MARTHA VÁZQUEZ, District Judge.
The Court, having considered the Motion, briefs, relevant law, and being otherwise fully informed, finds that the Motion for a New Trial is well taken and will be
This case involves the takedown of a network of methamphetamine distributors and dealers centering on Jesus Amaya. By the time of trial, essentially all of the principals to Mr. Amaya's drug conspiracy had pled guilty. See, e.g., Doc. 104, J.C. Plea Hearing; Doc. 113, C.T. Plea Hearing; Doc. 148, J.A. Plea Hearing. The United States decided to proceed with the prosecution of the sole remaining defendant, Roberto Thomas, an alleged accomplice and occasional lookout for Juan Caballero, who was one of Mr. Amaya's couriers. The United States charged Mr. Thomas with knowingly possessing methamphetamine with the intent to distribute it. Doc. 201, Superseding Indictment. The United States also indicted Mr. Thomas as a participant in the mehtamphetamine conspiracy, but was forced to drop this charge based on a lack of evidence. See Doc. 214, Clerk's Minutes.
Prior to the prosecution and conviction of Mr. Amaya and his co-conspirators, the United States Drug Enforcement Administration ("DEA") had conducted an extensive investigation of Mr. Amaya's illegal business activities which included the use of a confidential informant. See generally Doc. 92, Opp. to Suppression Motion, at 1-2 (describing background investigation). Before the day of his arrest, Mr. Thomas had apparently never been implicated by the DEA investigation of Mr. Amaya and his illicit business. Trial of Roberto Thomas, April 20, 2016, at 2:56. Furthermore, one of Mr. Thomas's alleged co-conspirators explained under oath at a closed pre-trial proceeding that Mr. Thomas was not involved in the alleged conspiracy and had no knowledge of the drug transaction that occurred on the day of Mr. Thomas's arrest. See Doc. 206, Clerk's Minutes (documenting conference re potential Brady issue). Perhaps for this reason, counsel for the United States made the tactical decision not to present at trial any of the evidence it had obtained regarding events prior to the date of Mr. Thomas's arrest, including co-conspirator testimony and the results of the DEA investigation, and decided instead only to present evidence obtained from the events that occurred on the day of Mr. Thomas's arrest. Doc. 207, Order Re Hearsay, at 1-2 (summarizing the evidence the government represented to the Court that it did not intend to introduce).
Given the concern that the United States would perhaps inadvertently attempt to solicit testimony regarding the larger DEA investigation, Mr. Thomas moved in limine to limit the hearsay and speculative testimony of witnesses for the United States — essentially forcing the prosecution to commit to its apparent strategy. Doc. 190, MIL Re Hearsay; Doc. 191, MIL Re Speculation. Before trial, the United States presented its witness list, which indicated that the United States did not intend to present any co-conspirator testimony, confidential informant testimony, or other witnesses that could tie Mr. Thomas to the conspiracy. See Doc. 181, United States Witness List (listing only arresting and interrogating officers as witnesses). The United States' proposed exhibit list contained a mere four exhibits, all of which pertained to the events on the day of Mr. Thomas's arrest and none of which appeared to link Mr. Thomas to the alleged conspiracy. See Doc. 179, United States Exhibit List. Responding to Mr. Thomas's motions in limine, the United States fully admitted that it did not intend to introduce any evidence tying Mr. Thomas to the alleged conspiracy other than the fact that he was arrested on the same day at the same location as the co-conspirators. Doc. 192, Opp. to MIL Re Hearsay, at 3-7; see Doc. 207, Order Re Hearsay, at 1-2. Instead, the United States argued that any testimony regarding the investigation into the larger drug conspiracy, which did not appear to produce any evidence implicating Mr. Thomas, would not be offered "for the truth of the matter asserted" and would instead only be offered to contextualize "the progression of the investigation and surveillance[.]" Doc. 192, Opp. to MIL Re Hearsay, at 3-7.
The Court granted in part Mr. Thomas's motions and expressed concern regarding the prosecution's decision not to present any evidence that directly tied Mr. Thomas to Mr. Amaya's illegal methamphetamine business, including any evidence that Mr. Amaya or the other co-conspirators were even aware of Mr. Thomas's existence. See Doc. 207, Order Re Hearsay, at 1-7; Doc. 208, Order Re Speculation. The Court specifically cautioned the United States that "[b]ased on the government's representations, the Court will not address the admissibility of [testimony regarding Mr. Amaya's illegal methamphetamine business prior to the distribution of methamphetamine scheduled for the day of the arrest], but does caution the government that, should it decide at any point to introduce such testimony, it must first seek permission from the Court to do so." Doc. 207, Order Re Hearsay, at 1-2. The Court further excluded as testimonial hearsay in violation of the Confrontation Clause and the Federal Rules of Evidence any testimony that was not based on first-hand knowledge of the drug investigation and was instead premised on confidential informant testimony that would not be presented in Court. Doc. 207, Order Re Hearsay, at 1-9 (relying on extensive Tenth Circuit precedent).
Furthermore, relying on representations by the United States that arguments inferring guilt from Mr. Thomas's flight would not be elicited, the Court specifically declined to rule on whether the United States could rely on evidence of Mr. Thomas's flight from a vehicle on the day of his arrest to prove Mr. Thomas's mental state regarding the offenses charged. Doc. 208, Order Re Speculation, at 1-2 (declining to rule on the issue based on representations that the government would not attempt to argue that "`people typically don't flee' after vehicle accidents."). Again, the Court specifically declined to rule on the issue, stating that "[b]ased on the government's representations, the Court will not address the admissibility of [evidence inferring guilt from Mr. Thomas's flight], but does caution the government that, should it decide at any point to introduce such testimony, it must first seek permission from the Court to do so." Id.
The Court also ordered a telephonic status conference prior to trial to further understand the unusual decisions made by counsel for both parties regarding the decision not to present substantive evidence in support of the conspiracy charge, including co-conspirator testimony from the alleged co-conspirators that had pled guilty and were awaiting sentencing. See Doc. 206, Clerk's Minutes re Status Conference.
The evidence presented at trial was as follows:
Thomas was arrested on May 8, 2013 after fleeing from a car crash. Upon investigation of the crash, a DEA taskforce discovered a quantity of methamphetamine too large to be for personal use. Mr. Thomas was the passenger in the crashed vehicle and Mr. Caballero was the driver. After the arrest, Mr. Thomas was interrogated. Although Mr. Thomas allegedly confessed to being involved in some previous, unspecified marijuana transactions with Mr. Caballero, Mr. Thomas did not confess to any involvement in a drug transaction on the day of his arrest, any involvement in any specific transaction conducted by the conspiracy, or any transactions involving the substance that was the target of the DEA investigation. During Mr. Thomas's alleged confession, Mr. Thomas was not able to identify the substance that the conspiracy dealt in, methamphetamine, and Mr. Thomas had never been implicated in any DEA investigation before his arrest.
