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United States v. Garner

United States District Court, N.D. Mississippi, Delta Division

July 15, 2014

UNITED STATES OF AMERICA
v.
EARNEST LEVI GARNER, JR., a.k.a. " LEE GARNER" and RAYMOND LAMONT SHOEMAKER, a.k.a. " RAY SHOEMAKER" , DEFENDANTS

For Raymond Lamont Shoemaker, also known as Ray Shoemaker, Defendant: Christopher Thomas Graham, LEAD ATTORNEY, Heilman Kennedy Graham, P.A., Jackson, MS; Michael A. Heilman, LEAD ATTORNEY, HEILMAN LAW GROUP, P.A., Jackson, MS; Edward T. Polk, HEILMAN LAW GROUP, Jackson, MS; Steven E. Farese, FARESE, FARESE & FARESE, Ashland, MS.

For Earnest Levi Garner, Jr. also known as Lee Garner, Defendant: Christi Rena McCoy, CHRISTI R. MCCOY, ATTORNEY, Oxford, MS; John A. Ferrell, JOHN A FERRELL, ATTORNEY, Booneville, MS; Robert S. Addison, DANIEL, COKER, HORTON & BELL, Jackson, MS; Ronald Dale Michael, RONALD D. MICHAEL, ATTORNEY, Booneville, MS; William B. Kirksey, KIRKSEY & ASSOCIATES, P.A., Jackson, MS.

For Robert Corkern, Defendant: Ashley C. Wright, LEAD ATTORNEY, DANKS, MILLER AND CORY, Jackson, MS; Dale Danks, Jr., LEAD ATTORNEY, DANKS MILLER, HAMER & CORY, Jackson, MS.

For USA, Plaintiff: Clayton A. Dabbs, Robert J. Mims, U.S. ATTORNEY'S OFFICE - Oxford, Oxford, MS.

Page 857

MEMORANDUM OPINION

NEAL B. BIGGERS, UNITED STATES DISTRICT JUDGE.

This case comes before the trial court sua sponte, with the court knowing that the procedural posture of the case is unusual. After further consideration of the motions made by the defendants herein alleging constitutional and statutory violations on the part of the government at the trial hereof, the court concludes that it was remiss by not ruling on those issues raised by the defendants in their motions for a new trial; and therefore, the appellate court was not afforded the opportunity to rule on those issues on appeal. The trial court is aware of one instance in which the Supreme Court disallowed a district court's grant of a new trial after appeal; however, that case is distinguishable from the present case. In United States v. Smith, the district court initially considered all grounds raised in defendant's motion for new trial and denied relief, and that denial was affirmed by the appellate court. 331 U.S. 469, 471, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). The district court subsequently issued an order granting the defendant a new trial and, as noted by the Court:

It was accompanied by a 'memorandum' reciting the history of the case and that " This Court, while the appeal was pending, reconsidered the grounds urged by the defendant in support of his motion for a new trial. It is our opinion upon this reconsideration that in the interest of justice a new trial should be granted the defendant." It assigned no more particular ground for the order.

Id. The Supreme Court ultimately concluded the order to be improper. Id. Unlike the district court in Smith, this Court specifies grounds, infra, which were not previously considered in its initial ruling and discusses reasons as to why relief is warranted on these grounds. Moreover, this Court is not changing its position, as in Smith, but instead is considering claims of constitutional violations raised in defendants' timely briefs during and after trial.

Page 858

The Court, in its previous ruling, did grant motions for new trials on the conspiracy counts herein but in doing so relied solely on its opinion at the time concerning the agency question as to whether Michael David Chandler, as member of a five-member board, was an agent of the hospital as required by the instruction of law in this case. That reliance by the trial court was ruled misplaced by the appellate court and is the law of this case, and the appellate ruling shall be strictly adhered to.

