USA. v. Fulcher, 00-4167

• Decision Date: 01 March 2001
• Docket Number: No. 00-4200,No. 00-4219,No. 00-4167,00-4167,00-4200,00-4219
• Citation: 250 F.3d 244
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROSANNA SUE NICHOLS FULCHER, a/k/a Rose Nichols, a/k/a Sue Nichols, a/k/a R. S. Nichols, a/k/a Rosanna Nichols, a/k/a Bo, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellant, v. ROSANNA SUE NICHOLS FULCHER, a/k/a Rose Nichols, a/k/a Sue Nichols, a/k/a R. S. Nichols, a/k/a Rosanna Nichols, a/k/a Bo; MICHAEL EDWARD FULCHER, a/k/a Michael Ferguson; ETHEL VEST FULCHER, a/k/a Zelda Vest, a/k/a O.C. Vest, a/k/a Colin Vest, a/k/a Ann Smith, Defendants-Appellees. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL EDWARD FULCHER, a/k/a Michael Ferguson, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 244

250 F.3d 244 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROSANNA SUE NICHOLS FULCHER, a/k/a Rose Nichols, a/k/a Sue Nichols, a/k/a R. S. Nichols, a/k/a Rosanna Nichols, a/k/a Bo, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. ROSANNA SUE NICHOLS FULCHER, a/k/a Rose Nichols, a/k/a Sue Nichols, a/k/a R. S. Nichols, a/k/a Rosanna Nichols, a/k/a Bo; MICHAEL EDWARD FULCHER, a/k/a Michael Ferguson; ETHEL VEST FULCHER, a/k/a Zelda Vest, a/k/a O.C. Vest, a/k/a Colin Vest, a/k/a Ann Smith, Defendants-Appellees.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL EDWARD FULCHER, a/k/a Michael Ferguson, Defendant-Appellant.

No. 00-4167 No. 00-4200 No. 00-4219

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: March 1, 2001

Decided: May 17, 2001

Appeals from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (CR-98-102) [Copyrighted Material Omitted] COUNSEL ARGUED: Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSOCIATES, Richmond, Virginia; Charles David Whaley, MORCHOWER, LUXTON & WHALEY, Richmond, Virginia, for Appellants. Joseph William Hooge Mott, Assistant United States Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: David P. Baugh, Richmond, Virginia, for Appellant Ethel Fulcher. Robert P. Crouch, Jr., United States Attorney, Roanoke, Virginia, for Appellee.

Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge Luttig wrote the opinion, in which Judge Niemeyer and Judge Williams joined.

OPINION

LUTTIG, Circuit Judge:

Defendants Ethel, Michael, and Rosanna Fulcher were convicted by a jury of various money laundering and drug violations. Following trial, a government agent wrote an ex parte letter to the district court explaining that he may have led the defendants to believe that they were authorized to conduct the entire operation on behalf of the government. The district court granted a new trial to the defendants pursuant to Fed. R. Crim. P. 33, holding that the newly discovered evidence satisfied every requisite element for a new trial. For the reasons that follow, we affirm.

I.

This case arises out of the pervasive presence of drugs at Bland Correctional Center ("BCC"), an institution operated by the Virginia Department of Corrections. The network of drug distribution at BCC was extensive, involving inmates, prison officials, and even the relatives and girlfriends of inmates. The drug operation managed by Michael Fulcher ("Michael") was no exception.

Michael purchased his supply of marijuana from various prison officials, including prison guards and counselors. J.A. 413-14, 538, 554-55. He would then divide the drugs he received into smaller quantities -- most often teaspoon-sized servings-- for distribution to inmates at BCC. J.A. 265, 773. Since his customers were prohibited from using cash while incarcerated inmates purchased the drugs with money orders written on their inmate trust accounts, remitting payment to a number of individuals located outside the prison, including Rosanna Fulcher ("Rosanna"), Michael's wife, and Ethel Fulcher ("Ethel"), Michael's mother. J.A. 266-67, 557, 783-84, 1078. The funds collected would then be used to purchase additional marijuana from prison officials, beginning the cycle anew.

The appellants, Michael and Rosanna, were charged in a 47-count indictment -- along with 22 other defendants -- with engaging in drug and money laundering conspiracies, as well as substantive counts of the same.¹ The jury convicted Rosanna of a money laundering conspiracy and ten substantive counts of money laundering. J.A. 856-60. Michael was convicted of drug and money laundering conspiracies, a continuing criminal enterprise offense ("CCE"), and 17 substantive money laundering counts. J.A. 861-67.

