U.S. v. Earles, CR 91-4016-MWB.
| Decision Date | 04 November 1997 |
| Docket Number | No. CR 91-4016-MWB.,CR 91-4016-MWB. |
| Citation | 983 F.Supp. 1236 |
| Parties | UNITED STATES of America, Plaintiff, v. Donald Lee EARLES and Catherine Papajohn, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
James A. Meade, Trial Atty., Dept. of Justice, Washington, DC, Willis Buell, Asst. U.S. Atty., Souix City, IA, for U.S.
James J. Beery, Norwalk, IA, for Defendant Earles.
Stanley E. Munger, Jay E. Denne of Munger & Reinschmit, Souix City, IA. for Defendant Papajohn.
TABLE OF CONTENTS
I. INTRODUCTION .......................................................
A. Procedural Background ...........................................
B. Factual Background ..............................................
II. LEGAL ANALYSIS ....................................................
A. Standards For A New Trial ......................................
1. Grounds .....................................................
2. "Newly discovered evidence" .................................
3. Discretion ..................................................
B. Recantation By A Witness .......................................
1. Skepticism ..................................................
2. Credibility, materiality, and impact on retrial .............
3. Donnie Earles' recantation ..................................
a. "Newly discovered evidence" ..............................
b. Credibility, materiality, and impact on retrial ..........
i. Credibility ..........................................
ii. Materiality and impact on retrial ....................
III. CONCLUSION .......................................................
Skepticism greets any recantation of testimony by a witness in a criminal case, because where a witness later recants testimony given at trial, "the witness either is lying now, was lying then, or lied both times."1 Some degree of skepticism, then, would greet the recantation here, even were it not by the son of one of the defendants, of some of the witness's grand jury testimony used at trial of the defendants on arson and mail fraud charges when the witness refused to testify. That portion of grand jury testimony, so the government asserted at the time of trial, was the critical link between the defendants and the arson fire at a grocery store owned by one of the defendants. The further twist here — apart from the filial relationship between the witness and the defendant — is that the grand jury testimony now being recanted was itself a "recantation" of prior grand jury testimony, in which the witness had asserted he knew nothing whatever about the fire. Certainly, heightened skepticism should be accorded a "re-recantation," particularly when it came only after the Eighth Circuit Court of Appeals held that the admission at trial of both versions of the witness's grand jury testimony was not erroneous. Yet whatever degree of skepticism is appropriate here, skepticism does not mean prejudgment. Therefore, it is only after an evidentiary hearing at which the witness's latest recantation was reiterated, and after careful consideration of the witness's credibility, that this court finds itself prepared to rule on the defendants' motions for new trial based on the son's "newly discovered" re-recantation.
On May 26, 1995, defendants Donald Lee Earles and his companion Catherine Papajohn were convicted on a jury verdict on arson and mail fraud charges stemming from a fire on January 23, 1989, that destroyed an IGA store in Sloan, Iowa, owned by Papajohn and run by Earles.2 On January 29, 1995, the trial judge, Senior Judge Donald E. O'Brien, granted the defendants' motions for judgment of acquittal on the ground that he had improperly admitted the grand jury testimony of Earles' son, Donald Scott Earles ("Donnie"),3 when he refused to testify at trial. As a result of Donnie's refusal to testify at a prior trial of Papajohn, which ended in a mistrial, or at the second trial of Papajohn and Earles, which ended in convictions, Donnie was imprisoned for civil and criminal contempt of court. In a decision handed down on May 8, 1997, the Eighth Circuit Court of Appeals held that Donnie's grand jury testimony had been properly admitted, because Donnie was an "unavailable" witness owing to his refusal to testify and his grand jury testimony was admissible under the "catch-all" exception to the hearsay rule found in FED.R.EVID. 804(b)(5). See United States v. Earles, 113 F.3d 796 (8th Cir.1997), petition for cert. filed, 66 U.S.L.W. 3204 (Sept. 16, 1997) (No. 97-505). The court of appeals therefore reversed the district court's judgment of acquittal and ordered the jury verdict convicting Earles and Papajohn reinstated. Id. On May 12, 1997, Judge O'Brien reassigned the case to the undersigned.