During the trial, witnesses for the United States repeatedly referred to the larger investigation into Jesus Amaya's illegal narcotics business despite the United States' decision not to lay the foundation for that testimony, present witnesses to speak about the larger investigation, present any physical evidence resulting from that larger investigation, or present evidence tying Mr. Thomas to Mr. Amaya's illegal narcotics business. Doc. 223, Partial Transcript of Proceedings, at 1-37 (extended hearing regarding evidence presented in violation of the Court's orders). Some of this testimony was directly solicited by counsel for the United States, while at other times this testimony was offered inadvertently by eager witnesses. Doc. 223, Partial Transcript of Proceedings, at 14 (ruling that the United States did elicit some of the unlawful testimony). This testimony violated the Court's orders in limine and the Federal Rules of Evidence and was erroneously admitted. Doc. 223, Partial Transcript of Proceedings, at 24. The first day of trial, counsel for Mr. Thomas at one point objected to the wrongly admitted testimony and was erroneously overruled by the Court. Doc. 223, Partial Transcript of Proceedings, at 25-27. Never was the Court approached to discuss any of this testimony before it was presented, even though the Court had specifically "caution[ed] the government that, should it decide at any point to introduce such testimony, it must first seek permission from the Court to do so." Doc. 207, Order Re Hearsay, at 1-2.
At the end of the first day of trial, the Court informed counsel that numerous violations of the Court's orders in limine had occurred and explained that the Court would hold a hearing on the matter the following morning to decide what to do about the violation. Doc. 223, Partial Transcript of Proceedings, at 1-7. The Court spent the night thoroughly reviewing the transcript from the earlier proceedings. Id.
The following morning, Mr. Thomas moved for a mistrial and the United States opposed the motion. Doc. 223, Partial Transcript of Proceedings, at 29. The Court allowed the parties to vigorously debate the mistrial motion in the Courtroom. Doc. 223, Partial Transcript of Proceedings, at 29-35. The Court also heard from counsel regarding the matter off the record. Against the Court's better judgment, the Court denied the mistrial motion and presented a limiting instruction to the jury. See Doc. 223, Partial Transcript of Proceedings, at 35-36; Doc. 212, Order Denying Mot. for Mistrial. Because the government's witness list indicated that it had no evidence to support the conspiracy charges, shortly after the Court denied the mistrial motion, the United States moved to dismiss, with prejudice, the conspiracy charge against Mr. Thomas, electing to only proceed on the charge of possession with the intent to distribute. See Doc. 223, Partial Transcript of Proceedings, at 34. The Court now believes that its failure to grant the mistrial motion was in error.
Subsequent to the Court's emergency hearing regarding its Order on hearsay issues on the second day of trial, the United States proceeded to its case in chief against Mr. Thomas. The United States presented evidence that the car in which Mr. Thomas was a passenger contained methamphetamine and that Mr. Thomas's flight from the car evinced a "guilty mind" on behalf of Mr. Thomas sufficient to establish the requisite mens rea for the possession with intent to distribute methamphetamine charge. See Doc. 221, Transcript of Proceedings, at 3-4, 15-16 (elaborating in closing argument the government's theory of the case). Mr. Thomas had moved in limine to exclude this mens rea testimony. Doc. 191, MIL Re Speculation. The Court never ruled on this evidence or closely examined the legal principles at issue relying on the representations by the United States that the theory would not be pursued. See Doc. 208, Order Re Speculation, at 1-2, 7 (summarizing the representation by the United States that it would not attempt to argue that "`people typically don't flee' after vehicle accidents."); Doc. 193, Opp. to MIL Re Speculation, at 4 (responding to Mr. Thomas's motion on that issue).
The United States' closing argument focused primarily on Agent Hella's allegedly remarkable pursuit and arrest of Mr. Thomas. The United States began its closing argument with "Two words: Why run?" and concluded its closing argument with "why did he run? Why did he continue to run?" Doc. 221, Transcript of Proceedings, at 3-4, 15-16. The Court specifically declined to rule on the permissibility of this line of argument because before trial the United States had represented to the Court that it would not proceed on this theory, stating multiple times that "the United States will not elicit this testimony in its direct examination of any of its witnesses." Doc.193, Opp. to MIL Re Speculation, at 4-5. The Court was never approached regarding this line of argument at any time, even though the Court had specifically "caution[ed] the government that, should it decide at any point to introduce such testimony, it must first seek permission from the Court to do so." Id. at 1-2.
Contrary to the United States' previous representations to the Court, the central point in the United States' closing argument was that the jury should infer, beyond a reasonable doubt, that Mr. Thomas was running from Agent Hella because he knew that he was about to be arrested for knowingly possessing methamphetamine with the intent to distribute it and was therefore guilty of the same offense. E.g., Doc. 221, Transcript of Proceedings, at 3, 7, 14-16 ("The occupants of the vehicle, do they decide to stick around and say, `Hey, you bumped into me, buddy, let's exchange insurance. Kind of a little accident, sorry about the fender bender. I have Geico, you have Nationwide, let's' — no."). The United States pursued this argument despite the Courts previous concerns regarding the inferential leaps the United States was asking the jury to take and after representing to the Court before trial that it would not attempt to argue that "`people typically don't flee' after vehicle accidents." Doc. 208, Order Re Speculation, at 1-2, 7. The Court specifically did not address in limine Mr. Thomas's arguments regarding the testimony on which the government's closing argument was based because it relied on the United States' representation that the point would not be argued. Id.
The United States also presented a rebuttal to Mr. Thomas's closing that focused on Mr. Thomas's failure to make exculpatory statements to law enforcement that would explain his conduct:
Doc. 221, Transcript of Proceedings, at 39-40.
Although some of these statements were the subject of Mr. Thomas's motions in limine, including the post-arrest statements of Mr. Thomas, the hearsay statements of the United States' witnesses, and the statements made regarding Mr, Thomas's motive for flight, Mr. Thomas never objected to the statements made in the prosecution's closing. Compare, Doc. 190, MIL re Hearsay and Doc. 191, MIL re Speculation, with Doc. 221, Transcript of Proceedings. Mr. Thomas also never objected in trial — rather than in limine — to the vast majority of the evidence admitted in violation of the Court's orders in limine and contrary to the previous representations by the United States. Doc. 223, Partial Transcript of Proceeding, at 28 (counsel for Mr. Thomas stating that he "had a very difficult drive home last night [because of his failures to timely object]"); see Doc. 222, Mot. for New Trial, at 3 (asserting counsel's failure to object as grounds for a new trial). Instead, counsel for Mr. Thomas presented a series of rote cross-examinations regarding the inconsistencies in various witnesses' testimonies and the failure on behalf of the United States to document the one piece of direct evidence the government presented — Mr. Thomas's vague and internally inconsistent interrogation by an otherwise uninvolved police officer. Counsel for Mr. Thomas then presented a highly technical closing argument about the weaknesses in the government's case. Doc. 221, Transcript of Proceedings, at 17-33.
Federal Rule of Criminal Procedure 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." FED. R. CRIM. P. 33(a).
There are three different ways a defendant may assert a Rule 33 challenge: (1) a challenge to the verdict as against the weight of the evidence; (2) a challenge to the conviction for trial error or pretrial error; or (3) a challenge to the verdict based on newly discovered evidence. FEDERAL PRACTICE AND PROCEDURE at § 24.11(b). The same "interest of justice" standard applies to all three theories. FED. R. CRIM. P. 33 ("the court may vacate any judgment and grant a new trial if the interest of justice so requires.") However, Rule 33 "does not define `interests of justice' and the courts have had little success in trying to generalize its meaning." United States v. Green, 2012 WL 12023805, at *3 (D.N.M. Feb. 14, 2012) (citations omitted). While the Eleventh Circuit has stated, "the interest of justice standard is broad enough to cover circumstances where the alleged defect does not constitute a reversible error[,]" United States v. Vicaria, 12 F.3d 195, 198-99 (11th Cir. 1994), the Court considers here only error that it believes would warrant reversal on appeal. Cf. United States v. Walters, 89 F.Supp.2d 1206, 1213 (D. Kan. 2000) ("for purposes of this case, the relevant rule is that a new trial should be granted upon any error of sufficient magnitude to require reversal on appeal.") (quotations omitted), aff'd, 28 F. App'x 902 (10th Cir. 2001).
