JOHN A. WOODCOCK, JR., Chief Judge.
On December 31, 2008, after a three-day trial, a jury found Mark McCurdy guilty of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). Jury Verdict Form (Docket # 148); Indictment (Docket # 1). Following the verdict, Mr. McCurdy moved for a new trial and appealed the verdict; the motion and appeal were denied. Def.'s Pro Se Mot. for New Trial (Docket # 155); Order Denying Mot. for New Trial (Docket # 188); Notice of Appeal (Docket # 197); J. of United States Court of Appeals at 1-2 (Docket # 218).
Mr. McCurdy has filed three additional motions. First, on April 8, 2011, Mr. McCurdy moved again for a new trial based on newly discovered evidence, which he says discredits the testimony of Stephen John Cheney, a witness the Government called in its case-in-chief. Def.'s Pro Se Mot. for New Trial (Docket # 224) (Def.'s Mot. for New Trial II). Mr. McCurdy asks for an evidentiary hearing to present what he terms "irrefutable evidence" of Mr. Cheney's perjury and the prosecutor's knowing presentation of this perjured evidence. Id. at 10. Second, on April 22, 2011, Mr. McCurdy requested an order requiring the Government to produce materials that allegedly support his motion for new trial. Def.'s Pro Se Mot. for Disc. of Materials Related to Elec. Surveillance of Def. (Docket # 227) (Def.'s Mot. for Disc). The final motion, also filed on April 22, 2011, asks the Court to order the Government to produce documents relating to the grand jury proceedings that resulted in his indictment. Def.'s
The November 15, 2006 indictment charged Mr. McCurdy with knowing possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Indictment. In his initial appearance before the Magistrate Judge on December 11, 2006, Mr. McCurdy entered a plea of not guilty. Minute Entry (Docket # 8). He later pleaded guilty to being a felon in possession of a firearm. Minute Entry (Docket # 57). At the Rule 11 proceeding, the Court informed Mr. McCurdy that his maximum exposure for incarceration was ten years; however, upon the completion of the Presentence Report, the Court learned that Mr. McCurdy had a criminal history that could trigger Armed Career Criminal status and subject him to a mandatory minimum prison term of 15 years under 18 U.S.C. § 924(e) and that the maximum term of imprisonment was not ten years, but life. Order Granting Mot. to Withdraw Guilty Plea (Docket # 74). This news prompted Mr. McCurdy to move to withdraw his guilty plea, which the Court granted on May 2, 2008. Id.; Def.'s Mot. to Withdraw Plea (Docket # 73).
A three day jury trial began on December 29, 2009. Minute Entry (Docket # 144); Minute Entry (Docket # 146); Minute Entry (Docket # 147). In its case-in-chief, the Government called seven witnesses. Redacted Tr., Trial Proceedings, Volume II of III at 2-3 (Docket # 217) (Tr. II). In the order denying the first motion for new trial, the Court outlined the Government's case-in-chief:
Order Denying Mot. for New Trial at 1-2.
Stephen John Cheney, Jr.
On cross-examination, Mr. Cheney admitted to telephoning Mr. McCurdy after arriving in Bangor to testify in the trial.
Tr. II at 47:24-50:6. After this exchange, Mr. Silverstein explained at sidebar that Mr. McCurdy tape-recorded the disputed phone conversations with Mr. Cheney. Id. at 50:13-15. Mr. Silverstein acknowledged that Assistant United States Attorney (AUSA) Joel Casey had not heard the tapes but offered "to share them with him and the Court, if necessary, before [] seek[ing] to make use of them." Id. at 50:16-19. AUSA Casey responded, "This is all news to me, your Honor." Id. at 50:20. The Court recessed to allow defense counsel to play the tape for AUSA Casey. Id. at 51:11-52:10.
When the Court returned, counsel agreed to play the tape for the Court out of the presence of the jury. Id. at 52:12-24. After listening to the tape, the Court ruled that its admissibility would depend upon Mr. Cheney identifying his voice on the recordings, thereby authenticating the tape. Id. at 55:3-56:8. In discussing the authentication process, the Court and AUSA Casey had the following exchange:
Id. at 57:7-23.
Still outside the presence of the jury, defense counsel played the tape for Mr. Cheney and the Court allowed Mr. Silverstein to explore the tape-recorded conversation with Mr. Cheney. Id. at 58:8-60:18. While identifying his voice in the first taped conversation, Mr. Cheney initially only admitted that "[i]t may have been" his voice in the second recording. Id. at 60:8-15. AUSA Casey then questioned Mr. Cheney:
Id. at 61:2-63:13. After the voir dire examination, Mr. Silverstein explained he would ask follow-up questions to Mr. Cheney regarding the phone conversations. Id. at 64:9-10. Defense counsel stated that "[if] the witness is not straight, then we may need to play the tape." Id. at 64:10-12.
The jury was brought back into the courtroom and both Mr. Silverstein and AUSA Casey questioned Mr. Cheney about his conversation with Mr. McCurdy. Id. at 64:16-66:7, 69:22-73:5. On questioning by Mr. Silverstein, Mr. Cheney maintained that the phone conversations referred to a "Christmas present" for his daughter. Id. at 65:7. In response to AUSA Casey's redirect examination, Mr. Cheney acknowledged that he had not told the Government about his phone conversations with Mr. McCurdy until his testimony that morning in court. Id. at 71:4-72:2. Neither Mr. Silverstein nor AUSA Casey played the taped phone conversations to the jury.
