JUAN R. SÁNCHEZ, District Judge.
In November 2013, following a jury trial, Defendants Robroy MacInnes and Robert Keszey were convicted of participating in a conspiracy to traffic in illegally obtained animals; MacInnes was also convicted of trafficking in illegally obtained animals in violation of the Lacey Act. Both Defendants have filed motions for a new trial under Federal Rule of Criminal Procedure 33, raising a variety of evidentiary and legal errors that allegedly deprived them of a fair trial.
On November 13, 2012, Defendants Glades Herp Farm, Inc. (Glades), MacInnes, and Keszey were charged in a two-count indictment. Count One of the indictment charged all three Defendants with conspiracy to traffic in illegal animals, including the Eastern Timber Rattlesnake (referred to herein as timber rattlesnakes or timbers).
Loren Zuck, the chief government witness in the case, began working as Glades's agent starting in the early 2000s, often manning a table sponsored by Glades at reptile shows held multiple times per year in Hamburg, Pennsylvania. During these shows, Zuck was in frequent contact with Defendants because he was not allowed to buy or trade animals without the permission of one of Glades's proprietors. Munsterman and Paolini knew Zuck through the reptile shows and contacted him in August 2008 to determine whether Glades would be interested in purchasing the adult timber rattlesnakes or their offspring. Zuck testified that after contacting Defendants regarding Munsterman and Paolini's proposed transaction, they authorized Zuck to purchase the timbers, with the understanding that he would then ship those snakes to Glades. On September 21, 2008, Paolini and Munsterman met with Zuck in Easton, Pennsylvania, and gave him two adult timber rattlesnakes and the remaining babies in exchange for approximately $900 in Glades store credit. Later that day, Zuck shipped all but two of the juvenile timber rattlesnakes from Philadelphia to Tampa, Florida, where MacInnes received and signed for the shipment.
During trial, the defense maintained that Zuck did not actually send the timber rattlesnakes he purchased from Paolini and Munsterman to Glades in Florida, and the September 21, 2008, shipment contained other reptiles. According to the defense, facing criminal charges and under pressure from the Government, Zuck manufactured the story against Keszey and MacInnes. Defendants also argued Glades had a number of other, legal sources for timber rattlesnakes and the snakes Glades sold in the fall of 2008 came from one of these alternative sources.
To counter Defendants' alternative-source theory, the Government called Kristen Wiley, who, along with her husband, James Harrison, is employed by the
Under Federal Rule of Criminal Procedure 33, a district court "may vacate a judgment and order a new trial if the interest of justice so requires." Fed. R.Crim.P. 33(a). A court may grant a motion for new trial if it finds errors occurred during the trial and these errors "when combined, so infected the jury's deliberations that they had a substantial influence on the outcome of the trial." United States v. Thornton, 1 F.3d 149, 156 (3d Cir.1993). Harmless errors that do not deprive a defendant of a fair trial provide no basis for granting a defendant's Rule 33 motion. Id. The defendant bears the burden of proving a new trial should be granted, and must therefore show "(1) that error occurred at trial, and (2) that error had a substantial influence on the verdict." United States v. Amirnazmi, 648 F.Supp.2d 718, 720 (E.D.Pa.2009), aff'd, 645 F.3d 564 (3d Cir.2011). Motions for a new trial are disfavored and "only granted with great caution and at the discretion of the trial court." United States v. Martinez, 69 Fed.Appx. 513, 516 (3d Cir.2003).
Defendants raise many purported errors in an effort to gain a new trial. Although asserted errors will be addressed individually below, the errors generally fall within the following categories: (1) improperly admitted evidence; (2) improper prohibitions on lines of questioning and improperly excluded evidence; and (3) jury instructions errors. MacInnes also contends that during closing the Government improperly commented on his Fifth Amendment right to remain silent.
First, Defendants maintain that the Court improperly admitted a statement made by Justin Munsterman under the hearsay exception found in Federal Rule of Evidence 803(3). Prior to trial, the Government moved in limine for a ruling permitting it to introduce, through Lieutenant Thomas, a statement Munsterman made to Thomas while Thomas was acting undercover. Munsterman sold two timber rattlesnakes to Thomas and then told Thomas he was planning on selling the other snakes in his possession to Glades. By Order of November 7, 2013, the Court ruled that Munsterman's statement to this effect was admissible under the state of mind exception found in Rule 803(3). Defendants now contest the admission of the following testimony:
Trial Tr. 14, Nov. 6, 2013.
