1 were as follows:
• From at least on or about the 1st day of January, 1994 and continuing until at least the 28th day of April 1997, exact dates being unknown to the grand jury, in the District of Kansas and elsewhere, the defendant, Lavelle Henderson, did knowingly, willfully and unlawfully combine, conspire, confederate and agree with Lapreasha Wynne and other persons, the identities of which are unknown to the grand jury, to possess with the intent to distribute and distribute in excess of 5 kilograms of a substance or mixture of substances containing a detectable amount of cocaine hydrochloride, a Schedule II Controlled Substance, in violation of Title 21, United States Code, §§ 846 and 841;
• On or about May 9, 1995 in the District of Kansas, the defendant, Lavelle Henderson, did distribute approximately 24.71 grams of cocaine base, commonly known as "crack" cocaine, a Schedule II Controlled Substance, in violation of Title 21, United States Code, § 841(a)(1);
• On or about the 1st day of January, 1996 and continuing until on or about the 8th day of May 1996, the exact dates being unknown to the grand jury, in the District of Kansas and elsewhere, the defendant, Lavelle Henderson, did knowingly, willfully and unlawfully combine, conspire, confederate and agree with Anthony Henderson, Hattie McNeal, Kevin Elmore and with other persons, the identities of which are unknown to the grand jury, to possess with the intent to distribute and distribute in excess of 50 grams of a substance or mixture of substances containing a detectable amount of cocaine base, commonly known as "crack" cocaine, a Schedule II Controlled Substance, in violation of Title 21, United States Code, § 846;
• On or about July 12, 1997 in the State of California, the defendant, Lavelle Henderson, did possess with the intent to distribute methamphetamine, a Schedule II Controlled Substance, in violation of Title 21, United States Code, § 841(a)(1) and California Health and Safety Code, § 11378;
• On or about July 12, 1997 in the State of California, the defendant, Lavelle Henderson, did possess with the intent to distribute cocaine hydrochloride, a Schedule II Controlled Substance, in violation of Title 21, United States Code, § 841(a)(1);
• On or about the 12th day of July, 1997, the exact dates being unknown to the grand jury, in the District of Kansas and elsewhere, the defendant, Lavelle Henderson, did knowingly, willfully and unlawfully combine, conspire, confederate and agree with Lashonda Daniels, Shannon Brown and Gerald Jackson and with other persons, the identities of which are unknown to the grand jury, to possess with the intent to distribute in excess of 500 grams of cocaine hydrochloride, a Schedule II Controlled Substance, in violation of Title 21, United States Code, § 846;
• On or about the 12th day of July, 1997 in the District of Kansas and elsewhere, the defendant, Lavelle Henderson, did knowingly, willfully and unlawfully combine, conspire, confederate and agree with Lashonda Daniels, Shannon Brown and Gerald Jackson and with other persons, the identities of which are unknown to the grand jury, to possess with the intent to distribute approximately 72.19 grams of methamphetamine, a Schedule II Controlled Substance, in violation of Title 21, United States Code, § 846;
• On or about the 5th day of March, 1999 in the State of California, the defendant, Lavelle Henderson, did possess with the intent to distribute in excess of 500 grams of cocaine hydrochloride, a Schedule II Controlled Substance, in violation of Title 21, United States Code, § 841(a)(1);
• From on or about the 3rd day of March, 1999 to on or about the 5th day March, 1999, the exact dates being unknown to the grand jury, the defendant, Lavelle Henderson, did knowingly, willfully and unlawfully combine, conspire, confederate and agree with Jaime Harris and with other persons, the identities of which are unknown to the grand jury, to possess with the intent to distribute in excess of 500 grams of a substance or mixture of cocaine hydrochloride, a Schedule II Controlled Substance, in violation of Title 21, United States Code, § 846;
• From at least as early as on or about the 28th day of June, 1999 and continuing until the date of the return of this indictment, the exact dates being unknown to the grand jury, in the District of Kansas and elsewhere, the defendant, Lavelle Henderson, did knowingly, willfully and unlawfully combine, conspire, confederate and agree with Doreen Nichole Woods and with other persons, the identities of which are unknown to the grand jury, to possess with the intent to distribute in excess of 500 grams of a substance or mixture of substances containing a detectable amount of cocaine hydrochloride, a Schedule II Controlled Substance, in violation of Title 21, United States Code, § 846;
• The violations listed in Counts 2 and 3 of this indictment, incorporated by reference herein as if fully set forth.
