United States v. Burkhead, 79-00115-01-CR-W-1.

• Decision Date: 06 June 1980
• Docket Number: No. 79-00115-01-CR-W-1.,79-00115-01-CR-W-1.
• Citation: 491 F. Supp. 1166
• Parties: UNITED STATES of America, Plaintiff, v. Darrel L. BURKHEAD, Defendant.
• Court: U.S. District Court — Western District of Missouri

491 F. Supp. 1166

UNITED STATES of America, Plaintiff, v. Darrel L. BURKHEAD, Defendant.

No. 79-00115-01-CR-W-1.

United States District Court, W. D. Missouri, W. D.

June 6, 1980.

Sheryle Jeans, Edward D. Holmes, Sp. Agents, Dept. of Justice, Kansas City, Mo., for plaintiff.

Robert G. Duncan, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDERS DENYING DEFENDANT'S MOTION FOR NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE AND DIRECTING FURTHER PROCEEDINGS

JOHN W. OLIVER, Chief Judge.

I.

This case now pends on defendant Darrel Burkhead's motion for new trial of Counts II through VI on the ground of newly discovered evidence.¹ That motion accurately alleged that since the trial of Counts II through VII, inclusive, in Division I of this Court, defendant Darrel Burkhead and defendant Garcia were tried and convicted on Count I of the above indictment in Division III of this Court in a trial of that count conducted before the Honorable Russell G. Clark, presiding judge of that Division.²

The pending motion alleged that government witnesses Thomas Steidle, Maurine Steidle, William Powell and Anthony Anderson testified in both trials and that prior to the second trial in Division III a transcript of the testimony of those and other witnesses as given in the first trial in Division I was prepared and available to counsel for the government, the government's witnesses, and defense counsel for use in the second trial. The pending motion specifically alleged that the testimony of Thomas Steidle in the second trial "differed substantially on numerous material facts from his sworn testimony in the first trial." In a similar manner, the pending motion alleged that Maurine Steidle testified in the second trial "in a materially different manner than was testified to" in the first trial. It was alleged that witness Anderson testified in the first trial that "he had obtained 6 ounces of cocaine from the defendant, for which he had not paid the defendant," in contrast with his testimony in the second trial "that he received only 4 ounces of cocaine that he did not pay the defendant for and that his testimony in the first trial was incorrect." No specific inconsistencies were alleged in regard to the testimony given by witness Powell.

In addition to the alleged differences in the testimony of the witnesses, which are set forth in detail, the pending motion also alleged in paragraph 6(c) that certain telephone company records, not offered in evidence in either trial, were not made available to defense counsel during pretrial or trial proceedings. In paragraph 6(i)(ii) it was alleged that a certain packet of TWA tickets, which were not introduced in evidence in either trial, were available to the government and were not made available to defense counsel during pretrial discovery.

In paragraph 11 of the pending motion it is implicitly suggested that at the first trial the defendant did not have knowledge that witness Thomas Steidle had spoken to and had given a sworn statement to a reporter of the Kansas City Star-Times and that in that statement he had mentioned Ectore Garcia. In paragraph 17(a) of the pending motion it is alleged that the contents of a loan defendant Darrel Burkhead had obtained on his house on December 28, 1977, which was not introduced in evidence at either trial, had not been revealed to the defendant in pretrial discovery.

In paragraph 6(h) and in paragraph 21 of the pending motion, it is alleged that in the first trial Thomas Steidle did not testify concerning a loan that he and his wife had obtained in Miami, Florida, and that the loan to the Steidles was not revealed anywhere in the government's file made available to the defendant prior to trial. It was further alleged that the supporting documents for Exhibits 2, 9, 13 and other unidentified government exhibits, were in the possession of the government but were not made available to the defendant in pretrial discovery and that the defendant entered into the stipulation filed in the first trial "relying upon the good faith of the Government and on the belief that the Government's Exhibits would establish what the Government purported them to establish."

The basic thrust of defendant's pending motion is set forth in paragraphs 18, 19, 22 and 23 of the pending motion. Those paragraphs read as follows:

18. That the testimony upon which the verdicts of guilty against the defendant were returned in this case was, according to Thomas Steidle, Maurine Steidle, and Anthony Anderson, mistaken, incorrect or confused. That the conviction of the defendant should not stand where it was supported and secured by mistaken, or confused, or incorrect testimony on very material matters.