In his affidavit filed on April 8, 2011, Mr. McCurdy explains that after a Probation Officer accused him in June 2008 of leaving the state of Maine without permission, he "routinely recorded telephone calls to and from [his] residence." Aff. of Mark McCurdy in Support of Mot. for New Trial ¶ 2 (Docket # 225) (McCurdy Aff.). He said he used two recording systems: one that "was supposed to record calls at the touch of a button, but didn't always capture the conversations" and a second "manual system consisting of a hand held recorder and a suction cup style microphone...." Id. ¶ 5. He indicated that the latter system "occasionally failed in the middle of a conversation." Id. He gave "some" of the tape recordings to Mr. Silverstein "for safekeeping." Id. ¶ 6.
Mr. McCurdy then explains the hidden meaning of "Christmas present":
Id. ¶ 8. On Sunday, December 28, 2009, the very eve of trial, Mr. McCurdy says that he reviewed "the tape recordings that [he] had at [his] disposal for evidence of John Cheney's extortion of [him]." Id. ¶ 10. He states that "[t]he only two recordings that I found were of the call from Bangor upon [Mr. Cheney's] arrival and the call from Whiting the night he stole my boat." Id. Mr. McCurdy says that he "presented both of these recordings to the Court." Id.
Mr. McCurdy continues, stating that in January 2011 he asked his brother to "check the safe and see if any tape recordings of John Cheney still existed. He told me that there was one tape with two recordings on it. These being the recordings that were already presented to the Court." Id. ¶ 11. In late February 2011, Mr. McCurdy asked Amanda Prescott "if she would pick up some tape recordings from my brother and review them to see if there was any evidence of Cheney's extortion of me on them." Id. ¶ 12.
Finally, Mr. McCurdy asserts that on March 5, 2011 Ms. Prescott sent him an email in which she mentioned a McCurdy-Cheney conversation about "a Christmas card to save yourself." Id. ¶ 13. Mr. McCurdy states that he thought she was referring to one of the taped conversations already presented to the Court. Id. However, upon further investigation, it turned out that Ms. Prescott had located a different tape on which Mr. McCurdy captured the first McCurdy-Cheney telephone conversation. Id. ¶ 14.
On March 5, 2011, Mr. McCurdy emailed Ms. Prescott and told her what he thought the tape of the first conversation should reveal. Id. Attach. 1 (Email from Mark McCurdy to Amanda Prescott (Mar. 5, 2011)). Ms. Prescott responded the next day in an email:
Id. Attach. 2 (Email from Amanda Prescott to Mark McCurdy (Mar. 6, 2011)) (Prescott Email). Ms. Prescott describes a second call, presumably from Bangor:
Id.
Ms. Prescott recites the content of a third taped telephone call. This time Ms. Prescott says Mr. Cheney was in Whiting, Maine:
Id.
On April 8, 2011, Mr. McCurdy moved for a new trial and for an evidentiary hearing on this motion, claiming newly discovered evidence. Mot. for New Trial II. He asserts that "[d]espite due diligence" he was "ignorant of and unable to produce certain crucial evidence at trial." Mot. for New Trial II at ¶ 1. Specifically, he claims to have been "taken aback when he learned on March 6, 2011 that there was a recording of the original phone call from Florida in which Cheney demands to know why McCurdy didn't send him a Christmas card, a Christmas card that would save McCurdy."
In response, the Government emphasizes that at trial the defense did not choose to play the available recordings for the jury and that "Cheney testified about the `Christmas card' conversation that McCurdy now cites as newly discovered evidence." Gov't's Resp. to Def.'s Mot. for New Trial at 3 (Docket # 233) (Gov't's
Id. (emphasis in original).
On April 22, 2011, Mr. McCurdy asked the Court "in further support of his motion for new trial [to order] the United States Probation Office, a member of the prosecution team, to turn over ... their tape recordings of the [listed] telephone calls and associated exculpatory material." Def.'s Mot. for Disc. at 1.
Id. ¶ 9.
In response, the Government states flatly that "[t]he alleged recordings were never made." Gov't's Resp. to Def.'s Mot. for Disc. of Materials Related to Elec. Surveillance of the Def. at 1 (Docket # 232) (Gov't's Resp. to Mot. for Disc.). As evidence supporting the nonexistence of the recordings, the Government explains:
Id. Because the recordings never existed, the Government does not address Mr. McCurdy's other arguments. Id.
On April 22, 2011, Mr. McCurdy filed a second motion requesting the Government produce documents related to his grand jury indictment. FED.R.CRIM.P. 26.2; Def.'s Mot. for Produc. The motion seeks the production of Jencks Act, 18 U.S.C. § 3500, material including a list of witnesses who testified at the grand jury proceedings that resulted in Mr. McCurdy's indictment, Mr. Cheney's June 7, 2006 grand jury testimony, and "[a]ny statement by any witness used by the prosecution and presented to the grand jury...."
The Government filed a terse response on May 2, 2011, asserting that Mr. McCurdy is not entitled to the material he requests and that the Government already provided his trial counsel with the required materials. Gov't's Resp. to Def.'s Mot. for Produc. of Docs. under Jencks Act (Docket # 231) (Gov't's Resp. to Mot. for Produc). In response to a Court order, Order for Supp. Resp. (Docket # 242), the Government
In his motion for new trial, Mr. McCurdy requests that the Court hold an evidentiary hearing. Def.'s Mot. for New Trial II at 1, 11. Evidentiary hearings for new trial motions "are the exception, not the rule." United States v. Alicea, 205 F.3d 480, 487 (1st Cir. 2000); see also United States v. Connolly, 504 F.3d 206, 220 (1st Cir.2007). Normally, "[s]uch motions... are decided on the basis of affidavits, without convening evidentiary hearings." Connolly, 504 F.3d at 220. In determining whether to grant an evidentiary hearing, "the court must make a practical, commonsense evaluation." Id. at 219. Otherwise, an evidentiary hearing on cumulative evidence lacking sufficient probability to change or affect a jury verdict would simply be superfluous. See, e.g., Connolly, 504 F.3d at 219-20 (quoting United States v. Carbone, 880 F.2d 1500, 1502 (1st Cir.1989)). In United States v. González-González, the First Circuit affirmed the district court's denial of a defendant's request for an evidentiary hearing concerning the veracity of witnesses' testimony because "ample evidence support[ed] the jury's verdict" and therefore the defendant "had failed to show that the alleged new evidence of perjury ... warrant[ed] a new trial." 258 F.3d 16, 23-24 (1st Cir.2001).