The jury found that defendant committed all of the predicate acts, except 2, 5 and 6. Following the verdict the court vacated defendant's convictions upon Counts 2 and 3 because they were considered lesser included offenses of the continuing criminal enterprise charge alleged in Count 1.
NEW TRIAL STANDARDS
A court may grant a motion for new trial "if required in the interest of justice." FED.R.CRIM.P. 33. However, motions for new trial are viewed in disfavor and granted only with great caution. U.S. v. Chatman, 994 F.2d 1510, 1518 (10th Cir.) cert. denied, 510 U.S. 883 (1993). "`[T]he power to grant a new trial [because the verdict is against the weight of the evidence] should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.'" U.S. v. Evans, 42 F.3d 586, 593-94 (10th Cir. 1994) (reciting quotation from 3 C.Wright, Federal Practice Procedure, § 553, at 248 (2d ed. 1982)). In general, "[a]ny error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial." 3 C.Wright, Federal Practice Procedure, § 556, at 306 (2nd ed. 1982).
ORIGINAL MOTION FOR NEW TRIAL
The original motion for new trial lists thirty reasons in support of the motion. The first two arguments address counts two and three. The convictions on these counts have been vacated. So, the first two arguments are moot.
Defendant attacks the sufficiency of the evidence in the third argument. The court will address this argument later in this order.
Defendant's fourth and fifth arguments concern alleged limits upon the proposed testimony of Curtis Callerman and Evernisha Nix. Defendant contends, with regard to Callerman, that "[t]he trial court erred in its order prohibiting Defendant's witness Curtis Callerman from testifying on Defendant's behalf regarding statements made to Callerman by Michael Reece and Reece's reasons for testifying against the Defendant." We do not believe this constitutes adequate grounds for a new trial.
Callerman was questioned outside the presence of the jury to determine how his proposed testimony might be affected by his invocation of his Fifth Amendment privilege against self-incrimination. During this questioning Callerman refused to state how long he knew Mike Reece and Heather Reece, two government witnesses and alleged coconspirators. He also refused to answer whether he observed defendant involved in drug trafficking.
Callerman was not asked by defense counsel about any statements made to him by Michael Reece. Nor did defense counsel mention any such statements when counsel asked for clarification of the court's order regarding Mr. Callerman. Tr. 2661-2665. Therefore, the court did not make an order prohibiting Callerman from testifying about statements made by Michael Reece because that potential testimony was never proffered to the court.
As to Evernisha Nix, the court's so-called "limits" upon her testimony were simply guidelines. These "limits" were suggestions that she not be asked questions regarding being "pressured" by possible charges or by the threat of being indicted because that could lead to cross-examination regarding the possible charges and, consequently, the invocation of the Fifth Amendment. The court does not believe this made a material difference in her testimony.
Defendant's sixth argument is that the court erred by not requiring the jury to answer a special interrogatory identifying which five or more persons were supervised by defendant as part of the alleged continuing criminal enterprise. The court is aware of no authority which requires such a special interrogatory, and none is cited in defendant's motion. In U.S. v. Ogando, 968 F.2d 146, 149 (2nd Cir. 1992), the court held that such an interrogatory was not necessary. See also, U.S. v. Russell, 134 F.3d 171, 177 n. 2 (3rd Cir. 1998) (special interrogatory identifying predicate acts is not necessary). We have no reason to believe that an interrogatory would have made a difference in the verdict in this case. Therefore, we reject this argument for a new trial.
Next, defendant contends that the court erred by permitting the indictment to be amended at trial to reflect a shorter time period for the continuing criminal enterprise and the two conspiracies charged in Counts 2 and 3. However, ample authority exists to support the amendment. See U.S. v. Miller, 471 U.S. 130 (1985); U.S. v. Leichtnam, 948 F.2d 370, 376-77 (7th Cir. 1991); U.S. v. Gammill, 421 F.2d 185, 186 (10th Cir. 1970).
