Opinion
No. CR96-12 MJM.
November 1, 1999.
ORDER
The matter before the Court is the defendant's motion for new trial. The defendant was convicted after trial by jury. He raises a number of issues in a series of post-trial motions filed in this case. Since this case has been pending for some time, the Court believes that it is appropriate to discuss its procedural background.
As indicated, Mr. Leach was convicted of conspiracy to distribute and possess with intent to distribute cocaine and crack cocaine. Subsequent to his conviction, the Court granted a number of extensions of the deadline for filing post-trial motions. Ultimately, the Court granted the defendant's request for the appointment of "co-counsel" to review the performance of Mr. Leach's trial counsel to determine what post-trial motions, if any, should be filed.
The defendant filed a series of post-trial motions. As a result of the post-trial motions, the Court authorized the retention of expert services to analyze a tape recording which was introduced into evidence at trial. The Court also authorized extensive post-trial investigation and briefing. The Court also held a evidentiary hearing on the defendant's motion for new trial.
Based upon the filings in this case, the following issues remain for resolution.
Motion for new trial based on prosecutorial misconduct in the use of perjured testimony.
Motion for new trial based upon Singleton issue.
Motion for new trial based upon the use of a tape recording which the defendant contends was either altered or manufactured.
The Court will address each issue individually, although not necessarily in the order filed by the defendant.
A. Singleton Issue
Mr. Leach, like a number of other defendants, filed a motion for new trial following the Tenth Circuit panel decision in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). However, that decision was ultimately vacated by the Tenth Circuit and the Tenth Circuit en banc held that there is no government misconduct under 18 U.S.C. § 201(c)(2) when the government offers the testimony of cooperating witnesses who have received plea agreements, other promises of leniency or sentence reductions in exchange for their testimony. The Eighth Circuit has likewise rejected the arguments raised by the defendant in support of his Singleton motion. See United States v. Fairchild, 1999 WL 689474 (8th Cir. 1999); United States v. Johnson, 169 F.3d 1092, 1097-98 (8th Cir. 1999). Consequently, the motion for new trial is denied as to the defendant's Singleton argument.
B. Prosecutorial Misconduct Re: "Perjured Testimony."
Federal Rule of Criminal Procedure 33 provides that a district court has broad discretion to grant a motion for a new trial "if the interests of justice so require." Fed.R.Crim.P. 33 (1998). The "interests of justice" may require a new trial when the conviction was obtained through the prosecutor's knowing use of perjured testimony. See United States v. Duke, 50 F.3d 571, 577 (8th Cir. 1995) ( citing Napue v. Illinois, 360 U.S. 264, 269 (1959)). In Napue, the Supreme Court held that a "conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." 360 U.S. at 269. The Court also held that the "same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Id. The Court went on to explain:
It is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon defendant's guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.Id. at 269 (citation omitted). In the same way as a district attorney has a duty to correct testimony he knows to be false, an Assistant United States attorney has the same duty.
Several years later, in United States v. Agurs, 427 U.S. 97 (1976) and United States v. Bagley, 473 U.S. 667 (1985), the Court explained that the decisive factor in the case of perjured testimony is the materiality of the evidence. United States v. Duke, 50 F.3d 571, 577 (8th Cir. 1995) (citing Bagley, 473 U.S. at 680); see also Swartz v. State of Iowa, 506 N.W.2d 792, 798 (Iowa 1993) (discussing Napue and Bagley). This means that when a court finds that the government knowingly, recklessly, or negligently used false testimony, a conviction so obtained "must be set aside if there is a reasonable likelihood that the false testimony could have affected the judgment of the jury." Duke, 50 F.3d at 577( citing Agurs, 427 U.S. at 103).
Before the Court applies this "reasonable likelihood" standard to Leach's case, however, Leach must first establish that (1) the testimony was in fact perjured, and (2) the prosecuting officers knew, or should have known, of the perjury at the time the testimony was presented. Duke, 50 F.3d at 577-78 (citing English v. United States, 998 F.2d 609, 611 (8th Cir.), cert. denied, 510 U.S. 1001 (1993)).
