United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, United States District Judge.
THE COURT is Defendant' spro se Motion
for New Trial (Dkt. 311). A response is unnecessary. The
motion is DENIED.
jury convicted Defendant of conspiracy to possess with intent
to distribute and to distribute one kilogram or more of
heroin (Count One), and six counts of possessing and aiding
and abetting another in possessing with intent to distribute
heroin (Counts Two, Three, Four, Five, Six and Seven) (Dkt.
202). His appeal was recently reinstated (Dkt. 310).
motion raises a claim of newly discovered evidence, Rule
33(b)(1), Fed. R. Crim. P. expressly provides "[i]f an
appeal is pending, the court may not grant a motion for a new
trial until the appellate court remands the case."
See United States v. Hogan, 181 F.App'x 803, 804
(11th Cir. 2006) (quoting United States v.
Fuentes-Lozano, 580 F.2d 724, 726 (5th Cir. 1978)
("A motion for a new trial may be presented directly to
the district court while the appeal is pending; that court
may not grant the motion but may deny it, or it may advise us
that it would be disposed to grant the motion if the case
were remanded."). And Rule 33(b)(1) provides that a
motion for new trial based on any reason other than newly
discovered evidence must be filed within 14 days of the
verdict. To the extent the motion is based on allegations
other than newly discovered evidence, such as the knowing use
of perjured testimony or failure to disclose impeachment
evidence, it is untimely.
motion, Defendant again repeats a contention he has made
throughout this case, that there was undue delay between the
offense and the filing of the Complaint, and intentional
delay by the United States in presenting the case to the
Grand Jury. Specifically, he contends that Special Agent
Nowak made false averments in his search warrant affidavit
and "lied" before the Grand Jury and before the
Magistrate Judge. He adds that Special Agent Marotta
testified falsely during trial about the events leading to
his arrest. These contentions are based on Defendant's
misguided interpretation of the time-line of events leading
to his arrest, contentions advanced in his pro se
pretrial motions (see Dkts. 102, 104, 124, 129, 139,
239), which were considered and denied in four orders (Dkts.
115, 132, 138, 245).
next contends that the United States knowingly presented
false testimony through Special Agent Marotta, Kaysandra Lee,
the wife of co-defendant Robert Lee, and cooperating
r witnesses Robert Lee, Ernest
Wooten, Dalton Baptiste, and Dexter Kitchen. The essence of
this contention, however, is that these witnesses were
impeached through inconsistent statements and therefore their
testimony was false. This contention is without merit.
first Motion for New Trial, Defendant made similar arguments,
but without supporting description or documentation (Dkt.
226). He fares no better by relying on his cross examination
of these witnesses. First, he has not demonstrated that the
testimony of the witnesses was false. Considered in the
context of the trial as a whole, any perceived
inconsistencies in their trial testimony does not demonstrate
that the testimony was false. Second, the perceived
inconsistencies do not rise to the requisite level of
deliberate deception through false testimony, and he
therefore fails to show that the prosecutor would have been
known the testimony was false merely because he believes the
witnesses were impeached. See United States v.
Lopez, 985 F.2d 520, 524 (11th Cir. 1993)
("[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."). Last, he
fails to show that the perceived inconsistencies may have
effected the outcome of his trial. Id. at 523
("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.").
next contends that the United States failed to disclose
impeachment evidence, citing Giglio v. United
States, 405 U.S. 150 (1972). Specifically, he describes
the testimony of Special Agent Marotta, and argues that the
United States should have disclosed that Marotta told
Kaysandra Lee that he would recommend that she not be
prosecuted. But he relies on a jail recording he obtained
during pretrial discovery to support this contention, and
Marotta's trial testimony, hardly newly discovered
he contends that the United States failed to disclose witness
Kitchens' "psychological problems at the time of
trial" that "cast doubt on his ability to testify
truthfully before the jury." Defendant relies on
Kitchens' trial testimony that he had a "mental
illness, " was "mild retarded, ".and was on
medication. Kitchens volunteered this information during
cross examination by Defendant. Notwithstanding, Defendant
makes no showing of materiality, that is, that the mental
health issues Kitchens had at the time of trial impacted his
ability to testify accurately and truthfully.
even assuming, for the sake of argument, that the United
States was under an obligation to disclose impeachment
evidence with respect to any of these witnesses, Defendant
fails to make the threshold showing of materiality, that is,
"a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different. "United States v. Bagley,
473 U.S. 667, 682 (1985); United States v. Alzate,
47 F.3d 1103, 1109-10 (11th Cir. 1995).
 Defendant represented himself at
trial, assisted by stand-by counsel (Dkt. 182). After the
verdict, counsel was appointed for sentencing and appeal
purposes (Dkt. 204). Counsel's Motion for New Trial,
which claimed newly discovered exculpatory evidence, among
other issues, was denied (Dkt. 232). Defendant then moved to
dismiss counsel (Dkt. 238), prompting counsel to move to
withdraw (Dkt. 242). Both motions were granted (Dkts. 243,
244). After sentencing, new counsel was appointed for the
appeal (Dkt. 249). Thereafter, Defendant unsuccessfully
attempted to have new appellate counsel appointed (Dkt. 290).
He then moved pro se to remand the case to the
district court, contending that the case agent lied in his
arrest warrant affidavit and that the United States knowingly
presented false ...