Opinion
1:98CR202-1, 1:98CR202-3
November 21, 2001
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Defendants Wallene and Wallace Gaither, federal prisoners, have brought a motion for new trial pursuant to Fed.R.Crim.P. 33 or, in the alternative, dismissal of their indictment. (Docket no. 129.) Defendants contend that they have newly discovered evidence that an SBI agent committed perjury before the grand jury in securing their indictment and that the Assistant United States Attorney suborned this perjury. ( Id. at 1.) They also claim that they received ineffective assistance of counsel because their attorneys failed to advise the Defendants of this perjury and otherwise failed to act on it. ( Id. at 7-11.) Defendants also argue that their Fifth Amendment rights were violated by prosecutorial misconduct through these alleged facts. ( Id. at 12-19.) Respondent has responded to the motion. (Docket no. 139.) Defendants have replied to that response. (Docket no. 141.) The matter is now before the Court for a ruling.
Because the documents are identical in the two cases, citations will refer to the case of Wallene Gaither, No. 1:98CR202-3, unless otherwise noted.
An indictment returned by a legally constituted grand jury may not be challenged on the ground of inadequate or incompetent evidence, see Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956), and may not be dismissed for errors in the grand jury proceedings which do not prejudice the defendant. See Bank of Nova Scotia v. United States, 487 U.S. 250, 257, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). However, an indictment may be challenged on the grounds of constitutional error and prosecutorial misconduct. See United States v. Mills, 995 F.2d 480, 486 (4th Cir. 1993).
Defendants attempt to show perjury by the SBI agent by comparing a synopsis of the agent's grand jury testimony which the agent wrote after giving his testimony to two reports of interviews of potential witnesses against Defendants. The interview report of Orlando Blackwell was written by Detective Barber and the interview report of Larry Garrison was written by the SBI agent. ( See attachments to docket no. 123.) The Court finds these documents fail to establish that the agent committed perjury and fail to show prosecutorial misconduct. Any inconsistencies between the synopsis and the interview reports fail to establish that the same inconsistencies were presented to the grand jury. The agent may have made mistakes in writing the synopsis, or mistakes could have been made in writing the interview reports. Certain information that Defendants contend is missing in the reports may be present in additional reports not submitted to the Court. These are merely some of the possibilities, but they show that Defendants have failed to establish that the agent knowingly made false materiai declarations before the grand jury. See 18 U.S.C. § 1623. For the same reasons, Defendants have failed to establish that the prosecutors knowingly presented false evidence to the grand jury. See Stockton v. Virginia, 852 F.2d 740, 749 (4th Cir. 1988). Therefore, these claims should be dismissed.
A new trial may be granted on the basis of newly discovered evidence under Rule 33 if (1) the evidence is newly discovered; (2) the defendant has exercised due diligence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence would probably result in an acquittal at a new trial. See United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993), aff'd, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). All five requirements must be met. Id. Defendants maintain that the synopsis and interview reports were known to their attorneys before trial. (Docket no. 129 at 7-8.) That being the case, the documents are not "newly discovered evidence" under Rule 33. See United States v. Arbelaez, 719 F.2d 1453, 1462 (9th Cir. 1983). Moreover, the evidence is not material with respect to Defendants' guilt or innocence. The evidence at trial did not come from the SBI agent but from the individuals who had dealt with Defendants. The evidence would probably not result in an acquittal at a new trial. Therefore, Defendants have failed to show that they are entitled to a new trial under Rule 33.
In order to prove ineffective assistance of counsel, Defendants must establish, first, that their attorneys' performance fell below a reasonable standard for defense attorneys and, second, that they were prejudiced by this performance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defendants are not entitled to a hearing based upon unsupported, conclusory allegations. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) (in order to obtain an evidentiary hearing a habeas petitioner must come forward with some evidence that the claim might have merit), cert. denied, 507 U.S. 923, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993), abrog'n on other grounds recog'd, Yeatts v. Angelone, 166 F.3d 255 (4th Cir. 1999). Defendants bear the burden of affirmatively showing deficient performance. See Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994).
Defendants fault their attorneys for not bringing the synopsis to their attention during the trial and for not making it an issue on appeal. (Docket no. 129 at 10.) Much of Defendants' argument is based on speculation that if a challenge had been mounted to their grand jury proceedings, their indictments would have been dismissed. ( Id. at 9.) However, the previous discussion shows that this is merely the speculation of Defendants. They have failed to show that any perjury or prosecutorial misconduct affected their indictment. Moreover, as stated above, the evidence against Defendants at trial came from the individual witnesses themselves rather than from the SBI agent and his synopsis and interview reports. Defendants argue that these witnesses should not have been believed, but the sufficiency of the evidence presented at trial is not at issue in this motion. (See Defendants' reply at 4.) Thus, Defendants have failed to show that there is a reasonable probability that but for counsel not raising these issues, the result of their trial or appellate proceeding would have been different. See Strickland, 466 U.S. 668. Defendants' claim of ineffective assistance of counsel should be dismissed.
IT IS THEREFORE RECOMMENDED that Defendants' motion for new trial or for dismissal of their indictment (Docket No. 129) be denied.