19. That had the defendant been aware of the discrepancies in the testimony, and the documents in direct conflict of the testimony of Thomas and Maurine Steidle during the trial before this Court, the defendant may well have secured acquittal at least on Counts V and VI. That the prejudicial effect of the introduction of that evidence mistaken and incorrect testimony flowed over and tainted the verdict of guilty on Counts II, III and IV; the evidence as to those Counts was not direct or overwhelming but when it was shown that the defendant had traveled or caused the travel to secure cocaine it established that the defendant had cocaine and made the evidence on Counts II, III and IV more believable.

* * * * * *

22. That the evidence set out above was discovered since the trial in this case and as a result of the trial on Count I which commenced March 31 and ended April 4, 1980.

23. That the newly discovered evidence is not merely impeaching but is direct evidence of the innocence of the defendant.

II.

The defendant alleged in paragraph 20 of his motion that a transcript of the testimony given in the second trial had been ordered but that it had not been prepared at the time of the filing of the pending motion. The defendant accordingly requested that the Court delay ruling the pending motion until it had an opportunity to review the transcript of the second trial.

The Court advised counsel that it would do so and, consistent with a practice established as early as United States v. La Rocca, 219 F.Supp. 53 (W.D.Mo.1963), affirmed 337 F.2d 39 (8th Cir. 1964), the Court made appropriate inquiry as to whether either party desired a plenary evidentiary hearing in connection with the pending motion and, particularly, whether the defendant wished to have any evidentiary data before the Court in connection with that motion other than the transcript of the second trial. Counsel for defendant Burkhead wrote the Court a letter on May 13, 1980 in which he suggested that in addition to having the transcript of the second trial a part of the record upon which the pending motion would be considered, he wanted to be certain that the record would also reflect that neither he, as defense counsel in the first trial, nor defendant Burkhead, at the time of the first trial, were aware "of the facts that were brought out during the conspiracy trial." We have, of course, considered the pending motion on the factual assumption that neither defense counsel nor defendant Burkhead could possibly have been aware of the facts that were later brought out at the second trial. Any finding that either could have known of what would occur in the future would be clearly erroneous.

Counsel for the defendant advised the Court in his May 13, 1980 letter that no additional evidentiary hearing was requested on behalf of the defendant to establish "other matters referred to in my motion" other than to have the record show that the transcript of the second trial would be before the Court in its consideration of the pending motion for new trial. Counsel for the government has agreed that the Court could and should take judicial notice of the transcript of the proceedings in the second trial as may be designated by counsel for the defendant.

On May 14, 1980 counsel for the defendant delivered four volumes of the transcript of the proceedings in the second trial: volume I containing pages 63 through 79 of the transcript; volume III, pages 79A through page 397; volume IV, pages 368 through 685; and volume V, pages 686 to 860. The Court states for the record that judicial notice has been taken of the transcript of the second trial pursuant to Rule 201 of the Rules of Evidence and that it has read and considered the entire transcript of the second trial furnished it in its determination of defendant's pending motion. The transcript of the second trial in Division III shall therefore be considered as a part of the record in the first case tried in Division I.

III.

The government filed a short response in opposition to the defendant's pending motion. That response stated that all documents in the government's possession, including but not limited to the records obtained from the telephone company, from TWA, and all records in its possession which related to the Burkhead loan, were maintained in a single cardboard box, the entire contents of which were made available and physically presented to defendant's representatives on each of the occasions they appeared for pretrial discovery in connection with both trials.

In regard to defendant's claim that the defendant Darrel Burkhead did not know that witness Thomas Steidle had talked with a reporter for the Kansas City Star-Times, the government directed attention to the transcript of the first trial which clearly shows that counsel for the defendant was fully advised in regard to that subject at the first trial.³ In regard to the Miami loan to the Steidles, government counsel stated in their response that they recollected that there was cross-examination in connection with that loan in both trials. Although the government did not direct our attention to any pages of the transcript of either trial, defendant's cross-examination of witness Maurine Steidle establishes...