Because Mr. McCurdy offers merely "cumulative impeachment evidence," Barrett, 965 F.2d at 1192-93 (citing Bagley, 473 U.S. at 678, 105 S.Ct. 3375), outweighed by the "ample evidence support[ing] the jury verdict," he has "failed to show that the alleged new evidence of perjury ... warrants a new trial." González-González, 258 F.3d at 24. The Court denies Mr. McCurdy's motion for an evidentiary hearing in support of his motion for a new trial.
In Mr. McCurdy's first motion for a new trial alleging newly discovered evidence
Order Denying Mot. for New Trial at 5-6. To succeed on a new trial motion, the defendant must establish all four prongs of this test, commonly referred to as the Wright test. See, e.g., Connolly, 504 F.3d at 212 ("Every element of this test ... is essential, and a failure to establish any one element will defeat the motion."); see also United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980).
A modified test applies if the defendant advances a colorable claim that the Government knowingly used perjured testimony.
The evidence does not support Mr. McCurdy's claim that the Government suborned perjury through Mr. Cheney's testimony. Mr. McCurdy argues that AUSA Casey "elicited perjury" from Mr. Cheney regarding the "`Christmas Present' story" and "did nothing to correct it and set the record straight." Def.'s Mot. for New Trial II at 10.
First, Mr. McCurdy incorrectly accuses the Government of eliciting testimony about the "Christmas present" story. Id. The first mention of the Christmas present
Second, Mr. McCurdy wrongly accuses AUSA Casey of doing "nothing to correct [Mr. Cheney's alleged perjury] and set the record straight." Def.'s Mot. for New Trial II at 10. Once the Christmas present story was revealed by Mr. Silverstein, Mr. Casey, in no uncertain terms, instructed Mr. Cheney about the need to be truthful. Contrary to Mr. McCurdy's allegations, in Mr. Cheney's voir dire examination concerning the recorded telephone conversations introduced at trial, AUSA Casey impressed upon Mr. Cheney the importance of telling the truth and the seriousness of perjury. See Tr. II at 60:24-61:11. If Mr. Cheney lied, it was despite the prosecutor's efforts, not because of them.
Third, even if the Government had some doubts about Mr. Cheney's testimony regarding the phone conversations with Mr. McCurdy, on its face, the Christmas present story is plausible. Mr. Cheney is the son of Mr. McCurdy's former girlfriend, Paula Sawtelle, and Mr. McCurdy and Ms. Sawtelle had been in a relationship for five or six years. Tr. I at 202:10-24. Mr.
Fourth, if Mr. McCurdy knew that Mr. Cheney was speaking in code and referring to drugs when he talked about a "Christmas present" for his daughter, he could have alerted his defense lawyer to the significance of that phrase. Yet, Mr. McCurdy's counsel made no attempt to expose the allegedly true meaning of the phrase during trial; this current nefarious explanation emerged for the first time on April 8, 2011, more than two years after trial, when Mr. McCurdy filed an affidavit in support of his motion for new trial. See supra Part I.C.
Fifth, it was Mr. McCurdy who recorded his telephone conversations with Mr. Cheney and who failed to discover that his first conversation with Mr. Cheney had been taped. McCurdy Aff. ¶ 10-14. It is unclear how the Government should have discovered in Mr. McCurdy's tapes what he could not. See, e.g., United States v. Bender, 304 F.3d 161, 164 (1st Cir.2002) ("Neither the relevant Supreme Court precedent under Brady nor [First Circuit precedent] requires a prosecutor to seek out and disclose exculpatory or impeaching material not in the government's possession.").
Sixth, the record reveals that the Government knew nothing about Mr. McCurdy recording telephone conversations until his defense lawyer revealed this fact in the middle of cross-examining Mr. Cheney. Mr. Silverstein acknowledged that the prosecutor was unaware of the recordings, Tr. II 50:16-19 ("Now, Mr. Casey hasn't heard them and I am certainly willing to share them with him and the Court, if necessary, before I seek to make use of them"), and AUSA Casey was clearly taken by surprise, id. at 50:20 ("This is all news to me...."); Gov't's Resp. to Mot. for New Trial at 5.
Seventh, on redirect examination, it was AUSA Casey who questioned Mr. Cheney closely about these calls and whether he was telling the truth about them.
Eighth, the defense did not play any of the tape recorded conversations before the jury. Id. at 64:9-12. The defense may have made this strategic decision because the substance of the conversations was admitted through testimony. In any event, the defense never made the jury aware of the existence of the tapes.
Ninth, although Mr. McCurdy accuses the Government of direct knowledge of his conversations with Mr. Cheney and of taping all his conversations while he was out
In response, the Government represents that "[t]he alleged recordings were never made" and that "the monitoring equipment used by the U.S. Probation Office to enforce a home detention bail condition does not allow for the recording of wire communications to and from the defendant's home." Gov't's Resp. to Mot. for Disc. at 1. Even assuming Probation Officer Eggert told Mr. McCurdy that the Probation Office had the capacity to monitor and record his telephone conversations, this does not mean it was true; it may have been Officer Eggert's way of enforcing compliance with the conditions of release. Given the Probation Office's representation that it did not have the capacity to record Mr. McCurdy's conversations, the Court will not assume — without more — it did.