Defendant's next argument is that the court erred by refusing to order a government witness, Michael Reece, to return to court to testify in defendant's case-in-chief. Mr. Reece was an incarcerated cancer patient undergoing chemotherapy at the time of the trial. After his testimony during the government's case-in-chief, Reece was returned to the medical center for federal prisoners in Springfield, Missouri. The court was informed that Reece's doctor vigorously opposed his return to Topeka for further testimony, and the court informed defense counsel that the court would not direct that Mr. Reece be transported back to testify during defendant's case-in-chief.
Defense counsel indicated that Mr. Reece needed to return so that counsel could lay a foundation for the testimony of a witness named Percy Grant. However, the court permitted Percy Grant to testify, and there is no indication that his testimony was limited by the absence of Mr. Reece's testimony in the defendant's case-in-chief. Defense counsel was able to ask Mr. Reece during the government's case-in-chief whether Reece had ever told anyone that he was going to testify against defendant in order to attempt to prevent him from providing information that Reece had been involved in the death of a man named Dale Miller. Reece denied that this happened. Thus, Reece's testimony during the defendant's case-in-chief was not needed to establish a foundation for evidence from another witness (in this instance, Curtis Callerman), that Reece made a prior inconsistent statement. Callerman invoked the Fifth Amendment regarding virtually every question concerning the death of Dale Miller, when his testimony was proffered outside the presence of the jury. This constituted a barrier to at least a portion of Callerman's testimony. The court's decision not to permit Mike Reece to be recalled to the witness stand, however, did not prevent defendant from calling Callerman or otherwise presenting his case to the jury.
Defendant's ninth objection asserts that the court erred in determining that the hearsay rule prohibits the defendant from introducing evidence of a witness's inconsistent statements unless the provisions of Rule 613(b) have first been followed. Regardless of whether the hearsay rule might apply to this testimony, the court held with regard to some of defendant's proposed testimony from Mr. Callerman that a proper foundation had not been established as required by Rule 613(b) and that the evidence was so collateral to the issues at trial that it should not be admitted. See U.S. v. Walker, 930 F.2d 789, 791 (10th Cir. 1991); U.S. v. Warledo, 557 F.2d 721, 726 (10th Cir. 1977); U.S. v. Roulette, 75 F.3d 418, 423 (8th Cir.) cert. denied, 519 U.S. 853 (1996). These were proper grounds for excluding such testimony.
Defendant's next two objections (10 and 11) allege error in the court's handling of defendant's proposed instructions 7, 12 and 16. We are mindful that a new trial should not be ordered where the instructions as a whole properly state the law and provide the jury an "intelligent, meaningful understanding of the applicable issues and standards." U.S. v. Winchell, 129 F.3d 1093, 1096 (10th Cir. 1997) (quoting U.S. v. Laughlin, 26 F.3d 1523, 1528 (10th Cir. 1994)).
Defendant's proposed instruction 7 asked the court to instruct that statements of accomplices are "presumptively unreliable" regarding a defendant's conduct because of the desire to shift or spread blame. This proposed instruction made reference to case law concerning out-of-court statements or confessions by accomplices, not testimony from the witness stand. The court gave a well-accepted instruction regarding the testimony of accomplices. See Instruction No. 36. We find no error in using that instruction.
Defendant's proposed instruction 16 essentially required the jury to treat Counts 2 and 3 as lesser included offenses of Count 1. The court has vacated the convictions to Counts 2 and 3, and we find no prejudice to defendant from having the jury consider those counts. Therefore, this argument does not supply grounds for a new trial.
Defendant asserts that the court committed error by failing to use the second paragraph of defendant's proposed instruction 12. The language of that paragraph, however, is essentially the same as language contained in the court's instruction 29. We find no error in the treatment of defendant's proposed instruction 12.
