USA. v. Washington & Hogan

• Decision Date: 08 July 1999
• Docket Number: Nos. 98-2431,98-2432,s. 98-2431
• Citation: 184 F.3d 653
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY MAURICE WASHINGTON and ANDRE R. HOGAN, Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 653

184 F.3d 653 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY MAURICE WASHINGTON and ANDRE R. HOGAN, Defendants-Appellants.

Nos. 98-2431, 98-2432

United States Court of Appeals, Seventh Circuit

Argued April 7, 1999

Decided July 8, 1999

Appeals from the United States District Court for the Southern District of Illinois. No. 97 CR 30058--Paul E. Riley, Sr., Judge. [Copyrighted Material Omitted]

Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Anthony Washington and Andre Hogan were convicted of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. sec.sec. 841(a)(1) & 846. Their co-defendant Stanford Riley, Jr. was acquitted of the same charge, and co-defendant James Edward Harris was acquitted of aiding and abetting that conspiracy. On appeal, Washington and Hogan challenge the district court's denial of their motion for a judgment of acquittal or for a new trial, as well as a variety of other alleged errors by the district court.

I

The indictment alleged a conspiracy between January 1996 and June 1997. The DEA initiated an investigation in 1996, after it received information that Riley was storing cocaine for Washington and Hogan. A search of Riley's house revealed 880.4 grams of cocaine in the pockets of Riley's jackets.¹ Riley acknowledged ownership of the coats, but denied knowledge of the cocaine. The agents also found a lockbox containing $4000. Again, Riley claimed the box but not its contents.

The investigation also revealed a March 1997 incident involving Dwight Eugene Flowers and Washington. At that time, the St. Louis County Police Department learned that Flowers was traveling from Houston to St. Louis with 2 kilograms of cocaine. The police subsequently found a shoebox containing two plastic bags of cocaine in Flowers' car parked at his St. Louis home. Two other plastic bags in the shoebox revealed cocaine residue. The officers also found $6000 on Flowers' person and in his residence. Flowers informed the police that he had obtained the drugs for Washington. In cooperation with the authorities, Flowers subsequently made monitored calls to Washington, in which they arranged for Flowers to sell drugs to Washington. Law enforcement agents intercepted Washington prior to the scheduled exchange, and discovered approximately $60,000 in his vehicle.

At trial, the government presented a parade of witnesses testifying pursuant to plea agreements that lured their testimony with the bait of potential sentence reductions. Flowers pleaded guilty to the conspiracy charge, and testified that he went to Houston to obtain two kilograms of cocaine, one for himself and one for Washington. He admitted that he delivered one kilogram to Washington upon returning from Houston. He also testified about his long relationship with Washington in the drug business, from an initial meeting in 1988 through the March 1997 incident.

Leonard Telford, Robert Adams, and Anthony Smith also testified pursuant to plea agreements. Telford testified that Riley told him the drugs found by the DEA in Riley's house belonged to Hogan. Adams testified that he knew Washington, Hogan and Riley to be in the business of selling cocaine, and that he paged Washington when he wanted to buy drugs. Smith testified that he sold drugs to Hogan, and that Washington attempted to buy drugs from him but he never had any to sell at those times.

Finally, the most controversial government witness in this appeal, Darwin Rockett, also testified under a plea agreement. He averred that Hogan told him that the drugs seized from Riley's residence belonged to Hogan. He further testified that he had acted as a middleman for drug deals between Hogan and Smith, and for a 1 to 2 kilogram purchase by Hogan from Vincent Birge. Rockett denied purchasing drugs from Washington, and testified that he did not know Washington's source for drugs. He testified that he once saw Hogan and Washington engaged in a drug deal. At least some of his testimony indicated that those transactions occurred prior to the dates of the charged conspiracy which, as we stated, was from January 1996 to June 1997.

II

The defendants raise two arguments which ultimately relate to the testimony of Darwin Rockett. First, they assert that his testimony should have been excluded, and its admission constituted plain error. Second, they contend that the evidence was insufficient to support the verdict, and that their motions for judgment of acquittal or for a new trial should have been granted.