Finally, it is true that these conversations between a defendant and a central Government witness within days of trial are highly unusual. It is also unusual that Mr. McCurdy made no attempt to alert the federal authorities to Mr. Cheney's alleged extortion attempt. If Mr. Cheney was attempting to extort drugs from Mr. McCurdy, it is difficult to believe that the federal authorities would not have been interested, especially because the federal prosecutor was going to put Mr. Cheney on the stand and place his credibility on the line. As AUSA Casey's reaction confirmed, there is no evidence that the Government knew anything about Mr. McCurdy's current allegation of extortion prior to Mr. Cheney's cross-examination.
Against all of these points, Mr. McCurdy places much weight upon a single remark by AUSA Casey. After excusing the jury and allowing counsel to discuss the recordings the defense wished to offer into evidence, the Court and counsel listened to the taped McCurdy-Cheney conversations. The Court expressed doubts as to what exactly the two men were talking about. AUSA Casey interjected, "I got a pretty good idea...." Tr. II at 57:13. The Court replied, "Well maybe you do. I don't."
Mr. McCurdy also argues that the Government "didn't even bother to investigate Cheney's extortion of McCurdy." Def.'s Mot. for New Trial II at 7. This argument fails as well. First, there is no evidence that the Government either knew or should have known of Mr. Cheney's alleged
The Court concludes that the Government did not suborn perjury and, therefore, that the Wright test applies to Mr. McCurdy's motion for new trial.
To prevail on a Rule 33 motion on the basis of newly discovered evidence, Mr. McCurdy must show the following: (i) that his newly discovered evidence was "unknown or unavailable to [him] at the time of trial"; (ii) that his "failure to learn of the evidence was not due to a lack of diligence" on his part; (iii) that "the evidence is material, and not merely cumulative or impeaching"; and (iv) that introduction of the evidence would "probably result in an acquittal upon retrial" of the case. Wright, 625 F.2d at 1019; see also Maldonado-Rivera, 489 F.3d at 65-66.
The first showing Mr. McCurdy must make, under the Wright test, is that his newly discovered evidence was unknown or unavailable to him at the time of his trial. See 625 F.2d at 1019. "Information surrounding a defendant's own conversations rarely qualifies as newly discovered evidence." United States v. Falu-Gonzalez, 205 F.3d 436, 443 (1st Cir.2000) (citing United States v. DeLuca, 137 F.3d 24, 40 (1st Cir.1998)); see also United States v. Slade, 980 F.2d 27, 29-30 (1st Cir.1992). Specifically, where a defendant himself participated in conversations with several people later claimed to constitute newly discovered evidence, the First Circuit observed that the defendant "must have known long before trial that the `exculpatory' testimony these witnesses could provide would be essential to respond to the evidence against him." United States v. DeLuca, 137 F.3d at 40; see also United States v. Garcia-Pastrana, 584 F.3d 351, 390 (1st Cir.2009) ("[I]f [the defendants'] claims of threats were true, then obviously they would have known about the threats during trial. Thus, their evidence cannot be `newly discovered,' as they cannot claim that the threats were `unknown or unavailable to [them] at the time of trial.'").
Mr. McCurdy can hardly claim that he did not know about the Florida, Bangor, and Whiting telephone calls because he participated in them. Furthermore, if Mr. McCurdy's interpretation of the recorded exchanges with Mr. Cheney is correct, these conversations would be distinctly memorable. As Mr. McCurdy tells it now, Mr. Cheney contacted him at some point and demanded $100,000 in Oxycontin in exchange for exculpatory testimony. There is no indication that this conversation was ever recorded. While in
As discussed above, Mr. McCurdy's participation in the phone conversations with Mr. Cheney undermines his claim that he was unaware of the Florida recording at the time of trial. Mr. McCurdy's affidavit does not list the dates, but it appears that the timing of these conversations was extremely close. Although exact timing is difficult to piece together, according to Ms. Prescott, during the McCurdy-Cheney Florida conversation, Mr. McCurdy stated that he would be "going to the law library (next day)...." Prescott Email (emphasis added). Mr. Cheney responded to Mr. McCurdy, "ill swing by tomorrow." Id. It appears, therefore, that Mr. Cheney was arriving in Maine from Florida the next day. The next conversation — the Bangor conversation — presumably took place the next day because Mr. Cheney tells Mr. McCurdy that he had arrived just a couple of hours previously. When he testified, Mr. Cheney said that he arrived in Maine on Friday, December 26, 2008. Tr. II at 15:15-22. This means that the recorded Florida conversation likely took place on Christmas Day, 2008 — just a few days before trial started.
Mr. McCurdy admits that he "knew that he had had the [Florida] conversation with Cheney in which a Christmas card is demanded... so McCurdy can save himself." Def.'s Reply Mot. for New Trial ¶ 2. Furthermore, according to Mr. McCurdy, he "routinely recorded telephone calls to and from [his] residence," beginning in June 2008. McCurdy Aff. ¶ 2. Mr. McCurdy's contention that he did not remember taping a conversation with a key Government witness demanding drugs in return for favorable testimony only days before his trial began strains credibility. The Court concludes that Mr. McCurdy in fact knew of the Florida conversation at the time of trial.
Mr. McCurdy's motion is based on a false premise: that to question Mr. Cheney about his efforts at extortion, Mr. McCurdy had to have the tape recording of the Florida conversation. This is simply incorrect and refuted by what occurred at trial. Mr. McCurdy had actual knowledge of his conversations with Mr. Cheney. He also had every right to cross-examine Mr. Cheney about: (1) whether he attempted to extort $100,000 worth of Oxycontin in exchange for exculpatory testimony; (2) whether Mr. Cheney admitted he said "no xmas card from ya, a xmas card to save yourself"; (3) what he meant by this odd statement; (4) whether "Christmas present" or "Christmas card" was a code word for drugs; (5) whether Mr. Cheney called Mr. McCurdy again when he arrived in Bangor; (6) whether, during this conversation, he discussed sending his "friend" over to pick up the drugs; (7) whether he called Mr. McCurdy a third time from Whiting to extort drugs from him; and (8) whether he demanded to know if they had "an agreement."
