The opinion of the court was delivered by: David G. Larimer United States District Judge
On August 11, 2011, defendant, Luther Dixon ("Dixon"), was convicted after a jury trial of possession with intent to distribute cocaine base, and cocaine. Dixon was remanded after the verdict and sentencing is now pending. After the verdict, Dixon filed a motion for a new trial under Rule 33 (Dkt. # 101), which the Government opposes (Dkt. # 105).
In sum, Dixon contends that the Court erred when it instructed the jury concerning the immunized nature of testimony by witness Maranda Triplett, and her prior drug and alcohol use. Defendant also claims entitlement to a new trial because the Court excluded evidence of prior statements by Triplett, and permitted the Government to make certain statements during Triplett's cross-examination and in summation. For the following reasons, Dixon's motion for a new trial is denied.
Pursuant to the Second Circuit's well-settled precedent, motions for a new trial are generally disfavored. See, e.g., United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996); United States v. Eldridge, 2011 U.S. Dist. LEXIS 89930 at *16 (W.D.N.Y. 2011). "The 'ultimate test' [in assessing a 33 motion] is 'whether letting a guilty verdict stand would be a manifest injustice. . . . There must be a real concern that an innocent person may have been convicted.'" United States v. Canova, 412 F.3d 331, 349 (2d Cir. 2005), quoting United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001). District Courts are given "broad discretion" in considering whether to grant a Rule 33 motion for a new trial. Canova, 412 F.3d 331at 348; United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995). I find no manifest injustice and no basis to grant a new trial.
Dixon first argues that the Court erred in advising the jury that it should view Triplett's testimony cautiously -- first, due to the fact that she had been granted Fifth Amendment immunity by the Government, and later, due to the fact that Triplett had testified she was regularly using drugs and alcohol at the time of the events about which she testified, and was intoxicated when she made the phone call to police that precipitated the defendant's arrest.
A new trial is warranted where a defendant demonstrates that a jury charge was given in error, and that such error resulted in prejudice. See United States v. Quinones, 511F.3d 289, 313 (2d Cir. 2007).
In my view, the charges given were warranted. Both contained plain, standard language from pattern jury instructions, with no substantive changes. See O'Malley et al., Federal Jury Practice and Instructions §15.03; Sand et al., Modern Federal Jury Instructions, Instr. 7-9.1. Neither instruction misstated the law.
Although the instruction concerning the caution to be afforded a witness with immunity was presented in an atypical context, in that the immunized witness was testifying on behalf of the defendant rather than the Government, the charge is warranted. The witness's incentive to testify untruthfully -- and here, her freedom to publicly "take the fall" for the crimes of which defendant was accused, falsely or otherwise, without fear that her testimony would be used against her, was equally present, regardless of which party elicited her testimony. Plainly, a witness with immunity is in a different posture from a witness without such protection. Although defendant argues that it is the relationship between the immunized witness and the Government that demands special caution by the jury, there is no authority which suggests that the immunization of testimony, alone, does not provide sufficient incentive for untruthfulness to trigger cautious evaluation of the testimony.
With respect to the defendant's objection to the instruction concerning Triplett's drug use, Triplett testified to periodic, ongoing use of alcohol, cocaine and marijuana, and to the purchase of a significant amount of cocaine, during the period in question, and testified that one of her most significant actions -- her telephone "tip" to police which ultimately led to defendant's arrest -- was performed while she was intoxicated. Under these circumstances, it was proper for the Court to charge the jury concerning the witnesses' use of controlled substances. (Dkt. #98 at 44-45, 56, 88, 90).
B. Admissibility of Witness's Prior Out-of-Court Statements
The defendant also contends that the Court should have admitted evidence of certain statements Triplett made to her sister, Dixon's mother, and Dixon's aunt, as well as a letter written to an investigator, allegedly expressing remorse and/or accepting responsibility for framing the defendant. Because Ms. Triplett herself had testified as to these events and these prior statements in detail, the statements were cumulative. The statements of remorse were also not admissible to show Triplett's state of mind under Fed. R. Evid. 803(3) because, as the Court found, the vague statements did not identify the reason for Triplett's expressed remorse, and thus lacked probative value or demonstrable relevance to the issue of whether Triplett had tipped off authorities to criminal activity by the defendant and later opted to "take the fall" for him, or had actively framed him. (Dkt. #107 at 14-15). Moreover, although defendant argued that the prior statements were admissible to rebut Government allegations that Triplett's version of events was ...