ENTRY DENYING MOTION FOR NEW TRIAL

TANYA WALTON PRATT, District Judge.

This matter is before the Court on Defendant Christopher Justin Eads' ("Mr. Eads") pro se, Motion for New Trial. For reasons explained in this Entry, the Motion for New Trial (Dkts. 83-4, 87, 95 and 99) filed by Mr. Eads is DENIED.

I. BACKGROUND

On October 26, 2011, Detective Darin Odier ("Det. Odier") with the Indianapolis Metropolitan Police Department was conducting an online investigation to identify persons possessing and sharing suspected child pornography using internet share and exchange files. Detective Odier was able to download shared files which he believed depicted images of child pornography from an IP address. The subscriber of the IP address was identified as Christopher Eads and the server address was identified as 311 Grant Street, Apt. B, Brownsburg, Indiana. Detective Odier requested, and a Marion Superior Court Magistrate issued, a search warrant for said address. During the search, child pornography was found loaded on a computer in the residence belonging to Mr. Eads and his wife, Rachael Smith Eads ("Mrs. Eads"). Following execution of the search warrant, Mrs. Eads allegedly made statements which implicated her husband criminally, to wit: Mr. Eads told her he was a secret special agent with the FBI, that he worked undercover, and as a part of his duties, he was to download and view child pornography and turn over the information to his boss.

On December 21, 2011, a five count indictment was filed charging Mr. Eads with: (1) violation of 18 U.S.C. § 2252(a)(2) by distributing child pornography; (2) violation of 2252(a)(4)(B) by possessing child pornography; (3) violation of 18 U.S.C. § 922(g) felon in possession of a firearm; (4) violation 18 U.S.C. § 912 by impersonating a special agent of the Federal Bureau of Investigation; and (5) violation of 18 U.S.C. § 1512(b)(1) by unlawfully tampering with a witness. The Magistrate Judge appointed Mr. Eads counsel from the Federal Community Defender Agency ("FCD"). FCD counsel, William H. Dazey Jr. ("Mr. Dazey"), filed a Motion in Limine and Memorandum (Dkts. 40 and 41) wherein he gave notice that Mrs. Eads had been appointed counsel, that she enjoys a marital testimonial privilege protecting marital communications and that neither Mr. nor Mrs. Eads had knowingly waived any of the privileges associated with marriage in connection with Mr. Eads' trial. In response, the Government agreed that it would not offer Mrs. Eads' statements made during the search of the marital residence and informed the Court that it did not plan on calling Mrs. Eads during its case-in-chief. If Mrs. Eads testifies, however, the Government would argue that the privileged evidence was admissible for impeachment purposes. (See Dkt. 50 at 2).

From February 21, 2012 until February 24, 2012, a four-day jury trial was held in this criminal matter on three of the counts charged: (1) distributing child pornography; (2) possessing child pornography; and (5) unlawfully tampering with a witness. On February 24, 201, the jury returned a guilty verdict on all three counts.

Importantly, Mr. Eads elected to represent himself in the jury trial of this matter. On February 12, 2012 Mr. Eads filed a Notice of Intent to Exercise Right of Self-Representation (Dkt. 51) during his speedy trial which was scheduled to begin on February 21, 2012. On February 17, 2012, the Court conducted a Faretta hearing wherein Mr. Eads was advised that while he has a constitutional right to self-representation, he is entitled to court-appointed counsel. Further, the Court advised Mr. Eads of the nature of the charges, the penalties he was facing and inquired as to Mr. Eads' educational background, and familiarity with the rules of evidence and trial procedure. The Court encouraged Mr. Eads to allow FCD counsel to represent him in light of the hazards and disadvantages of self-representation. Mr. Eads informed the Court that he understood the penalties he might suffer if found guilty, and in light of all the difficulties of self-representation he still desired to represent himself and give up his right to be represented by a lawyer. The Court found that Mr. Eads' waiver of counsel was knowing and voluntary and appointed Mr. Dazey, Mr. Eads' former FCD counsel, to serve as standby counsel.

On March 8, 2012, within fourteen days of the jury's verdict being returned, Mr. Eads filed the first of several Motions for New Trial. While the grounds of each motion were similar, the Court accepted Dkt. 99 as Mr. Eads' final submission which contained the following twenty-four (24) grounds for a new trial:

For convenience sake, Mr. Eads' grounds for a new trial can be categorized as (1) newly discovered evidence and (2) other grounds, including assertions that he was on anti-anxiety medication which affected his ability to represent himself at trial, allegations that certain witnesses were not allowed to testify, allegations that his wife, Mrs. Eads, was threatened if she testified, allegations that the jury should not have been allowed to view certain evidence, and allegations that stand-by counsel did not perform adequately.