Rule 803(3) provides for an exception to the rule against hearsay where a statement is of "the declarant's then-existing state of mind (such as motive, intent, or plan)." Fed.R.Evid. 803(3). The exception does not include a "statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will." Id. Defendants argue the above-quoted testimony was inadmissible because the statement (1) is not only a statement of intent, but also a statement of Munsterman's belief that Zuck was going to send the snakes to Glades in Florida;
In arguing Munsterman's statement to Thomas is a statement of Munsterman's belief that Zuck was going to send the snakes to Glades in Florida, Defendants mischaracterize the testimony. The statement concerned Munsterman's intent or plan to sell the snakes to Glades by entering into a transaction with Zuck, Glades's representative in Pennsylvania. Munsterman's statement does not include within it the assumption or belief that Zuck sent the snakes to Glades in Florida, and it is relevant without such an assumption. That Munsterman sold the timbers to Glades's representative in Pennsylvania is independently relevant because it represents a link in the chain of events leading to Glades's receipt of the illegally obtained snakes. Under the Hillmon doctrine, Munsterman's statement is admissible to show this exchange occurred because statements "admitted under Fed.R.Evid. 803(3) to show the declarant's intent or plan may be used to show that the declarant acted in accord with that plan." United States v. Donley, 878 F.2d 735, 738 (3d Cir.1989) (citing Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892)).
As to Defendants' second argument, Munsterman's statement of intent was not used to establish the truth of Munsterman's belief, but rather to corroborate other evidence that his plan to sell the snakes to Glades came to fruition. The admission of Munsterman's statement for this purpose still fits within the Hillmon rationale behind Rule 803(3), which is to corroborate other evidence that a planned action actually took place. See Fed.R.Evid. 803(3) advisory committee's note 3 ("[A]llowing evidence of intention as tending to prove
Defendants' other arguments also miss the mark. There was no compound hearsay involved because the statement at issue was made by Munsterman to Lieutenant Thomas, which constitutes a single level of hearsay admissible under Rule 803(3). Defendants' claim that the statement lacked sufficient indicia of reliability is irrelevant because the Confrontation Clause does not apply and the statement was not admitted under the residual hearsay exception. See Fed.R.Evid. 807(a)(1) (permitting admission of hearsay statements not covered by an exception if "the statement has equivalent circumstantial guarantees of trustworthiness").
Next, Defendants argue the Court erroneously admitted evidence of Keszey's October 2008 shipment of timber rattlesnakes to Germany under Rule 404(b).
Defendants claim that their theory of the defense was improperly limited because the Court prevented them from eliciting testimony both on cross-examination and from their proffered expert, Terry Wilkins, to establish the following facts: (1) timber rattlesnakes are legal and unprotected in several states close to Florida, including Georgia, South Carolina, and Virginia; (2) they are found in approximately thirty states, not just New York and Pennsylvania; and (3) the natural birth cycle of timber rattlesnakes is to give birth to their young in late summer/early fall, making the species plentiful throughout the fall, when agents noted an increase in the inventory of timber rattlesnakes on Glades's website.
Upon consideration of Defendants' arguments and the testimony admitted at trial,
To the extent Defendants take issue with this Court's November 13, 2013, Order denying their request to permit Terry Wilkins to testify as an expert on these subjects during trial, the Court need not elaborate on the reasons why Wilkins did not qualify as an expert. See Order, Nov. 13, 2013, ECF No. 96 (precluding Wilkins's testimony under Rule 702). Regarding Defendants' arguments that Wilkins should have been allowed to testify as a lay witness, the testimony Defendants sought to elicit from Wilkins, including the differences between wild-caught and captive-bred snakes and the breeding cycles, habitat, commonality, and market value of timber rattlesnakes, would have required expert testimony. See e.g., Trial Tr. 185-86, Nov. 8, 2013 (sustaining Defendants' objection that testimony from government lay witness on how indigo snakes were bred was expert testimony); Trial Tr. 216-18, Nov. 12, 2013 (sustaining Defendants' objection that testimony on habits of captive versus wild snakes was expert testimony).
Moreover, the information Defendants tried to elicit on breeding cycles and other state regulatory schemes was only marginally
During trial, this Court ruled that a recording of an exchange between Zuck and another NY DEC investigator, Agent Sullivan, in which Sullivan explained to Zuck some of the legal issues he faced,
Defendants also maintain the recording was important impeachment evidence going to Zuck's credibility and his motive to lie. The Court ruled, however, that the recording was inadmissible under Rule 608(b) because it constituted an attack on Zuck's character for truthfulness, and "extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness." Fed.R.Evid. 608(b). A trial court may, however, allow specific instances of conduct to be inquired into on cross-examination if they are probative of the witness's character for truthfulness or untruthfulness, and the Court therefore permitted Defendants to cross-examine Zuck on his interaction with Sullivan. The Court only refused to admit the actual recording into evidence, consistent with Rule 608(b). See Trial Tr. 66, Nov. 12, 2013 ("You could cross-examine him on statements that he made to any police officer and attack him, but you're not going to get Sullivan's statements into the record in this case. I don't think that's proper.").
