United States v. McCurdy, 1:06–cr–00080–JAW.
| Decision Date | 09 November 2011 |
| Docket Number | No. 1:06–cr–00080–JAW.,1:06–cr–00080–JAW. |
| Citation | 828 F.Supp.2d 335 |
| Parties | UNITED STATES of America v. Mark McCURDY. |
| Court | U.S. District Court — District of Maine |
OPINION TEXT STARTS HEREJoel B. Casey, Office of the U.S. Attorney, Bangor, ME, Margaret D. McGaughey, U.S. Attorney's Office, District of Maine, Portland, ME, for United States of America.
ORDER DENYING DEFENDANT'S MOTIONS FOR NEW TRIAL, DISCOVERY, AND PRODUCTION
On December 31, 2008, 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); Indictment (Docket # 1). Following the verdict, Mr. McCurdy moved for a new trial and appealed the verdict; the motion and appeal were denied. Def.'s Pro Se Mot. for New Trial (Docket # 155); Order Denying Mot. for New Trial (Docket # 188); Notice of Appeal (Docket # 197); J. of United States Court of Appeals at 1–2 (Docket # 218).
Mr. McCurdy has filed three additional motions. First, on April 8, 2011, Mr. McCurdy moved again for a new trial based on newly discovered evidence, which he says discredits the testimony of Stephen John Cheney, a witness the Government called in its case-in-chief. Def.'s Pro Se Mot. for New Trial (Docket # 224) ( Def.'s Mot. for New Trial II ). Mr. McCurdy asks for an evidentiary hearing to present what he terms “irrefutable evidence” of Mr. Cheney's perjury and the prosecutor's knowing presentation of this perjured evidence. Id. at 10. Second, on April 22, 2011, Mr. McCurdy requested an order requiring the Government to produce materials that allegedly support his motion for new trial. Def.'s Pro Se Mot. for Disc. of Materials Related to Elec. Surveillance of Def. (Docket # 227) ( Def.'s Mot. for Disc ). The final motion, also filed on April 22, 2011, asks the Court to order the Government to produce documents relating to the grand jury proceedings that resulted in his indictment. Def.'s Pro Se Mot. for Produc. of Docs. (Docket # 228) ( Def.'s Mot. for Produc.).
I. BACKGROUNDA. Indictment, Plea, and Withdrawal of Plea
The November 15, 2006 indictment charged Mr. McCurdy with knowing possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Indictment. In his initial appearance before the Magistrate Judge on December 11, 2006, Mr. McCurdy entered a plea of not guilty. Minute Entry (Docket # 8). He later pleaded guilty to being a felon in possession of a firearm. Minute Entry (Docket # 57). At the Rule 11 proceeding, the Court informed Mr. McCurdy that his maximum exposure for incarceration was ten years; however, upon the completion of the Presentence Report, the Court learned that Mr. McCurdy had a criminal history that could trigger Armed Career Criminal status and subject him to a mandatory minimum prison term of 15 years under 18 U.S.C. § 924(e) and that the maximum term of imprisonment was not ten years, but life. Order Granting Mot. to Withdraw Guilty Plea (Docket # 74). This news prompted Mr. McCurdy to move to withdraw his guilty plea, which the Court granted on May 2, 2008. Id.; Def.'s Mot. to Withdraw Plea (Docket # 73).
B. The Trial
A three day jury trial began on December 29, 2009. Minute Entry (Docket # 144); Minute Entry (Docket # 146); Minute Entry (Docket # 147). In its case-in-chief, the Government called seven witnesses. Redacted Tr., Trial Proceedings, Volume II of III at 2–3 (Docket # 217) ( Tr. II ). In the order denying the first motion for new trial, the Court outlined the Government's case-in-chief:
[T]he 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.
