LEONARD T. STRAND, District Judge.
This matter is before me on a motion for new trial and judgment of acquittal (Doc. No. 159) filed by defendant Max Wright. Plaintiff (the Government) has filed a resistance (Doc. No. 171) and Wright has filed a reply (Doc. No. 177). Also before me is the Government's motion to strike Wright's reply (Doc. No. 178) as being too long and too late.
In the third superseding indictment (Doc. No. 98) the grand jury charged Wright with three counts: conspiracy to distribute heroin/cocaine/Fentanyl causing serious injury and death (Count 1) and two counts of distribution of Fentanyl (Counts 2 and 3).
Doc. No. 129 at 6.
On February 19, 2016, I entered a final order regarding jury instructions (Doc. No. 134) in which I stated, among other things, that I would reserve deciding whether to give a buyer/seller jury instruction until after the close of the evidence. Id. at 1-2. Trial then began on February 22, 2016.
On March 1, 2016, after both parties rested, I denied the defendant's oral motion for acquittal pursuant to Federal Rule of Criminal Procedure 29(a), stating:
On March 2, 2016, the jury returned guilty verdicts on Counts 1, 2 and 3. The jury found Wright responsible for less than 28 grams of cocaine, responsible for more than a 100 grams of heroin, responsible for serious bodily injury to C.B, A.Ma (twice), T.H., A.Mo, and A.K., and responsible for the deaths of L.M. and A.Mo.
Federal Rule of Criminal Procedure 29 provides that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). Such a motion is permitted after trial, in which case the court may set aside the verdict and enter a judgment of acquittal. See Fed. R. Crim. P. 29(c). It is well-settled that jury verdicts are not lightly overturned. See, e.g., United States v. Peneaux, 432 F.3d 882, 890 (8th Cir. 2005); United States v. Stroh, 176 F.3d 439, 440 (8th Cir. 1999). The Government, as the prevailing party, is entitled to have the evidence viewed in the light most favorable to them. See United States v. Peters, 462 F.3d 953, 957 (8th Cir. 2006). The court must uphold the jury's verdict so long as a reasonable minded jury could have found the defendant guilty beyond a reasonable doubt. Id. Moreover, courts "must uphold the jury's verdict even where the evidence `rationally supports two conflicting hypotheses' of guilt and innocence." Id. (quoting United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004)). Additionally, courts should not reconsider the credibility of the witnesses as that is a task for the jury. United States v. Hayes, 391 F.3d 958, 961 (8th Cir. 2004).
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). "The decision to grant or deny a motion for a new trial based upon the weight of the evidence is within the sound discretion of the trial court." United States v. Knight, 800 F.3d 491, 504 (8th Cir. 2015) (internal citations omitted). A district court may "weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict." United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002) (quoting White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992)). However, the court should grant a new trial only if "the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred." United States v. Rodriguez, 812 F.2d 414, 417 (8th Cir. 1987). "The standard for granting a motion for new trial is more lenient than for a judgment of acquittal; the court is allowed to vacate any judgment if the interests of justice so require." United States v. Dean, 810 F.3d 521, 532 (8th Cir. 2015) (internal citations). However, "[m]otions for new trials based on the weight of the evidence are generally disfavored." Campos, 306 F.3d at 579. District courts "must exercise the Rule 33 authority `sparingly and with caution.'" Id. (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). The court's standard of review for a motion for new trial differs from the standard that is applied to a motion for judgment of acquittal.
When a motion for new trial is made on the ground that the verdict is contrary to the weight of the evidence, the issues are far different from those raised by a motion for judgment of acquittal. The question is not whether the defendant should be acquitted outright, but only whether he should have a new trial. The district court need not view the evidence in the light most favorable to the verdict; it may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses. United States v. Walker, 393 F.3d 842, 847 (8th Cir. 2005) (internal citations omitted). If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury. Lincoln, 630 F.2d at 1319; see also United States v. Johnson, 474 F.3d 1044, 1051 (8th Cir. 2007) (reiterating applicable standard).
The first issue I will discuss is the Government's motion (Doc. No. 178) to strike Wright's reply.
The timeliness of reply briefs is controlled by the court's local rules:
Deere Credit, Inc. v. Grupo Granjas Marinas S.A. de C.V., 2007 WL 401997, at *2 (S.D. Iowa 2007). A court has inherent power to strike pleadings not timely filed.
Local Rule of Criminal Procedure 47(a) states:
Local [Civil] Rule 7(g) provides:
LR 7(g).
Wright filed his motion on March 17, 2016. After properly requesting and receiving an extension (see Doc. No. 162), the Government filed its resistance on April 12, 2016. Doc. No. 171. Wright filed his 34-page reply brief on May 18, 2016. Doc. No. 177. Wright did not request an extension of his deadline or seek permission to file an over-length reply. Thus, he clearly violated the court's rules regarding the timeliness and length of reply briefs. However, as noted in the Government's motion to strike, the reply does not raise new issues and mainly repeats points made in Wright's initial brief. As such, and while I cannot say that the reply brief is particularly helpful, I find no prejudice in considering it and will therefore deny the Government's motion to strike.
In denying the Government's motion, I do not mean to encourage Wright's counsel's behavior. A basic expectation of any attorney practicing in this court is that he or she will review and follow the court's local rules. Filing an over-length brief long after its deadline, with no explanation, is not an acceptable practice.
Wright argues that Government exhibits 703, 703(a), 703(b), 902(a) and 1001 are inadmissible hearsay.