During voir dire, defense counsel questioned Mr. McCurdy about the substance of the Florida, Bangor, and Whiting calls.
Id. at 47:22-48:13. After sidebar and Mr. Cheney's voir dire examination, Mr. Silverstein very briefly questioned Mr. Cheney about the Bangor and Whiting calls. Id. at 64:21-66:7. Mr. Cheney admitted they took place but insisted they were about a Christmas present for his daughter. Id. Mr. Silverstein never forcefully and directly
If Mr. McCurdy wished to press the extortion allegation, including the Florida conversation, he had to ask Mr. Cheney directly. If Mr. Silverstein had set out Mr. McCurdy's specific allegations in a series of specific questions to Mr. Cheney, Mr. Cheney would have been pushed to respond with more detail. Assuming the truth of Mr. McCurdy's allegations, Mr. Cheney may have admitted his attempted extortion if faced with a tough and specific cross-examination. If he did not, defense counsel could have represented to the Court that there was a missing tape recording and sought a continuance to locate it.
The second prong of the Wright test requires that the defendant demonstrate that his failure to bring the evidence forward at trial was not due to his own "lack of diligence." 625 F.2d at 1019; see also Alicea, 205 F.3d at 487 (affirming denial of motion for new trial where record "contained nothing that showed that the evidence on which [the defendant] relied... was not readily discoverable had he exercised due diligence"). The defendant must show he exercised "a degree of diligence commensurate with that which a reasonably prudent person would exercise in the conduct of important affairs." Maldonado-Rivera, 489 F.3d at 69 (citing United States v. Cimera, 459 F.3d 452, 461-62 (3d Cir.2006); United States v. LaVallee, 439 F.3d 670, 701 (10th Cir.2006)).
Furthermore, the concept of due diligence extends not merely to whether the defendant was diligent in discovering the evidence but also to whether the defense made an effort to continue the trial in view of the missing evidence. See Wright, 625 F.2d at 1019 (noting that "trial counsel made no motion for a continuance in order to attempt to locate" witness whose testimony allegedly constituted newly discovered evidence). Information that defense counsel, for whatever reason, "decides not to pursue ... as part of his trial strategy" does not constitute "`newly discovered' [evidence] for purposes of Rule 33(a)." United States v. Barnard, 304 F.Supp.2d 96, 101-02 (D.Me.2004) (citing Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); United States v. Mello, 469 F.2d 356 (1st Cir. 1972); United States v. Kampas, 189 F.Supp. 720 (D.C.Pa.1960)).
The Court is left without a good explanation as to why Mr. McCurdy lost the tape of the Florida conversation, the absence of which fails to sustain Mr. McCurdy's burden under Wright. See 625 F.2d at 1019. After all, it was Mr. McCurdy who taped these conversations just a few days before trial and presumably had
Mr. McCurdy fails to adequately explain why he did not locate the tape of the Florida phone call. He says he spent the day before his trial listening to the tape recordings and that he discovered only the tapes of the Bangor and Whiting conversations later presented to the Court. McCurdy Aff. ¶ 10. Maybe so, but this statement does not explain why, with trial looming, he was not more diligent in discovering the tape of a recent telephone conversation he now claims was crucial to his defense. Mr. McCurdy informs the Court that Amanda Prescott "found [the conversations] on a tape with several unrelated calls," id. ¶¶ 13, 14, but he offers no explanation as to why Ms. Prescott was able to locate these calls when he could not. It is unclear why there was any difficulty in locating the Florida recording where the record indicates this conversation took place on December 25, 2008 — only four days before trial began.
Moreover, defense counsel did not mention the missing tape of the earlier conversation between Mr. Cheney and Mr. McCurdy and did not ask for a continuance to locate the missing tape. In fact, the first mention of a missing tape came with this motion more than two years after conviction.
At this stage, Mr. McCurdy must convince the Court that the error he now asserts was not the result of a conscious trial strategy. See, e.g., Nardone, 308 U.S. 338, 60 S.Ct. 266; United States v. Mello, 469 F.2d 356; Barnard, 304 F.Supp.2d 96. There are logical explanations for why the defense decided not to reveal before or at trial the true meaning of the "Christmas present" series of conversations.
It is much more likely that if presented with a tape recording of the Florida call, Mr. Cheney would have admitted it was his voice on the tape because he did so (with some equivocation) for the Bangor and Whiting calls. Tr. II at 58:20-60:5. However, if, during voir dire on the Florida call, Mr. Cheney continued to deny attempting to extort Mr. McCurdy, it is difficult to understand how Mr. McCurdy could have properly presented his broader claim about the $100,000 extortion demand without testifying himself.
To make a direct accusation of attempted extortion based on the evidence of these two or three telephone recordings would have been an inherently risky trial strategy because the accusation is so serious and the evidence so equivocal. If presented to a jury, it could have seemed like a desperate tactic, throwing around accusations without solid proof. Moreover, even if Mr. McCurdy had presented the Florida call at trial, he would have been required to resort to an indirect accusation of incredibility, which is precisely what Mr. Silverstein argued at closing.
If Mr. McCurdy were somehow able to put the full story before the jury, there would have been other problems. Evidence of attempted extortion would have introduced a new and highly volatile element into the trial. Until then, the case had been about whether a defendant previously convicted of an unnamed felony possessed a firearm. The Government's evidence consisted of a highly suspicious straw man sale on July 14, 2000, Mr. McCurdy's retrieval of the firearm in March 2001, the presence of the firearm in his attic in March 2006, and some additional incremental evidence. As the sole witness who placed the firearm in Mr. McCurdy's hands during the applicable statute of limitations, the defense had every reason to undercut Mr. Cheney's credibility but only so long as the tactic did not also implicate Mr. McCurdy himself.