On the eve of sentencing, the district court received an ex parte letter from Special Agent Donald O. Lincoln, Jr., of the Drug Enforcement Administration ("DEA"). J.A. 1074-79. In the letter, Lincoln explained that he rejected Michael's request to formally investigate the distribution of drugs at BCC for two reasons: (1) it would be impossible to ensure his safety from other inmates and prison guards while he was incarcerated; and (2) the amount of marijuana was "so minuscule that I advised him that there was no way that we could justify a Federal investigation on what would at best be misdemeanor level quantities." J.A. 1074.

Although Lincoln never formally granted permission for Michael to initiate a formal drug investigation, Lincoln nonetheless stated his concern that he, along with state law enforcement officers working with the DEA, may have provided Michael with the mistaken impression that he had tacit approval to investigate drug dealing at BCC. J.A. 1075. Specifically, Lincoln explained:

It has come to my attention that in my absence Mr. Fulcher would periodically talk to Deputy Kenny Parker of the Botetourt County Sheriff's Office, who was working in the DEA Office, serving as a DEA Task Force Officer at that time. In these conversations Mr. Fulcher told Deputy Parker what he was working on. Deputy Parker, believing that the operation had already been approved by me, discussed a number of options with Mr. Fulcher. One of these involved arranging for one or more of the guards who were involved to make an attempted pickup of marijuana from Deputy Parker, in an undercover capacity, in Botetourt County. Under those circumstances the case could have been taken to State Court in Botetourt or, if it developed into something interstate or substantial it could be brought to Federal Court. Deputy Parker discussed this potential operation with Sheriff Reed Kelly, and both of them recall the conversations. In addition Deputy Parker reminded me of a conversation he had with me concerning setting up a potential sting operation against a prison guard, to go down at a Botetourt County truck stop.

J.A. 1074-75. Lincoln also stated in the letter that during his numerous telephone conversations with Michael over a three-year period [t]here were indeed times when I was in a hurry to get him off the phone due to other commitments. If I said anything in haste which led him to believe he was "covered" it may be the proximate cause of all of this. I honestly do not recall ever saying anything to that effect, but if Task Force Agent Parker and Sheriff Kelly also believe that I did, then I must lend credibility to the possibility. I don't know what if any consideration can be given to all that I have related here, your Honor, but I felt it incumbent on me to state the facts as I now know them.

J.A. 1079.

On the basis of the letter, appellants filed a motion (which Ethel joined), asserting that they were entitled to a new trial on the basis of newly discovered evidence pursuant to Fed. R. Crim. P. 33. The district court held an evidentiary hearing, in which both Lincoln and Deputy Parker testified. Lincoln stated that David Fulcher, Michael's father, told him that Michael and Parker had spoken on several occasions concerning a possible sting operation. J.A. 927, 933, 935-36. According to Lincoln, Parker told him that he had talked with Michael several times regarding a possible drug operation, and that Parker had discussed a number of options with Michael about how to set up a sting operation involving prison officials. J.A. 936-39. On redirect, Lincoln acknowledged that, since his testimony at the pretrial hearing, his opinion regarding whether the Fulchers may have believed that they were authorized to conduct the operation had changed:

Q All right. Now during your July testimony, June testimony [sic] in the courtroom, I asked you a question about, "Did you ever do anything that in your estimation could have been construed as permission to conduct this investigation?" And do you recollect your answer as being, "No"?

A I probably did say that, and I guess that's -- . . .

Q Are you now of the opinion that you could have been communicating to him and his mother that if the case was bigger it would be prosecuted and he could get his sentence reduced?

A I don't know, but, yes, that's my primary concern at this point.

Q Do you believe you might have?

A Yes. And if not me, then the fact that he talked to the other people in my office or to other people in my office [sic] and he felt that they somehow blessed it, then there is the very real possibility, especially from the part of Mrs. Fulcher.

J.A. 984-85, 990-91 (emphases added).

On the basis of the letter and the testimony adduced at the evidentiary hearing, the district court granted the motion for a new trial, holding that the newly discovered evidence was material because it was directly related to the public authority defense² and to whether the defendants possessed the requisite mens rea for their crimes. J.A. 1054, 1056-57. The district court also denied appellants' motions for judgment of acquittal pursuant to Fed. R. Crim. P. 29. Appellants filed a timely notice of appeal challenging their convictions, and the government cross-appeals the district court's decision to grant a new trial.

II.

The government argues on appeal that the district court erred in granting a new trial to defendants on the basis of newly discovered evidence.

Under Fed. R. Crim. P. 33, "[o]n a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require." In determining whether a new trial should be granted under Rule 33 for newly discovered evidence, this court utilizes a five-part test:

(a) the evidence must be, in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such...