U.S. v. Sinclair, 96-5040

• Decision Date: 26 March 1997
• Docket Number: No. 96-5040,96-5040
• Citation: 109 F.3d 1527
• Parties: 46 Fed. R. Evid. Serv. 871, 97 CJ C.A.R. 439 UNITED STATES of America, Plaintiff-Appellee, v. Michael Paul Dale SINCLAIR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1527

109 F.3d 1527

46 Fed. R. Evid. Serv. 871, 97 CJ C.A.R. 439

UNITED STATES of America, Plaintiff-Appellee, v. Michael Paul Dale SINCLAIR, Defendant-Appellant.

No. 96-5040.

United States Court of Appeals Tenth Circuit.

March 26, 1997.

Neal B. Kirkpatrick, Assistant United States Attorney (Steven C. Lewis, United States Attorney, with him on the brief), Office of U.S. Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

Keith A. Ward, Tilly & Ward, Tulsa, Oklahoma, for Defendant-Appellant.

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

HENRY, Circuit Judge.

Michael Paul Dale Sinclair was convicted after a jury trial of knowingly making a false declaration before the court in violation of 18 U.S.C. § 1623 and of conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371. He argues that the district court: (1) erred in denying his motion for a new trial on the basis of newly discovered evidence; (2) made inadequate findings before admitting out-of-court statements of his alleged coconspirators; (3) erred in admitting the testimony of witnesses who lacked personal knowledge; (4) improperly limited cross-examination as to possible inducements for a witness's testimony; (5) erred in failing to require the government to disclose the identity of a confidential informant; and, finally, (6) erred in imposing a three-level upward adjustment in his offense level for interference with the administration of justice pursuant to United States Sentencing Guidelines § 2J1.3(b)(2). We affirm Mr. Sinclair's conviction and sentence.

BACKGROUND

Mr. Sinclair's convictions arise out of his testimony at the March 1995 criminal trial of his acquaintances, Peter McMahon and Kandy Thomas, in the United States District Court for the Northern District of Oklahoma. After police officers seized a shotgun from Mr. McMahon's and Ms. Thomas's Tulsa, Oklahoma apartment during the execution of a search warrant on September 9, 1994, Mr. McMahon and Ms. Thomas were charged with possession of a firearm after former conviction of a felony and possession of a firearm in connection with drug trafficking.

At the McMahon/Thomas trial, Mr. Sinclair testified that on the morning of September 9, 1994, he observed Ms. Thomas's son, Dallas Woods, return to the apartment with his father, Ron Woods. Mr. Sinclair stated that he saw Ron Woods carry a box containing a shotgun into the apartment.

Following Mr. Sinclair, Dallas Woods testified that his father had indeed delivered the shotgun to the McMahon/Thomas apartment on September 9, 1994. However, after prosecutors spoke with the Woods family during a recess, Dallas recanted his testimony, stating that the shotgun belonged to Mr. McMahon and that it had been in Mr. McMahon's and Ms. Thomas's possession for several months. He then testified that Mr. McMahon and Ms. Thomas had induced him to offer false testimony.

Following Dallas Woods's testimony, Ms. Thomas entered into a plea agreement with the government. Mr. McMahon then testified that he had asked Mr. Sinclair to testify falsely regarding the delivery of the shotgun and that Mr. Sinclair agreed to do so. The jury subsequently convicted Mr. McMahon.

Following the McMahon/Thomas trial, a grand jury in the Northern District of Oklahoma charged Mr. Sinclair with conspiracy and false declaration before a court. At Mr. Sinclair's trial, the government presented several witnesses who testified about Ms. Thomas's and Mr. McMahon's possession of the shotgun. Terry Young testified that he had delivered the shotgun to Ms. Thomas and Mr. McMahon at their previous residence. The government also called Ms. Thomas, who agreed that Mr. Young had delivered the shotgun in the summer of 1994.

The government's witnesses, particularly Mr. McMahon and Ms. Thomas, also explained The government also presented testimony concerning the events of September 9, 1994, the date on which, according to his testimony at the McMahon/Thomas trial, Mr. Sinclair had observed Ron Woods delivering the shotgun to Ms. Thomas's and Mr. McMahon's apartment. Mr. McMahon testified that Ms. Thomas was alone in the apartment on that morning. Ms. Thomas stated that Dallas had gone to school on that day, but acknowledged that she had abused the narcotic Dilaudid and the sedative Xanax during that period and that her memory was somewhat vague.

how Mr. Sinclair came to testify at the McMahon/Thomas trial. Although Mr. McMahon claimed a loss of memory and was unable to answer many of the prosecutor's questions, he did acknowledge that he had previously testified at the McMahon/Thomas trial that he had asked Mr. Sinclair to testify falsely regarding the delivery of the shotgun to the apartment and that Mr. Sinclair complied. Ms. Thomas testified that she and Mr. McMahon discussed a plan to use false testimony at their trial so that they would not be convicted of illegal possession of the firearm and that, through conversations with Mr. McMahon, she became aware that Mr. McMahon had enlisted Mr. Sinclair's participation in the plan. She testified that she contacted Mr. Sinclair before the McMahon/Thomas trial and that he stated that he was "okay" with what he and Mr. McMahon had discussed. Aplt's App. at 329.