On May 15, 1997, Donnie, while represented by counsel, submitted to a telephone "deposition" — really just a statement under oath in question-and-answer form — conducted by Papajohn's defense counsel with "cross-examination" by Earles' defense counsel. The government was not given notice of or represented at the "deposition." At the evidentiary hearing, the defendants conceded that the procedure used to obtain Donnie's new statement was not a "deposition" in any usual sense. However, it is not the form, but the content of that "deposition" that matters here. In that "deposition," Donnie expressly recanted his prior grand jury testimony implicating his father and Papajohn in the fire that destroyed the IGA store. On June 17, 1997, Earles filed his motion for a new trial on the ground that Donnie's "deposition" was "newly discovered evidence" requiring a new trial. Papajohn's motion for new trial on the same ground followed on June 20, 1997.
On the basis of the Donnie's recantation in the "deposition," the court held an evidentiary hearing on the motions for new trial on October 28, 1997. The present ruling on the motions for new trial therefore relies on testimony presented at the evidentiary hearing, rather than upon the "deposition." At the evidentiary hearing, the United States was represented by counsel James A. Meade, Trial Attorney, Department of Justice, in Washington, D.C., and Willis Buell, Assistant United States Attorney, in Sioux City, Iowa.4 Defendant Earles was represented by counsel James J. Beery of Norwalk, Iowa. Defendant Papajohn was represented by counsel Stanley E. Munger and Jay E. Denne of Munger & Reinschmidt in Sioux City, Iowa. At the hearing, the defendants presented the testimony of Sharon McFall, Donnie's mother and defendant Earles' ex-wife, and Donnie himself. The United States did not present any witnesses. The parties also submitted as exhibits transcripts of Donnie's various appearances before the grand jury and at trial, the recantation "deposition," the transcript of a polygraph examination of Donnie conducted on or about June 12, 1991, and an "immunity letter" to Donnie dated June 18, 1991, from prosecutor Michael Hobart.
Although the court will make additional findings of fact in its legal analysis, the court will here survey Donnie's grand jury testimony, admitted upon his refusal to testify in the trial of Earles and Papajohn, and his recantation of that testimony at the evidentiary hearing, as well as other pertinent evidence. Donnie's testimony admitted at Earles' and Papajohn's trial was drawn from his grand jury appearances on May 15, 1991, Government's Exhibit 1, and July 17, 1991, Government's Exhibit 2.5
On May 15, 1991, the gist of Donnie's grand jury testimony concerning his knowledge of the fire was as follows. Donnie was painting a truck in downtown Sloan, Iowa, on the evening preceding the fire at the IGA store. He testified that he saw his father's pickup truck in front of the IGA store during the evening, and that it was still there after midnight when Donnie went home. Donnie testified that his father's truck was parked there almost continuously from about 9:30 p.m. until Donnie went home. Donnie testified that he never talked to his father that night. However, Donnie ran out of gas in front of Catherine Papajohn's house, where Earles apparently also lived, near the IGA store, on Donnie's way home, and he refilled it from gas he knew would be in Papajohn's garage. It was while Donnie was refilling his truck and attempting to restart it that he noticed his father's truck was gone from the IGA store, but his father's truck had returned by the time Donnie got his own truck running. Donnie testified that his father told him the next day that he had locked up the store early on the morning of the fire and had later received a phone call that the store was on fire.
On May 15, 1991, Donnie also testified that his father ran the IGA store, although Papajohn owned it. He testified that his father never said the store had financial problems, but that it was "a pain in the butt always having to work on everything down there." Grand Jury Testimony of Donnie Earles, May 15, 1991, p. 16, ll. 8-9. However, when asked directly if he knew how the fire started at the IGA store, Donnie answered, "No. I have no idea." Id. at p. 20, ll. 15-16. Somewhat later, the following testimony was also elicited:
Q [by Mr. Hobart]. Do you have any knowledge of any facts that would indicate that the IGA store was not an arson, intentionally set?
A [by Donnie Earles]. If I had the knowledge, I would say. I just — I wouldn't put it past me if my father burned the store.
Q. But you don't have any personal knowledge?
A. He's got me in enough trouble in things that I know better that I've got involved, but I wouldn't put it past him if he did.
Q. But he's never admitted that to you?
A. No.
Q. Has Catherine Papajohn ever said anything to you or in your presence or that you've...
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