Hearsay is defined as a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Fed. R. Evid. 801(c). Hearsay is generally inadmissible. Fed. R. Evid. 802. Statements made by an opposing party are not hearsay (Fed. R. Evid. 801(d)(2)) nor are statements by a co-conspirator (United States v. Bell, 573 F.2d 1040, 1045 (8th Cir. 1978)). Finally, "[a] statement offered to show its effect on the listener is not hearsay." United States v. Wright, 739 F.3d 1160, 1170 (8th Cir. 2014) (quoting United States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013)).
Wright states:
Doc. No. 159 at 53. The Government responds that the text messages were properly admitted. Like the defendant, the Government fails to cite any applicable law other than the general definition of hearsay.
On February 23, 2016, while questioning Officer Matthew Cummings, the Government attempted to offer a 96-page log of text messages (exhibit 703).
On February 29, 2016, the Government called Anderson to the stand as a cooperating witness. Anderson admitted that the phones contained in exhibit 704 were his. He also admitted that exhibit 703 contained records of the text conversations between Wright and Anderson, as well as conversations between Anderson and other individuals to whom he sold drugs. The Government then reoffered exhibit 703. After argument, I overruled the defendant's hearsay objection and admitted exhibit 703. The Government then offered exhibits 703(a) and (b), which are subsets of exhibit 703 that highlight only the text conversations between Anderson and Wright while excluding all other messages.
At the outset, I note that conversations between Anderson and Wright were clearly admissible as admissions by co-conspirators and the party-opponent. See Fed. R. Evid. 801(d)(2)(A) and (d)(2)(E). Similarly, all texts sent by Anderson are co-conspirator statements. I ruled during the trial that Anderson's co-conspirator statements were admissible under Bell. The statements by customers to Anderson, regarding potential sales, were admissible because they were not offered for the truth of the matter, but rather for the effect that they had on Anderson (usually his agreement to meet with someone to provide them drugs). The remainder of exhibit 703, however, is problematic in that it contains a large amount of irrelevant information. Among other things, the log contains numerous texts from Anderson's mother scolding him for not calling her, random conversations with unknown individuals about news events, texts from Anderson's cell service provider about buying more minutes and texts about Anderson getting his car serviced. The Government erred as a matter of trial tactics, if not legally, by not redacting the exhibit to only relevant information. However, the irrelevant information was not offered for the truth of the matter asserted (for example, the Government did not offer the communications to prove that Anderson often failed to call his mother).
Exhibit 902(a) is a log of text messages between Cameron Weber, a Government cooperating witness who testified to buying drugs from Wright, and Wright himself. Wright's statements are clearly admissible and Weber's statements were not offered for the truth of the matters asserted. Instead, they were admitted to show the effect they had on Wright (Weber would request to meet Wright and Wright would then provide arrangement details). Exhibit 1001 is substantially similar, as it is a record of texts between Government cooperating witness Amy Kiefer, who admitted to buying drugs from Wright, and Wright himself. For the reasons set out above, those messages were admissible. Wright's motion for a new trial based on the admission of inadmissible hearsay is denied.
Wright renews his pretrial argument that I should have excluded evidence of his prior criminal record pursuant to Federal Rule of Evidence 404(b), which provides that evidence of other crimes is not admissible to show a defendant's propensity to commit crime but may be admissible for other purposes, such as proof of "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b). In my order on Wright's motion in limine (Doc. No. 129), I ruled that his older convictions were too remote in time to be admitted and that admitting evidence of multiple drug-related convictions would be unfairly prejudicial. However, I found that Wright's 2008 Wisconsin state court conviction for delivery of cocaine was proper 404(b) evidence and allowed the Government to enter exhibit 912 to prove that prior conviction. Doc. No. 129 at 5. To the extent Wright challenges that prior ruling, his motion is denied for the reasons set out in my prior order.
Wright makes an additional argument that the Government used the prior conviction for an impermissible purpose during trial. However, he acknowledges that the Government "argued that the prior conviction could be considered to determine whether Mr. Wright had knowledge that this was heroin trafficking." Doc. No. 159 at 41. That is the exact purpose for which the evidence was admitted. I find no error in the Government's argument. Accordingly, Wright's motion is denied.
Wright argues that I erred by not giving the model Seventh Circuit instruction regarding a drug buyer/seller that he requested. Specifically, Wright asked that I instruct the jury:
Seventh Circuit Pattern Jury Instruction 5.10(a) (2012); see also Doc. Nos. 122, 135.
"A defendant is entitled to a specific jury instruction conveying the substance of the request if it is timely, supported by evidence, and correctly states the law." United States v. Tillman, 765 F.3d 831, 834 (8th Cir. 2014). Wright argues that his proposed Seventh Circuit instruction is consistent with Eighth Circuit law. I agree.
Wright argues that I erred by disallowing cross-examination about the precise length of Anderson's potential sentence. Specifically:
Doc. No. 159 at 32.