While the standard elaborated by the Tenth Circuit imbues the trial court with significant discretion, it is well established that a "motion for a new trial is not regarded with favor and should only be granted with great caution." United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997). Although appellate courts have cautioned trial courts against granting a Rule 33 motion, the Court is also aware of the dangers of being too cautious, and appellate courts across the United States have noted that trial courts "should grant a new trial whenever the interest of justice requires it." United States v. Munoz, 605 F.3d 359, 374 (6th Cir. 2010); United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) ("When the concern rises to the level of the belief that somebody innocent has been convicted, the trial court should grant a motion for a new trial."); United States v. Warren, 593 F.3d 540, 544-545 (7th Cir. 2010) (same); United States v. Scroggins, 379 F.3d 233 (5th Cir. 2004) (district court may grant new trial in the interest of justice even if it does not find that a specific legal error occurred at trial), vacated on other grounds, 543 U.S. 1112 (2005).
Here, Mr. Thomas has asserted 11 different "grounds" for granting a Rule 33 motion without explaining on which prong of Rule 33 any of his challenges rest. Doc. 222, Mot. for New Trial, at 1-3.
In ruling on a Rule 33 motion, courts have determined that any error sufficient to require a reversal on appeal is an adequate ground for granting a new trial. FEDERAL PRACTICE AND PROCEDURE at § 589; see e.g., United States v. Walters, 89 F.Supp.2d 1206, 1213 (D. Kan. 2000), aff'd, 28 F. App'x 902 (10th Cir. 2001); but see United States v. Scroggins, 379 F.3d 233 (5th Cir. 2004) (applying a more discretionary standard), vacated on other grounds, 543 U.S. 1112 (2005); Vicaria, 12 F.3d at 198-99 (same). In determining whether errors are sufficient to warrant reversal on appeal, the Court is bound by various rules that typically govern appellate review. For example, the Court may not order a new trial for "harmless error." United States v. Jones, 818 F.3d 1091, 1101 (10th Cir. 2016) (elaborating the "harmless error" standard); Valencia, 600 F.3d at 429-30 (applying the harmless error standard to a motion for a new trial). Additionally, multiple errors that may be "harmless" on their own may, under the "cumulative error" doctrine, be considered sufficient to warrant a new trial. See United States v. Barrett, 496 F.3d 1079, 1121 (10th Cir. 2007). In Barrett, the Tenth Circuit explained that even if errors are individually harmless, in reviewing errors, a court must "consider whether the defendant's substantial rights were affected by the cumulative effect of the harmless errors." Id.
In making a determination under Rule 33, the Court must "balance the alleged errors against the record as a whole and evaluate the fairness of the trial." United States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988). As courts within the Tenth Circuit have explained, "the decision whether to grant a motion for new trial is committed to the sound discretion of the trial court." United States v. Daniels, 188 F.Supp.2d 1309, 1311 (D. Kan. 2002); United States v. Mann, 982 F.Supp.2d 1251, 1259 (D.N.M. 2013).
Several of the "grounds" in Mr. Thomas's Rule 33 motion challenge the weight of the evidence supporting his conviction. See Doc. 222, Mot. for New Trial, at 1-3. In making a ruling regarding the weight of the evidence, the Supreme Court has acknowledged that trial courts have broad discretion and are free to assess a witness's credibility and make other evidentiary determinations. Tibbs v. Florida, 475 U.S. 31, 37-38 & 38 n.12 (1982). The Tenth Circuit has further stated that when "deciding a motion for new trial, the [trial] court may weigh the evidence and consider the credibility of witnesses in determining whether the verdict is contrary to the weight of the evidence such that a miscarriage of justice may have occurred." United States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994).
Under Rule 33, in contrast to Rule 29, the Court need not view all the evidence in the light most favorable to the government, and may instead weigh the evidence in a manner that more accurately describes the proceedings. Tibbs, 457 U.S. at 37; United States v. Bell, 584 F.3d 478, 483 (2d Cir. 2009) (holding that a court's discretion to grant a new trial based on a Rule 33 motion is broader than when the motion is filed under Rule 29). The distinction between the inferences the Court is required to draw in favor of the prosecution under the different standards is explained by the Supreme Court in Tibbs v. Florida. 457 U.S. 31 (1982). There, the Supreme Court explained the difference between rulings based on the weight of the evidence and rulings based on the sufficiency of the evidence, stating:
Tibbs v. Florida, 457 U.S. 31, 37-38 (1982) (quotations omitted). Because the Court is allowed under Rule 33 to weigh the evidence accurately and without mandatory inferences in favor of the prosecution, "the trial court has the authority to grant the defense a second opportunity where that court concludes that, despite the abstract sufficiency of the evidence, the conviction is against the weight of the evidence." FEDERAL PRACTICE AND PROCEDURE at § 24.6(d). Appellate courts provide special deference to a trial court's weighing of the evidence under Rule 33. E.g., United States v. Kellington, 217 F.3d 1084, 1101 (9th Cir. 2000) ("Indeed, we owe special deference to the district court's evaluation of the testimony at trial . . . in its conclusion that the evidence preponderates sufficiently heavily against the verdict to merit re-trial."); see United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000) (affording special deference to a trial court weighing evidence under Rule 29).
Here, the heavy weight of the evidence, perhaps better stated as the remarkable absence of evidence, mitigates in favor of granting the Rule 33 motion. The United States in this case chose to prosecute Mr. Thomas through inference. The central theme in counsel's closing argument was that Mr. Thomas's flight from Agent Hella was evidence of a "guilty mind" and that Mr. Thomas's failure to offer reasonably exculpatory statements further highlighted his criminality regarding the offense charged. At an evidentiary hearing almost one year before the trial in this case, the Court warned counsel that "it does not find this [foot chase] remarkable or suspicious[.]" See, e.g., Doc. 134, Order on Suppression, at 4-5, reconsidered on other grounds, Doc. 169. The Court is not persuaded to change its evaluation of the evidence after being presented with it a second time at trial.
The main piece of evidence offered by the United States that the Court determines could have foreseeably indicated Mr. Thomas's guilt regarding the specific offense charged is Mr. Thomas's purported confession. As a general matter, confessions that result from police interrogation are best regarded with suspicion given the motivation of the interrogating officer, the relative powerlessness of an arrestee — particularly one not represented by counsel at the time of the interrogation, the recent trauma of the arrest on the arrestee, and a guilty arrestee's obvious motive to lie. United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997) (elaborating various non-exclusive factors that might undermine the value of confessions resulting from police interrogation), abrogated on other grounds by Corley v. United States, 129 S.Ct. 1558 (2009); see 10th Cir. Pattern Jury Instruction §§ 1.25-1.26. As U.C. Irvine criminology Professor Richard Leo and Berkeley Sociology Professor Richard Olfshe have exhaustively cataloged, the methods used by interrogating officers to obtain confessions, combined with the disproportionate weight those confessions are given by the jury, makes convictions based primarily on confession and uncorroborated by other direct evidence particularly problematic. Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429, 429-35 (1998).
