U.S. v. Conley
| Decision Date | 27 June 2000 |
| Docket Number | No. Crim.A. 97-10213-RE.,Crim.A. 97-10213-RE. |
| Citation | 103 F.Supp.2d 45 |
| Parties | UNITED STATES of America, v. Kenneth M. CONLEY, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Frances L. Robinson, Willie J. Davis, Davis, Robinson & White, Boston, MA, for Defendant.
S. Theodore Merritt, United States Attorney's Office, Boston, MA, for U.S.
The following matters are pending for decision after documentary submissions and oral argument on April 27, 2000:
(1) Motion to Continue Stay of the Execution of Sentence (Docket No. 104, filed March 24, 2000).
(2) Motion for Reconsideration of Downward Departure (Docket No. 105, filed March 24, 2000).
(3) Motion for New Trial (Docket No. 106, filed March 24, 2000) (with Exhibits 1-10 attached) and Memorandum of the Defendant in Support of Motion for New Trial (Docket No. 107, filed March 24, 2000).
(4) Opposition of United States to Defendant's Motion for Reconsideration of Downward Departure (Docket No. 111, filed April 6, 2000).
(5) Opposition of the United States to Defendant's Motion for a New Trial (Docket No. 112, filed April 6, 2000).
(6) Defendant's Reply to Opposition of the United States to Motion for New Trial (Docket No. 118, filed April 17, 2000)
For the reasons stated in this opinion, a new trial is ordered, the motion for reconsideration of downward departure is denied, the stay of execution of the sentence is extended, and all other motions and requests are denied or dismissed as moot.
At the sentencing hearing of September 29, 1998, this court found a Total Offense Level of 23 and Criminal History Category of I, resulting in a sentencing range of 46-57 months under the Sentencing Guidelines. Based on the totality of circumstances to be considered under the Guidelines and precedents applying them, the court downwardly departed and imposed a sentence of 34 months to be served in the custody of the Bureau of Prisons. The court rejected defendant's request for a more extreme downward departure to a sentence of probation, and rejected defendant's alternative request for a sentence at some intermediate point between probation and 34 months.
The government takes the position that the court lacks authority to re-sentence the defendant at this time, after an appeal and affirmance of the conviction and sentence. I conclude that the government is correct in this position. Rule 35 of the Federal Rules of Criminal Procedure provides in part (a) for prompt correction of clerical or mathematical errors, and provides in part (b) for reduction at a later time on motion of the government grounded on substantial assistance. Also, upon remand from a court of appeals, a trial court has authority to correct a sentence to accord with the decision of a court of appeals. In this instance, however, the Court of Appeals for the First Circuit affirmed the conviction and sentence and remanded only for consideration of a motion for new trial, defendant having argued on appeal not for re-sentencing but primarily for reversal and in the alternative for new trial on grounds not asserted before the trial court.
Neither defense counsel nor the court has found any provision of any statute, Rule of Criminal Procedure, Sentencing Guideline, or judicial decision that would support re-sentencing at this time. I conclude that the Motion for Reconsideration of Downward Departure (Docket No. 105) must be DENIED.
A motion for a new trial may be granted if the court finds that "the interests of justice so require." Fed.R.Crim.P. 33. The remedy of a new trial must be used sparingly, and only where a miscarriage of justice would otherwise result. See United States v. Rothrock, 806 F.2d 318, 322 (1st Cir.1986).
As a general rule, four requirements must be met before a court may grant a new trial on the ground of newly discovered evidence: (1) the evidence must have been unknown or unavailable to the defendant at the time of trial; (2) the defendant must have been duly diligent in attempting to unearth it; (3) the newly discovered evidence must be material; and (4) the newly discovered evidence must be such that its emergence probably will result in an acquittal upon retrial. See United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980); United States v. Huddleston, 194 F.3d 214, 218 (1st Cir.1999). If the defendant fails to carry his burden with respect to any one of these four factors, the motion for a new trial must be denied. See Wright, 625 F.2d at 1019. Also, a motion for a new trial based on newly discovered evidence must be made within three years after the verdict or finding of guilty. See Fed.R.Crim.P. 33.
If the newly discovered evidence was unknown to the government and its agents, the defendant must show "an actual probability that an acquittal would have resulted if the evidence had been available." United States v. Josleyn, 206 F.3d 144, 151 (1st Cir.2000). If, however, the newly discovered evidence was known to the government or its agents, a different standard applies. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt of to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 89, 83 S.Ct. 1194; see United States v. Cunan, 152 F.3d 29, 33 (1st Cir.1998). The prosecutor's affirmative duty to disclose such evidence is applicable even where the accused has not requested the disclosure. See United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Also, the Brady rule encompasses both evidence known to the prosecutor and evidence known only to police investigators. See Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). This places on the prosecutor "a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police." Id. at 437, 115 S.Ct. 1555.
A breach of the prosecutor's duty to learn of exculpatory evidence and to disclose it does not, however, always require a new trial: Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); see also Kyles, 514 U.S. at 433-434, 115 S.Ct. 1555. The Court has defined "reasonable probability" as "not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of credence." Strickler v. Greene, 527 U.S. 263, 289-290, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quoting Kyles, 514 U.S. at 434, 115 S.Ct. 1555).
When the newly discovered evidence is the existence of perjured testimony on the part of one or more government witnesses, the Wright standard applies: "The conviction should nonetheless stand unless the force of the newly discovered event (i.e., the fact and nature of the perjury) and the content of the corrected testimony are such that an acquittal probably would result upon retrial." Huddleston 194 F.3d at 221. This holding, however, applies only where the government's use of perjured testimony was unwitting. The Supreme Court has held that "a conviction obtained by the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony would have affected the judgment of the jury." Agurs, 427 U.S. at 103, 96 S.Ct. 2392; Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio, 405 U.S. at 153, 92 S.Ct. 763. This less stringent standard applies whether the government solicits perjured testimony or instead merely allows it to go uncorrected when it appears. See Napue, 360 U.S. at 269, 79 S.Ct. 1173.
At the completion of a jury trial in June 1998, the jury found defendant guilty of one count of perjury and one count of obstruction of justice, also finding him not guilty of another count of perjury.
Defendant grounds his motion for a new trial on a contention that "evidence discovered after trial, and withheld by the government prior to and during trial, would have seriously undermined the testimony of each" of three witnesses (Michael Cox, Richard Walker, and Robert Brown) on whose trial testimony the Court of Appeals "relied" in affirming the conviction (Docket No. 106 at p. 2). Defendant adds the contention that "in the case of Brown and Walker, exculpatory evidence withheld from the defense allowed the government purposely to ask the jury to infer facts known by the prosecutor not to be true." Id.
In his grand jury testimony, read in part into evidence in the presence of the jury at trial, Conley stated that he was the first officer in pursuit of the suspect, Robert Brown. Conley stated that he was 40 feet behind the suspect and that he climbed over the chain link fence "seconds after" the suspect did. He further testified that he did not see Michael Cox or any other plain-clothed officer chasing the same suspect ahead of him. (Tr. Vol. III at 15).
The testimony of Michael Cox, Robert Brown, and Richard Walker...
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