"The Sixth Amendment provides a criminal defendant the right `to be confronted with the witnesses against him.' The primary purpose of this right is to guarantee the opportunity for effective cross-examination, particularly with respect to a witness's potential bias. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)." United States v. Walley, 567 F.3d 354, 358 (8th Cir. 2009). Regarding cross examination about potential sentences, "the accused should [be] able to contrast the original punishment faced by the witness with the more lenient punishment contemplated by the plea agreement." Yang v. Roy, 743 F.3d 622, 627 (8th Cir. 2014) (internal citations omitted). Courts should be especially concerned by situations in which the jury's credibility determination could be impacted by the significant difference in the sentence the cooperator could receive based on his cooperation. Id. (citing Van Arsdall, 475 U.S. at 679). At the same time:
United States v. Brown, 788 F.3d 830, 833 (8th Cir. 2015)
Several facts are undisputed. First, Anderson has at least one prior felony drug conviction and therefore faced a mandatory minimum sentence of life in prison without a substantial assistance motion from the Government. Second, Wright sought to elicit testimony from Anderson that he knew he faced a life sentence unless he testified against Wright. Third, because they both have prior felony drug convictions, Anderson and Wright were in the same sentencing situation (i.e., both faced mandatory life sentences). Fourth, case law prohibits parties from presenting evidence about the sentence faced by a defendant. See, e.g., United States v. Thomas, 895 F.2d 1198, 1200 (8th Cir. 1990) ("To inform a federal jury about a defendant's punishment would only introduce improper and confusing considerations before it."). Fifth, Eighth Circuit precedent is split regarding the issue of cross-examining a cooperating witness regarding his or her sentence. In Walley, both the defendant and the cooperator faced a five-year mandatory minimum. The trial court directed the defense that it could cross examine the witness regarding the "significant" sentence he faced, but not the specific sentence. The Eighth Circuit affirmed that decision, stating:
States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995). Walley, 567 F.3d at 360. Walley is contrasted with two earlier cases in which the Eighth Circuit found error when the district court refused to allow defendants to cross-examine cooperating witnesses about the specific mandatory sentences they faced before cooperating. See United States v. Caldwell, 88 F.3d 522 (8th Cir. 1996), and United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989).
Caldwell, 88 F.2d at 525.
Roan Eagle, 867 F.2d at 443-44.
Here, Wright's counsel asked Anderson a series of questions leading up to the following: "And you knew after they increased the charges to conspiracy with overdoses and deaths, you knew that with a prior drug dealing conviction, the only sentence —" At that point, the Government objected and argued that evidence of Anderson's sentence would necessarily inform the jury of Wright's sentence. I instructed Wright's counsel to "stay away from the specific penalty." Wright's counsel then requested a side bar.
At side bar I stated: "The problem is it's the same charge that your client has so you're telling the jury what the penalty is going to be if your client is convicted." Defense counsel argued that because Anderson faced the unique penalty of life in prison, no euphemism would properly inform the jury of the value of his cooperation. Specifically, Wright's counsel stated: "I think any prejudicial impact it has in terms of the jury thinking, `well maybe [] Mr. Wright faces the same penalty,' I think it's outweighed by substantial probative value, I think it would be a significant difficulty if we can't tell them that he's facing a significant unique penalty which he is. He may never get out of prison." I rejected this argument and ruled that Wright's counsel could not ask Anderson if he faced a mandatory life sentence. I also told Wright's counsel:
I then solicited suggestions on how to convey to the jury the seriousness of the penalty Anderson faced. The parties agreed to an alternative in which Wright's counsel would ask Anderson to agree that he faced a mandatory minimum of "decades" in prison. Defense counsel proceeded to question Anderson about the fact that he faced "decades of his life" in prison unless he testified against Wright. Among other things, Anderson agreed to the following statement: "The only way that you knew of, could think of, that it was possible as far as you understood, to get less time than this mandatory minimum of decades in prison, was to find someone to cooperate against, right?"
There is no doubt that this issue intersects two firmly established points of law. The jury should not hear evidence about the specific sentence faced by a defendant, but the defendant has a Sixth Amendment right to establish bias by showing the benefits received by a cooperating witness. As noted above, a trial judge retains latitude to balance issues of potential prejudice when considering a Confrontation Clause question. I am persuaded that I appropriately balanced the competing interests. The question is whether the desired testimony (that Anderson faced a mandatory minimum of life) would have given the jury a "significantly different impression" than the allowed testimony (that Anderson faced a mandatory minimum of decades in prison). Walley, 567 F.3d at 360. I find that the allowed testimony, "decades in prison," gave the jury a substantially-similar impression as the desired "life in prison" testimony. For a witness of Anderson's age (44), the jury could surmise that "decades" in prison is closely analogous to life in prison.
In addition, and as I stated at side bar, I find that Wright's counsel contributed to the situation by telling the jury, in his question to Anderson, that a "prior drug dealing conviction" was the cause of the sentence Anderson faced. Because the jury was going to hear that Wright also had a "prior drug dealing conviction," allowing Anderson to answer the question, as phrased, would have made it made it clear that Wright likewise faced a life sentence. Frankly, as I listened to counsel's questioning it was obvious to me that he was attempting to signal to the jury that Wright would receive a life sentence if convicted. Given the timing of the Government's objection, counsel for the Government clearly agreed. This situation could have been avoided if Wright's counsel would not have predicated his question on the fact that Anderson had a "prior drug dealing conviction." The fact that Wright's own counsel contributed to the need for balancing competing interests further persuades me that my resolution of the issue was appropriate.
Finally, even if a Sixth Amendment violation did occur, I find the error to be harmless. As will be discussed in detail below, numerous witnesses testified that Wright and Anderson seemed to work together when distributing drugs. Even discounting the credibility of Anderson's testimony, there was sufficient evidence upon which a jury could find that Wright engaged in a conspiracy to distribute drugs. For these reasons, Wright's motion is denied.
Wright argues that the Government committed a due process violation by knowingly introducing evidence that was contradictory and perjured.
"`To violate due process, an inconsistency must exist at the core of the prosecutor's cases against defendants for the same crime,' and the [prosecution's] error must have `rendered unreliable' the habeas petitioner's conviction." Clay v. Bowersox, 367 F.3d 993, 1004 (8th Cir. 2004) (quoting Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir.), cert. denied, 531 U.S. 985, 121 S.Ct. 441, 148 L.Ed.2d 446 (2000)). In Smith, the court held "only that the use of inherently factually contradictory theories violates the principles of due process." Id. The factual contradictions must be more than "minor variations in testimony or defects in memory" that might arise, for example, from the lapse of time between trials. Id. On the other hand, due process is violated, and the convictions are infirm, when, in its zeal to obtain multiple convictions, the prosecution relies on diametrically opposed testimony from the same witnesses. Johnson v. United States, 860 F.Supp.2d 663, 862-63 (N.D. Iowa 2012) (internal citations omitted).
