U.S. v. Hall

• Decision Date: 16 June 2006
• Docket Number: Criminal No. 02-31-P-H.
• Citation: 434 F.Supp.2d 19
• Parties: UNITED STATES of America v. Kevin Richard HALL, Defendant.
• Court: U.S. District Court — District of Maine

434 F.Supp.2d 19

UNITED STATES of America v. Kevin Richard HALL, Defendant.

Criminal No. 02-31-P-H.

United States District Court, D. Maine.

June 16, 2006.

Appeal from the United States District Court for the District of Maine, D. Brock Hornby, J Donald E. Clark, Helene Kazanjian, Office of the United States Attorney, Portland, ME, James W. Chapman, Jr., U.S. Department Of Justice, Northern Criminal Enforcement Section, Tax Division, Washington, DC, for United States of America.

Edward S. MacColl, Thompson, Bull, Furey, Bass & MacColl, LLC, PA, Portland, ME, for Defendant.

ORDER ON DEFENDANT'S MOTION FOR NEW TRIAL

HORNBY, District Judge.

Introduction

Over three years ago, a jury convicted Kevin Hall of 168 criminal charges. One conviction was a conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (2000); the rest were money laundering and tax evasion, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 26 U.S.C. § 7201. Hall appealed his convictions and his sentence to the Court of Appeals for the First Circuit. The First Circuit denied his challenges to the convictions, but remanded to this Court for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). United States v. Hall, 434 F.3d 42, 62 (1st Cir.2006). Shortly after the First Circuit entered judgment, but before issuing its mandate, Hall moved for a new trial under Fed.R.Crim.P. 33. I DENY Hall's motion for a new trial,¹ in large part because the relevant issues were resolved against Hall on his appeal. The Clerk shall schedule the matter for resentencing in accordance with the First Circuit's mandate²

Analysis

Hall argues that a new trial is warranted because of newly discovered evidence, see Fed.R.Crim.P. 33(b)(1), concerning the criminal history of a key trial witness against him. To obtain a new trial on the basis of newly discovered evidence, a defendant must show that "(1) the evidence was unknown or unavailable to the defendant at the time of the trial; (2) failure to learn of the evidence was not due to lack of diligence by the defendant; (3) the evidence is material, and not merely cumulative or impeaching; and (4) it will probably result in an acquittal upon retrial of the defendant." United States v. Casas, 425 F.3d 23, 53 (1st Cir.2005) (quoting United States v. Colón-Muñoz, 318 F.3d 348, 358 (1st Cir.2003)). The nature of the fourth element (commonly called the "prejudice" requirement) depends on the reason for the newly discovered evidence. If it results from a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or the government's knowing use of perjured testimony, then it is satisfied if the defendant shows a "reasonable probability" that its timely disclosure would have altered the trial result. United States v. González-González, 258 F.3d 16, 20-22 (1st Cir.2001). When there is no Brady violation, or when perjured testimony was used by the government unwittingly, the defendant must meet the more rigorous standard of showing an "`actual probability that an acquittal would have resulted if the evidence had been available." Id. at 20 (quoting United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir.1993)).

Here, Hall's newly discovered evidence is documentation of both the criminal record and the alleged criminal activity of a key trial witness, John Redihan. At trial the government disclosed to Hall, pursuant to the Brady rule, that Redihan was convicted in Rhode Island in 1998 of a drug distribution and firearm possession offense. At the time, the government provided a summary of Redihan's convictions, but identified this particular conviction as one involving Percodan and steroids. However, subsequent to trial (at sentencing) Hall learned that Redihan's Rhode Island conviction also involved distribution of marijuana. Hall contends that police reports and other records he has submitted show that Redihan was involved in large-scale marijuana trafficking, that Redihan himself made actual sales (as opposed to just being vicariously liable through a conspiracy), and that a confidential informant involved in the Rhode Island investigation had information concerning the scope and nature of the marijuana trafficking operation. MacColl Aff at 3 (Docket Item 132).