With these standards in mind, the Court will begin its analysis of Leach's claims by using the two-prong English test to examine the testimony of each witness whom Leach alleges to have committed perjury during Leach's trial. In performing this analysis, the Court is also cognizant of the fact that the United States Attorney for the Northern District of Iowa maintains an open file policy which gave defense counsel access to all of the prior "inconsistent" statements of each witness. In addition, the Court was very liberal in granting to defense counsel any request for transcripts of prior plea proceedings, sentencings, and other hearings of any of the persons identified on the government's witness list.
1. Richard Bailey
The first witness Leach cites is Richard Bailey. At Leach's trial Bailey testified that he had worked for Leach by making drug runs for him and that Leach had given him both cocaine and crack cocaine. Previously, in Bailey's first appearance before the grand jury, Bailey testified that he had never seen Leach with any drugs and that he had never dealt drugs with Leach.
The alleged inconsistency in the testimony of this witness arises with regard to the question of whether he ever saw the defendant with drugs. The testimony in controversy is at pages 9-11 of the trial transcript for January 12, 1998, where Bailey is questioned about the time period when he first moved to Iowa and lived with the defendant. Bailey testified as follows:
Q. How long did you live with the defendant [in Coralville]?
A. We stayed there, I don't know, a few months, two months maybe, three months, I don't know, and then we moved to Cedar Rapids. It wasn't that long, no.
Q. Okay, Did you at some point begin working for the Defendant?
A. It was a while later, but, yeah.
Q. What did you do for the Defendant?
A. Mostly made little runs for him. You know, he would give me something. I'd sell it, you know, pay him.
Q. And when you say he gave you something, he gave you drugs?
A. Yeah.
Q. What drugs did he give you?
A. Cocaine.
Q. Did he ever give you crack cocaine?
A. Yeah.
Q. Did you see then cocaine or crack cocaine at the Defendant's apartment that you shared with him?
A. Yeah.
The defendant claims that this testimony is perjury because it conflicts with the following Grand Jury testimony from August 10, 1994:
Q. Did you observe Gerald in Cedar Rapids?
A. Yes.
Q. Did you ever see him with any drugs?
A. I can't say that I actually see him with them, because Gerald is older than me, and I guess we never did really, you know, deal in drugs together.
(G.J. Tr. At 10
Although defense counsel impeached Bailey with this inconsistency, defense counsel maintains that the prosecutor acted improperly by trying to "lead" Bailey into saying, on redirect examination, that Bailey was talking about another time other than the one in question. In addition, defense counsel alleges that the prosecutor acted improperly because the prosecutor ended Bailey's direct examination by asking Bailey if the government had made a motion for substantial assistance (to which Bailey replied "yes"), when, in fact, the government had not made a motion for substantial assistance. Defense counsel called this to the Court's attention during a side-bar, and the government then corrected the record. Nonetheless, the defendant maintains that his right to a fair trial was violated.
Bailey's testimony was, at times, confusing and apparently inconsistent with his grand jury testimony. However, viewing the testimony in context, the Court concludes that Mr. Bailey's trial testimony was not significantly inconsistent from his grand jury testimony and, to the extent there is inconsistency, those inconsistencies deal with dates that occurred several years prior to the witnesses testimony.
The Court has carefully reviewed all of the grand jury testimony on Mr. Bailey. While it is certainly true that Mr. Bailey's testimony is not a model of consistency, the Court is convinced, that based upon review of all the testimony, the United States Attorney did not knowingly use any perjured testimony. Although Mr. Bailey's testimony from his appearance in front of the grand jury on August 10, 1994, appears to be inconsistent with his trial testimony, Mr. Bailey did subsequently appear in front of the grand jury on June 8, 1995. In his subsequent appearance, Mr. Bailey outlined, in considerable detail, his drug dealing activity with Gerald Leach. Although Mr. Bailey's testimony is sometimes confusing and the dates are not always consistent, it appears clear that the testimony in the August 10, 1994, appearance before the grand jury, and Bailey's testimony in the 1995 grand jury appearance, and trial testimony relate to different periods of time.
