United States v. Thomas
| Citation | 396 F.Supp.3d 813 |
| Decision Date | 14 August 2019 |
| Docket Number | Case No. 3:18-CR-045 JD |
| Parties | UNITED STATES of America v. Michael THOMAS |
| Court | U.S. District Court — Northern District of Indiana |
Jesse M Barrett, US Attorney's Office, South Bend, IN, for United States of America
R Brian Woodward, Woodward Law Offices LLP, Merrillville, IN, for Michael Thomas
JON E. DEGUILIO, Judge A jury convicted Defendant Michael Thomas of mail fraud following a four-day trial. Thomas now requests a new trial under Fed. R. Crim. P. 33. [DE 109] For all the reasons contained herein, the Court will deny the motion.
On September 28, 2018, a jury found Michael Thomas guilty on four counts of mail fraud, in violation of 18 U.S.C. § 1341. In a nutshell, Thomas's scheme to defraud comprised of setting fire to mobile homes in order to collect insurance policy proceeds. As part of its case, the government presented the expert opinion testimony of Fred Sumpter, an investigator with the Indiana State Fire Marshal's office, who surveyed some of the fire scenes and determined that, based on the burn patterns he observed, an ignitable liquid had been used to set the fires. Thomas did not offer an expert to rebut Sumpter.
Months later, and after several extensions at his own request, Thomas filed the instant motion for a new trial on June 3, 2019. [DE 109] The motion includes a Brady claim as well as an allegation that one of the government's factual witnesses provided false testimony at trial. Also attached to his motion are the reports of five veteran fire investigators who reviewed his case alongside Sumpter's conclusions: John Lentini; John DeHaan; David M. Smith; Douglas J. Carpenter; and Dr. Candace Ashby. None of these investigators physically surveyed the fire scenes, as did Sumpter, yet each of them hotly criticizes Sumpter's reliance on burn patterns to determine that an ignitable liquid had been used.1 In addition to his other arguments, Thomas now claims that he should receive a second trial based on these "new" expert opinions.
Rule 33(a) provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." "Courts have interpreted Rule 33 to require a new trial ‘in the interests of justice’ in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial."
United States v. Kuzniar , 881 F.2d 466, 470 (7th Cir. 1989). "A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly." United States v. Santos , 20 F.3d 280, 285 (7th Cir. 1994) (quoting United States v. Morales , 902 F.2d 604, 605 (7th Cir.), amended on other grounds , 910 F.2d 467 (7th Cir. 1990) ). Rule 33(b) places time restrictions on a defendant's ability to file such a motion:
Based on these restrictions, because Thomas filed his motion well over fourteen days after the guilty verdict in his case, his arguments can only advance on theories of newly discovered evidence.2 See United States v. Ogle , 425 F.3d 471, 476 (7th Cir. 2005) (); see also Eberhart v. United States , 546 U.S. 12, 13, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) ().
To that end, as mentioned above, Thomas presents three main arguments for a new trial. First, he maintains that the government violated Brady by failing to turn over information from an old case that could have been used to impeach Sumpter. Thomas claims he did not know about this evidence until alerted to it by John Lentini's post-trial affidavit. Second, Thomas argues that the opinions of his five experts entitle him to a second trial, as he did not learn about the "flaws" in Sumpter's methodology until after his conviction. Finally, Thomas argues that his accomplice provided false testimony against him at trial. None of these arguments persuade the Court.
Thomas claims right to a new trial because the government allegedly committed a Brady violation by failing to disclose Fred Sumpter's involvement in a twenty-year-old prosecution out of this District's Hammond division, United States v. Weber , Case No. 2:98-CR-195.3 In that case, the government charged Michael Weber with arson relating to a fire that killed his wife and children. Sumpter participated in the State Fire Marshal's investigation into the cause of that fire, which concluded that someone intentionally set the fire based on burn patterns consistent with the use of a liquid accelerant. [DE 116-1 at 5]4 The Weber file, however, indicates that several individuals criticized the State Fire Marshal's conclusions, including John Lentini, a fire investigator who submitted an affidavit as part of Weber's defense, and two ATF agents who expressed their opinions in a pair of internal memoranda. These individuals uniformly criticized the methodologies employed by the state investigators and either questioned or disagreed with the conclusion that the fire was arson. Eventually, the government agreed to dismiss the case. Thomas now claims that the fact that the ATF agents disagreed with Sumpter in the Weber case should have been revealed pursuant to Brady and Giglio . He insists that, had that information been revealed, "the defense would have been alerted the [sic] falsity in Mr. Sumpter's methodology prior to trial and likely have had sought to exclude Mr. Sumpter's testimony entirely." [DE 109 at 16]
The government has an obligation to disclose evidence favorable to the defendant when such evidence is material to the defendant's guilt or innocence, see Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that obligation extends to both impeachment and exculpatory evidence, see United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (citing Giglio v. United States , 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ). To prove that the government violated its duty under Brady , Thomas must show that:
(1) the evidence at issue is favorable to [him] because it is either exculpatory or could be used for impeachment; (2) the evidence has been suppressed (i.e., the existence of the evidence was known, or reasonably should have been known, to the government, the evidence was not otherwise available to the defendant through the exercise of reasonable diligence, and the government either willfully or inadvertently withheld the evidence until it was too late for the defense to make use of it); and (3) the suppression of the evidence resulted in prejudice (i.e., there is a reasonable probability that had the evidence been disclosed, the outcome might have been different, such that confidence in the actual outcome is undermined).
United States v. Knight , 342 F.3d 697, 705 (7th Cir. 2003) (citing United States v. O'Hara , 301 F.3d 563, 569 (7th Cir. 2002) ).
To start, the Court seriously doubts whether Brady even mandates disclosure of the Weber information, as Thomas argues. But even assuming the Weber files fall within Brady 's scope, Thomas nonetheless fails to demonstrate a Brady violation in several respects. First, he cannot show that the Weber case was suppressed by the government; he presents no authority requiring the government to turn over this sort of material under these circumstances, and regardless, he could have accessed this evidence prior to trial with reasonable diligence. Furthermore, these shortcomings aside, Thomas cannot show that anything contained in the Weber file creates a reasonable probability that the outcome of trial would have been different, given the significant amount of evidence against him.
At the outset, the Court does not agree with Thomas's repeated contention that the Weber files demonstrate Sumpter provided "false" testimony in this case. Rather, if introduced at Thomas's trial, the Weber files would only have served to call the reliability of Sumpter's methodology into question. Simply because other fire experts disagreed with Sumpter in the past does not mean that his analysis in Thomas's case amounted to lies and falsehoods. For example, in Gimenez v. Ochoa , petitioner argued that the government's experts provided false testimony about the victim's cause of death by offering affidavits from his own new experts that purported to contradict the opinions presented at trial. 821 F.3d 1136, 1142-43 (9th Cir. 2016). In rejecting this claim, the Ninth Circuit noted that, "[t]o the extent that this new testimony contradicts the prosecution's expert testimony, it's simply a difference in opinion—not false testimony." Id. at 1142. So too, here, Thomas merely "presents a battle between experts" who hold different opinions about fire investigation techniques. Id. at 1143. "Introducing expert testimony that is contradicted by other experts, whether at trial or at a later date," however, "doesn't amount to suborning perjury or falsifying documents[.]" Id. ; see also Mickle v. Chappell , No. C 92-2951, 2014 WL 3866614, at *13-14 (N.D. Cal. Aug. 5, 2014) (...
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