This court is of the opinion that the defendants deserve in the interests of justice a ruling on the constitutional Brady violation claims raised by them in their post trial motions because in granting the motion for a new trial previously, the trial court placed full reliance on the agency question and did not grant the defendants a ruling on the Brady claims. In an area of such clear and settled law, this court is of the opinion that the Brady claims must be treated by this court, and to refuse to rule on these constitutional claims now would be a denial of due process and contrary to the interests of justice. The government in its brief to the Fifth Circuit did not even address the Brady exculpatory and statutory violation claims, ostensibly since the trial court had not ruled on them.

The government prosecutors have an affirmative duty as described in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), to advise the defendants of the existence of and to turn over to them all exculpatory evidence relating to the defendants and that includes all evidence which can be used by the defendants for impeachment purposes of government witnesses and in planning their defense strategies. To establish a Brady violation, the defendant must prove that (1) the prosecution suppressed evidence, (2) it was favorable to the defendant, and (3) it was material either as direct or impeaching evidence. United States v. Brown, 650 F.3d 581, 587-88 (5th Cir. 2011) (citing United States v. Skilling, 554 F.3d 529, 574 (2009) vacated in part on other grounds, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010)); see also United States v. Campagnuolo, 592 F.2d 852, 859 (5th Cir. 1979). This is basic, settled law. But the government in this case failed to follow the mandates of these cases.[1] The government's main witness - Chandler, the man who originated the conspiracy for which these defendants were prosecuted - was, at the time of the trial, under a twenty-six count criminal indictment and had been for approximately one-year, the substance of which indictment was kept secret from the defendants herein until Chandler had taken the stand during the trial as the main government witness and finished his direct testimony. It was only then that the government made a motion to a trial judge in another courthouse of this court to unseal the indictment, which the government had asked to be sealed over a year earlier. The defendants herein had been under indictment over one year, and the deadline for furnishing discovery material to the defendants had passed ten months before the theretofore sealed indictment was turned over to defense counsel less than one hour before they were to begin the cross-examination of Chandler. The twenty-six count indictment of Chandler was filed in this court in May 2010 and was sealed at the motion of

Page 859

the prosecutors and remained sealed until February 2012. The defendants were indicted on the charges herein in February 2011 and went to trial in February 2012. All this time - May 2010 until February 2012- the government kept the indictment of Chandler under seal, and the defendants were wholly without any knowledge whatsoever of the substance of these twenty-six counts pending against Chandler. The government's decision not to unseal the indictment until February 2012 was in direct violation of Brady and the scheduling order entered by the Magistrate Judge in this case that required all discovery be completed by April 4, 2011. A motion was made by the government prosecutors to unseal the indictment in February 2012, only after Chandler had testified on behalf of the government against the defendants herein. This Brady material obviously would have been useful in planning a defense and planning a cross-examination of the main witness for the government; yet, its existence was not revealed until the trial was in progress and Chandler had already testified on direct. See generally United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (stating that the government's failure to disclose Brady material may impair the adversary process by causing the defendant to abandon defenses, trial strategies, or lines of independent investigation he might otherwise have pursued).

To casually throw out to the defendants an indictment under seal for over a year against the government's star witness only after that witness had finished his direct testimony does not meet the mandates of Brady or Kyles. Defendants must receive the material in time to put it to effective use at trial. As the Fifth Circuit in Campagnuolo observed:

Courts have suggested that in some circumstances the 'appropriate time' for discovery is prior to trial: It should be obvious to anyone involved with criminal trials that exculpatory information may come too late if it is only given at trial, and that the effective implementation of Brady v. Maryland must therefore require earlier production in at least some situations.

Campagnuolo, 592 F.2d at 859 (citations omitted) (while noting that Brady was never intended to create pretrial remedies).

The government failed to show this indictment to the defendants even though the case against these defendants had been pending for approximately a year and the government had possession of the Chandler indictment all that time. The government then told the defendants about this Brady material only after the trial was well in progress. The trial court herein was taken aback by this action and though at the time denied the motion for a mistrial or dismissal of the charges, seriously questioned the prosecutors about this failure to divulge exculpatory material. The colloquy between the trial court and prosecutor was as follows:

THE COURT: There's a matter that's been on my mind overnight. I'd like to get an explanation from the prosecution why this indictment against your witness has been sealed all this time until yesterday. It was not handed over ...

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