Hall asserts that the government's failure to inform him of the marijuana aspect of Redihan's conviction constitutes a Brady violation. Alternatively, he argues that Redihan committed perjury on the stand because when he was cross-examined he did not state that his conviction involved marijuana. Hall contends that the government knowingly proffered Redihan's perjury. Because of the alleged Brady violation and the knowing use of perjured testimony, Hall argues that he needs to meet only the less onerous standard of a "reasonable probability" of acquittal to satisfy the fourth new trial requirement. The government counters that it had no knowledge of the marijuana aspect of the conviction, that if perjury was committed by Redihan it was unwitting on the part of the government, that no Brady violation occurred, and therefore that the more onerous standard of an "actual probability" of acquittal must be met.

(1) Failure to disclose the correct nature of the Rhode Island conviction and the alleged perjury at trial

Law of the case is a "prudential principle that precludes relitigation of the legal issues presented in successive stages of a single case once those issues have been decided." Field v. Mans, 157 F.3d 35, 40 (1 st Cir.1998) (quoting Cohen v. Brown Univ., 101 F.3d 155, 167 (1st Cir. 1996)) (internal quotation marks omitted); see also United States v. Vigneau, 337 F.3d 62, 67 (1st Cir.2003). This doctrine is relevant because on his appeal to the First Circuit, Hall argued his Brady violation issue.

A Brady violation is shown by meeting three elements: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also United States v. Morales-Rodriguez, 448 F.3d 50, 64 (1st Cir.2006). To show "prejudice," the suppressed evidence must be material: the defendant must show "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Morales-Rodriguez, 448 F.3d at 65 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

On the alleged Brady violation, Hall's arguments before the First Circuit were the same arguments before me now. See Brief for Appellant ("Def.'s Appellate Brief')at 59, United States v. Hall, 434 F.3d 42 (1st Cir.2006) (No. 03-2425) ("The prosecution's ... misrepresentation of Redihan's criminal history and its actions in eliciting false testimony from Redihan ... plainly violated [the] rule announced in Brady . ."). But the First Circuit ruled:

[E]ven assuming the government had to disclose the details of Redihan's Rhode Island conviction, Hall has not shown sufficient prejudice to warrant relief. Brady prejudice exists where there is a reasonable probability that the suppressed evidence would have produced a different verdict. Hall elicited from Redihan, on cross-examination, that he was a convicted drug dealer and that he had distributed drugs in Rhode Island. Additional detail about the Rhode Island conviction would have been mostly cumulative. There also was substantial evidence of Hall's participation in a drug conspiracy aside from Redihan's testimony. Several other members of the conspiracy testified about Hall's criminal conduct. In sum, we are persuaded the disputed information, if known to Hall, would not have affected the trial's outcome.

Hall, 434 F.3d at 55-56 (internal citations and quotation marks omitted; emphasis added). Thus, the First Circuit ruled that there was no Brady prejudice. That ruling binds me here: without Brady prejudice, there can be no Brady violation.

Hall's alternative argument that the government knowingly proffered Redihan's alleged perjury also must fail. The First Circuit held that "there is no evidence that the federal prosecutor or any agent working on her behalf had [information about the marijuana aspect of Redihan's conviction] prior to or during trial." Hall, 434 F.3d at 55. Indeed, Hall seems to concede that he still has no evidence showing that the government had knowledge: "as the government has never shown ... the evidence [it] did have concerning the Rhode Island conviction it is not possible to know whether the government withheld information or simply did not have it." Def.'s Supplemental Mem. at 3. Cf. González-González, 258 F.3d at 22 n. 1 (the defendant is required to show "a colorable claim" that the government had knowledge of the perjury before applying the lesser "reasonable probability" standard).

Hall also contends that the government's alleged misconduct in "[s]uborning perjury ... violates the due process clause." Def.'s Mem. at 6. By making this argument, he appears to be asserting that this provides a sufficient basis—independent of Rule 33—for granting him the relief of a new trial. If Hall did have evidence that the government suborned perjury, it is true that I would have the general supervisory power to take certain actions. See United States v. Auch, 187 F.3d 125, 133 (1st Cir.1999) (warning prosecutors engaging in misconduct that judicial "recourse is not limited to public handwringing in the pages of the federal reporters"); see also United States v. Hasting, 461 U.S. 499, 506, n. 5, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (recognizing court's authority and detailing the various actions the court may take). But long-established Supreme Court precedent holds that I could vacate his conviction and...