U.S. v. Page, 86-2725

• Decision Date: 11 September 1987
• Docket Number: No. 86-2725,86-2725
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William C. PAGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1476

828 F.2d 1476

UNITED STATES of America, Plaintiff-Appellee, v. William C. PAGE, Defendant-Appellant.

No. 86-2725.

United States Court of Appeals, Tenth Circuit.

Sept. 11, 1987.

Michael G. McGuire (Carl Hughes with him on the briefs), Oklahoma City, Okl., for defendant-appellant.

Robert E. Mydans, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before LOGAN, BARRETT and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

This appeal is the latest chapter in the case of William C. Page, a former prosecutor and judge who was convicted in 1983 after a jury trial of engaging in racketeering activities affecting interstate commerce, in violation of 18 U.S.C. Sec. 1962(c), and of obstructing, delaying, and affecting interstate commerce by means of extortion under color of official right, in violation of 18 U.S.C. Sec. 1951. Page now challenges the district court's denial of his second motion for new trial.

The background facts are set forth in an earlier opinion of this court, United States v. Page, 808 F.2d 723 (10th Cir.1987) (Page I ), in which we upheld the convictions and the district court's denial of the first motion for a new trial. In this appeal, Page advances three arguments in favor of a new trial: (1) the recantation by a key prosecution witness, Richard Riley, constitutes new and material evidence; (2) the prosecution withheld vital evidence required to be revealed under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (3) the trial judge wrongly refused to recuse himself from hearing the second motion for new trial. We reject all of these arguments.

I

The government argues as a threshold matter that Page has waived the right to appeal the district court's disposition of the Riley recantation. Essentially, the government contends that Page's notice of appeal, which refers to the order entered on "the 3d day of November, 1986," I R. tab 11/12/86, does not encompass the district court's decision on the recantation issue, discussed in an order entered on November 5, 1986. We disagree.

Although a November 5 order did treat the issue and denied a new trial, the court had already done the same thing, without extensive discussion, on November 3: "Defendant Page has filed a Second Motion for New Trial Based Upon Newly Discovered Evidence, premised on Richard Riley's recantation of his trial testimony.... The court concluded, subsequent to a hearing held regarding the recanted testimony, that a new trial was not warranted on that ground." I.R. tab 11/3/86 at 1. Page's appeal of the recantation motion is properly before this court.

II

A motion for new trial "is not regarded with favor and is granted only with great caution, being addressed to the sound discretion of the trial court." United States v. Allen, 554 F.2d 398, 403 (10th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977). The district court rejected all of Page's arguments for a new trial, and we review its judgment under an abuse of discretion standard. United States v. Steel, 458 F.2d 1164, 1166-67 (10th Cir.1972).

A

Page first offers new evidence in the form of recanted testimony by the government's chief witness, Richard Riley. This circuit has an established standard for new trials based on newly discovered evidence:

"The newly discovered evidence must be more than impeaching or cumulative; it must be material to the issues involved; it must be such as would probably produce an acquittal; and a new trial is not warranted by evidence which, with reasonable diligence, could have been discovered and produced at trial."

Allen, 554 F.2d at 403. When the new evidence consists of a recantation, "the trial court must first be satisfied that the challenged testimony was actually false." United States v. Bradshaw, 787 F.2d 1385, 1391 (10th Cir.1986). To make this finding, the trial court ordinarily must conduct an evidentiary hearing to evaluate both the credibility and the impact of a recantation. United States v. Ramsey, 726 F.2d 601, 605 (10th Cir.1984), cert. denied, 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 892 (1986).

Riley, in an affidavit, recanted his damning testimony against Page. After holding an evidentiary hearing, the district court concluded that "both Riley's affidavit and his testimony at the hearing were false." Order Denying Defendant's Second Motion for New Trial (based on witness' recantation) at I R. tab 11/5/86 at 2. The court based its holding on Riley's demeanor, his motives in attempting to recant his trial testimony, and the fact that other evidence at trial corroborated the substance of Riley's trial testimony. Id. at 2-3. In sum, the district court held an evidentiary hearing and supported its holding with reasons, as we suggested as the proper course in Ramsey. In Page I, we noted that Page "was convicted primarily out of his own mouth; the most damaging evidence at trial came from his recorded conversations with Riley." 808 F.2d at 731. We find no abuse of discretion in the district court's rejection on the basis of Riley's recantation.

