Opinion
CRIMINAL NO. 3:08cr164 DPJ-JCS.
July 24, 2009
ORDER
This criminal matter is before the Court on Allan K. Hearne's motion for a new trial [52]. Defendant filed no memorandum and no reply to the Government's response. The Court, having fully considered the parties' submissions and the applicable law, finds that the motion should be denied.
I. Facts and Procedural History
II. Analysis
33United States v. Rasco,123 F.3d 222228 United States v. Cooks,52 F.3d 10110318, United States Code, Section 3500
Failure to disclose grand jury testimony violates the Jencks Act. United States v. Montgomery, 210 F.3d 446, 451 (5th Cir. 2000). Moreover, there is no good faith exception to the requirements of the Jencks Act. Id. However, violations are considered under harmless error analysis. Id. (citing United States v. Martinez, 151 F.3d 384, 391 (5th Cir. 1998)). In conducting this analysis, the Court must determine "whether the error itself had a substantial influence on the judgment in addition to determining whether there was sufficient evidence to support the conviction." Id. Finally, the error will be harmless unless the suppressed statement substantially deviates from the witness's trial testimony. Id.
Here, the Government presented strong evidence upon which the jury could support guilty verdicts on all seven counts. Having reviewed McClendon's testimony at trial and before the grand jury, the Court finds that possession of the grand jury transcript would not have substantially influenced the judgment, and that McClendon testified consistently before the grand jury and at trial-Defendant has not suggested otherwise. Failure to produce the transcript therefore constitutes "harmless error." Id.
IT IS, THEREFORE, ORDERED that Defendant's motion for new trial is denied.