The Court recognizes that if the recording also went to Zuck's bias it could be admissible notwithstanding Rule 608(b). See United States v. Abel, 469 U.S. 45, 56, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (declining to address the admissibility of evidence under Rule 608(b) because "[i]t was enough that such evidence could properly be found admissible to show bias"). As noted above, however, Zuck made no statement on the recording that would be relevant to bias. It is speculative at best to suggest Sullivan's statements alone would establish Zuck's bias, and admitting the recording into evidence would have wasted time, delayed the trial, and confused the issues. Had the Court not excluded the recording as hearsay and impermissible
Finally, Defendants were not harmed by the decision to exclude the evidence, because defense counsel was permitted to, and in fact did, cross-examine Zuck extensively on his interaction with Sullivan and the plea deal he received in exchange for his cooperation. Defendants' theory, that Zuck was pressured into fabricating a story implicating them, was thoroughly developed at trial and argued during closing.
Defendants contend that this Court prohibited them from introducing evidence of Keszey's good character by stating if such evidence were offered, it would permit cross-examination on a settlement entered into by Glades (and signed by Keszey) that, prior to trial, the Court found inadmissible under Rule 404(b). Keszey's contention in this regard is unsupported by the record. During a sidebar called to address another evidentiary issue (uncontested in the instant motions), counsel for the Government stated that if Defendants elicited testimony regarding Keszey's reputation for law abiding conduct, then the Government should be permitted to rebut with specific instances of conduct. After this discussion between counsel, the Court simply noted that under the applicable Rule of Evidence, character traits elicited by the defense could be attacked on cross-examination. See Trial Tr. at 94, Nov. 13, 2013; see also Fed.R.Evid. 405(a) ("On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.").
While Defendants now claim the Rule 404(b) evidence at issue would not have been appropriate rebuttal material, it was Defendants' decision not to introduce character testimony. This Court never had the opportunity to consider whether the Rule 404(b) evidence was appropriate for rebuttal, nor did it ever rule that such evidence would be admitted if Defendants elicited testimony regarding Keszey's good character. Defendants cannot now claim their tactical decision not to pursue a particular line of questioning provides grounds for a new trial simply because they feared at the time the Court may have issued an adverse ruling it did not.
On the last day of trial, the defense requested that the Court instruct the jury as follows:
Defendants argued during trial that this instruction was appropriate under United States v. Sussman, 709 F.3d 155, 178 (3d Cir.2013). Under Sussman, a defendant is entitled to a theory of defense instruction where "(1) he proposes a correct statement of the law; (2) his theory is supported by the evidence; (3) the theory of defense is not part of the charge; and (4) the failure to include the instruction of the defendant's theory would deny him a fair trial." Id.
The Court found the instruction was not warranted under the authority of
Over Keszey's objection, the Court gave a jury instruction based on the Third Circuit model regarding false exculpatory statements:
Trial Tr. 41-42, Nov. 15, 2013.
The statements prompting the instruction were made during a recorded phone conversation between Keszey and Zuck. When Zuck asked Keszey what to do when the authorities asked him about illegal timber rattlesnakes, the conversation proceeded as follows:
See Gov't's Mem. of Law in Supp. Of its Mot. to Admit Recordings Ex. 3, at 3-4. Keszey objected to the instruction and argues that since it could have been true that his only source of timbers was Jim Harrison, the Court's instruction regarding false exculpatory statements was in error. The Court decided the instruction was appropriate because there was evidentiary support for it, and therefore overruled the objection. See United States v. Battles, 514 Fed.Appx. 242, 247 (3d Cir.2013) (finding no error in giving false exculpatory statement instruction when there was sufficient evidentiary support for the instruction).
As an initial matter, the Government points out (correctly) that Defendants' own theory of the case makes Keszey's statement false, since Defendants argued that they had multiple legal sources of timber rattlesnakes. Moreover, Kristen Wiley, who runs the Kentucky Reptile Zoo with Harrison, testified they only sent timbers to Glades once, in January 2008, and those snakes could not have been the same snakes that were shipped to Glades in September 2008. In addition to Wiley's testimony suggesting that Glades must have had an additional source of timber rattlesnakes (even if the source was someone other than Munsterman and Paolini), Zuck and Paolini testified that they had sent timber rattlesnakes to Keszey. Even assuming Keszey's statement that Harrison was his only source of timbers was backed by any evidence supporting its truth, the instruction left for the jury to determine whether the statement was true or false.