United States v. Nelson, 970 F.2d 439, 443 (8th Cir. 1992). To prove a due process violation based on false testimony, the defendant must show:
United States v. West, 612 F.3d 993, 996 (8th Cir. 2010).
Wright states:
Doc. No. 159 at 29. Additionally:
Doc. No. 159 at 30. Wright goes on to allege that witnesses Weber and Belsha contradicted Anderson as to whether they called Anderson to buy heroin. Wright also alleges that witnesses Young and Hill contradicted Anderson about whether Anderson could lower the heroin price. Finally, Wright contends that witnesses Ciha and Mercer contradicted Anderson about the number of times they bought drugs from him.
At the outset, I note (as the Government did) that the prohibition on inconsistent testimony applies to defendants in different cases. The rationale is that it violates due process for prosecutors to present one theory of the case when trying the first defendant but then present a contradictory theory in a subsequent prosecution of a co-defendant. In the classic example, it is inappropriate to first prosecute Bonnie, argue she was the shooter, secure a conviction, and then prosecute Clyde while arguing he was the shooter. The due process violation occurs, in part, because the two juries have no way to know about the contradictory testimony. Wright cites no case law, and I could find none, holding that the prosecution commits a due process error simply because some facts presented within the same trial were inconsistent. Within the confines of the same trial, the jury is charged with considering inconsistent testimony, reconciling it and reaching a verdict. See, e.g., Court's Jury Inst. No. 10 (Doc. No. 149 at 22-25).
More firmly grounded in sound law is Wright's argument that the Government committed a due process violation by knowingly offering false testimony. As the case law set out above makes clear, a prosecutor is barred from presenting knowingly false testimony. However, the defendant has the burden to show that (1) the prosecution used perjured testimony; (2) the prosecution should have known or actually knew of the perjury; and (3) there was a reasonable likelihood that the perjured testimony could have affected the jury's verdict.
Regarding Wallace, Wright misstates the trial testimony. Wallace stated that he primarily purchased heroin from Shady (Anderson), whom he knew first, but also obtained heroin from D (Wright). Specifically, the Government asked Wallace who provided drugs if Anderson was not available and Wallace answered that Wright arrived with the drugs. Wallace further testified he understood that Shady and D worked together to sell drugs. Wallace stated he obtained drugs from D six or seven times (out of a total of twenty purchases).
Anderson did contradict Wallace's testimony to some extent, telling the jury that he met Wallace through Wright, that Wright had the original relationship with Wallace and that he only began selling to Wallace after Wright introduced them. The question is whether this contradiction amounts to a knowing introduction of false and uncorrected testimony. I find it does not. Wright has not offered any evidence that the Government knew the testimony of either witness was false. Additionally, although there is a contradiction, Anderson and Wallace agreed on the key point that Anderson and Wright worked together to distribute heroin. Considering that agreement, the issue of who first knew Wallace is a relatively minor point unlikely to affect the jury's decision. Ultimately, "[t]he jury is responsible for assessing the credibility of witnesses and resolving conflicts in testimony, and its conclusions on these issues are virtually unreviewable on appeal." United States v. Thompson, 560 F.3d 745, 748-49 (8th Cir. 2009). This is a situation in which two witnesses told somewhat different stories, each side was equally aware of the contradiction, and the jury was able to resolve it and reach a verdict. I find no error.
Similarly, Baird testified that Shady and D were "partners" and that her group of friends sometimes obtained heroin from D. She stated that she personally met with Shady when he was in a gray van but that she generally knew Shady and D were partners because they used the same vehicle. She stated that her friends "George and Jeff" would usually get heroin from D, but sometimes her friend Donny obtained it from Shady, stating: "I would go to Donny's house, Shady would go before [I] would get there, drop it off, and I would get it through Donny." She stated that she rarely interacted with Shady but sometimes passed him as she arrived at her friend's place. She also stated that she could get drugs directly from Shady because she had his number, but rarely did so because "I didn't like his attitude." Meanwhile, Anderson testified that Baird called him on one occasion to obtain heroin but did not regularly call him for heroin. This testimony is consistent. Anderson and Baird were generally aware of each other, but only directly interacted occasionally. More importantly, there is no indication that the prosecution knew that any of this testimony was (allegedly) false.
Ainseworth-Meyers testified that she first met D through Wallace and then obtained drugs from D. Eventually, she learned D's number and sometimes when she called D for heroin, Shady would deliver it. She testified that she also eventually learned Shady's direct number. Ainseworth-Meyers testified that D preferred her to call his phone, not Shady's, but that she would occasionally call Shady. Meanwhile, Anderson testified he did not give his phone number to Ainseworth-Meyers. Anderson indicated that she probably got his number from Wright and that Ainseworth-Meyers would call him to get heroin when Wright was out of town. Again, there is little inconsistency in the testimony. The inconsistency relates to how Ainseworth-Meyers obtained Anderson's phone number and how frequently she called Anderson. However, there is no indication that the prosecution knowingly presented false testimony. This is the precise type of slight inconsistency that the jury is charged with resolving.
The remaining contradictions Wright alleges fall into the same categories. It is true that Weber, Belsha, Ciha and Mercer made statements about how and when they received drugs from Anderson that were slightly inconsistent with Anderson's testimony. For example, the witnesses testified that Anderson would occasionally cut them a deal on the price, whereas Anderson testified that Wright set the prices. However, there is no indication that prosecution knowingly presented false testimony, or that the allegedly-false testimony could have affected the jury's verdict. Overall, the witness testimony was remarkably consistent about the relationship between Anderson and Wright and the way in which they conducted their heroin operation. Wright has failed to establish a due process violation.