Here, Officer Davis stated that Mr. Thomas allegedly "confessed" to Officer Davis during police interrogation that he sometimes received money "off the books" from Mr. Caballero by acting as a lookout and that he believed that Mr. Caballero was a dealer of narcotics, potentially marijuana. Trial of Roberto Thomas, April 21, 2016, at 2:53-55 pm; 3:16 pm (summarizing the results of the interrogation and mentioning a belief by Mr. Thomas that Mr. Caballero was a marijuana dealer). Officer Davis appeared eager to assist the prosecution with his testimony and was able to recall on the stand damaging statements by Mr. Thomas that had gone completely unrecorded in the reports of the so-called "confession" during and after the interrogation and which Officer Davis had never mentioned in any of his prior testimony in this case. Compare id. at 2:54-56, 3:11, with doc. 125, Tr. of Suppress. Hearing, at 145-65. Even with the enhanced powers of recollection that Officer Davis displayed at trial, Officer Davis was ultimately unable to state whether Mr. Thomas mentioned any knowledge of the drug transaction for which he was on trial, and the interrogation produced no evidence of knowledge on behalf of Mr. Thomas of any particular drug transaction within the scope of the charged conspiracy. See, e.g., Trial of Roberto Thomas, April 21, 2016, at 3:13 pm; cf. Doc. 201, Superseding Indictment (alleging a conspiracy to distribute methamphetamine and not marijuana). Given the statements attributed to Mr. Thomas and labeled as a "confession" before the jury appear not to indicate that Mr. Thomas was involved in the crime with which he was charged, the Court is unwilling and unable to infer from Officer Davis's statements that Mr. Thomas in fact "confessed" to Officer Davis.
The Court notes that the interrogation in this case is entitled to less weight than a normal interrogation because it appears that at the time of the interrogation Officer Davis was essentially unfamiliar with the facts of the case and made no memorialization of the interrogation until several days after the interrogation occurred — at which point the record of the interrogation was revised by someone familiar with the case but not present at the interrogation. Trial of Roberto Thomas, April 21, 2016, at 2:55-56. At trial, Officer Davis said that before the interrogation he did not know why Mr. Thomas was arrested but that he "knew it was drug related" and that he "just conducted the interview." Trial of Roberto Thomas, April 21, 2016, at 2:55. As Stanford University Professor Jennifer Eberhardt and her colleagues have identified, priming police officers with crime-related stimuli causes them to erroneously associate individuals with criminality and causes errors in perceptual memory. Jennifer L. Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing, 87 J. PERSONALITY & SOC. PSYCHOL. 876, 885-88 (2004) (reporting the results of a "crime-prime" on police misidentification). Although not detailed by Dr. Eberhardt, it is likely that these errors are compounded when police officers are relatively unfamiliar with the individual in question, and contemporary scientists have exhaustively detailed how these errors in perceptual memory would cause witnesses to inject associative biases into their recollection. See, e.g., DANIEL KAHNEMAN, THINKING, FAST AND SLOW 216 (2011) (explaining that people remember facts that confirm their biases and disregard facts that contradict them); ALBERT BANDURA, SOCIAL FOUNDATIONS OF THOUGHT AND ACTION 223 (1986) (same). These failures of memory would undoubtedly influence a witness's testimony in favor of their biases. PHILIP G. ZIMBARDO & MICHAEL R. LEIPPE, THE PSYCHOLOGY OF ATTITUDE CHANGE AND SOCIAL INFLUENCE 162-63 (1991) ("But despite all good intentions to `let the facts speak for themselves,' biases based on our existing attitudes can sneak into our perception and interpretation of the `facts.' What we notice in a message, how we interpret ambiguous message information, and which beliefs and knowledge are conjured from memory during the cognitive response process are all affected in subtle ways by one's existing point of view.").
As previously stated, Officer Davis appeared eager to assist the prosecution's case and in at least one instance suddenly remembered on the stand incriminating testimony by Mr. Thomas that was not documented in the original memorialization of the interrogation on in Officer Davis's previous testimony before this Court. In particular, Officer Davis was able to recall on the stand that Mr. Thomas admitted that Mr. Caballero placed a brown paper bag (which was later found to contain methamphetamine) into Mr. Thomas's control moments before the arrest. This is the only evidence the prosecution ever presented that Mr. Thomas "possessed" the substance at issue in this case. However, this critical statement was never documented in the police report made of Mr. Thomas's interrogation and Officer Davis had never mentioned this statement in any of his prior testimony in this case. Compare id. at 2:54-56, 3:11 (Officer Davis remembering these facts and being cross-examined on them), with doc. 125, Tr. of Suppress. Hearing, at 145-65 (omitting these facts). Consequently, this Court is further inclined to discount the value of an alleged confession by Mr. Thomas that went unmemorialized for several days (or years) and was subsequently revised.
As a result of the above factual findings, the Court concludes that the heavy weight of the evidence at trial favored acquittal rather than conviction.
Regarding the conspiracy charges, the Court is aware that the prosecution possessed evidence of Mr. Thomas's innocence that was not presented by either party at trial, particularly at least one statement of which the Court is aware whereby Mr. Thomas's alleged co-conspirator stated under oath that Mr. Thomas was not involved in the alleged conspiracy. The fact that the prosecution was aware of this statement no doubt influenced its decision not to call Mr. Thomas's alleged co-conspirators
Regarding the possession charge, the United States' only piece of direct evidence presented is Mr. Thomas's alleged confession that he had previously assisted Mr. Caballero "off the books" to sell marijuana. This "confession" does not prove that Mr. Thomas was involved in the large-scale possession and distribution methamphetamine that was the target of the DEA investigation in this case.
Overall, the Court remains concerned that the United States chose to proceed to trial on a conspiracy charge yet presented no direct evidence linking Mr. Thomas to that conspiracy and possessed evidence that Mr. Thomas was not involved in the conspiracy. The Court is further concerned that the United States proceeded to trial on a possession charge for which it could present essentially no direct evidence. Instead, contrary to the United States' pre-trial representations to this Court, the government chose to focus its evidentiary presentation on the flight of Mr. Thomas from Agent Hella and Mr. Thomas's subsequent arrest.
In United States v. Robertson, a case much stronger than the one presented by the United States here, the Fifth Circuit rejected the government's challenge to a trial court's ruling granting a new trial when the government provided primarily circumstantial evidence linking a defendant to a particular drug transaction. 110 F.3d 1113 (5th Cir. 1997). In Robertson, the Fifth Circuit held that the district court did not abuse its discretion in granting new trial on drug charges where the only evidence of the defendant's involvement in a drug transaction was: (1) his presence at a restaurant table with participants in the conspiracy; (2) the fact that his name was mentioned on surveillance tapes in conspicuous manner that were obtained during an investigation into the conspiracy; (3) that he was observed with participants in the conspiracy engaging in counter-surveillance activities; and (4) that when he was detained and told of the participants' arrest he showed signs of nervousness. Robertson, 110 F.3d at 1115-20. The trial court in Robertson summarized its evidentiary findings by stating that the government relied on essentially three pieces of circumstantial evidence in its case: (1) the defendant appeared at numerous locations with the co-conspirators; (2) the co-conspirators were using the defendant's vehicle to get to those various locations; and (3) the defendant acted at the time of his arrest in a manner that indicated guilt. Robertson, 110 F.3d at 1118 n.10.
The Fifth Circuit summarized its ruling rejecting the government's appeal as follows:
Robertson, 110 F.3d at 1117-18. The Court reaches the same conclusion here. Because the evidence presented at trial heavily indicated that the government failed to carry its burden of proof beyond a reasonable doubt, the Court rules that Mr. Thomas's Rule 33 motion is GRANTED.
In addition to moving under Rule 33 based on the weight of the evidence presented, Mr. Thomas has also moved for a new trial based on various trial errors, including error by the prosecution, errors by the defense, and errors by the Court. See Doc. 222, Mot. for New Trial, at 1-3.