Although the jury knew Mr. McCurdy was a felon and had possibly physically assaulted his girlfriend, there was no suggestion he was a drug addict or a person who had robbed pharmacies at gunpoint for drugs. If defense counsel had aggressively cross-examined Mr. Cheney on his attempted extortion, the natural question would have arisen as to why Mr. Cheney would demand that Mr. McCurdy produce $100,000 of Oxycontin unless he thought
Under Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), the jurors did not know Mr. McCurdy had been convicted of four violent felonies, each involving the robbery of a pharmacy: two May 14, 1984 convictions and two June 1, 1984 convictions. The jury did not know the latter two convictions involved Mr. McCurdy's use of a firearm, and they did not know Mr. McCurdy had a significant history of drug abuse that began when he was thirteen years old and included abuse of oxycodone. In addition, the record does not reflect what Mr. Cheney actually knew about Mr. McCurdy's other activities during the years Mr. McCurdy and Ms. Sawtelle were friendly.
If Mr. Silverstein had aggressively cross-examined Mr. Cheney, this tactic could have backfired on the defense. Backed into a corner, Mr. Cheney may well have volunteered information about Mr. McCurdy's activities explaining why Mr. Cheney made him the target of prescriptive drug extortion. This potential might explain why Mr. Silverstein was so cagey in questioning Mr. Cheney. Even if this evidence did not come out on cross-examination, if the defense opened the door, the Government would likely have been able to introduce some or all of it during its redirect examination of Mr. Cheney. See United States v. Joost, 133 F.3d 125, 128 (1st Cir.1998) ("A party who opens a door cannot be heard to complain that the adverse party strolled through the doorway."). The net result may well have been that the jury had more reason to convict Mr. McCurdy.
What is apparent is that Mr. Silverstein decided to tread lightly with Mr. Cheney, to splatter him with just enough mud without dirtying Mr. McCurdy, and to argue during closing that Mr. Cheney was not to be believed. During his closing, Mr. Silverstein argued that Mr. Cheney was not credible by emphasizing Mr. Cheney's altercation with Mr. McCurdy the morning of March 27, 2006, his resentment of Mr. McCurdy for his treatment of his mother, Mr. Cheney's prior convictions (lying to an officer, theft, burglary, and forgery), and Mr. Cheney's odd Bangor and Whiting conversations with Mr. McCurdy. Tr. III 37:20-38:22. In light of the context, Mr. Silverstein's limited questions at trial were eminently reasonable.
The law requires more of a defendant seeking to overturn a jury verdict based on newly discovered evidence than Mr. McCurdy has presented here. The Court concludes that Mr. McCurdy has not sustained his burden of showing that the evidence of the Florida conversation could not have been located with the exercise of due diligence and has failed to convince the Court that the error he now asserts was not the result of conscious trial strategy.
"Evidence that is cumulative or of marginal relevance ordinarily is insufficient to satisfy the third requirement" of the Wright test. Maldonado-Rivera, 489 F.3d at 70 (citing United States v. Gwathney, 465 F.3d 1133, 1144-45 (10th Cir.2006); United States v. Natanel, 938 F.2d 302, 314 (1st Cir.1991)). Furthermore, "newly discovered evidence which is merely impeaching normally cannot form the basis for a new trial." Barrett v. United States, 965 F.2d 1184, 1195 (1st Cir.1992); see also Maldonado-Rivera,
First, the tape recordings of the Bangor and Whiting conversations were available at trial and not used by Mr. McCurdy.
What exactly does the Florida conversation add to the Bangor and Whiting conversations? Absent direct evidence of the $100,000 Oxycontin demand (which would have been of highly questionable admissibility on foundational grounds), Mr. Cheney's Delphic reference to "no xmas card from ya, a xmas card to save yourself" would have added to the confusion. Prescott Email. The force of Mr. McCurdy's current allegation — that the comment was part of Mr. Cheney's attempted shakedown — relies on Mr. McCurdy's revelation of the $100,000 demand and would not otherwise have been readily apparent. The rest of the Florida conversation is obscure — "ill swing by tomorrow," "whatever is going to happen," and "what we talked about before, everything all good?" — and does not add much to Mr. McCurdy's allegations. Id. Absent more context, the Court is not convinced that the Florida telephone call would have made any material difference at trial.
Mr. McCurdy now claims, in effect, that Mr. Cheney's more direct reference in the Florida call to "xmas card to save yourself" would have given him the ammunition to directly raise Mr. Cheney's attempted extortion at trial. The Court is not convinced. First, although the Florida call adds only vague, incremental weight to Mr. McCurdy's accusation, the defense did not set the table for admission by demonstrating that the tape would have been necessary to begin with. If Mr. Cheney had been asked about the content of the conversation and denied it, that would be one thing, but there was no such attempt. The defense did not allege, through cross-examination or through offer of proof on the Bangor and Whiting recordings, that Mr. Cheney was attempting to extort drugs from Mr. McCurdy in exchange for favorable testimony.
The tapes that Mr. McCurdy produced were sufficient to raise questions about the meaning of "Christmas present" and, with Mr. McCurdy's own knowledge of previous conversations, Mr. Silverstein could have pressed Mr. Cheney on the true meaning
There is yet another reason why Mr. McCurdy fails the materiality prong of the Wright standard: the Florida recording is impeachment evidence that "does not bear directly on the defendant's guilt or innocence." Barrett v. United States, 965 F.2d 1184, 1195 (1st Cir.1992) (citing extensive case law). Impeachment evidence is generally considered immaterial. Id. Here, the evidence did not go to whether Mr. McCurdy actually possessed a firearm but whether Mr. Cheney was being truthful about conversations he had with Mr. McCurdy about an entirely different subject from which the jury could have made decisions about Mr. Cheney's overall credibility.