Wright makes several arguments that are based on the Government's (admitted) failure to disclose certain information about its cooperating witnesses.
"The Jencks Act requires that the prosecutor disclose any statement of a witness in the possession of the United States which relates to the subject testified by the witness on direct examination." United States v. Stroud, 673 F.3d 854, 863 (8th Cir. 2012)(quoting United States v. Douglas, 964 F.2d 738, 741 (8th Cir. 1992)). A "statement" is defined as "(1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury." 18 U.S.C. § 3500(e). "If the United States elects not to comply. . ., the court shall strike from the record the testimony of the witness. . . unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared." 18 U.S.C. § 3500(d). Both bad faith by the government and prejudice to the defendant must be shown to overturn a conviction based on Jencks Act violations. United States v. Vieth, 397 F.3d 615, 619 (8th Cir. 2005).
Under Brady v. Maryland, 373 U.S. 83, 85 (1963), a prosecutor must disclose any evidence favorable to the accused and material either to guilt or punishment.
United States v. Robinson, 809 F.3d 991, 996 (8th Cir. 2016).
Id.
Brady is violated if three requirements are met: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Morales v. Ault, 476 F.3d 545, 554 (8th Cir. 2007) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). The government must provide Brady material to the defendant at a time sufficient for him to make use of it. Morales, 476 F.3d at 554 (finding a mid-trial disclosure violates Brady only if it comes too late for the defense to make use of it) (citing United States v. Almendares, 397 F.3d 653, 664 (8th Cir. 2005)).
United States v. Rojas, 2014 WL 4410120, at *4 (N.D. Iowa 2014).
The scope of exculpatory evidence under Brady incorporates information which may impeach a government witness. Giglio v. United States, 405 U.S. 150, 153-55 (1972). Put another way: "Under Brady and its progeny, prosecutors have a duty to disclose to the defense all material evidence favorable to the accused, including impeachment and exculpatory evidence." Robinson, 809 F.3d at 996. "[T]he purpose of requiring disclosure of impeachment information is not to assist the defense in a general pretrial investigation, but only to give the defense an opportunity to effectively cross-examine the Government's witnesses at trial." United States v. Eisenberg, 773 F.Supp. 662, 685 (D.N.J. 1991). The timing of the government's disclosure of Giglio material is the same as that for Brady material.
The Government sets out the facts giving rise to this portion of Wright's motion:
Doc. No. 171-1 at 4-8.
Wright states:
Docket No. 159 at 8.
Doc. No. 159 at 10-11. Wright highlights the drug quantity issue:
Doc. No. 159 at 14-15. Additionally, Wright states:
Doc. No. 159 at 16. Finally:
Doc. No. 159 at 17.
The Government responds by stating:
Doc. No. 171-1 at 11-12. Regarding Schliemann, the Government argues that contrary to Wright's assertion, she was not testifying against Wright under the threat of prosecution.
Although Schliemann admitted to being an active heroin user, she was not testifying at defendant's trial in order to mitigate charges or punishment as she had in 2009. There is no evidence that Schliemann was ever threatened with prosecution for heroin possession. Defendant had, and took, a full opportunity to cross-examine Ms. Schliemann on her possible bias in favor of the government related to the fact that she had not been charged as a result of her admissions of present drug use. Second, according to Ms. Schliemann's grand jury testimony, her cooperation in the prior case did not result in her having charges waived.
Doc. No. 171-1 at 13. Finally, the Government notes that text messages contained in exhibit 703 independently confirm Schliemann's testimony.
Regarding Jason Gavin, the Government argues:
Doc. No. 141-1 at 15. Additionally, Gavin's trial testimony was that he bought drugs from Wallace, not Wright.
The Government's primary argument regarding Kiefer is that her testimony was corroborated by other witnesses, and the text message log from her phone (exhibit 1001) provides independent evidence that she set up drug deals with Wright. Regarding Belsha, the Government conceded that failing to disclose that he had been paid as part of the investigation into Wright was a Giglio violation, but argued that the defendant adequately crossed him regarding bias.
At the outset, I note that the Government's failure to discover and disclose the above-discussed information was completely inappropriate. One non-involved AUSA fortuitously overhearing a portion of the closing argument resulted in the Government's discovery of easily-knowable Brady/Giglio information about four different witnesses. This situation reeks of a failure to properly investigate the Government's case. This failure is even more astonishing considering that this case involves multiple victims and a defendant who, according to the Government, faces a mandatory sentence of life in prison. If the Government could not be troubled to thoroughly investigate its witnesses in this case, one wonders when it might ever decide to do so. Regardless of whether the Government's abject failures here warrant a new trial, the United States Attorney and his assistants are hereby put on notice that I will not tolerate future violations of this nature and will explore all available sanctions if these violations recur.
Regarding the alleged Brady violation, I find that the first two factors are easily met: the evidence was favorable to the defendant and it was suppressed. I reject the Government's apparent argument that the suppressed information is not helpful to the defendant. Regarding Schliemann, the Government's principal argument is that because Schliemann previously cooperated, and did not receive a benefit, she would have no incentive to testify for the Government in this case. But that logic is clearly faulty; the exact opposite could be true. Because Schliemann previously cooperated, but did not get a break, it could provide her incentive to try even harder to please the Government in this case. Additionally, the Government has no good argument regarding Belsha and Kiefer. Kiefer had previously worked as a cooperator to get a reduced sentence. Obviously that information is favorable to Wright. And the Government literally paid Belsha for his participation in helping build a case against Wright. Impeachment evidence rarely gets more obvious.