Defendant's twelfth objection claims that the court erred by failing to instruct as to Count 4, which alleged a conspiracy to commit money laundering, that "the funds used for the purchase of the subject vehicle were funds which were the proceeds of some criminal activity." We reject this contention. Count 4 was a conspiracy count. The government did not have to prove that the object of the conspiracy was completed. Nevertheless, the jury was instructed that the agreement to violate the money laundering statute must be proven to be one to engage in a monetary transaction in or affecting interstate commerce in which property valued in excess of $10,000.00 was derived from the unlawful activity described in the indictment. We believe this was a sufficient statement of the law.
Defendant's thirteenth objection asserts that the court made a comment contradicting defense counsel's alleged reason for offering certain testimony and that this comment damaged defense counsel's credibility in the eyes of the jury. Defendant does not identify what the comment was. The court has reviewed the transcript of the trial in this case as well as the court's notes and recollection of the trial. The court is not aware of any statement which could have significantly damaged defense counsel's credibility with the jury. Of course, the jury was instructed that the court's comments and rulings were not to be considered as reflecting how the court would decide the issues in the case. Instruction No. 25. The court does not believe the jury was influenced by an isolated comment by the court in the middle of this lengthy trial.
Defendant's next objection contends that the court erred by failing to dismiss the first predicate act of Count 1 because the alleged conspiracy was between defendant and only one identified conspirator (Lapreasha Wynne) who was a government informant. The court agrees with the government response to this argument. There is no evidence that Wynne was a government informant at the time of the conspiracy alleged in the first predicate act. In addition, the evidence supported a finding of conspiracy between defendant and others who were unknown to the grand jury.
Next, defendant asserts that the court should have granted defendant's request to admit the Federal Sentencing Guidelines and chart of offense levels for federal drug offenses as exhibits in this case. The court does not believe this was error. The court allowed questioning of witnesses regarding their understanding of how their current or future sentence would be affected by giving testimony for or against the government. The court does not believe a copy of the guidelines manual or the sentencing table would provide additional relevant information for the jury that would have had a material impact upon the verdict.
Defendant's sixteenth argument contends that the court committed a mistake by admitting the taped comments of persons speaking to defendant in telephone conversations while he was an inmate at the Chuckawallah State Prison in California. These statements were admissible evidence as statements of co-conspirators. Many statements also provided evidence of the relationship between defendant and other alleged conspirators as well as defendant's role as an organizer and leader, even if they were not necessarily relevant for the truth of what was being stated. Finally, the statements added important context to the statements of defendant in the taped conversations. Therefore, the court rejects defendant's sixteenth argument for a new trial.
Next, defendant contends that the court should not have admitted recordings and transcripts of the recordings because it gave undue emphasis to the evidence. We reject this criticism. The jury was properly instructed concerning the taped conversations and transcripts during the trial and in the court's closing instructions. The admission of the transcripts was a matter within the discretion of the court. See U.S. v. Gomez, 67 F.3d 1515, 1526-27 (10th Cir. 1995) cert. denied, 516 U.S. 1060 (1996); U.S. v. Davis, 929 F.2d 554, 559 (10th Cir. 1991); U.S. v. Lucero, 601 F.2d 1147, 1149-50 (10th Cir. 1979).
Defendant's eighteenth argument is that the court should have permitted evidence that defendant was not prosecuted by authorities in California for cocaine found there in the possession of Jaime Harris (see predicate acts 8 and 9) because the prosecutor in California determined there was insufficient evidence. This proposed testimony was not relevant. Nor was a proper foundation laid for the evidence, which was to be offered through witnesses other than the prosecutor. The court's ruling was proper and does not provide good grounds for a new trial.
Defendant follows with the argument that the government withheld or failed to make known prior to trial information that a cooperating witness, Jaime Harris, had made a written statement intended for the attention of California parole authorities in which she absolved defendant of culpability in the possession or conspiracy to possess the cocaine alleged in predicate acts 8 and 9. However, defense counsel was aware of the statement at the time of trial and questioned Ms. Harris in cross-examination about the statement. Ms. Harris admitted that she wrote a letter which was notarized and that the letter said that defendant was innocent of involvement with the cocaine for which Harris was arrested and convicted. Apparently, the statement itself has not been located in spite of the efforts of the government and the defense. Under these circumstances, we find no fault with the government or prejudice to the defendant which requires granting a new trial.
