United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE.
THE COURT is Defendant's Motion for New Trial
(Dkt. 226), and the United States' opposition (Dkt. 229).
Upon consideration, Defendant's motion is
without supporting description or documentation, contends
that new, exculpatory evidence exists which was not made
available to him before trial, and which would have made him
"better able to impeach the witnesses and gain his
acquittal. This unsupported contention is without
there has been a suppression of favorable evidence in
violation of Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), the nondisclosed evidence
is material: "if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of
the proceeding would have been different. A 'reasonable
probability' is a probability sufficient to undermine
confidence in the outcome." United States v.
Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383,
87L.Ed.2d481 (1985). United States v. Alzate, 47
F.3d 1103, 1109-10 (11th Cir. 1995).
trial, the United States provided Defendant with extensive
discovery. Moreover, on his own, with the assistance of
counsel, Defendant obtained voluminous jail telephone
recordings of co-conspirators who testified against him at
trial, for use as impeachment. And before trial, he
repeatedly sought police reports and statements of the
cooperating witnesses. For example, just before trial, his
pro se Motion to Compel Exculpatory Evidence and
Specific Production of Statement, Document of Information
(Dkt. 163) was denied, based on the Government's response
(Dkt. 167). Similarly, the Magistrate Judge denied his
earlier Motion(s) to Compel (Dkts. 151, 153; 161, 162).
Defendant was provided and obtained extensive discovery and
utilized that discovery to cross examine the United
States' witnesses. Even if there exists additional
impeachment material which may have contributed to his cross
examination of the witnesses, he fails to make the requisite
showing that there is a reasonable probability that had the
evidence been disclosed, the result of his trial would have
next contends that he was "not afforded the opportunity
to whole [sic] confront government witnesses, " because
he was not permitted to call two special agents, one of whom
was present during trial and had testified before the Grand
Jury. This contention merely reasserts his opposition to the
Order granting the United States' Motion in Limine (Dkt.
186), which effectively quashed a subpoena issued to Special
Agent Nowak (Dkt. 193). For the reasons stated on the record
during the hearing on that motion, this contention is without
Defendant contends that the United States presented false
testimony during trial. This contention is likewise without
merit. It is only the knowing use of perjured testimony that
constitutes a due process violation. Jacobs v.
Singletary, 952 F.2d 1282, 1287 n. 3 (11th Cir.1992).
First, Defendant has not demonstrated that the testimony
before the jury was false. Considered in the context of the
trial as a whole, any perceived inconsistencies between the
agents' trial testimony and investigative reports do not
rise to the requisite level of deliberate deception through
false testimony. Second, he fails to show that the prosecutor
was aware that false testimony was presented.
"[K]nowledge of falsity of testimony is not imputed to
the prosecutor when a key government witness' testimony
is in conflict with another's statement." United
States v. Lopez, 985 F.2d 520, 524 (11th Cir. 1993),
citing United States v. Brown, 634 F.2d 819, 827
(5th Cir.1981). And even assuming arguendo that the
prosecutor should have corrected the perceived
inconsistencies between the investigative reports and the
witness' testimony, Defendant fails to show that the
inconsistencies may have effected the outcome of his trial.
United States v. Lopez, 985 F.2d 520, 523 (11th Cir.
1993) ("The standard of review is whether the
prosecutor's failure to correct false evidence may have
had an effect on the outcome of the trial.").
Defendant maintains that the undersigned should have
disqualified himself, contending that the undesigned
"demonstrated dissatisfaction and annoyance with the
Defendant, made inquiries of witnesses, and improperly
instructed the jury by substituting cocaine for heroin in the
instructions. These contentions are without merit.
Applying the "extrajudicial source" standard, the
Supreme Court has held that "judicial rulings alone
almost never constitute a valid basis for a bias or
partiality motion, " nor do "judicial remarks
during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or
their cases." Liteky v. United States, 510 U.S.
540, 555-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). -
The Court stated that judicial remarks "may"
support a bias or partiality challenge "if they reveal
an opinion that derives from an extrajudicial source; and
will do so if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible." Id.
However, "[n]ot establishing bias or partiality... are
expressions of impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of what imperfect men
and women, even after having been confirmed as federal
judges, sometimes display. " Id.
United States v. Marrero, 219 Fed.Appx. 892, 895
(11th Cir. 2007) (emphasis added).
pro se defendant must follow the rules of procedure and
evidence. United States v. Hung Thien Ly, 646 F.3d
1307, 1315 (11th Cir. 2011), citing Faretta v.
California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2541
n. 46 (1975). The record will reflect that Defendant's
conduct during trial was problematic, prompting numerous
instructive comments and admonitions from the court. He was
constantly reminded to ask questions of witnesses, rather
than make lengthy statements of fact. While he remained
courteous, he repeatedly ignored instructions from the court
and demonstrated his unwillingness or inability to comply
with those instructions and the proper procedure for
questioning witnesses and presenting evidence. At times, his
inability to effectively ask questions of witnesses resulted
in the court making inquiry of those witnesses. Regardless,
Defendant was provided wide latitude to examine witnesses and
make argument to the jury.
judge is "more than a mere moderator and is under a duty
to question witnesses and comment on evidence when it appears
necessary, " including the interrogation of a witness
"to clarify his testimony or to insure that a case is
fairly tried." United States v. Block, 755 F.2d
770, 775 (11th Cir. 1985). And the court had "not only
the right but a duty to assure that the trial was conducted
in an orderly fashion." United States v.
Walker,559 F.2d 365 (5 Cir. 1977). Indeed,
"[district courts are not required to indulge a pro se
defendant's continuous attempts to inject extraneous and
irrelevant matter into the record." United States v.
Anderson,577 F.2d 258, 260 (5th Cir. 1978). Finally,
admonishing a pro se defendant that he could only
ask questions of witnesses is not improper. See United
States v. Scotton, 647 F. App'x 947, 950 (11th