The contention that Rockett's testimony should have been excluded is similar to an argument rejected by this Court in United States v. Kuzniar, 881 F.2d 466 (7th Cir. 1989). In Kuzniar, the defendants asserted that they were entitled to a new trial based on the "inherently incredible" testimony of prosecution witness Robert Arens, Jr. Id. at 470. In addressing defense motions for a new trial, the court considered whether "evidence was erroneously permitted to go to the jury, substantially affecting the rights of the accused." Id. The district court granted the motion, holding that the testimony was "unbelievable as a matter of law" and very damaging. Id. We reversed that decision. In discussing whether the testimony was properly presented to the jury, we declared that testimony should be excluded as incredible only where reasonable persons could not have believed it, such as where the testimony contradicts the physical laws of nature. Id. at 470-71. We then stated that "[i]n general, conflicting testimony or a question as to the credibility of a witness are not sufficient grounds for granting a new trial." 881 F.2d at 470. That statement was merely a recognition that credibility questions are rarely so severe as to require exclusion of the witness' testimony, and thus the inclusion of questionable testimony will seldom require a new trial. In this case, Rockett's testimony was not contrary to the laws of nature or otherwise incapable of belief. Therefore, the inclusion of that testimony was not error--plain or otherwise.

Another claim relating to Rockett's testimony, however, is not so easily dismissed. That claim is that the court should have granted Hogan's motion for a new trial. Hogan and Washington both brought motions for new trials, but because the facts are different for each defendant, we will review their claims separately.

Hogan asserts that the court erred in denying his motion for judgment of acquittal, and in refusing his request for a new trial. A plethora of courts have recognized a fundamental distinction in the standards governing these two motions, and we agree with those courts. In considering a motion for judgment of acquittal, a court must view all evidence in the light most favorable to the prosecution. That is not so in weighing a motion for a new trial. In such a motion, a court may properly consider the credibility of the witnesses, and may grant a new trial if the verdict is so contrary to the weight of the evidence that a new trial is required in the interest of justice. See Wright & Miller, 3 Fed. Prac. & Proc. Crim.2d sec. 553 (1982) and cases cited therein; 58 Am. Jur. 2d New Trial sec. 391 (1989). The focus in a motion for a new trial is not on whether the testimony is so incredible that it should have been excluded. Rather, the court considers whether the verdict is against the manifest weight of the evidence, taking into account the credibility of the witnesses. This is not contrary to our holding in Kuzniar. We explained the distinction in United States v. Morales, 902 F.2d 604 (7th Cir. 1990), modified by United States v. Morales, 910 F.2d 467 (7th Cir. 1990). There, the court faced a challenge to a verdict based largely on tension between the physical evidence and the testimony of Officer Maher. We held that

[b]ecause Maher's testimony was not inconsistent with physical reality or otherwise incredible, the judge could not, under our recent decision in United States v. Kuzniar, 881 F.2d 466, 471 (7th Cir. 1989), have excluded the testimony from the trial on the ground of its probably being false, or have ordered a new trial because he failed to exclude it. But the question of admissibility must be separated from that of weight. Evidence may be admissible without establishing a proposition with the degree of certainty required of the prosecution in a criminal case. If the complete record, testimonial and physical, leaves a strong doubt as to defendant's guilt, even though not so strong a doubt as to require a judgment of acquittal, the district judge may be obliged to grant a new trial.

902 F.2d at 608, as modified by Morales, 910 F.2d 467. Therefore, even where the evidence was properly admitted, the court in reviewing a motion for a new trial must consider the weight of the evidence, and must grant a new trial if that evidence "preponderates heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand." United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989). In considering the weight of the evidence, the court must necessarily consider the credibility of the witnesses. We have implicitly recognized the propriety of considering credibility in our previous cases, and many other circuits have explicitly acknowledged that courts may consider credibility in ruling on a motion for a new trial. See Morales, 902 F.2d at 608 (stating that court must weigh the testimonial evidence); Reed, 875 F.2d at 114 (holding that on the facts of that case, there was no reason to second-guess the jury's credibility determinations); see also United States v. Ruiz, 105 F.3d 1492, 1501 (1st Cir. 1997), United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992), United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997), United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998), United States v. Lanier, 838 F.2d 281, 284-85 (8th Cir. 1988), an...