Defendant's twentieth and twenty-first claims are that the court erred by failing to grant defendant's requests for a bill of particulars and for production of grand jury transcripts. The court stands upon the reasons and authority stated within the order denying these pretrial motions. In addition, the court did not observe that the defense was hampered during the trial by the denial of the motions. Therefore, these claims are rejected.
Next, defendant asserts that the court should have ordered the production of a document describing the reasons why a federal district court in California made a downward departure in the sentence of Jaime Harris. Counsel was able to cross-examine Ms. Harris about her sentence, and her plea agreement was entered into evidence. There is no indication that the document referred to by defendant would have been helpful to his defense. It should further be noted that the court issued a written order regarding this request. Doc. No. 102. The order suggested that defense counsel contact the court in California, or apply for a subpoena for witnesses familiar with the case, or request a transcript under 18 U.S.C. § 3006A. These alternatives were not pursued to the court's knowledge. We find no error in the court's handling of this matter.
Defendant follows with an argument relating to production of polygraph examinations. This matter is also addressed in Doc. No. 102. The only polygraph which has been identified in this case involved a murder investigation. The witness "passed" the polygraph examination. We do not believe this issue warrants a new trial in this case.
Next, defendant contends that he should have been permitted to introduce evidence regarding the possible involvement of a government witness and alleged coconspirator in a drug-related murder. The court does not believe this evidence would have been relevant. Further, any possible relevance would have been outweighed by its prejudicial effect.
The next three arguments from defendant (arguments 25 through 27) reiterate defendant's motion for judgment of acquittal, motion to dismiss Count 4 due to insufficient evidence, and motion to dismiss Counts 2 and 3. The court shall not alter our holdings on these matters. Of course, the court sustained defendant's position regarding Counts 2 and 3.
Defendant continues with an argument regarding the admission of a transcript of a recorded conversation. Defendant asserts that it was error to admit the transcript because it had been changed after its admission in a previous state court trial where defendant was acquitted. The circumstances regarding the change in the transcript were the subject of cross-examination, and the jury had the opportunity to listen to the tape in court. The court does not believe defense counsel objected to the transcript on the basis of the change. Even if that objection was made, the court does not believe there was error in admitting the exhibit.
Defendant's next argument alleges that the court erred in allowing the government to vouch for the truthfulness of the cooperating witnesses. The court will address this argument in connection with defendant's supplemental motion for new trial.
The thirtieth and final argument in the original motion for new trial asserts that the court erred in allowing the case agent in this matter to testify as to his opinions regarding the meaning of certain words or phrases used in letters and recorded conversations. We reject this contention. The case agent was an FBI agent who started his career in the FBI in 1978. He had worked on aspects relevant to this investigation since at least 1996 and had knowledge of defendant previous to that year. He has lengthy experience in drug investigations and other investigations. He has interviewed numerous witnesses in this case and listened to hundreds of taped telephone conversations made by defendant from prison in California. The telephone conversations included coded references to drug activity according to the prosecution. The case agent supported this conclusion with his testimony based upon his experience in the investigation and familiarity with the telephone calls. We believe it was proper to permit this testimony. See U.S. v. Miranda, 248 F.3d 434, 440-41 (5th Cir.) cert. denied, 122 S.Ct. 410 (2001); U.S. v. Gibbs, 190 F.3d 188, 211 (3rd Cir. 1999) cert. denied, 528 U.S. 1131 (2000); U.S. v. Griffith, 118 F.3d 318, 322-23 (5th Cir. 1997).
REMAINING ARGUMENTS AND SUPPLEMENTAL NEW TRIAL MOTION
In defendant's supplemental new trial motion, defendant asserts that a new trial is justified because the government introduced perjured testimony. The Tenth Circuit has stated:
A conviction obtained by the introduction of perjured testimony violates due process if (1) the prosecution knowingly solicited the perjured testimony or (2) the prosecution failed to correct testimony it knew was perjured. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). "A new trial is required if the false testimony could in any reasonable likelihood have affected the judgment of the jury." Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (quoting Napue, 360 U.S. at 271, 79 S.Ct. 1173 (internal quotes and alterations omitted).