The Government has a stronger argument regarding Garvin, who did testify in this case about a benefit he hoped to receive by cooperating. Nonetheless, the defense had a right to know of the potential bias Wright faced because Gavin has a history of cooperating with the Government.
Having shown that favorable evidence was suppressed, the only real question is whether this information was material such that, "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Ellefsen, 655 F.3d at 778. After a careful review of the record, I am convinced that even if the Government had fulfilled its obligations and disclosed the favorable information, the result in this case would have been the same. I base this conclusion on the following two factors, which I discuss in detail below: (1) the information would not have significantly changed the jury's impression of the witnesses and (2) the weight of the other evidence would have resulted in a guilty verdict even absent the testimony of these four witnesses.
As to the jury's impression of the witnesses, the most egregious piece of evidence suppressed by the Government is the fact that Belsha was paid for his cooperation in the case. However, Wright's counsel was able to impeach Belsha as to a number of issues, starting with the fact that Belsha claimed to be drug free even though his demeanor and appearance suggested otherwise. Wright's counsel also made much of the fact that Belsha had to be arrested on bench warrant because he failed to appear in court to testify. Counsel was able to get Belsha to admit that he had history of lying, including lying to the police. Most importantly, Wright's counsel elicited testimony from Belsha that he directly provided Amanda Marquis the heroin on which she overdosed and that he could face charges for that incident if he did not cooperate with the Government. Although the defendant had a right to know that Belsha had been paid $20.00 for attempting to obtain a recorded phone call, in light of the abundant impeachment information already available to the defendant, it is likely that this information would have been redundant. Having carefully observed (and later reviewed) Belsha's testimony, I find no probability that evidence concerning a $20.00 payment would have affected either the jury's opinion of Belsha or the outcome of the case.
Next is the fact that Gavin previously worked with the Government. Gavin's testimony in this case did not relate directly to Wright. Rather, Gavin testified that he obtained drugs from Wallace until he overdosed. The fact that Gavin overdosed was substantiated by law enforcement. Gavin then testified that after his overdose, he cooperated with law enforcement, including setting up a controlled buy from Wallace. Since the record already clearly substantiated both the fact that Gavin was a user who purchased from Wallace and that Gavin was a cooperator who helped set up Wallace, the fact that Gavin had previously cooperated with law enforcement is of limited value. I find no probability that this additional information would have resulted in a different verdict.
Regarding Kiefer, even without the information that she had cooperated in the past, Wright's counsel was able to extract testimony from her of her potential bias. Specifically, counsel pointed out that her boyfriend, Ciha, could face charges relating to Amanda Marquis' overdose and that Kiefer was cooperating with the Government in an attempt to protect her boyfriend. Thus, the jury heard evidence that Kiefer had a strong reason to be biased in favor of the Government. Perhaps more importantly, specific pieces of physical evidence supported Kiefer's testimony.
Doc. No. 171-1 at 17.
Schliemann's situation is similar. Her testimony regarding Anderson is supported by physical evidence:
Doc. No. 171-1 at 13-14. On cross-examination, Wright's counsel was able to impeach Schliemann regarding various issues, including her drug use, numerous prior convictions and most importantly, that she could face charges. Accordingly, I find no probability that introducing the fact that Schliemann had cooperated with the Government in 2009 would have changed the jury's verdict.
The second reason I find that the Government's Brady violation is not material is that even without the testimony of the four witnesses discussed above, the Government produced enough evidence for the jury to convict Wright beyond a reasonable doubt.
Anderson testified that Wright regularly obtained cocaine and heroin from Mario Grant in Chicago and brought the drugs back to Cedar Rapids to distribute. After the drugs arrived in Cedar Rapids, Anderson and Wright would repackage them for distribution. Anderson testified extensively about the various amounts of drugs they received and distributed. For example, he stated that Wright would bring in a hundred grams of heroin every week. Anderson testified that he and Wright transacted drugs in that manner from the summer of 2013 until the fall of 2014, and then again from the winter of 2014-15 until Anderson was arrested in 2015. Anderson testified that even after Wright moved out of their shared apartment, Wright and Anderson continued to store and repackage the drugs at Anderson's apartment. Anderson stated that one of his primary roles was to watch over the drugs that were left in his care.
Anderson testified that their usual operation involved Wright getting the heroin and the crack, repackaging it, storing it at Anderson's apartment, making customer contacts, and then directing Anderson where to deliver the drugs. Anderson stated that he would then give the money he collected to Wright. Anderson specifically identified various customers to whom he delivered drugs at Wright's behest, including Kiefer, Ciha, Ainesworth-Meyers, Belsha and Schliemann. Anderson stated that the customers did not contact him directly at first, but eventually some customers learned his number and called him directly. He explained that some of the heroin customers were also Anderson's own marijuana suppliers, so they had his contact information.
According to Anderson, Wright became upset when he found out Anderson was being contacted directly by some customers and took Anderson's phone so the customers would have to call Wright instead. Anderson also discussed the van he used to deliver drugs, which is the subject of other evidence. Anderson stated that Wright bought the van for Anderson to use for drug deliveries. As discussed earlier in this order, Anderson also authenticated (a) text messages he received from Wright in which Wright directed Anderson to distribute drugs and (b) text messages from customers requesting that Anderson provide them drugs. Finally, Anderson authenticated photographs and other evidence recovered from his home and from the traffic stop during which he was arrested.
