U.S. v. Gray, 92-20301.
| Citation | 147 F.Supp.2d 902 |
| Decision Date | 31 May 2001 |
| Docket Number | No. 92-20301.,92-20301. |
| Parties | UNITED STATES of America, Respondent, v. Chauncy GRAY, Petitioner. |
| Court | U.S. District Court — Western District of Tennessee |
Chauncy Gray, Clayton Robinson, FCI-Forrest City, Forrest City, AR, Pro se.
Linda N. Harris, U.S. Attorney's Office, Memphis, TN, for U.S. Attorneys.
ORDER GRANTING PETITIONER'S MOTION FOR A NEW TRIAL
Petitioner, Chauncy Gray, filed a motion for a new trial under Federal Rule of Criminal Procedure 33. Petitioner contends that the government, through the actions of Officer Richard Borgers ("Borgers") and his alleged agent, Delbert Delano Brooks ("Brooks"), knowingly, intentionally, and willfully induced Shelly McCaster ("McCaster") to testify falsely against Petitioner during Petitioner's December 1994 trial. Even if the government did not actually know McCaster's testimony was false, Petitioner argues that it should have known. In addition, because the asserted perjury was allegedly material to Petitioner's conviction, Petitioner maintains that he is entitled to a new trial irrespective of whether the government knowingly procured perjured testimony from McCaster. Finally, Petitioner argues that the Western District of Tennessee's nearly four-year delay in deciding his motion for a new trial constitutes a denial of due process under the Fifth Amendment and that his conviction should be set aside. For the following reasons, the Court grants Petitioner's motion for a new trial based upon a denial of due process.
Following a five-day trial in December 1994, a jury convicted Petitioner, Alvin Gray,1 and Austin Webb ("Webb") with conspiring to possess with the intent to distribute seven kilograms of cocaine in violation of 21 U.S.C. § 846.2 The trial centered upon a reverse-sting operation conducted by the United States Drug Enforcement Agency on February 4 and February 5, 1991. During the trial, McCaster testified against Petitioner, stating that he had purchased drugs from Petitioner on numerous occasions in 1991. The government presented McCaster's testimony to rebut Petitioner's statement that Petitioner had not sold drugs since his release from prison in 1988. On March 27, 1995, the Court sentenced Petitioner to 264 months incarceration to be followed by five years of supervised release.
On March 30, 1995, Petitioner filed a notice of appeal to the Sixth Circuit. On June 17, 1996, the Sixth Circuit affirmed Petitioner's conviction and sentence.3 See United States v. Gray. No. 95-5521, 1996 WL 338657 (6th Cir. June 17, 1996). On April 8, 1996, while Petitioner's appeal was pending, Petitioner filed a pro se motion for a new trial with the Western District of Tennessee. Petitioner offered the following two grounds for a new trial: (1) the United States failed to disclose alleged impeachment evidence as to Alvin Gray, who testified against him at trial; and (2) the United States knowingly presented the false testimony of McCaster and Jessie Windom ("Windom"). On July 29, 1996, United States District Judge Jon P. McCalla concluded that Petitioner failed to establish that the impeachment evidence concerning Alvin Gray was favorable to Petitioner. (July 29, 1996 Order for a New Trial at 5). In addition, Judge McCalla found that Petitioner had not identified any newly-discovered evidence suggesting that the United States presented testimony from Windom that the government knew or should have known was false. (July 29, 1996 Order for a New Trial at 7). Nevertheless, Judge McCalla decided to conduct a hearing regarding McCaster's testimony, because Brooks's sworn statements created an issue of fact concerning whether the United States presented testimony from McCaster that it knew or should have known was false.
Judge McCalla held hearings on October 31, 1996, January 17, 1997, February 14, 1997, February 21, 1997, April 17, 1997, and May 12-13, 1997. On August 31, 2000, Judge McCalla recused himself from the case, and the case was reassigned to this Court. The Court makes a number of findings based on the transcripts of the 1996 and 1997 hearings without the benefit of observing the demeanor of witnesses for the purposes of credibility.
During the early 1990s, a task force comprised of members of the United States Drug Enforcement Agency and the Memphis Police Department ("Task Force") began to suspect that Petitioner and Alvin Gray were dealing in illegal drugs. At that time, Petitioner owned and operated a used car lot called California Cars. On twelve separate occasions between 1991 to July 13, 1992, the Task Force had obtained information on Petitioner, but not sufficient to bring charges.