U.S. v. Vaziri, 164 F.3d 556, 563 (10th Cir. 1999). Not every contradiction in the testimony of a witness constitutes perjury. As the Circuit noted in U.S. v. Wolny, 133 F.3d 758, 763 (10th Cir. 1998):
"`Contradictions and changes in a witness's testimony alone do not constitute perjury and do not create an inference, let alone prove, that the prosecution knowingly presented perjured testimony.' Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991). See also United States v. Holladay, 566 F.2d 1018, 1019 (5th Cir. 1978) (`Presentation of a witness who recants or contradicts his prior testimony is not to be confused with eliciting perjury.')."
The court has examined the record and the arguments made by defendant with considerable care. We do not find adequate grounds to order a new trial. Defendant mentions seven witnesses by name. First, defendant contends that Michael Reece gave perjured testimony. These allegations of perjury, however, primarily involve the dates when defendant was involved in drug activity with Michael Reece. Defendant complains that Reece's account of drug activity between the years 1987 and 1993 is not consistent with the periods when either he or defendant were in prison. This trial occurred in 2002. A failure to remember dates more than ten years earlier is hardly grounds to argue that the government sponsored perjury. Furthermore, it should be noted that the jury was asked to determine defendant's drug activity in this case from 1994 forward.
Defendant also attempts to highlight the difference between a statement that Michael Reece cooked crack cocaine as opposed to the testimony that he was "involved" in cooking crack cocaine. This does not seem material.
Defendant also attacked the testimony of Scott Clift because Mr. Clift's recollection of when he distributed drugs with Michael Reece and defendant may not have corresponded with the dates Michael Reece testified that he was in prison. This does not establish that Clift committed perjury. Clift spoke in somewhat general terms and Reece's recollection of when he was in prison was not exact. Nor does this difference seem particularly material. Clift is also attacked because he did not identify persons in California he may have worked with in the drug trade. However, this was not an issue which was pressed by his interrogators or which appears material to the case.
Heather Reece is the next witness mentioned in defendant's motion. Defendant notes that Heather Reece said that Michael Reece, her husband, traveled to California on drug trips. She did not say how many times or if it was more than once. Defendant contends that Michael Reece denied doing so. Actually, Michael Reece testified that he helped organize transportation to and from the airport in Kansas City for drug couriers. He also testified that he went to California once with defendant when defendant had to see his probation officer. Heather Reece may have thought this was a drug trip because there was testimony that drug business was conducted by defendant during similar trips.
Defendant also highlights differences in the amount of money Heather Reece stated was made daily or monthly from the drug trade and Michael Reece's negative reaction to one interpretation of Heather Reece's testimony. This, however, is a matter of interpreting questions and answers in the context in which they were given. It is not a question of perjury. Finally, defendant notes that Heather Reece said that Michael Reece found cocaine which defendant allegedly dropped while being pursued by law enforcement officers, while Michael Reece said that Dale Miller found the cocaine. This discrepancy was clearly presented to the jury which was properly instructed in how to consider witness testimony. In the court's opinion, no perjury was demonstrated. Nor was the difference in the testimony a matter which was material to the case.
Laresha Bennett is the next witness discussed in defendant's motion. The court simply does not agree with the alleged contradictions described in the motion with regard to Bennett's testimony. Bennett's testimony about "Red" in California and going to Kansas City to purchase drugs can be reconciled with the other testimony in this case without finding perjury.
Jaime Harris is the next witness. Defendant asserts that her testimony differed from a statement she made to law enforcement agents. Similar claims have been made with regard to some of the other witnesses mentioned in defendant's supplemental motion. Defendant has not submitted the statements that were made to law enforcement agents or, in the case of Heather Reece, the statement she made to the grand jury. But, it is evident that defense counsel had the opportunity to cross-examine on the basis of these matters. Moreover, the court is convinced that the discrepancies described in defendant's motion are not so significant that there is a reasonable likelihood they would have had a material impact upon a jury had the jury's attention been focused upon them.