This factor is a closer call because impeachment evidence can be more significant "where the evidence is highly impeaching or when the witness' testimony is uncorroborated and essential to the conviction." Conley v. United States, 415 F.3d 183, 189 (1st Cir.2005) (quoting United States v. Martinez-Medina, 279 F.3d 105, 126 (1st Cir.2002)) (emphasis in Conley). To analyze this question, the Court turns to the fourth prong of the Wright test.
The fourth prong requires that the defendant show that his new evidence "will probably result in an acquittal upon retrial of the defendant." Wright, 625 F.2d at 1019. This means "the evidence must create an actual probability that an acquittal would have resulted if the evidence had been available." Sepulveda, 15 F.3d at 1220 (citing Slade, 980 F.2d at 29; Wright, 625 F.2d at 1019); see also Maldonado-Rivera, 489 F.3d at 66 n. 3 (quoting Sepulveda, 15 F.3d at 1220).
First, considering the way the defense treated the tape recorded calls it possessed, the Court cannot conclude that the incremental probative value of the Florida phone call would have changed the jury's verdict. As discussed, perhaps for reasons of trial strategy or evidentiary reasons, Mr. McCurdy seemed reluctant to bring the full weight of his extortion accusation to bear. He did not actively use either of the two recordings of the telephone conversations that he had and he did not levy the charge of attempted extortion at Mr. Cheney. Assuming that the Florida call added an incremental degree of credibility to his claim of attempted extortion, Mr. McCurdy has no recording of the seminal conversation in which Mr. Cheney supposedly made his demand for $100,000 of Oxycontin. As the Court has already pointed out, without more context, the contents of the Florida call remain foggy.
Second, Mr. McCurdy did question Mr. Cheney about the Bangor and Whiting conversations and he did argue on closing that Mr. Cheney was not to be believed. However, the jury rendered a guilty verdict. The Court is not convinced that a jury would exculpate Mr. McCurdy based on the additional, non-contextual evidence of the Florida call, and cannot conclude that after hearing the contents of the Florida call, a jury would arrive at a different verdict.
Two final corroborating factors are the testimony of then Deputy Jonathan Rolfe, one of the investigating officers, and the positioning of the ratchet straps on the military harness. Following a 911 call, Deputy Rolfe responded to Mr. McCurdy's home on March 27, 2006 and found in Mr. McCurdy's attic a black firearms case, a military harness with .37 millimeter rounds, and eleven magazines with rounds inside. Tr. I at 126:1-127:5; 136:1-5. Deputy Rolfe brought the firearm case to the Sheriff's Office but was unable to open it because it was locked. Id. at 127:22-128:3. He pried the latch open and found a Colt AR-15 and the upper part of an M16 with a 203 flare launcher attached to it. Id. at 128:12-18. At closing, the Government argued that because Mr. Cheney was able to describe the configuration of the AR-15 and its flare launcher, he must have seen the firearm in that same configuration before Deputy Rolfe went into the attic and retrieved the firearm case, and that Mr. Cheney's ability to describe the configuration was consistent with his other testimony about Mr. McCurdy's recent possession of the firearm. Tr. III at 15:9-17:14.
The military harness is a shoulder harness that allows a person with a firearm like an AR-15 to carry magazines in side pouches. AUSA Casey argued at closing that the shoulder straps were adjusted to fit a person about Mr. McCurdy's size and not to fit Mr. Cheney, who was much taller and heavier. Tr. III 46:5-16 (describing Mr. Cheney as a six foot, six inch man weighing 250 pounds); Gov't's Objection to Def.'s Mot. to Suppress (Docket # 12) Attach. 1 at 1 (Incident Report) (describing Mr. McCurdy as measuring five feet, five inches tall and weighing 150 pounds).
Even discounting some portion of Mr. Cheney's testimony based on his odd telephone comments, the Government's case would still likely have resulted in conviction based on Mr. McCurdy's use of a straw man to purchase the firearm in 2001, the alterations to the firearm that the Court discussed in its July 8, 2009 Order, Mr. McCurdy's retrieval of the firearm from Ms. Hayward for a bogus reason, the firearm's presence in Mr. McCurdy's attic, its configuration in the firearms case, the ratcheting of the shoulder harness, and Mr. Cheney's testimony, to the extent the jury believed it. Mr. McCurdy is correct that Mr. Cheney was the only witness who actually put the firearm in Mr. McCurdy's hands during the applicable statute of limitations period. But it is also true that Mr. Cheney's testimony was consistent with the other evidence of Mr. McCurdy's possession of the firearm.
In sum, the Court rejects Mr. McCurdy's contention that the Government suborned
Rule 16(a)(1)(B) of the Federal Rules of Criminal Procedure provides, in relevant part:
FED.R.CRIM.P. 16(a)(1)(B)(i) (emphasis added). Rule 16(a)(1)(E) provides in part:
FED.R.CRIM.P. 16(a)(1)(E)(i)-(iii) (emphasis added); see also United States v. Poulin, 592 F.Supp.2d 137, 141-42 (D.Me.2008). Especially relevant to this dispute, "[t]he Government has no duty to produce ... `evidence outside of its control,' nor can the Court compel it to do so." Poulin, 592 F.Supp.2d at 142 (citing United States v. Hughes, 211 F.3d 676, 688 (1st Cir.2000) ("Because the government was never in control of the photographs, it is not responsible for any failure to produce them.")); see also Bender, 304 F.3d at 163 ("[T]he rigors of Brady usually do not attach to material outside the federal government's control." (quoting United States v. Sepulveda, 15 F.3d 1161, 1179 (1st Cir. 1993))).