Mr. Bailey is not unlike many of the drug addicted witnesses this Court sees testifying in trial. The witnesses are often confused about dates, particularly when those dates relate to events that occurred several years prior to the time of their testimony, and also during periods of time when they were using drugs. Whether any inconsistencies are the product of faulty memory or a desire to help the government is a quintessential jury issue. In Mr. Bailey's case, he was extensively cross examined about the inconsistencies, and he was able to explain those inconsistencies to the apparent satisfaction of the jury. In any event, the Court is convinced that the government did not knowingly use perjured testimony.
Finally, I must conclude that the defendant has failed to prove the third required element to obtain a new trial, i.e., there is "a reasonable likelihood, that the alleged false testimony would affect the judgment of the jury." In this case, there were many witnesses who testified against Mr. Leach, and the evidence against him was overwhelming. Given the amount of corroborating testimony, this Court cannot conclude that either the testimony was perjured or that any alleged false testimony would result in a different jury verdict.
Keith Luter
The defendant also challenges Mr. Luter's testimony over an inconsistency about dates. In 1995 during Mr. Luter's initial grand jury appearance he was asked when he began dealing drugs with Gerald Leach and testified: "It was probably in — almost the end of 89." At trial, he testified that it was "back in 88" that he began dealing drugs with Leach. The defendant argues that the date the conspiracy allegedly commenced was important to the government, and that the government knowingly obtained perjured testimony in an attempt to show the conspiracy commenced in 1988, as opposed to 1989.
This Court does not believe that the government has knowingly used perjured testimony in this case. Mr. Luter testified in a subsequent grand jury appearance that he had great difficulty recalling dates. The events at issue in this case occurred eight to nine years prior to Mr. Luter's trial testimony. This Court is convinced that any inconsistencies are the product of faulty memory, as opposed to willful use of perjured testimony.
Again, it must be noted that the defendant had access to all the prior grand jury materials and other alleged inconsistent statements by Mr. Luter. Mr. Luter was extensively cross examined at trial about the alleged inconsistencies. Under all the circumstances, the Court cannot conclude that there was any prejudice to the defendant as a result of the alleged inconsistent testimony.
Eric Moss
The alleged perjured testimony of Eric Moss is one of the more troubling aspects of this case. Mr. Moss testified at trial that he made two to three trips a week to Chicago during 1994 to bring drugs to Cedar Rapids, Iowa. This testimony is inconsistent with Mr. Moss's sworn statements at his guilty plea proceeding were he stated:
How come you are pleading guilty then?
Well, dropping off some drugs like to some people, that's what I'm pleading guilty to.
What do you mean, "drop off"? Were you bringing them from Chicago or from some other city?
No. It was here. I wasn't doing nothing like that. I was just, you know, guys wanted me to do it. At that time, I did it because I needed some money to keep food on the table for my kids. That's why I was doing it, but not like selling drugs every day on the corner or bringing it back from Chicago or anything like that. I wasn't doing that.
It is difficult, if not impossible, to reconcile the testimony of Mr. Moss at his guilty plea proceeding with his trial testimony. The Court understands that it is the government's position that Mr. Moss was attempting to minimize his criminal conduct at his guilty plea proceeding; in all probability, to avoid saying anything that might result in an enhanced base offense level under the federal sentencing guidelines. It is the government's belief that, based upon all the testimony, Moss's trial testimony is accurate and, to some extent, corroborated by other evidence. At a minimum, there are photographs of a cash seizure from the Iowa State Patrol. The photographs corroborate at least one trip that Mr. Moss took with the defendant to Chicago.