Lapreasha Wynne is the next witness mentioned in defendant's motion. Ms. Wynne was a reluctant witness as admitted by government counsel. She had pleaded guilty to perjury at the time she testified. This was made known to the jury. She appeared to be under pressure from both sides in this matter. These were circumstances the jury could consider as they evaluated her various and contradictory statements in this matter. Ms. Wynne was captured on tape speaking about transporting drugs for defendant to a confidential informant. Her testimony for the government appeared consistent with her seemingly more candid remarks to the informant. For this reason and because the jury was well-equipped to assess her credibility, we do not believe a new trial is justified on the basis of her testimony.
Finally, defendant mentions the testimony of Ron Elder, an FBI agent. Defendant contends that his testimony to the grand jury regarding what Lapreasha Wynne told him differed from his testimony to the trial jury concerning Wynne's statements. Since Wynne made different and inconsistent statements regarding her actions, the court does not find it remarkable that there might be different accounts of what she said, even by the same agent. There is no indication that this was a material matter or that it was prejudicial to the defendant. Indeed, according to defendant, Elder told the trial jury that Wynne said she did not make any trips for defendant from 1994 to 1996, in conflict with what he told the grand jury.
In sum, the court rejects the various allegations of perjury for several reasons. First, perjury has not been demonstrated. In some instances, the highlighted testimony is not actually inconsistent. Many of the alleged discrepancies in testimony appear to be matters of interpretation or misremembering of events which occurred many years prior to trial. Additionally, defendant seems to proceed upon the unrealistic assumption that the assorted members of defendant's far-flung enterprise should know or recollect exactly what each other person has done. Second, any false statements were not material in the court's opinion. There is no reasonable likelihood that they would have affected the judgment of the jury. This jury was well-instructed on evaluating witness testimony. Defense counsel emphasized the issue of credibility and the inconsistencies in testimony and the incentive to testify against defendant throughout every stage of the trial. Nevertheless, the jury found defendant guilty because of the great number of consistent threads in the evidence in this case, not to mention defendant's own words from letters and taped conversations introduced into evidence. Therefore, the court rejects defendant's perjury argument.
Defendant contends that the prosecutor in this case improperly vouched for the credibility of the cooperating witnesses in this case. During the second part of his closing argument, the prosecuting attorney stated that according to their plea agreements, cooperating witnesses would receive consideration for their testimony at the time of sentencing if they cooperated "truthfully and completely." He stated that consideration is not received by the witnesses until they have completed their testimony because the government is not going to "buy a pig in a poke" and the government wants the truth.
These comments, which were not objected to by the defense, were made in response to the closing argument of defense counsel which emphasized the pressure and the incentive for cooperating witnesses to testify in accordance with the government's version of the case; in other words, what the government believed to be the "truth" in this case.
It is questionable whether the prosecutor's comments constituted improper vouching. While it is improper to personally vouch for the credibility of witnesses, it is not improper to describe an obligation to testify truthfully that is part of a plea agreement. See U.S. v. Bowie, 892 F.2d 1494, 1498-99 (10th Cir. 1990). The prosecutor's comments in this case appear to describe the obligation set forth in plea agreements which was a frequent topic of discussion during the presentation of evidence in this case. The plea agreements themselves were admitted into evidence by the defense and testified to at trial. The comments of the prosecuting attorney were not substantially different from the text of the plea agreements and the testimony heard by the jury.
However, even if this constituted prosecutorial misconduct, a new trial is not warranted unless the misconduct had a substantial influence on the outcome in this case. See U.S. v. Lonedog, 929 F.2d 568, 572 (10th Cir.) cert. denied, 502 U.S. 854 (1991). The jury was instructed by the court that the statements of counsel are not evidence and that the jurors were the sole judges of the witnesses' credibility. Here, given the limited nature of the comments, the context in which the comments were made, the evidence before the jury, and the instructions of the court, the court does not believe any improper comments had a substantial impact upon the outcome of the case. Therefore, the court rejects this argument for a new trial.
Sufficiency of the evidence
After careful consideration of the record, the court believes that the evidence was more than sufficient to support the convictions in this case. The court further finds that no combination of arguments made by the defense provides a good reason to grant a new trial in this matter.
Defendant's motion for new trial and supplemental motion for new trial shall be denied.
IT IS SO ORDERED.