U.S. v. McCurdy, No. CR-06-80-B-W.
| Decision Date | 07 July 2009 |
| Docket Number | No. CR-06-80-B-W. |
| Citation | 634 F.Supp.2d 118 |
| Parties | UNITED STATES of America v. Mark McCURDY. |
| Court | U.S. District Court — District of Maine |
Joel B. Casey, Office of the U.S. Attorney District of Maine, Bangor, ME, for United States of America.
Jeffrey M. Silverstein, Law Office of Jeffrey M. Silverstein, PA, Bangor, ME, for Mark McCurdy.
ORDER DENYING MOTION FOR NEW TRIAL
After a three-day trial, a jury found Mark McCurdy guilty of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). Jury Verdict Form (Docket # 148). Mr. McCurdy moves for a new trial claiming that newly discovered evidence demonstrates two Government witnesses committed perjury when they identified the firearm in court. Pro Se Mot. for New Trial (Docket # 155); Def.'s Revised Mot. for New Trial (Docket #163) (Def.'s Mot.)1 Concluding that he failed to demonstrate either that the witnesses' testimony was false or that his claimed evidence is newly discovered, the Court denies the Defendant's motion for new trial.
The Indictment charged Mr. McCurdy with knowingly possessing a "Colt Match H-BAR .223 caliber rifle, bearing serial number CMH037251" on March 27, 2006. Indictment (Docket #1). As part of its case-in-chief, the Government introduced the testimony of Steven Smith, a federally-licensed firearms dealer and proprietor of Smitty's Trading Post in Machias, Maine, and Janelle Hayward, Mr. McCurdy's former girlfriend, regarding Ms. Hayward's purchase of a firearm from Smitty's on July 14, 2000. The Government also introduced a copy of an ATF Form 4473, signed by Ms. Hayward and Mr. Smith, dated July 14, 2000, documenting Ms. Hayward's purchase from Mr. Smith of a Colt Match Target HBAR .223 caliber rifle bearing serial number CMH037251. Ms. Hayward testified that Mr. McCurdy asked her to purchase the gun for him. Finally, the Government introduced as Government's Exhibit 2 a Colt Match HBAR .223 caliber rifle bearing serial number CMH037251 through the testimony of Deputy Jonathan Rolfe of the Washington County Sheriff's Department. Deputy Rolfe explained that he discovered and seized that firearm from Mr. McCurdy's attic on March 27, 2006.
The Government asked Mr. Smith and Ms. Hayward questions designed to link the firearm Mr. Smith sold to Ms. Hayward on July 14, 2000 to Government Exhibit 2, the firearm Deputy Rolfe found in the Defendant's attic on March 27, 2006. Both witnesses linked Government Exhibit 2 to the sale. Mr. McCurdy asserts that in doing so, Mr. Smith and Ms. Hayward committed perjury and that a new trial is necessary.
Mr. McCurdy's focus is narrow. He points out that the firearm sold in 2000 was substantially different than the firearm found in 2006. The firearm sold in 2000 had—among other things—the following characteristics:
1) barrel length—20 inches;
2) barrel type—HBAR;
3) caliber—5.56 mm;
4) twist 1/7;
5) fire selector—semiautomatic;
6) buttstock—fixed;
7) bayonet lug—no; and,
8) compensator—no.
Aff. of James Taylor at 2 (Docket # 184).2 Mr. McCurdy also says that the firearm presented in Court had—among other things—the following characteristics:
1) barrel length—16 inches;
2) collapsible stock; and,
3) a flash suppressor.
Def.'s Mot. ¶ 10. Quoting the now repealed federal definition of a semiautomatic assault rifle, Mr. McCurdy alleges that these characteristics—collapsible stock and flash suppressor—would have made the firearm illegal to sell in 2000, because of the then-existing ban against the sale of assault weapons. Id. ¶¶ 7-10 (quoting 18 U.S.C. § 921(30)).3
Putting all of this together after trial, Mr. McCurdy posits that Mr. Smith, a federally-licensed firearms dealer, would not have sold a firearm that was illegal in 2000. Thus, when presented at trial with a firearm that was obviously distinct from the firearm he sold, he must have been lying when he told the jury that it was the same firearm. Mr. McCurdy makes the same point about Ms. Hayward's identification testimony. He then draws the ultimate conclusion that he is entitled to a new trial, since the verdict must have been based on the perjured testimony of two critical Government witnesses. In fact, he goes so far as to accuse the prosecutor of coaching or coercing this false testimony. Id. ¶ 12.