Based upon all the testimony and evidence in this case, the Court is convinced that there was no prosecutorial misconduct in this case. The Court finds that the government did not knowingly used perjured testimony. As with the other witnesses, Mr. Moss was extensively cross examined about the inconsistencies in his testimony and prior sworn statements. The fact that a defendant initially minimizes his conduct, even if that minimization is under oath, does not necessarily preclude the government from ever using him as a witness at a later date. Certainly his credibility becomes a factor, but, again, it is within the province of the jury to decide whether Mr. Moss was testifying truthfully at trial or whether he was "puffing" in order to please the government. Given all the testimony at the trial, the Court is convinced that there is certainly corroboration of Mr. Moss's testimony. In addition, there is again no reasonable likelihood that without Mr. Moss's testimony, the jury would have reached a different verdict in this case. The evidence of Mr. Leach's guilt was overwhelming and corroborated by many witnesses whose testimony is unchallenged by the defendant.
Derrick Ware
Derrick Ware is alleged to have committed perjured testimony by changing his estimate of the amount of crack cocaine possessed by the defendant. This is the type of "garden variety" inconsistency that trial judges often see in cooperating witnesses testimony. Mr. Ware gave a number of estimates at grand jury and other proceedings about the quantity of drugs possessed by Mr. Leach. Mr. Ware testified at trial and to the grand jury that his testimony was only an estimate and, that he had difficulty recalling the exact amount of drugs possessed by Mr. Leach. There is nothing in the testimony to indicate that Mr. Ware's trial testimony is either perjured or that the United States knowingly used perjured testimony. The inconsistencies were pointed out to the jury, and the jury was allowed to make their own determination as to the credibility of Mr. Ware.
Ray Holmes
The defendant also alleges Mr. Holmes committed perjury because of an alleged inconsistency between his grand jury testimony and his trial testimony concerning conversations he had with the defendant. When confronted during cross examination about the inconsistencies, Mr. Holmes admitted that he had personally met the defendant and had discussions with him about their pit bull dogs. Consequently, the jury was not misled by any testimony, and any inconsistency could not, in all likelihood, have had any effect upon the jury verdict in this case.
Solicitation of Perjured Testimony by Johnny Young, Sr._
Mr. Young was questioned about the plea agreement that he had entered into with the United States. Specifically, Mr. Young was questioned about the cooperation provisions of the plea agreement, including paragraph 11, which discussed cooperation against Mr. Young's son, Johnny Young, Jr. The following question and answer was asked by the prosecutor and given by Mr. Young.
Paragraph 11 of your plea agreement says that you don't have to testify against your son, isn't that right?
Yes.
The defendant argues that this question and answer constitute prosecutorial misconduct because the question knowingly solicited perjured testimony. The Court disagrees. Although the answer is not entirely correct, it does accurately reflect the status of Mr. Young's anticipated testimony at the time he testified in the Leach trial. Paragraph 11 required Mr. Young to testify against his son at grand jury, which he had done, but did not require him to testify at trial. Consequently, Mr. Young's statement that he did not have to testify against his son was technically true as it related to any anticipated testimony subsequent to the Leach trial. In any event, the plea agreement was in evidence, and any ambiguity or inconsistency was available to the jury to be considered in assessing Mr. Young's testimony.
Summary
In summary, this Court believes that it is important to point out a couple factors about the alleged perjury of various government witnesses. First, the Court is convinced that there was no knowing use of any perjured testimony. Secondly, many of the inconsistencies relate to events that occurred several years prior to the time the witness testified and relate to dates, quantities, and other factors that are simply estimates by the witness or the witness's best recollection of the events. The defense attorney had available to him all of the grand jury transcripts and other sworn testimony of the witnesses, and each witness was extensively cross-examined about any inconsistencies.