To be sure, Anderson's testimony was hardly perfect. As discussed above, there were some inconsistencies with the testimony of prior witnesses. These changes often seemed self-serving in that Anderson appeared to minimize his role in the conspiracy. While some witnesses testified that Anderson sometimes cut them a deal or arranged a sale without involving Wright, Anderson's testimony was that Wright called all the shots. Additionally, as discussed above, Anderson had a strong motivation to testify against Wright in order to avoid a mandatory life sentence. Nonetheless, Anderson provided a mostly-cohesive narrative as to how he and Wright worked together to distribute heroin in the Cedar Rapids area during the time period alleged in the third superseding indictment.
The Government also presented extensive evidence about Anderson's and Wright's customers. Dalton Young, who worked with the Government to set up Wright, testified that he bought "strong" heroin from Wright for a period of time in 2014 to 2015. Young testified he bought $50.00 worth of heroin from Wright up to 75 times. Young also testified that Wright's cousin (photographically identified as Anderson) sometimes delivered the drugs after Young called Wright.
Cameron Weber testified he was a heroin addict who used significantly in 2014. Weber testified that he initially got heroin from David Morgan, who Weber believed obtained drugs from Anderson. Weber testified that he subsequently called and obtained drugs from both Anderson (identified by Weber as Wright's cousin) and Wright. Weber stated that he obtained $40 to $50 worth of heroin directly from Wright as many as ten times. According to Weber, Anderson sometimes delivered the drugs after Weber called Wright. Weber also identified phone numbers included in the text logs and stated that he sometimes used text messages to order heroin (see exhibit 902(a) for the actual conversations between Weber and Wright). Finally, Weber testified that Dave and Anna Morgan used heroin together and that Weber's girlfriend, Cassandra Clinton, was present during relevant events. Clinton then testified she was present when Weber obtained drugs from both Anderson and Wright. She stated that Weber also obtained drugs from Donny Minor and David Morgan and that she saw David Morgan receive drugs from Anderson. Clinton testified that she sometimes ordered drugs for Weber, that she ordered from both Anderson and Wright, and that sometimes when she called one or the other individually they made the delivery together.
Timothy Hill testified that he was a heroin addict who began buying heroin from Wright in 2013. Hill testified that sometimes when he called Wright for heroin, Anderson delivered it. Hill testified that he was sometimes short of cash when Anderson delivered drugs and that, on those occasions, Anderson called Wright to find out whether he should let Hill have the drugs or not. Hill also testified about getting drugs from Ainesworth-Meyers and being with her when she bought drugs from Wright.
Ainesworth-Meyers testified to buying heroin from Wright, often on a daily basis and up to a gram at a time, during 2013 and 2014. She testified that normally she called Wright but Anderson delivered the heroin. As discussed above, she occasionally called Anderson directly but Wright discouraged her from doing that. She testified that on the day Hill overdosed, she called Wright and obtained heroin from Wright personally before giving some of the heroin to Hill.
Angela Mercer, who is Amy Kiefer's sister and Amanda Marquis' friend, testified that she obtained heroin from Keith Ciha and that this was the heroin Marquis used when she overdosed. She also testified that she saw Belsha give Marquis the heroin she used when she overdosed a second time. Marquis' testimony was substantially similar to that of Mercer.
Ciha, who was Kiefer's boyfriend, testified that for some period during 2014 he obtained heroin from Wright on a daily basis. He stated that when he called Wright, sometimes Wright delivered the heroin and sometimes it was delivered by Anderson. He also testified about giving heroin to Mercer before Marquis overdosed. Dawn Janacek, who knew Ciha, testified that she obtained heroin from Wright on a daily basis. She testified that sometimes when she called Wright for drugs, Anderson delivered them. It should be noted, however, that Janacek had some difficulty identifying both Wright and Anderson.
Chandler Bolton testified that he purchased heroin from Gavin and others beginning in November 2014. He testified that Gavin would not tell Bolton the name of Gavin's supplier. However, he testified that on one occasion he was with Gavin when Gavin called his supplier. According to Bolton, he and Gavin then met up with a minivan with two African-American individuals who supplied Gavin with heroin. Shortly after obtaining this heroin, Bolton used it and overdosed.
Officer Randy Jernigan testified about using Gavin as a confidential informant. Jernigan testified that Gavin identified his supplier as Wallace. He also testified about a controlled buy that he had Gavin conduct with Wallace. Finally, Jernigan testified about executing a search warrant at Anderson's residence. Through Jernigan, the Government offered the 700 series of exhibits, which include numerous photographs and actual drug paraphernalia.
Marcus Wallace also testified. He stated that he met Anderson in late 2014 and began buying, and then redistributing, heroin from him. Wallace testified that he purchased redistribution quantities of heroin (1 to 2 grams at a time) from Anderson up to twenty times and distributed the drugs to Gavin and other customers. Wallace testified that sometimes he obtained the heroin from Anderson but other times obtained it from Wright. He testified that Anderson was the source of the heroin he sold to Gavin during the controlled buy.
Spencer Pool offered some vague testimony that he thought Larry Michaels and/or Aaron Rogers purchased heroin from Wright and/or Anderson, but did not seem to have significant personal knowledge of the transactions and could not identify photographs. He did testify that Michaels and Rogers bought heroin from a male in a blue van — which is how other witnesses described Anderson's vehicle — but stated he never saw the dealer's face.
Rogers testified that he obtained heroin from a friend named Frederick and that he saw Frederick obtain heroin from both Anderson and Wright. Rogers testified he eventually started calling Wright directly for heroin and that Anderson normally delivered it. Rogers testified he would often buy between a half gram and gram of heroin on a daily basis. He also testified about the day Larry Michaels overdosed. According to Rogers, Michaels stated that he had obtained "free bags" of heroin from Anderson and Wright. Rogers testified that later that night, he, Michaels and Spencer Pool met with Anderson to obtain more heroin and cocaine. Rogers stated that when the group returned to his residence, he and Michaels used the heroin. Rogers testified that he then fell asleep for the night and awoke to find Michaels dead.