The Task Force noticed Brooks frequenting California Cars, and recognized him as a prior felon. Following his felony conviction in the late 1980s, Brooks had been deported, yet had returned illegally to the United States. Although the Task Force's surveillance did not indicate any kind of drug dealing between Brooks and Petitioner, , the Task Force believed that Brooks might possess some helpful information about Alvin Gray and Petitioner. Seeking cooperation in their efforts to arrest Alvin Gray and Petitioner, the Task Force, with the assistance of the United States Immigration and Naturalization Service ("INS"), arrested Brooks on illegal immigration charges at a coffee shop on July 13, 1992. The Task Force took Brooks to the Germantown police precinct and later to a Hampton Inn hotel, where he agreed to cooperate with the Task Force in its effort to arrest Alvin Gray and later, Petitioner.4 Brooks worked with the Task Force until he was arrested in the Fall of 1993 for conspiring to distribute one kilogram of cocaine.
Soon after his incarceration in late 1993, Brooks called Borgers, trying to broker a means to reduce his jail time and remain in the United States. (Tr. April 17, 1997 at 16). Borgers allegedly told Brooks that Brooks would have to do something from the inside before Borgers would post a bond to get him out of jail. (Tr. April 17, 1997 at 19). Brooks testified that Brogers was specifically interested in obtaining information that would convict Petitioner. In response, Brooks allegedly informed Borgers that it would be "very difficult for me to get [Petitioner]," because "[Petitioner] was not doing no kind of drugs in the street like [Borgers] thought." (Tr. April 17, 1997 at 19). According to Brooks, Borgers told him that if he could get Petitioner, the government would permit him to stay in the country. (Tr. April 17, 1997 at 19.) Conversely, Borgers testified that Brooks was never promised that he could stay in the United States. (Tr. May 12, 1997 at 133.) Borgers stated that an INS official explained to Brooks that he would have to be deported and that there was nothing they could do except give him a temporary work visa while he was cooperating with the Task Force.
After a period of incarceration, Brooks allegedly "inform[ed] Mr. Borgers that I had something in mind that probably could work [convicting Petitioner] if he approved it, ... that I have someone that was willing to work with me and work with him." (Tr. April 17, 1997 at 25). In a later conversation, Brooks told Borgers that McCaster, another inmate at Mason, would be willing to testify against Petitioner. McCaster called Borgers, and Borgers went to Mason to interview McCaster alone.5 The prison's records show that Borgers met with Brooks on October 11, 1993, and with Brooks and McCaster, separately, on October 25, 1993.
McCaster testified against Petitioner in his December 1994 trial, which resulted in Petitioner's conviction for conspiring with the intent to distribute cocaine. Eventually, Petitioner was incarcerated in the same facility as Brooks, where Brooks told Petitioner of his involvement with Borgers and McCaster. (Tr. April 17, 1997 at 47.) Petitioner filed a motion for a new trial, and Judge McCalla conducted hearings in 1996 and 1997.
James Earl Robinson ("Robinson") was scheduled to testify for Petitioner in the January 17, 1997 hearing. Petitioner intended Robinson to testify that he heard McCaster, Windom, and Brooks conspire against Petitioner while they were housed together in Mason. Robinson did not testify until May 13, 1997, where he stated that he never overheard any conspiracy against Petitioner. In addition, Robinson testified that, on January 17, 1997, while he, Petitioner, and Brooks were all housed in the same holding room, Petitioner passed Robinson a legal pad with Petitioner's questions and the desired answers. The court entered a pad into evidence, alleged by Petitioner to be the pad he passed Robinson. (Exhibit 4). On the pad were questions, but neither answers, erasures, nor deletions. Robinson asserted that it was not the same pad Petitioner passed him in January 1997.
A prosecutor's use of known perjury constitutes a "corruption of the truth-seeking function of the trial process,"and may entitle a defendant to a new trial. See United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). Federal Rule of Criminal Procedure 33 permits a district court to grant a defendant a new trial when "the interests of justice so require." The decision to grant a new trial rests squarely within the discretion of the trial judge. United States v. Barlow, 693 F.2d 954, 966 (6th Cir.1982) (citations omitted).
The Sixth Circuit has employed two dissimilar standards when deciding motions for a new trial based on newly-discovered evidence of perjury. According to cases subscribing to the Seventh Circuit's "Larrison Rule,"a defendant must establish that (1) the testimony given by a material witness is false; (2) without the false testimony the jury might have reached a different conclusion; and (3) the party seeking the new trial was taken by surprise when...
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