Mr. McCurdy moves for discovery of, among other items, copies of all telephone calls recorded by the Government between November 13, 2008 and December 31, 2008. The Government responds, unequivocally, that "[t]he alleged recordings were never made." Gov't's Resp. to Mot. for Disc. at 1.
To order the Government to produce a statement, the statement must first be "within the government's possession, custody, or control." FED. R. CRIM. P. 16(a)(1)(B)(i). In support of his motion, Mr. McCurdy claims a United States Probation Officer told him that the Government recorded his phone calls and used the information from those calls to aid in the examination of witnesses. Def.'s Mot.
Title 18, section 2519 of the United States Code requires judges or designated government attorneys to issue reports relating to any § 2518 orders involving the interception of wire, oral, or electronic communications. See 18 U.S.C. §§ 2518-19. As there is no evidence that any court issued a § 2518 order in Mr. McCurdy's case, there is no evidence that a § 2519 report exists. Therefore, the Court denies Mr. McCurdy's Rule 16 motion for reports filed pursuant to 18 U.S.C. § 2519.
Mr. McCurdy requests court orders relating to surveillance during his conditional release.
Mr. McCurdy also requests:
Def.'s Mot. for Disc. at 2. Mr. McCurdy may obtain a copy of the agreement by contacting the United States Probation Office.
Mr. McCurdy also requests "[a] description of all the materials resulting from the [Probation Office's] phone monitoring" of his house. Def.'s Mot. for Disc. at 2. Rule 16 of the Federal Rules of Criminal Procedure governs discovery of such materials. See FED.R.CRIM.P. 16(a)(1)(E). The Rule requires, first and foremost, that the Government possess the requested documents. FED.R.CRIM.P. 16(a)(1)(E); Poulin, 592 F.Supp.2d at 141-42.
Here, it appears there was no phone monitoring of the Defendant by the Probation Office or any other governmental entity. The Government states, and Mr. McCurdy offers no credible evidence to the contrary, that the recordings he seeks do not exist. Mr. McCurdy's request for a description of materials relating to phone monitoring is also denied.
"The Jencks Act, 18 U.S.C. § 3500, in concert with [Federal Rule of Criminal Procedure] 26.2, controls the production of certain witness statements in the government's possession." United States v. Marrero-Ortiz, 160 F.3d 768, 775 (1st Cir. 1998). Section § 3500(b) of the Jencks Act states:
18 U.S.C. § 3500(b). Rule 26.2 also requires the court, "on motion of a party who did not call the witness," to order the production of "any statement of the witness that is in [the nonmoving party's] possession and that relates to the subject matter of the witness's testimony." FED. R.CRIM.P. 26.2(a). For purposes of this Rule, "statement" is defined to include "the witness's statement to a grand jury... or a transcription of such a statement." FED.R.CRIM.P. 26.2(f)(3).
Mr. McCurdy asks for an order requiring the Government to produce documents relating to the grand jury proceedings resulting in his indictment. Specifically, he demands a list of grand jury witnesses, Mr. Cheney's June 7, 2006 grand jury testimony, and "[a]ny statement by any witness used by the prosecution and presented to the grand jury in conjunction with [Mr. Cheney's] appearance before the grand jury or in lieu of that witness's appearance before the grand jury." Def.'s Mot. for Produc. at 1-2.
The Government initially responded that neither Rule 26.2 nor the Jencks Act applied because they concern production of documents at trial and Mr. McCurdy "has already had his trial." Gov't's Resp. to Mot. for Produc. at 1 (Docket # 231). The Government also argued that, in any event, it had already supplied Mr. Silverstein with "all the discovery and Jencks Act Materials well in advance of trial." Id.
Mr. McCurdy replied on May 16, 2011, denying that his attorney ever received a transcript of Mr. Cheney's grand jury testimony and attaching a copy of an email
Still unclear about what the Government said it disclosed and what Mr. McCurdy acknowledged he received, the Court ordered the Government to supplement its response. Order for Supp. Resp. In its supplementary response, filed August 12, 2011, the Government states that "in advance of trial, it provided defense counsel with all discovery and Jencks Act materials in this case" and confirms that defense counsel in fact received Jencks Act materials, including a transcript of Mr. Cheney's grand jury testimony. Gov't's Supp. Resp. at 1-2, Attachs. 1-4 (pretrial discovery letters to defense counsel indicating transmission of Jencks Act and discovery materials).
The Court is fully satisfied that the Government complied with the Jencks Act and Federal Rule of Criminal Procedure 26.2 and that Mr. McCurdy now has, or has access to, all of the documents he seeks through his motion to produce. The Court, therefore, denies Mr. McCurdy's Motion for Production of Documents.
The Court DENIES Mr. McCurdy's April 8, 2011 Pro Se Motion for New Trial (Docket # 224). The Court also DENIES his April 22, 2011 Pro Se Motion for Discovery of Materials Related to Electronic Surveillance of Defendant (Docket # 227) and Pro Se Motion for Production of Documents under Jencks Act (Docket # 228).
SO ORDERED.
18 U.S.C. § 3500(b).
Id. at 62:2-18 (emphasis added). On redirect examination with the jury present, AUSA Casey asked Mr. Cheney, "Have you had discussions with Mr. McCurdy during these phone conversations about getting something from him?" Id. at 72:18-19. Mr. Cheney responded, "Yes." Id. at 72:20. When asked what he expected to get from Mr. McCurdy, Mr. Cheney responded, "They was Christmas gifts for my daughter and a card, I guess, for the wife and me." Id. at 72:22-23 (emphasis added).
Tr. II at 71:11-72:17.
Tr. III at 38:11-22.
Silverstein Email.