It is also important to note the weight of the evidence against Mr. Leach. Virtually, all the witnesses who testified at trial had previously plead guilty to drug conspiracies. Additionally, many of the witnesses stipulated to large drug quantities that resulted in a base offense level of 38 under the United States Sentencing Guidelines. The witnesses were remarkably consistent in one aspect of all their testimony, including grand jury, plea proceedings, sentencings, and ultimately trial testimony. That is, that Gerald Leach was the person primarily responsible for bringing large quantities of crack cocaine to the Cedar Rapids area and supplying all of the witnesses, either directly or indirectly, with substantial quantities of drugs. The witnesses' memories may have been fuzzy and the testimony inconsistent about dates, places and quantities. However, there was no inconsistency about Mr. Leach's role in the drug conspiracy, and his extensive drug involvement is nearly incontrovertible. Consequently, to the extent there was any perjured testimony, this Court is convinced that the jury would not have reached a different result had any of the testimony been eliminated or changed.
In summary, the motion for new trial based upon alleged perjured testimony is denied.
C. Altered Tape Recording
The final issue which needs to be resolved in connection with the defendant's motion for new trial arises because of a tape recording which was introduced at the Leach trial. The government recorded a conversation between Derrick Ware, who was then cooperating with law enforcement authorities, and Mr. Leach. The conversation is quite short and allegedly relates to drug dealing.
The defendant had the tape analyzed post-trial by Steven Cain, an expert in voice analysis. After extensive testing of the equipment involved in the recording, and analysis of Mr. Leach's known voice with the voice on the tape, Mr. Cain concluded that it is possible that Mr. Leach's voice is not the voice on the tape. It is on this basis that the defendant believes that the Court should grant a new trial.
Several problems with the defendant's argument leads this Court to the conclusion that the motion should be denied. The standards for granting a new trial based upon newly discovered evidence are well known. As stated in United States v. Womack, 1999 WL 714665 at *4 (8th Cir.):
Five pre-requisites must be met in order to justify a new trial based upon newly discovered evidence:
"(1) the evidence must in fact be newly discovered, that is, discovered since the trial;
(2) facts must be alleged from which the court may infer diligence on the part of the movant;
(3) the evidence relied upon must not be merely cumulative or impeaching;
(4) it must be material to the issues involved; and (5) it must be of such nature that, on a new trial, the newly discovered evidence would probably produce an acquittal." United States v. Luna, 94 F.3d 1156, 1161 (8th Cir. 1996).
The defendant fails to meet at least the first and fifth criteria. For the reasons stated below, the Court believes that, (1) the evidence is not new because it existed prior to trial, and (2) the newly discovered evidence would probably not produce an acquittal.
In this case, the tape was disclosed to the defendant prior to trial, he had access to the tape, and he could have had it analyzed by an expert before trial. The defendant failed to move to have the tape analyzed before trial in this case. Under the circumstances, the Court cannot conclude that the tape is newly discovered evidence which would warrant granting a new trial.
Secondly, the testimony of Mr. Cain is, at best, inconclusive. The government strongly challenged Mr. Cain's qualifications as a voice identification expert and his overall credibility. Assuming, for purposes of this motion, that Mr. Cain does have the qualifications to testify, and also assuming that his opinion is credible, the Court must still conclude that his opinions are inconclusive.
Mr. Cain testified that there is a "possibility" that the voice on the tape is not Mr. Leach. One of the problems with the tape is that it is very short and there are a very limited number of words spoken by the person, alleged to be Mr. Leach, to compare with Mr. Leach's known voice pattern. The government also pointed out a number of problems with the act of obtaining and the defendant's use of the known sampler. In any event, the Court does not believe a new trial is warranted based merely upon Mr. Cain's opinion that it is "possible" that Mr. Leach is not the person on the tape.
Finally, the Court must return to the issue addressed in connection with the perjured testimony. That is, the tape is only a very small part of a much larger case. The tape was very short and, to some extent, fairly inconclusive about Mr. Leach's drug dealing. This Court cannot conclude that the tape had any significant impact upon the ultimate verdict in this case. Consequently, even if the tape is altered, there is no reasonable likelihood that elimination of the tape from the evidence in this case would have any effect upon the outcome of the trial.
For all the reasons stated, the motion for new trial based upon use of an altered tape recording is denied.
ORDER
IT IS THEREFORE ORDERED that the defendant's motion for new trial is denied.