In assessing prosecutorial conduct, the United States Supreme Court explains that counsel for the United States, because of their role as a public officer and civil servant, must be held to the highest of professional standards.
Berger v. United States, 295 U.S. 78, 88 (1935); United States v. Gabaldon, 91 F.3d 91, 94-95 (10th Cir. 1996) (quoting same). The Tenth Circuit has reprimanded prosecutors for a "willingness to unnecessarily push the envelope" of what is permissible at trial. United States v. Broomfield, 201 F.3d 1270, 1276 (10th Cir. 2000). Courts have held that prosecutorial errors warrant a new trial under Rule 33 where the prosecutor's conduct "prejudicially affected the substantial rights of the defendant." United States v. Wall, 389 F.3d 457, 474 (5th Cir. 2004).
The decision whether to grant a defendant's motion for new trial based on prosecutorial error is committed to the discretion of the district court. See United States v. Gordon, 173 F.3d 761, 769 (10th Cir.1999) (citing Gabaldon, 91 F.3d at 94). Courts "engage in a two-step process in reviewing claims of prosecutorial misconduct. First, we determine if the conduct was improper. Second, we determine if any improper conduct warrants [a new trial]." Gordon, 173 F.3d at 769; United States v. Taylor, 514 F.3d 1092, 1104 (10th Cir. 2008). Factors to be considered in determining whether a new trial is warranted include: "(1) the magnitude of the prejudicial effect [of the errors]; (2) the efficacy of any cautionary instructions; and (3) the strength of the evidence of defendant's guilt." Wall, 389 F.3d at 474. In determining whether the errors affected the outcome of a trial, courts consider "the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within the case as a whole." United States v. Lonedog, 929 F.2d 568, 572 (10th Cir. 1991) (quoting United States v. Martinez-Nava, 838 F.2d 411, 416 (10th Cir.1988)). Granting a new trial is necessary if the improper conduct influenced the verdict. United States v. Alexander, 849 F.2d 1293, 1296 (10th Cir.1988). Examples of prosecutorial errors sufficient to warrant a new trial under Rule 33 include instances where a prosecutor makes an assertion to the jury of a fact unless there is evidence of that fact, misstates the law in closing argument, or draws attention to the defendant's decision to remain silent. FEDERAL PRACTICE AND PROCEDURE at § 588. However, even egregious errors by a prosecutor will not support a ruling in favor of a new trial if the prosecutor's remarks were not prejudicial or if, in the light of all the evidence, they can be regarded as harmless error. See Lonedog, 929 F.2d 568.
Here, Mr. Thomas asserts that the United States has made a series of improper arguments throughout the trial that impermissibly prejudiced the jury in favor of the government. Doc. 222, Mot. for New Trial, at 1-3.
At the outset, the Court notes that not all misstatements by the prosecution provide a basis for granting a Rule 33 motion. For example, in U.S. v. Carleo, the Tenth Circuit held that the unsanctioned remarks from the prosecution framed in the first-person singular were best characterized as a "mannerism" regarding what transpired in the courtroom and should not be construed in a manner that constituted prosecutorial error. 576 F.2d 846, 851-52 & 851 n.1 (10th Cir. 1978). As a result, the trial court did not abuse its discretion in denying a Rule 33 motion. Id. at 852. Similarly, in Devine v. United States, the Tenth Circuit held that off-the-cuff remarks belittling the arguments of the opposing counsel were deplorable and beyond the scope of legitimate argument, but not sufficient to reverse a district court's determination that the remarks did not constitute prosecutorial error despite the heightened ethical burdens placed on a public prosecutor. 403 F.2d 93, 96 (10th Cir. 1968); see also United States v. Brewer, 630 F.2d 795, 803 (10th Cir. 1980) (allowing a prosecutor latitude in characterizing the defendant's arguments); United States v. Gilbert, 447 F.2d 883 (10th Cir. 1971) (affirming a judgment allowing the prosecution special latitude in presenting arguments that go beyond the evidence presented at trial).
However, in instances of prosecutorial conduct substantially similar to the present case, the Tenth Circuit has reversed district court judges for failing to grant motions for post-trial relief. For example, in United States v. Novak, the Tenth Circuit held that when a prosecutor relied on hearsay testimony from a confidential informant and sought an inference by the jury that the defendant was a distributor of cocaine based on inadequate evidence, it was an abuse of discretion for a court not to order a mistrial. United States v. Novak, 918 F.2d 107, 108-11 (10th Cir. 1990). In Novak, the Tenth Circuit held that a prosecutor wrongly introduced hearsay testimony that assertedly "established the basis for the D.E.A.'s investigation [into a drug conspiracy, but actually] . . . far exceeded the government's asserted purpose . . . [and] cannot be equated with `routine testimony' used by police officers to establish why they commenced an investigation." Id. at 109. Moreover, the government presented improper circumstantial evidence of the defendant's guilt and was clearly aware of the problems with that evidence because of pretrial representations the government had made to counsel and the court. Id. at 110 ("The government's stipulation . . . had been given pretrial consideration."). The Tenth Circuit held that the errors committed by the prosecution in Novak were particularly problematic because it helped the government obtain a conviction based on otherwise circumstantial evidence:
Id. at 111. As the Tenth Circuit ultimately held, because of the improperly presented evidence and "in light of the completely circumstantial nature of the government's case," the government's contention that the evidence proved beyond a reasonable doubt that the defendant possessed cocaine with the intent to distribute it was "simply untenable." Id. at 111.
The case at bar proceeded much the way Novak did. The Court spent considerable time before trial reviewing the evidence the parties intended to present, including their arguments in their motions in limine. The Court issued orders in limine and held a special status conference to discuss evidentiary issues, including the lack of admissible evidence to support the conspiracy charge in this case. Doc. 206, Clerk's Minutes re Status Conference; Doc. 207, Order Re Hearsay; Doc. 208, Order Re Speculation. The Court was particularly concerned by the apparently circumstantial nature of the government's case and the government's decision not to present testimony, including testimony from a confidential informant, which would link Mr. Thomas to Mr. Amaya's drug distribution network or a particular drug transaction. See Doc. 206, Clerk's Minutes re Status Conference. The Court specifically declined to review particular evidentiary matters before trial based on representations by the United States that it would not get into them. Doc. 207, Order Re Hearsay; Doc. 208, Order Re Speculation, at 1-2 (declining to rule on the issue based on representations that the government would not attempt to argue that "`people typically don't flee' after vehicle accidents."). At trial, the United States elicited considerable hearsay testimony regarding the larger drug conspiracy and the particular transaction with which Mr. Thomas was allegedly tangentially involved. Doc. 223, Partial Transcript of Proceedings, at 1-37. The United States then proceeded to focus their case on Mr. Thomas's flight from Agent Hella. Doc. 221, Transcript of Proceedings, at 3-4, 7, 14-16. Based on the pretrial representations made by the United States, the Court and defense counsel were led to believe that this would not be a part of the government's case. The Court had further informed the United States that "it does not find [Mr. Thomas's flight] remarkable or suspicious," despite it being the apparent centerpiece of the prosecution's case. Doc. 207, Order Re Hearsay, at 1-7; Doc. 208, Order Re Speculation, at 1-2; Doc. 134, Order on Suppression, at 3-5, reconsidered on other grounds, Doc. 169.