II. LEGAL STANDARD

Mr. Eads bears a heavy burden on his motion for new trial. Federal Rule of Criminal Procedure 33 provides, in relevant part, that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." "[C]ourts have interpreted [Rule 33] to require a new trial `in the interests of justice' in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir.1989). "A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly." United States v. Santos, 20 F.3d 280, 285 (7th Cir.1994) (quoting United States v. Morales, 902 F.2d 604, 605 (7th Cir.1990), amended on other grounds, 910 F.2d 467 (7th Cir.1990)). "Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty." Fed.R.Crim.P. 33(b)(2).

Motions for new trials in criminal cases are addressed to the sound discretion of the trial court. It is well settled that such motions are not favored and should be granted only with great caution and only in exceptional circumstances. See United States v Balistrieri, 577 F.Supp. 1532 (1984). The Seventh Circuit reviews a district court's denial of a motion for a new trial for an abuse of discretion. United States v. Woods, 301 F.3d 556, 562-63 (7th Cir. 2002) (district court properly denied defendant's motion for a new trial because "new evidence" was at best, cumulative impeachment evidence that could have been obtained with minimal investigation).

Evidentiary rulings by the trial court do not warrant a new trial unless the defendant can clearly demonstrate that the court abused its wide discretion. United States v. West, 670 F.2d 675, 682-8 (7th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2944, 73 L.Ed.2d 1340 (1982). In order to prevail on a motion for a new trial, a defendant must demonstrate that substantial prejudicial error occurred during the trial. The burden upon a defendant to establish the existence of prejudicial error is a heavy one. It is not satisfied by unsupported, conclusory allegations or speculation. See, e.g., United States ex rel. Darcy v. Handy, 351 U.S. 454, 76 S.Ct. 965, 100 L.Ed. 1331 (1956); United States v. Redfield, 197 F.Supp. at 562; United States v. Gross, 375 F.Supp. 971, 974-5 (D.N.J.1974), affirmed, 511 F.2d 910 (3d Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975).

The jury's verdict, however, is entitled to presumptive validity and the trial court should exercise its authority in this area very sparingly and only in the most exceptional cases when it is convinced that a gross injustice will have been done if it fails to act. US v Gross, 375 F.Supp. at 973-4.

III. DISCUSSION

1. Newly Discovered Evidence

To obtain a new trial based on newly discovered evidence, a defendant must show that the evidence: (1) was discovered after trial; (2) could not have been discovered sooner with due diligence; (3) was material and not simply impeaching or cumulative; and (4) if presented at a new trial would probably result in acquittal. United States v. Reyes, 542 F.3d 588, 595 (7th Cir. 2008). In his Motion, Mr. Eads alleges only that "new evidence has been found." Mr. Eads alleges specifically that his mother Linda Davis "has alibi information she was not asked about or testified to, she just found new evidence [sic] of my wife and myself whereabouts [sic] on Oct, 26th which [sic] the police said I was home." At no time does Mr. Eads proffer the nature of the newly discovered evidence, when it first came to his knowledge or how such evidence would result in a finding of acquittal.

Mr. Eads' argument fails as he himself called Linda Davis as a witness and he had the opportunity to question her about his whereabouts on October 26, 2011, but failed to do so during the trial. Additionally, Mr. Eads has presented no affidavits, testimony, or even argument to support his claims that his mother learning of his whereabouts on October 26, 2011 is newly discovered evidence, or why the evidence could not have been discovered prior to trial.

Finally, Mr. Eads was able to present evidence and argument to the jury that he was not at his residence on October 26, 2011. Defendant's father, Harry Eads Jr., testified that while he didn't know the exact date, he did recall Mr. and Mrs. Eads were in Lafayette "moving out of the business", around October 26, 2011 and in Mr. Eads jail telephone calls that were played to the jury, Mr. Eads stated repeatedly, "on the 26th we were gone" and "you've got to say that on the 26th we weren't even there when they are saying all this stuff was done." The Court finds that such "alibi" evidence from Mr. Eads' mother, even if presented, would be cumulative and probably not change the outcome of the jury's verdict.

2. Other Grounds

Federal Rule of Criminal Procedure 33(b)(2) provides that a district court may vacate any judgment and grant a new trial if the interest of justice so requires.

A. Anti-anxiety medication affected Mr. Eads' ability to represent himself at trial.

Mr. Eads alleges that he was on medication during the trial which made him "drowsy and loopsy". During the trial, Mr. Eads did not inform the Court that his anxiety medication was affecting his ability to proceed as his own counsel. Mr. Eads has not tendered any evidence that he was, in fact, taking anxiety medication during the trial while he was acting as his own counsel. He has not set forth any concrete facts for this Court to consider such as the type of medication, the dosage, the doctor who prescribed it, nor does he explain why he failed to raise this issue regarding his competency prior to or during trial. Also, there were several times during trial when the Court asked Mr. Eads if he wished to have standby counsel take over for him and Mr. Eads declined each time.