Finally, the government presented testimony from Dallas Woods. Dallas testified that the shotgun did not belong to him or his brother, that he had seen the gun before September 9, 1994, at Ms. Thomas's and Mr. McMahon's current and former apartments, that his father did not visit the McMahon/Thomas apartment on September 9th, that he had gone to school on September 9th, and that Ms. Thomas and Mr. McMahon had procured his false testimony.

In closing arguments, the government referred to Dallas Woods's school attendance, stating:

[T]he testimony is undisputed that Dallas Woods was at school on the morning of September 9th. That testimony is unrefuted. In this very document, in this transcript [Mr. Sinclair] said under oath, in addition to the other things we say he said which were a lie, he said he had a conversation with Dallas and his father, somebody he took to be his father. He couldn't have done that. It's impossible because Dallas was at school. He trapped himself with his own mouth.

Aplt's App. at 412. During deliberations, the jury sent a note to the court asking if it could "find out for sure if Dallas Woods was in school." Aplt's App. at 39. The court instructed the jury to decide the case based on the evidence that had already been provided, and the jury then convicted Mr. Sinclair on both of the charges.

After the trial, Mr. Sinclair's counsel requested that the government inquire whether any person involved in the prosecution of the case had information regarding Dallas's absence from school on September 9, 1994. The government responded that it had not attempted to acquire the school records. However, after receiving Mr. Sinclair's request, the Assistant United States Attorney contacted the Office of the Registrar of the Tulsa Public Schools. The Registrar's Office stated that Dallas Woods may not have been in school on September 9, 1994, and the government communicated this new information to Mr. Sinclair. Thereafter, at Mr. Sinclair's request, the court issued a subpoena compelling the production of Dallas's attendance records. The records indicated that Dallas had an unexplained absence on September 9, 1994. Mr. Sinclair moved for a new trial on the basis of this newly discovered evidence, but the district court denied the motion.

DISCUSSION

1. Newly Discovered Evidence

Mr. Sinclair first argues that the district court erred in denying his motion for a Rule 33 of the Federal Rules of Criminal Procedure authorizes trial courts to grant new trials "if required in the interest of justice." Fed.R.Crim.P. 33. We review the denial of a motion for a new trial for an abuse of discretion. United States v. Chatman, 994 F.2d 1510, 1518 (10th Cir.1993). A motion for a new trial is not regarded with favor and should only be granted with great caution. Id. at 1518.

new trial on the grounds of newly discovered evidence--the records of the Tulsa Public Schools indicating that Dallas Woods had an unexplained absence on September 9, 1994. He challenges the district court's finding that Dallas' whereabouts were immaterial to the principal issues in the case, maintaining that the jury's note demonstrates the materiality of Dallas Woods's absence from school on September 9, 1994.

A. The Probability Standard

When a motion for a new trial is based on newly discovered evidence, the defendant is usually required to show that:

(1) the evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by his own lack of diligence; (3) the new evidence is not merely impeaching; (4) the new evidence is material to the principal issues involved; and (5) the new evidence is of such a nature that in a new trial it would probably produce an acquittal.

United States v. Stevens, 978 F.2d 565, 570 (10th Cir.1992) (quoting United States v. Harpster, 759 F.Supp. 735, 738 (D.Kan.), aff'd, 951 F.2d 1261 (10th Cir.1991)). Applying this well-established probability standard, the district court determined that Dallas's whereabouts on September 9, 1994, were not material to the principal issues in Mr. Sinclair's perjury trial--whether there existed a conspiracy to commit perjury between Mr. Sinclair and others, whether Mr. Sinclair lied when he testified that he observed someone carrying the firearm in question into the McMahon/Thomas apartment, whether the lie was material to the McMahon/Thomas trial, and whether he lied knowingly and willfully. Additionally, the district court concluded that Mr. Sinclair could have discovered the school attendance records during the trial and that the evidence was merely cumulative.

For several reasons we find no abuse of discretion in the district court's ruling. First, although the evidence was...