The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Defendant Thamud Eldridge ("Defendant") has moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Defendant Eldridge's Rule 33 motion is based upon statements made, in 2010, by Buffalo Police Department ("BPD") Officer Earl Perrin, who was a Government witness during Defendant's trial in 2009, in the presence of Assistant United States Attorney ("AUSA") Joseph M. Tripi, who had tried the case against Defendant. The statements, if credible, seem to indicate that Officer Perrin and BPD Officer Mark White, who also testified at Defendant's trial, had used excessive force during Defendant's arrest and later made false statements regarding their use of force during both the trial and a suppression hearing conducted by Magistrate Judge Jeremiah J. McCarthy.
As explained in detail below, the Court finds that Officer Perrin's statements from July 2010 were not an accurate or honest description of the Defendant's arrest, and that there is insufficient evidence in the record to conclude that the Officers used excessive force during or after Defendant's arrest. Furthermore, the Court concludes that even if Perrin's statements could have been used to impeach Perrin and Officer White either at trial or during the suppression hearing, the remaining proof at the time of the trial is sufficient to sustain Defendant's conviction on all counts. Therefore, Defendant's motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure is denied in its entirety.
On May 4, 2009, following a jury trial, Defendant was convicted of being a previously convicted felon in possession of a firearm in violation of Sections 922(g)(1) and 924(a)(2) of Title 18 of the United States Code, possession of cocaine base with intent to distribute in violation of Section 841(a)(1) of Title 21 of the United States Code, and possession of marijuana in violation of Section 844(a) of the United States Code. Defendant was sentenced by this Court on August 28, 2009.
Almost one year later, in July 2010, the Government disclosed to this Court, ex parte, that Perrin made statements in the presence of AUSA Tripi which implied that Perrin and White had used excessive force during and after Defendant's arrest. This Court then ordered the Government to disclose Perrin's statements to Defendant. On January 4, 2011, Defendant made a motion for a new trial arguing that Perrin's statements, if known at the time, would have had a substantive impact on the outcome of the suppression hearing and could have been used to impeach Perrin's credibility during the trial.*fn1
On August 12, 2011, this Court issued a Decision and Order concluding that an evidentiary hearing would be necessary to resolve Defendant's Rule 33 motion. Specifically, this Court found that a hearing was needed to determine whether Perrin and White "actually assaulted the defendant after his arrest, and if so, whether one or both of those officers then lied about it." This Court conducted an evidentiary hearing on October 11, 2011 and October 18, 2011. The parties then provided post hearing submissions and an oral argument was held on June 12, 2012.
After carefully observing the witnesses' demeanor and testimony, the Court finds the following facts.
During the October 2011 evidentiary hearing, Officer Perrin testified that he and Officer White were among a group of BPD officers involved in the arrest of Defendant on December 7, 2005. Defendant, in an attempt to flee from arresting officers, dove through a closed, glass window of an apartment building located at 1135 East Ferry Street, Buffalo, New York. The officers proceeded to knock down a door in order to enter the residence and apprehend Defendant.
Perrin further testified that, after knocking down the door, a fight ensued between Defendant and the officers, and it was necessary for Perrin and others to punch Defendant about the head and body in order to handcuff him. Perrin testified that Defendant walked down the stairs on his own, with the officers escorting him from behind. He denied dragging Defendant down the stairs or bringing him down the stairs head first.
Perrin further testified that following the arrest, they brought Defendant to the District E police station located at 2767 Bailey Avenue in Buffalo, New York. Perrin testified that it was there that they learned Defendant's identity, and that he had previously been accused of shooting at a Buffalo police officer. Perrin testified that Defendant remained in handcuffs while they were in the District E garage, and that no force was used against him during that time. Defendant was then taken to the District C police station for further questioning.
Perrin's account of the arrest was consistent with the testimony provided by White during Defendant's trial.*fn2
Project Safe Neighborhoods Conference
In July 2010, over a year after Defendant's trial and conviction, AUSA Tripi and Officer Perrin attended a Project Safe Neighborhoods conference in New Orleans, Louisiana. Due to weather problems, Tripi and Perrin missed their connecting flight from Atlanta to New Orleans. While waiting to see if they could board a later flight to Atlanta that evening, Tripi and Perrin had dinner together at the Atlanta airport. Both Perrin and Tripi consumed an alcoholic drink with dinner. The remaining flights to New Orleans were then cancelled, and Tripi booked a hotel room for himself and Perrin in Atlanta that evening.
Tripi testified that upon arriving at the hotel, he registered himself and Perrin and took his luggage to the room, while Perrin went to the hotel bar. Tripi then went back downstairs and met Perrin at the bar. Tripi testified that Perrin was already drinking when Tripi arrived. He believed Perrin was drinking a "Long Island Iced Tea" at that time, since Perrin later asked the waitress for "another" Long Island Iced Tea. Long Island Iced Teas are extremely strong alcoholic beverages. During the hearing, the Court asked Officer Perrin to describe what he was drinking in the bar that evening:
The Court: What were you drinking? ...
Perrin: I was drinking Long Island iced teas...
Perrin: About six liquors in one drink, six different ...