Kathryn Baird testified that she obtained heroin from her friends George and Jeff who, in turn, received the heroin from Wright. She also testified that she thought her friend Danny Minor obtained heroin from Anderson. Baird testified that she eventually began purchasing heroin directly from Anderson and that she did so more than ten times. She also testified about getting heroin from Shady and sharing it with Anna Morgan the day Baird overdosed (which was shortly before Morgan overdosed). Baird's son, Kristian, testified about the day Kathryn Baird overdosed and largely corroborated his mother's testimony.
Officer Jared Hicks testified about controlled buys he set up in which Dalton Young bought drugs from Wright in May and June of 2015. The Government also offered various exhibits contained in the 800 series, which include audio recordings of the drug purchases, audio recordings of telephone calls between Young and Wright and the actual drugs Wright sold to Young. Officer David Dostal, DEA Agent Ryan Marriott, Officer Matthew Cummings, Officer Michael Bailey and Agent Kelly Meggers, also testified about the controlled buys. In addition, Cummings testified about his traffic stop of Anderson, which led to Anderson's arrest and the recovery of the cell phones and text messages that were discussed above. Officer Nick Nolte also testified about the stop of Anderson, as did Officer Justin Kaczinski. Finally, DEA Agent Brett O'Connor testified about assisting in the arrest of Wright at his girlfriend's house in Chicago and recovering three cell phones from Wright.
When all of this evidence is considered, along with the physical exhibits, it is clear that the Government proved the existence of a conspiracy between Wright and Anderson to distribute drugs. It is also clear that the Government proved the existence of the conspiracy, including the quantity of drugs found by the jury, even if the testimony of Belsha, Gavin, Kiefer and Schliemann is completely excluded. In addition to Anderson's testimony, witness after witness testified that Wright and Anderson worked together to distribute drugs and that if the witness called Wright to set up a transaction, Anderson sometimes showed up with the heroin.
While I am reluctant to do anything that might be seen as excusing or trivializing the Government's conduct, I must follow the applicable law. Having heard and considered the evidence that overwhelmingly supports the jury's verdict, I am unable to find a reasonable probability that the result of the proceeding would have been different if the suppressed information had been disclosed to the defense. Indeed, I find just the opposite. Given the nature of the suppressed information, I find virtually no probability, reasonable or otherwise, that the result would have been different. As such, Wright has failed to prove that the suppressed information was material and his motion must be denied.
In Section II of his brief, Wright states:
Doc. No. 159 at 19. The remainder of Wright's confrontation clause argument mirrors the arguments made in Section I (that the suppressed information demonstrated bias) and Section IV (that a defendant has a Sixth Amendment right to confront witnesses about each potential point of bias) of his brief. However, Wright concedes that the case law does not clearly establish that the Government's failure to provide Brady/Giglio information can amount to a confrontation clause violation. Doc. No. 159 at 19 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987)). The Government agrees, stating:
Doc. No. 171-1 at 20. Accordingly, I need not consider the Brady/Giglio issue separately under the Confrontation Clause.
Wright also argues that by failing to disclose the suppressed information about the four witnesses at issue, the Government violated Napue by knowingly presenting false testimony to the jury. As set out above, to prevail under Napue a defendant must show: (1) the prosecution used perjured testimony; (2) the prosecution should have known or actually knew of the perjury; and (3) there was a reasonable likelihood that the perjured testimony could have affected the jury's verdict. Assuming (without deciding) that Wright could establish the first two factors, it is clear, based on the above discussion, that he cannot prove the third factor.
As set out above, the Government introduced Anderson's direct testimony about the existence of a conspiracy and presented over a dozen other witnesses who testified about obtaining heroin from Wright and Anderson. Witness after witness testified that when they called Wright for drugs, Anderson sometimes delivered them. Some witnesses testified that Wright and Anderson occasionally delivered drugs together. Even completely excluding the testimony of Belsha, Gavin, Keifer and Schliemann, there is no probability that the jury would have reached a different verdict.
Next, Wright argues that the Government engaged in such outrageous misconduct that prosecuting him amounts to a due process violation.
United States v. Nieman, 520 F.3d 834, 838 (8th Cir. 2008).
Wright argues that the various (alleged) agreements between the Government and certain witnesses should shock the court's conscience. Specifically, he argues that the Government impermissibly promised Anderson and Wallace leniency in exchange for their testimony against Wright and impermissibly advised other witnesses that leniency was contingent on Wright's conviction.
Wright has failed to present evidence of secret and/or improper agreements regarding Wallace and Anderson. Instead, the evidence shows that Wallace and Anderson have fairly-typical plea agreements through which their cooperation may, but is not required to, cause the Government to file motions to reduce their sentences. Nor has Wright alleged the existence of any evidence supporting a finding that the Government made a promise of leniency to any witnesses that was contingent on Wright being convicted. Except as to the suppressed information addressed earlier in this order, Wright had the opportunity to cross-examine all cooperating witnesses regarding their motivations for cooperating. That examination revealed typical grounds for bias, wherein a witness hopes for some leniency based on his or her truthful testimony. Because Wright has failed to allege evidence of any impermissible, conscience-shocking agreements between the Government and any witness, his motion is denied.
Finally, Wright makes a catch-all argument that the evidence is not sufficient to sustain his conviction. In section III(G), supra, I discussed the evidence presented against Wright. That evidence was sufficient to support the jury's verdicts of guilty on all counts.
For the reasons set out above:
Larson, 495 F.3d at 1104-08.