Stephen John Cheney, Jr.1 testified for the government. Mr. Cheney's mother, Paula Sawtelle, was Mr. McCurdy's girlfriend as of March 27, 2006. Mr. Cheney testified, among other things, about an altercation between Mr. McCurdy and Ms. Sawtelle that resulted in police being called to Mr. McCurdy's residence. Tr. I at 206:8–207:25. According to Mr. Cheney, after coming upon the altercation between his mother and Mr. McCurdy, he confronted Mr. McCurdy and a fight ensued. Id. at 207:23–210:13. After Mr. McCurdy left the residence, police arrived, and Mr. Cheney testified that he told the officer a weapon was in the attic of the house.2 Id. at 210:14–211:13. He stated that the gun belonged to Mr. McCurdy and he had seen the gun before. Tr. I at 211:14–212:2; Tr. II at 6:7–12:17. Mr. Cheney also linked the gun's case to Mr. McCurdy. Tr. I at 213:6–22; Tr. II at 6:7–12:17.
On cross-examination, Mr. Cheney admitted to telephoning Mr. McCurdy after arriving in Bangor to testify in the trial.3 Tr. II at 46:12–47:6. Defense counsel, Jeffrey Silverstein, questioned Mr. Cheney about the purpose and content of these calls:
Q. You were looking to acquire something from him, weren't you?
A. Acquire, what do you mean?
....
Q. Get something from him?
A. No.
Q. Really? You didn't call him to ask if someone could stop by to pick something up?
A. He said he was going to give me a Christmas card for my daughter that he missed.
....
Q. Okay. And did you not imply to him that because you weren't capable of getting something from him that you were going to take care of business here in court today?
A. Take care of business?
Q. Yeah.
A. I don't understand.
Q. Did you imply that it would affect your testimony?
A. Affect my testimony, no.
....
Q. Didn't you tell Mark because he didn't have something for you that the deal was off, so to speak?
A. Explain. I don't understand the—
Q. You called him on the phone?
A. I spoke with Mark.
Q. You asked if you could send someone by?
A. No. I—my friend was coming to pick me up.
Q. Yeah. And you said, I will have a friend come by, correct?
A. Those could have been the words.
Q. All right. And he says, I can't have any contact with you?
A. No, he said with any convicted felons because he's on house arrest or something.
Q. Right. And that's you, right?
A. Well—
Q. In any event, and then you called later again, correct?
A. I may have. I don't—
Q. And he says, I have nothing for you, correct?
A. I don't know.
Q. You don't remember?
A. No, I don't.
Q. And you said, well, then the deal's off?
....
A. I didn't know we had a deal going.
Tr. II at 47:24–50:6. After this exchange, Mr. Silverstein explained at sidebar that Mr. McCurdy tape-recorded the disputed phone conversations with Mr. Cheney. Id. at 50:13–15. Mr. Silverstein acknowledged that Assistant United States Attorney (AUSA) Joel Casey had not heard the tapes but offered “to share them with him and the Court, if necessary, before [ ] seek[ing] to make use of them.” Id. at 50:16–19. AUSA Casey responded, “This is all news to me, your Honor.” Id. at 50:20. The Court recessed to allow defense counsel to play the tape for AUSA Casey. Id. at 51:11–52:10.
When the Court returned, counsel agreed to play the tape for the Court out of the presence of the jury. Id. at 52:12–24. After listening to the tape, the Court ruled that its admissibility would depend upon Mr. Cheney identifying his voice on the recordings, thereby authenticating the tape. Id. at 55:3–56:8. In discussing the authentication process, the Court and AUSA Casey had the following exchange:
Id. at 57:7–23.
Still outside the presence of the jury, defense counsel played the tape for Mr. Cheney and the Court allowed Mr. Silverstein to explore the tape-recorded conversation with Mr. Cheney. Id. at 58:8–60:18. While identifying his voice in the first taped conversation, Mr. Cheney initially only admitted that “[i]t may have been” his voice in the second recording. Id. at 60:8–15. AUSA Casey then questioned Mr. Cheney:
Q. [Y]ou understand that it's a federal crime to commit perjury?
A. Yes.
....
Q. .... And so I want to be absolutely clear with you, Mr. Cheney, that you need to be honest in responding not only to Mr. Silverstein's questions, but...
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