The relevant factors to be considered in assessing the issue of competency are a defendant's "irrational behavior, his demeanor at trial and any prior medical opinion on competence to stand trial. There must be some manifestation, some conduct, on the defendant's part to trigger a reasonable doubt of his competency." Matheney v. Anderson 60 F.Supp.2d 846 (N.D.Ind., 1999). At no time did the Court observe Mr. Eads appearing disoriented, drowsy or "loopsy". In fact, Mr. Eads was alert and quite competent during the trial proceedings. Mr. Eads gave logical and persuasive opening and closing arguments, made appropriate objections during trial, and performed proper direct and cross-examination of witnesses. Mr. Eads has failed to meet his burden that a new trial is warranted due to his lack of competency.

B. Certain witnesses were not allowed to testify.

Mr. Eads proffers that several witnesses' testimony would have been critical to his case, however these witnesses were not allowed to testify. Specifically, Mr. Eads asserts that a witness named Lakeshia, from Child Protection Services ("CPS") would have testified that someone called the CPS office to report child pornography in his home; a police officer with Brownsburg would have testified to conflicting information about Nathan Asbury. Nathan Asbury was a "key witness in the case and the Government cannot find him" and Mrs. Eads would have testified that she had seen Nathan Asbury with child pornography on the computer.

Mr. Eads' arguments fail, primarily because as his own counsel, he could have called any of the witnesses. There is no evidence before the Court to support Mr. Eads' allegations that he was "not allowed" to call any of the witnesses complained of. In fact, on February 16, 2012, prior to his self-representation, Mr. Dazey filed an ex-parte motion for issuance of subpoenas (Dkt. 61) and the Court issued an Order (Dkt. 63) directing that subpoenas be issued to fourteen witnesses, including four Brownsburg, Indiana police officers and his wife, Rachael Smith Eads. Mr. Eads at no time requested the issuance of a subpoena to a CPS worker named Lakeshia. Mrs. Eads and the Brownsburg Police officers honored the Court's subpoenas and were present during the trial. Mr. Eads did, in fact, call the four police officers as witnesses to testify on his behalf. As for Mrs. Eads, Mr. Eads specifically indicated to the Court on the final day of trial that he had elected not to call her as a witness.

With respect to the witness Nathan Asbury, Mr. Asbury was listed as a witness on both the Government's and Mr. Eads' witness lists, and as such, Nathan Asbury was within the power of either party to produce. The information presented to the Court by both the Government and Mr. Eads was that Nathan Asbury had a warrant out for his arrest and his whereabouts were unknown. Mr. Eads did not request a continuance or waiver of his speedy trial (prior to the commencement of trial) so that he could have an opportunity to locate Nathan Asbury. In fact, Mr. Eads wanted to proceed with trial on the first setting and he received his request. He cannot now complain that the government could not find Nathan Asbury by the date of his speedy trial.

Finally, Mr. Eads has not shown how the testimony of any of the witnesses that he claims he was "not allowed" to call would have resulted in an acquittal.

C. Rachael Eads was threatened if she testified.

Mr. Eads alleges that his wife was threatened (presumably with prosecution for perjury and loss of her child) by the government agents and her own lawyer; however Mr. Eads' assertions lack foundation. Although someone who purports to be Rachael Eads mailed letters to the Court which state "When the police came in our house on November 15, 2011 with a search warrant, I lied to them because they were threatening me that CPS was coming to take my son and I was going to jail" (Dkt. 83 at 5) and another letter reads " I was named as a witness and my attorney said if I testify I would get up to sixty years to life and the cps will take my children away"(Dkt. 83 at 6), these letters are not verified; therefore the Court can give them little weight.

Mr. Eads cites United States v. Vavages, 151 F.3d 1185 (9th Cir.1998) to support his position that substantial government interference hampered Mrs. Eads' choice to testify. However, the facts in this case are clearly distinguishable from those in Vavages. At issue in Vavages was the prosecutor's language in having three to four face to face meetings with the witness' lawyer warning that the prosecutor did not believe the defendant's alibi defense, that the prosecutor could bring charges of perjury if the witness testified falsely, and that the prosecutor could withdraw from the plea agreement with the witness. During his trial, Mr. Eads did not request a hearing outside the presence to the jury to explore the issue of whether Mrs. Eads had been threatened. Mr. Eads presents no facts that the undersigned government counsel had the kind of communications with Mrs. Eads or her counsel that "coerced" Mrs. Eads off the stand. To the contrary, Mrs. Eads obeyed her subpoena and was present in the courthouse, available to be called to the witness stand each and every day of the trial.