Characterizing his motion as one based on "newly discovered evidence," Mr. McCurdy argues that "he could not have in due diligence predicted that either witness Smith or Hayward" would have testified in this manner, and that their "surprise testimony" was such that he was unable to introduce at trial the argument and factual allegations he marshals in his motion for new trial. Id. ¶ 13. Mr. McCurdy concludes by saying that once it is recognized that Ms. Hayward must have lied because Mr. Smith never would have sold her Government Exhibit 2, an illegal firearm under then-existing law, the interests of justice require a new trial because "[t]he only basis upon which the jury could have convicted the Defendant is premised on Hayward's testimony that the Defendant took possession of Government's Exhibit #2." Id. ¶ 14.
As a general matter, the Government disagrees with Mr. McCurdy's recollection that Ms. Hayward and Mr. Smith testified that Government Exhibit 2 was definitely the subject of the July 14, 2000 transaction between them. The Government recalls that both witnesses "testified that Government Exhibit 2 looked like the firearm that was the subject of the July 14, 2000 transaction, but neither positively and unequivocally identified it as such." Gov't's Resp. to Def.'s Revised Mot. for New Trial at 3 (Docket # 166) (Gov't's Resp.).
Citing the legal standard for a motion for new trial based on newly discovered evidence, the Government attempts to rebut Mr. McCurdy's claim of surprise by alleging that "well in advance of trial" he was provided with reports detailing statements by both witnesses regarding the July 14, 2000 transaction. The Government also argues that the "newly discovered evidence" is not material to the extent the jury could have convicted Mr. McCurdy without accepting the testimony of Mr. Smith and Ms. Hayward concerning the appearance of Government's Exhibit 2. Finally, the Government contends that an acquittal on retrial would be unlikely, and concludes that because Mr. McCurdy's motion does not satisfy the legal standard, the Court should deny it as untimely.
Federal Rule of Criminal Procedure 33(a) provides, in part, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R.Crim.P. 33(a). In general, a "district court has greater power to order a new trial than to overturn a jury's verdict through a judgment of acquittal." United States v. Rothrock, 806 F.2d 318, 321 (1st Cir.1986). On the other hand, there are "definite limits upon a district court's right to upset a jury verdict." Id. at 322. The First Circuit has explained that the "remedy of a new trial is rarely used; it is warranted `only where there would be a miscarriage of justice' or `where the evidence preponderates heavily against the verdict.'" United States v. Andrade, 94 F.3d 9, 14 (1st Cir.1996) (quoting United States v. Indelicato, 611 F.2d 376, 386 (1st Cir.1979)). The standards for a Rule 33 motion are rigorous, and "a trial judge is not a thirteenth juror who may set aside a verdict merely because he would have reached a different result." Rothrock, 806 F.2d at 322.
To succeed on a motion for new trial based on newly discovered evidence, the defendant must demonstrate:
(i) the evidence upon which the defendant relies was unknown or unavailable to him at the time of trial; (ii) the failure to bring the evidence forward at trial was not occasioned by a lack of diligence on the defendant's part; (iii) the evidence is material (as opposed to being merely cumulative or impeaching); and (iv) the evidence is such that its introduction would probably result in an acquittal upon a retrial of the case.
United States v. Maldonado-Rivera, 489 F.3d 60, 66 (1st Cir.2007); see United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir.1993) (). This same four-prong test applies "where a new trial motion is premised upon alleged new evidence that a conviction was obtained by perjured testimony when the government's use of that testimony was unwitting." United States v. Gonzalez-Gonzalez, 258 F.3d 16, 21 (1st Cir.2001); United States v. Huddleston, 194 F.3d 214, 221 (1st Cir. 1999). However, where it is alleged that "the government knowingly used perjured testimony to obtain a defendant's conviction," a different fourth prong applies. Gonzalez-Gonzalez, 258 F.3d at 22. In that case, the defendant must show only a "reasonable likelihood that the false testimony could have affected the judgment of the jury." Id.; see United States v. Hall, 434 F.Supp.2d 19, 21 (D.Me.2006).
"Perjury consists of false testimony under oath concerning a matter material to the proceeding, as long as the testimony is given `with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.'" United States v. Shinderman, 515 F.3d 5, 19 (1st Cir.2008) (quoting United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)); see United States v. Tavares, 93 F.3d 10, 14 (1st Cir.1996) (). Importantly, a defendant's failure to establish perjury renders unnecessary a determination that the Government's...
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