B

Page next contends that the prosecution violated the Brady rule by intentionally and prejudicially withholding exculpatory evidence from the defense. Specifically, Page contends that Assistant United States Attorney Wesley C. Fredenburg possessed Mid-States Distributing Company ledgers which categorized payments from Richard Riley to Page as "back attorney's fees" rather than bribes. The record indicates that the defense repeatedly requested but did not receive these ledgers from Fredenburg and that the district court itself sought the production of any ledgers in Fredenburg's possession. Fredenburg denied several times having any such ledgers. Most of Mid-States' accounting records were in the possession of the Internal Revenue Service for a time, but were turned over to Fredenburg after Riley filed a consent form on behalf of Mid-States. Mid-States' accountant swore in an affidavit that, "included in those books and records ... were various ledgers and other accounting documents" which described the payments to Page as legal fees. I R. tab 3/19/86, Bray Affidavit at 2. We now assume Fredenburg possessed but did not turn over financial records that could be described as a ledger.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196 (emphasis added). At the time of the trial, in 1983, the Brady standard of materiality varied according to the knowledge of the prosecution and the specificity of the defendant's request. See United States v. Agurs, 427 U.S. 97, 103-04, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976); Bowen v. Maynard, 799 F.2d 593, 603 (10th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 458, 93 L.Ed.2d 404 (1986). The applicable standard in the instant case, in which the defendant made a specific request, required the verdict to be set aside if "the suppressed evidence might have affected the outcome of the trial." Agurs, 427 U.S. at 104, 96 S.Ct. at 2398. Recently, the Supreme Court enunciated a unified standard of materiality, which sets aside verdicts "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985) (Blackmun, J., joined by O'Connor, J.). See also concurring opinion of White, J., joined by Burger, C.J., and Rehnquist, J., id. at 685, 105 S.Ct. at 3385.

We hold that, under either the Agurs or Bagley framework, the exculpatory ledgers do not satisfy the materiality requirement of Brady. First, the ledgers would have provided merely cumulative evidence that Riley described his payments to Page as past attorney's fees rather than bribes. Page presented evidence at trial on this precise point, in the form of cancelled checks with "attorney's fees" notations and a schedule from his income tax return showing the deduction for attorney's fees. See Page I, 808 F.2d at 733. The ledgers, being cumulative, "probably would not produce an acquittal, and, therefore, did not provide a basis for granting a new trial." United States v. Sutton, 767 F.2d 726, 729 (10th Cir.1985). Second, Page could have obtained essentially the same evidence by calling Bob Bray, the accountant for Mid-States, to testify about the contents of the ledgers. "[A] new trial is not warranted by evidence which, with reasonable diligence, could have been discovered and produced at trial." Allen, 554 F.2d at 403. Finally, the proof of Page's guilt was very strong; the ledgers would not have mitigated the impact of the tape-recorded, self-incriminating remarks of Page. The district court did not abuse its discretion by denying the motion for new trial.

C

The defense also urges that a new trial should be granted as a sanction against prosecutorial misconduct, i.e., the intentional withholding of exculpatory evidence. We reject this plea. The Brady sanction depends on the nature of the undisclosed evidence rather than the culpability of the government. It balances the due process right to material exculpatory evidence, see Brady, 373 U.S. at 86-87, 83 S.Ct. at 1196, with the right of prosecutors not to open their entire files to the defendant's scrutiny, see Agurs, 427 U.S. at 109, 96 S.Ct. at 2400 ("If everything that might influence a jury must be disclosed, the only way a prosecutor could discharge his constitutional duty would be to allow complete discovery of his files as a matter of...