With many of the above violations, the Court had specifically declined to address the objections in limine made by Mr. Thomas based on the United States' representations that it would not get into the matters that, in fact, formed the backbone of the United States' case. Doc. 207, Order Re Hearsay, at 1-2; Doc. 208, Order Re Speculation, at 1-2. Furthermore, the Court provided specifically that if the United States were to attempt to get into such matters, "it must first seek permission from the Court to do so." Id. No such permission was ever sought from the Court.
As the Tenth Circuit held in Novak, when the United States presents evidence in conflict with pre-trial representations and with known hearsay problems and then proceeds to try a case relying heavily on circumstantial evidence, denying a motion for post-trial relief constitutes reversible error. Novak, 918 F.2d 107, 111 (10th Cir. 1990); see also United States v. Walters, 28 F. App'x 902, 908-10 (10th Cir. 2001) (failing to abide by a court's order in limine and improperly eliciting witness testimony may form the basis for granting a motion for a new trial).
The Tenth Circuit also found reversible error warranting a retrial in another similar case involving the alleged sale of narcotics. United States v. Rios, 611 F.2d 1335 (10th Cir. 1979). In United States v. Rios, the Tenth Circuit noted that the trial court inexplicably allowed substantial hearsay testimony without a satisfactory limiting instruction. Id. at 1340-41. The Tenth Circuit further found that it was prejudicial error to allow a prosecutor, in closing argument, to rely heavily on inferences that were not substantiated through direct evidence. Id. at 1342-43. The Tenth Circuit ultimately ruled that these errors, when considered together, warranted a retrial. Rios, 611 F.2d at 1341.
Similarly, in United States v. Cass, the Tenth Circuit strongly rebuked the United States for relying extensively on hearsay testimony to prove its case in chief relying on the "background investigation" exception used by the United States here. 127 F.3d 1218, 1222-25 (10th Cir. 1997). In contrast to Rios, Tenth Circuit held in Cass that the improper solicitation of hearsay evidence by the United States was not "plain error," but only because "[e]ven without the hearsay testimony the government put on a very strong case." Cass, 127 F.3d at 1225 (10th Cir. 1997). As explained in the preceding Section, the United States' case against Mr. Thomas was exceptionally weak.
Based on the cumulative effect of the above mentioned errors, as well as the errors further described below, Mr. Thomas's motion for a new trial is GRANTED. Because the Court's ruling is based on the cumulative effect of all of these errors, the Court need not make a ruling about whether any particular error in this case rises to the level of "prosecutorial misconduct" and specifically abstains from doing so at this time.
According to Mr. Thomas, the most problematic of the alleged errors by the prosecution are the statements made by the prosecution in its closing argument regarding Mr. Thomas's failure to offer exculpatory testimony. See Doc. 222, Mot. for New Trial at 3 ¶ 9, 4-8; see generally Doc. 224, Opp. to Mot. for New Trial. Indeed, statements made by the prosecution in its closing argument may be the basis for a motion for a new trial. Walters, 28 F. App'x at 908-10. The Tenth Circuit has held that statements by the prosecution implicating a defendant's right to remain silent by highlighting the defendant's failure to make exculpatory statements at the time of arrest is an error "so plain, fundamental and serious" that it may require the reversal of conviction "although timely objection was not made thereto in the trial court." United States v. Nolan, 416 F.2d 588 (10th Cir. 1969).
The United States contends that while as a general rule an inference of guilt may not be drawn from a defendant's post-arrest silence, that rule only applies as long as a defendant has been Mirandized. Doc. 224, Opp. to Mot. for New Trial, at 5-6. The United States relies on the following cases from the Fifth, Eighth, and Eleventh Circuit for this proposition: United States v. Osuna-Zepeda, 416 F.3d 838, 844 (8th Cir. 2005) and United States v. Frazier, 408, F.3d 1102 (2005), which the United States asserts stand for the proposition that there can be no prosecutorial error when referring to pre-Miranda silence when "there was no governmental action . . . inducing his silence"; and United States v. O'Keefe, 461 F.3d 1338, 1347 (11th Cir. 2006) and United States v. Salinas, 480 F.3d 750, 757 (5th Cir. 2007), which the United States asserts stands for the proposition that no violation of the Fifth Amendment can occur until after an arrestee has been Mirandized. Doc. 224, Opp. to Mot. for New Trial, at 5-6. Mr. Thomas argues that the United States misinterprets the law in this area and that: "Contrary to the United States' argument, Jenkins v. Anderson, 447 U.S. 231 (1980) did not decide that post-arrest, pre-Miranda silence was proper for use to impeach a non-testifying defendant." Doc. 226, Reply ISO Mot. for New Trial, at 4-5 (citing Carter v. Ward, 347, F.3d 860, 863-64 (10th Cir. 2003)). Mr. Thomas further argues that the majority of the circuit courts to address the issue have ruled against the use of post-arrest, pre-Miranda silence as indication of a defendant's guilt. Doc. 226, Reply ISO Mot. for New Trial, at 4-5 (citing United States v. Velarde-Gomez, 269 F.3d 1023, 1028-30 (9th Cir. 2001) (en banc); United States v. Moore, 104 F.3d 377, 384-90 (D.C. Cir. 1997); United States v. Hernandez, 948 F.2d 316 (7th Cir. 1991); United States v. Salinas, 480 F.3d 750 (5th Cir. 2007); Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000); and Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989)).
Mr. Thomas is right that this is a question of law that has not been decided by the Supreme Court — although it was recently raised before the Court in Salinas v. Texas, 133 S.Ct. 2174 (2013). The general rule in the Miranda context is that, when faced with government coercion, a criminal defendant need not invoke the protections of the Fifth Amendment in order to benefit from the Fifth Amendment's protection. Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966) ("In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation."). In Salinas, the Supreme Court considered, but was ultimately unable to decide, whether this general rule applied to a criminal defendant's post-arrest, pre-Miranda silence. Instead, the Justices split 3-2-4 and affirmed the Texas state court without a majority ruling on any controlling principle of law. See generally Salinas v. Texas, 133 S.Ct. 2174 (2013); LAFAVE, ISRAEL, KING & KERR, CRIMINAL PROCEDURE § 9.6(a) (4th ed. 2015) (addressing various unresolved issues raised by the Salinas opinion). Justice Alito, writing for Chief Justice Roberts, Justice Kennedy, and himself, reasoned that because Mr. Salinas had voluntarily followed the police to the police station, submitted to a police interview, and answered the vast majority of the interviewing officer's questions, "[t]hat place[d] petitioner's situation outside the scope of Miranda[.]" Salinas, 113 S.Ct. at 2180 (plurality opinion). At the point that Mr. Salinas decided to remain silent, no arrest had occurred and Mr. Salinas "was free to leave at any time during the interview." Id. (citation omitted). Because Mr. Salinas was not in police custody, had voluntarily agreed to an interview, had already answered the vast majority of the police's questions, and continued to answer the police's questions after remaining silent in response to one question, Justice Alito concluded that the Fifth Amendment did not apply in Mr. Salinas's case. Id.
In contrast to the three-Justice plurality opinion authored by Justice Alito, Justice Thomas, writing on behalf of himself and Justice Scalia, preferred to affirm the decision of the Texas state court because, according to the two-Justice concurring opinion, there is no Fifth Amendment rule that "prohibits a prosecutor or a judge from commenting on a defendant's failure to testify." Id. at 2184 (Thomas, J., concurring). In further contrast, Justice Breyer, writing on behalf of Justices Sotomayor, Ginsburg, Kagan, and himself, preferred to reverse the Texas state court because as a general matter the Fifth Amendment "prohibits the prosecution from commenting on the [defendant's] silence in response to police questioning." Id. at 2185 (Breyer, J., dissenting). According to the four-Justice dissenting opinion, Mr. Salinas's Fifth Amendment rights were implicated by the police questioning because Mr. Salinas would have been "inherent[ly] penalize[ed] simply by answering." Id. at 2189.