Mrs. Eads and her attorney, Doneka Rucker-Brooks ("Ms. Brooks"), were present on day three and four of the trial, the dates when Mr. Eads presented his witnesses. On day three, Ms. Brooks addressed the issue of Mrs. Eads' testimony on the record:

On the final day of trial, Ms. Brooks indicated again, on the record, that Mrs. Eads was present and available to testify should Mr. Eads desire to call her to the witness stand. Again, Mr. Eads declined to call his wife as a witness. Ms. Brooks stated that Mrs. Eads was willing to testify, however counsel informed Mr. Eads that "she did not know" what Mrs. Eads "would say when she gets on the stand". A "defendant alleging substantial government interference with defense witness' choice to testify is required to demonstrate misconduct by a preponderance of the evidence". Ibid. Mr. Eads has failed to meet his burden. Here, there is no evidence that any government attorneys committed misconduct which resulted in Mr. Eads not calling his wife as a witness. Instead, Mr. Eads' decision to not call his wife as a witness appears to have been strategic, either because he did not know how his wife might testify or because of her delicate condition. During his closing argument, Mr. Eads informed the jury "I did not want my wife to get on the stand today and testify, because she's pregnant and I didn't want to take a chance of her. ..." There is no evidence to support Mr. Eads conclusory allegations that he did not present his wife as a witness because she had been threatened.

D. The jury should not have been allowed to view certain evidence.

Mr. Eads complains of several evidentiary violations as grounds for a new trial. However, evidentiary rulings by the trial court do not warrant a new trial unless the defendant can clearly demonstrate that the court abused its wide discretion. United States v West, 670 F.2d 675 682-8 (7th Cir.). Mr. Eads complains that his jail telephone calls were privileged communications made during the time he was acting as his own counsel; however the attorney-client privilege is not available to Mr. Eads because he is not a lawyer. See Moorehead v Lane, 125 F.R.D. 680, 686 (C.D. Illinois, 1989). He asserts the jury should not have been allowed to view the child pornography evidence, however, the child pornography was relevant to the Government meeting their burden of proof that the images located on Mr. Eads' computer were in fact child pornography. Mr. Eads opened the door himself to his prior conviction for theft; however, the Court gave a limiting instruction that the conviction is not relevant to any issue in this case. If Mr. Eads observed that the Government's witnesses violated the separation of witness order, he should have brought that fact to the attention of the Court. Evidence concerning a handgun was admitted for the limited purpose of identity and the jury was so instructed. And, the Court appropriately denied Mr. Eads' requests to continue the jury trial at the end of the third day of trial, so that he could speak with his wife. It was clearly within the Court's discretion to deny a continuance after the trial has begun. District courts have wide discretion to control their dockets by granting or denying continuances. U.S. v. Avery, 208 F.3d 597C.A.7 (Ind.), 2000. Further, Mr. Eads was not prejudiced by the Court's denial of his request for a continuance as he was able to speak with his wife that evening, prior to the last day of trial.

E. Stand-by counsel did not perform adequately.

Finally, Mr. Eads complains that standby counsel, Mr. Dazey, did not perform adequately when he informed Mr. Eads that his request to call a new witness in the middle of the trial was untimely and that Mr. Dazey failed to get him copies of the "jail calls so that he could play some during the trial". Mr. Dazey accurately informed Mr. Eads that there was not enough time to request a new witness to court in the middle of the trial. Even the defendant is bound by the court's discovery order. Further, the "new" witness was an officer with the Brownsburg Police Department and Mr. Eads had already subpoenaed and called as witnesses four officers from the Brownsburg Police Department.

Mr. Eads' self-representation began on February 17, 2012 and Mr. Eads himself could have made the request for copies of the jail telephone calls. Because Mr. Eads waived his right to counsel and exercised his right to self-representation, Mr. Dazey's participation in the trial was only as stand-by counsel. Mr. Eads cannot complain that Mr. Dazey failed to represent him effectively during the trial, because Mr. Eads fired Mr. Dazey as his attorney. A defendant is not entitled to relief for the ineffectiveness of standby counsel." See U.S. v Woodard, 2008 WL 513159 (N.D. Ind. 2008).

III. CONCLUSION

For the reasons stated herein, Mr. Eads has failed to meet his burden to show that a gross injustice would occur if he is not granted a new trial. Accordingly, Mr. Eads' Motion for New Trial (Dkts. 83-4, 87, 95 and 99) is DENIED.

SO ORDERED.