The defense also asserts the false exculpatory statement instruction was erroneous because Defendants obtained after-discovered evidence that Kristen Wiley perjured herself. Defense counsel asked on cross-examination if Wiley had ever attended a reptile show in San Antonio, Texas, in 2013. She responded that she never had attended a San Antonio reptile swap meet and did not attend the one "last spring in San Antonio." See Trial Tr. 201-202, Nov. 12, 2013. Defendants now maintain they have proof Wiley did attend a reptile show in San Antonio. They have submitted to the Court a "Purchaser's Venomous Waiver," which purportedly shows she was at an event called the "Texas Reptile Expo" held in a town called Live Oak, Texas (twenty miles outside of San Antonio), in the fall (September 8, 2013), not the spring. This evidence does not provide proof of perjury, and, even if it did marginally affect her credibility, Wiley's testimony did not bear on Keszey's theory that Jim Harrison had been doing business with Keszey for years — and was his exclusive source of timber rattlesnakes.
During trial, Defendants sought a clarifying instruction explaining to the jury that it could only convict on the conspiracy count if it unanimously agreed that Keszey conspired with others to ship the snakes to Glades in 2008. According to Keszey, the only overt act that the jury was permitted to consider for the purposes of the conspiracy count was the shipment of timber rattlesnakes by Zuck from Pennsylvania to Florida.
Count One of the indictment alleged twelve overt acts occurring from 2007 through December 2008, and the evidence showed at least six of the overt acts set forth in the indictment occurred after November 13, 2007. See id. ¶¶ 19-25. Any one of these overt acts could have been properly considered by the jury as a basis to sustain the conspiracy charge. See United States v. Somers, 496 F.2d 723, 744-45 (3d Cir.1974) ("[P]roof of the acts charged on any date within the statute of limitations and before the return date of the indictment is sufficient to support a conviction."). Moreover, though some of the overt acts listed in the indictment did occur prior to November 13, 2007, a conspiracy "is a continuing offense and a jury may consider each and all of a defendant's actions in furtherance of the conspiracy so long as the indictment is brought within five years of the last overt act." United States v. Amirnazmi, 645 F.3d 564, 592 (3rd Cir.2011).
MacInnes contends that during closing, the prosecutor highlighted MacInnes's silence during a recorded telephone conversation with Zuck as constituting evidence of MacInnes's guilt, and thereby violated his right to remain silent under the Constitution. MacInnes provided no factual (or legal) citation in support of this claim, but the relevant passage
While the Court analyzed each of the foregoing purported errors individually, it has also considered them together to determine whether they had a substantial influence on the outcome of the trial. The Court concludes that despite Defendants' protestations to the contrary, they received a fair trial, and have provided no grounds, individually or in the aggregate, for another. Accordingly, their motions for a new trial will be denied.
An appropriate order follows.
AND NOW, this 30th day of May, 2014, upon consideration of the parties' written submissions, the underlying record, and oral argument on the motions, and for the reasons set forth in the accompanying Memorandum, it is ORDERED:
First, even if not intrinsic to Count Two, the shipment to Germany was admissible as intrinsic to the conspiracy charge because it directly proves a conspiracy to traffic in illegal animals, and in proving a conspiracy, "[t]here is general agreement that the Government is not limited in its proof at trial to those overt acts alleged in the indictment." United States v. Adamo, 534 F.2d 31, 38-39 (3d Cir.1976); see also United States v. Gibbs, 190 F.3d 188, 218 (3d Cir.1999) (holding evidence of uncharged overt acts is intrinsic and not subject to Rule 404(b) if it directly proves the charged conspiracy); Green, 617 F.3d at 249 ("If uncharged misconduct directly proves the charged offense, it is not evidence of some `other' crime." (citing Gibbs, 190 F.3d at 218)). Second, even if it was error to admit the Germany shipment as intrinsic to Count Two, MacInnes was not harmed by the admission because the substantive Lacey Act violation required only proof that the snakes were shipped from Pennsylvania to Glades in Florida. The Government provided independent proof of the shipment from Pennsylvania to Florida, unrelated to any later shipment to Germany. During trial, Defendants argued the snakes shipped to Germany were not the same snakes shipped to Florida, and the jury was never required to infer the snakes were the same. Third, evidence of the shipment to Germany would have been admissible under Rule 404(b) as to both counts in the indictment because it provided relevant evidence of motive — Zuck testified Defendants told him they wanted to sell the snakes at an upcoming show in Europe because timber rattlesnakes are more valuable in Europe. See Trial Tr. 151-52, Nov. 8, 2013; Trial Tr. 181, Nov. 12, 2013. Evidence of the shipment would have also satisfied Rule 403 balancing requirement. Where otherwise admissible Rule 404(b) evidence is at issue, the Government is required to provide pretrial notice of its intent to introduce such evidence (which it did), and the Court must give a limiting instruction if asked (which it was not, even though Defendants appear to have believed the evidence was admitted under Rule 404(b)). See Green, 617 F.3d at 249.