In this case, the reasoning in Salinas the Court finds most persuasive is the plurality opinion of Justice Alito: when an individual who is not in police custody voluntarily speaks at length to the police but then refuses to answer a specific question regarding her guilt, this may in limited circumstances support an inference of her guilt by the jury. See Salinas, 113 S.Ct. at 2180 (plurality opinion). However, these circumstances are not present in this case. Mr. Thomas was forcibly detained by the police after being rammed by an unmarked police vehicle and then chased by undercover officers wielding automatic weapons. Therefore, unlike Salinas, it is clear that Mr. Thomas "was [not] free to leave at any time" and that any interrogation coercively implicated Mr. Thomas's Fifth Amendment rights. See id. Ultimately, because the Supreme Court failed to reach a majority opinion in the Salinas case and because the current Supreme Court would more likely than not reach a ruling different from that articulated by Justice Alito,
Although the Court chooses not to rule on the issue here, the Court notes that, were the Tenth Circuit to require the Court to address the issue on remand, the Court would find the prosecution's arguments in this case impermissible because the prosecution's arguments were highly prejudicial and the Court simply does not believe that such silence is very probative. As prominent conservative legal scholar Orin Kerr has explained, "it is relatively easy for the government to claim that a suspect's reaction to an incriminating question suggests guilt — and very hard for a defendant to challenge that characterization," and that "it seems unlikely that a person questioned by a police officer outside of custody is going to formally assert his Fifth Amendment right" because people generally "don't think in terms of legal formalities." Orin Kerr, Do You Have a Right to Remain Silent? Thoughts on the "Sleeper" Criminal Procedure Case of the Term, Salina v. Texas, THE VOLOKH CONSPIRACY, (June 17, 2013), http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas (last visited July 13, 2016). As a general matter, Justice Rehnquist clarified in the case Dickerson v. United States that Miranda is based on a prophylactic principle embodied in the Constitution that requires an arresting officer to explain to a suspect the suspect's rights under the Fifth Amendment before beginning any interrogation. 530 U.S. 428, 438-41 (2000). The reason why the Miranda rule is "prophylactic" is because it is incredibly unlikely that an indigent criminal defendant will affirmatively assert her right to remain silent unless the government informs the indigent defendant of the existence, scope, and consequence of that right. The protection of indigent defendants in exactly this manner is the entire reason for the Miranda warning requirement. As the Supreme Court explained in Miranda: "In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored." Miranda v. Arizona, 384 U.S. 436, 467 (1966). In light of the clear purpose of Miranda and the unreasonableness of the assertion that Mr. Thomas could have invoked his Fifth Amendment rights sua sponte and without counsel, the Court sees no reason to adopt the legal fiction that the government requests. There is simply no logical basis to conclude that the indigent and then-unrepresented Mr. Thomas should have affirmatively invoked his Miranda rights
Even without issuing a ruling on this basis, there is ample evidence of courtroom error based on Mr. Thomas's other asserted grounds for a new trial. See Doc. 222, Mot. for New Trial, at 1-3. In particular, this Court has already ruled that the weight of the evidence heavily favored acquittal in this case and that the United States improperly solicited testimony in violation of its orders in limine and pursued arguments that the Court specifically declined to rule on based on representations by the United States. Because there are sufficient grounds to otherwise grant Mr. Thomas's motion for a new trial, this Court abstains from determining whether the United States' reliance on Mr. Thomas's post-arrest, pre-Miranda silence in its closing arguments constituted prosecutorial misconduct.
Mr. Thomas has raised trial errors by his own defense counsel as the ninth ground for his Rule 33 motion. Doc. 222, Mot. for New Trial, at 3 ¶ 9. In particular, Mr. Thomas mentions that defense counsel failed to offer timely objections to impermissible evidence and argument at trial. See id. ("Defense counsel did not object."). Improper conduct by defense counsel, including failures to properly advocate on behalf of a client, may provide grounds for a Rule 33 motion. FEDERAL PRACTICE AND PROCEDURE at § 588. After the first day of trial, the Court admonished defense counsel for failing to raise timely objections to violations of the Court's rulings. Doc. 223, Partial Transcript of Proceedings, at 28. Defense counsel took responsibility for those failures, stating that he "had a very difficult drive home last night [because of his failures on the first day of trial]"). Doc. 223, Partial Transcript of Proceedings, at 28. Despite the unusual presentation of evidence in this case, defense counsel continued to offer essentially no objections to the questions from the prosecution, statements by the prosecution's witnesses, or improper argument by the United States. Furthermore, defense counsel offered no objection to the statements the prosecution made in closing argument or in rebuttal. See generally Doc. 221, Transcript of Proceedings. The Court is particularly troubled by the fact that Defense counsel did nothing to bring Officer Davis's vague and inconsistent version of Mr. Thomas's alleged confession to the Court's attention and that this "confession" was not the subject of a motion in limine before trial.
These errors, taken alone, may not be sufficient to grant a Rule 33 motion or even a claim of ineffective assistance of counsel. However, the cumulative effect of these errors, combined with the errors described above and below, further compels the Court's conclusion that a new trial is warranted.
The unlawful admission of evidence, particularly the admission of evidence that results in a serious miscarriage of justice or an erroneous verdict by the jury, may form the basis for granting a new trial. Bell, 584 F.3d at 486. For example, the Tenth Circuit has held that racially charged remarks from a witness in a narcotics case, combined with a failure to strike the testimony, can constitute grounds for granting a new trial. Torres v. United States, 333 F.2d 99 (10th Cir. 1964). While a Rule 33 motion may be denied when a court acts swiftly to cure the prejudice caused by unlawful evidence, Lopez, 576 F.2d 840 (denying motion for a new trial when the trial court quickly sustained an objection and instructed the jury to disregard the testimony), the fact that a trial court issued a limiting instruction regarding unlawfully admitted evidence does not preclude a trial court from granting a Rule 33 motion on the basis of that evidence. United States v. Colombo, 909 F.2d 711 (2d Cir. 1990). This is particularly true when the evidence creates so strong an impression that it is impossible for the jury to disregard. Lopez, 576 F.2d 840.
As described above, a substantial quantity of impermissible hearsay testimony was presented to the jury at trial. Defense counsel did not object to the vast majority of the erroneously admitted testimony. See Doc. 222, Mot. for New Trial, at 3. As a result, the Court had difficulty curing the resulting prejudice in the mind of the jury and was generally hindered in its ability to instruct the jury to disregard improper evidence and arguments. As a result of the Court's frustration regarding a particular subset of this evidence, the Court informed counsel that it would hold an emergency hearing on the matter before the second day of trial, and, at the urging of the United States, issued a limiting instruction regarding the evidence. Doc. 223, Partial Transcript of Proceedings, at 1-37. The limiting instruction stated:
Doc. 216, Jury Instructions, at 7. Defense counsel objected to this instruction and instead moved for a mistrial. Doc. 223, Partial Transcript of Proceedings, at 29. The Court believes that issuing that limiting instruction, rather than granting a mistrial, was reversible error. See Lopez, 576 F.2d 840; Novak, 918 F.2d at 108-11 (reversing a district court on a series of similar evidentiary issues).
The Court is further concerned that the actual text of the limiting instruction misled the jury and created a false impression of Mr. Thomas's guilt. In particular, the text of the limiting instruction mentions "another unidentified individual whom [witnesses for the United States] described as a `courier' and whom according to the testimony [D.E.A. Agents investigating Jesus Amaya] were hoping to spot on Pajarito Road." Doc. 216, Jury Instructions, at 7. While this instruction was intended to explain to the jury that the government had presented no direct evidence that Mr. Thomas was aware that a drug transaction was taking place, the Court fears that it had the opposite effect. Upon re-reading the instruction, it appears to insinuate that Mr. Thomas was the "unidentified courier" for Mr. Amaya even though the evidence the government possessed (which was not presented at trial) actually indicated that Mr. Caballero, and not Mr. Thomas, was Mr. Amaya's courier. In short, the limiting instruction appears to have outlined an additional, completely factually unsubstantiated means for the jury to infer Mr. Thomas's guilt. The Court believes that this is a reversible error. Mann, 982 F. Supp. 2d at 1258-59 (submission of an erroneous jury instruction is plain error).
Finally, even if the instruction was not misleading, it would not have been adequate to cure the prejudice caused by the erroneously elicited testimony because the limiting instruction was issued over one day after the testimony was elicited from the government's witnesses and did not cover all of the improper testimony identified by the Court. The problems with the scope and timing of the instruction further compound the errors in the Court's attempted remedy. See Lopez, 576 F.2d 840 (a court must act swiftly to cure the prejudice from wrongfully elicited testimony).
As trial proceeded, further unduly prejudicial and unlawful testimony was elicited. In particular, the extensive testimony regarding the athletic accomplishments of Agent Hella at the University of New Mexico was irrelevant and created bias in the mind of the jury. Agent Hella himself appeared to become embarrassed on the stand as he was asked to brag about himself. Trial of Roberto Thomas, April 21, 2016, at 3:10 pm. Furthermore, although the Court welcomed the Jury to talk with counsel after the trial to discuss how counsel could improve their performance, immediately after the Court dismissed the jury and entered recess, Chambers witnessed several jurors directly approach the United States' witnesses to excitedly discuss Agent Hella's background and role in the arrest, including the firearms possessed by Agent Hella. As this Court has noted for more than a year, it does not find Agent Hella's role particularly probative of the elements of the offense to which Mr. Thomas was convicted.
The Court is convinced that the cumulative effect of all of the errors described in Sections III of this opinion significantly prejudiced the jury and constituted a miscarriage of justice. The Court further believes that many of these errors would individually give an appellate court cause to reverse the judgment in this case on appeal. Although the Court issued a limiting instruction to address one of these errors, the Court recognizes that this limiting instruction was insufficient and misleading, and could have caused the jury to convict Mr. Thomas on a theory for which there is no factual basis. For the foregoing reasons, Mr. Thomas's motion for a new trial is GRANTED.
Mr. Thomas asserts in his Reply in Support of Motion for a New Trial that the United States should be sanctioned for untimely filing its response. Doc. 226, Reply ISO Mot. for New Trial, at 1.
As stated above, granting a Rule 33 motion is a form of extraordinary relief that upsets the verdict of a sitting jury. See Gori, 367 U.S. at 367-71 (discussing the appropriateness of a trial court setting aside a jury verdict in a criminal case). The Second Circuit has explained that Rule 33 is necessary because there are rare occasions where legitimate fears that errors in the way a trial proceeded led to a legitimate belief that "an innocent person may have been convicted." United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (quotations omitted). Because Rule 33 balances the seriousness of the accusation that errors in the trial process have led to the conviction of an innocent person with the need for finality in judgment and the constitutional concerns raised by the retrial of a defendant, Rule 33 places the parties under strict deadlines. For example, a defendant must raise her motion within two weeks of the conclusion of trial. FED. R. CRIM. P. 33. Courts frequently hold that a failure to timely file a motion constitutes a waiver of argument for the purposes of Rule 33 that can preclude even an innocent defendant from relief. See, e.g., United States v. Higgins, 282 F.3d 1261, 1278 (10th Cir. 2002).
Here, Mr. Thomas timely filed his Rule 33 motion on May 6, 2016. Doc. 222, Mot. for New Trial. However, the United States did not timely file their papers in opposition or request leave of the Court for an extended briefing schedule. See Doc. 224, Opp. to Mot. for New Trial; Doc. 226, Reply ISO Mot. for New Trial, at 1. Instead, the United States chose to untimely file its opposition in violation of Federal Rule of Criminal Procedure 45 and United States District Court for the District of New Mexico Rule 47.8. FED. R. CRIM. P. 45; D.N.M.LR-Cr 47.8(a) (2012). Given that the Court has already chastised the United States for its failure to follow a Court order in this case, Doc. 223, Partial Transcript of Proceedings, at 1-37, and that Mr. Thomas bases his motion primarily on grounds of prosecutorial misconduct, see generally Doc. 222, Mot. for New Trial, the Court is astonished that the United States failed to abide by the rules of this Court and timely file its motion opposing Mr. Thomas's allegations.
Here, the United States is asking for the Court to apply a double standard. Failure to abide by the strict deadline specified in Rule 33 by a defendant can foreclose the possibility of relief, even in a case of clear innocence, see Higgins, 282 F.3d at 1278, therefore failure to abide by the same schedule must also have consequences for the United States. However, because the Court is prepared to rule against the United States based on a full and fair consideration of the United States' untimely briefing, as explained above, the Court need not decide at this time what, if any, sanctions are appropriate. Based on the foregoing analysis, Mr. Thomas's Motion to Strike the United States' Response is DENIED as MOOT.
For the foregoing reasons, the Court holds that the substantial weight of the evidence indicates that the jury reached the wrong verdict in this case and therefore the Court is obligated to grant a new trial. The Court further holds that the prosecution, the defense, and this Court all committed errors that cumulatively prejudiced the jury in reaching this erroneous verdict and further obligate the Court to grant a new trial. Finally, the Court notes that many of these errors could individually form the basis of a reversal of the verdict which additionally obligates this Court to grant a new trial.
Because Section III of this ruling is based on the "cumulative error" doctrine and because an alternative basis for granting the Rule 33 motion is present in this case, the Court does not find it necessary to make any specific finding of error that rises to the level of prosecutorial misconduct and therefore expressly abstains from doing so at this time. Furthermore, because this ruling has mooted Mr. Thomas's requested relief in his motion for sanctions against the United States, the Court finds it unnecessary to impose sanctions on the United States for the prosecution's untimely filing, even though the same action, if committed by counsel for the defense, would probably have barred Mr. Thomas from relief and may have constituted ineffective assistance of counsel.
United States v. Moore, 651 F.3d 30, 53 (D.C. Cir. 2011) (citations and quotes omitted), aff'd in part sub nom. Smith v. United States, 133 S.Ct. 714 (2013). Any such interpretation would be a clear violation of the rules of evidence. This is doubly true given that the Court specifically instructed the United States to first approach the Bench before attempting to get into the matter. Doc. 208, Order Re Speculation, at 1-2. Here, no approach was ever made, thus the argument violated not only the rules of evidence, but also a previous Court Order.
Salinas, 133 S. Ct. at 2189 (2013) (Breyer, J., dissenting). As stated earlier, this three-part test received support from a greater number of Justices than either Justice Alito's test or Justice Thomas's test. See generally LAFAVE, ISRAEL, KING & KERR, CRIMINAL PROCEDURE § 9.6(a) (4th ed. 2015) (noting that the Supreme Court split 3-2-4 on the issue).
