USA v. Howard

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v.
HAROLD HOWARD,
Defendant.
The defendant, Harold Howard, has moved pursuant to Rule 33 of the
Federal Rules of Criminal Procedure for a new trial after a jury convicted him of
narcotics-trafficking and firearms offenses. Defendant Howard contends that a
co-conspirator’s hearsay statements were improperly admitted into evidence
during the trial and that his counsel’s efforts to impeach the co-conspirator’s
testimony were improperly restricted by the Court. The defendant also contends
two witnesses committed perjury. The United States disputes the claims of error
and allegations of perjury.
The Court heard oral argument on April 22, 2013. For the reasons stated
below, the Court finds no miscarriage of justice. Defendant Howard’s motion for
a new trial under Fed. R. Crim. P. 33 is therefore denied.
BACKGROUND
Defendant Howard was charged in a five-Count Indictment returned on
March 6, 2012 with narcotics-trafficking and firearms offenses. Count 1 charged
DECISION AND ORDER
12-CR-84-A
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the defendant with conspiracy, from approximately November,2008, through
about November 16, 2011, to possess with intent to distribute and to distribute
five kilograms or more of cocaine in violation of 21 U.S.C. § 846. Count 2
charged the substantive offense of possession with intent to distribute 500 grams
or more of cocaine on November 16, 2011 in violation of 21 U.S.C. §
841(b)(1)(B). Count 3 charged possession of a firearm in furtherance of the
narcotics-trafficking crimes in Counts 1 and 2 of the Indictment in violation of 18
U.S.C. § 924(c)(1). Count 4 charged the defendant with being a previously
convicted felon who possessed a firearm and ammunition on November 16, 2011
in violation of 18 U.S.C. § 922(g)(1). Count 5 charged the defendant with
possession of an unregistered fully-automatic machine gun on November 16,
2011 in violation of 26 U.S.C. §§ 5845(a)(6) and 5861(d).
The Court presided over defendant Howard’s seven-day trial in February,
2013. On February 14, 2013, the jury returned verdicts convicting defendant on
all five counts in the Indictment. On March 5, 2013, defendant timely filed a
motion for a new trial under Fed. R. Crim. P. 33.
Defendant Howard argues a new trial is necessary because a critical
witness against him, an alleged co-conspirator named Myron Johnson, testified
as to hearsay that was not properly found to be within any exception to the
hearsay rules. The defendant argues the totality of the evidence against him was
legally insufficient to support his convictions without inadmissible hearsay
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testimony of Myron Johnson.
Defendant Howard also argues the Court erred when it did not allow
defendant’s counsel to play for the jury during cross examination of Myron
Johnson a recording of Johnson speaking to a friend of defendant Howard’s
during a telephone call from a jail where Johnson was in pretrial detention. The
defendant argues the Court further erred when it did not order Myron Johnson to
identify other co-conspirators during cross-examination when Johnson refused to
identify anyone and eventually purported to assert a Fifth Amendment privilege
against doing so.
Finally, defendant Howard argues that Myron Johnson committed perjury
during the trial when he testified that utility service had not been turned on at 93
Elmer Street, Buffalo, New York, and that Erie County Sheriff Deputy Timothy
Carney also committed perjury when Deputy Carney testified that he found a
rental car agreement for a Kia Sportage in a Hummer truck registered to the
defendant. The United States disputes all the claimed errors and allegations of
perjury.
DISCUSSION
The standard for granting a new trial under Rule 33 of the Federal Rules of
Criminal Procedure is a general one: “Upon the defendant’s motion, the court
may vacate any judgment and grant a new trial if the interest of justice so
requires.” Id. It is well settled that “Rule 33 confers broad discretion upon a trial
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court to set aside a jury verdict and order a new trial to avert a perceived
miscarriage of justice.” United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir.
1992).
Defendant Howard’s primary argument in support of a new trial is that
insufficient evidence linked the defendant to the narcotics-trafficking conspiracy
charged in Count 1 of the Indictment because incriminating testimony of alleged
co-conspirator Myron Johnson was not properly admitted into evidence. The
argument is without merit.
During the trial, the Court admitted into evidence substantial evidence of
seizures of cocaine, narcotics-trafficking paraphernalia, and firearms in
circumstances linking defendant Howard to the charged conspiracy and strongly
corroborating the testimony of Myron Johnson about Johnson’s and the
defendant’s participation in the cocaine-trafficking conspiracy. For example,
evidence showed that, on November 16, 2011, the defendant arrived at 43
Ruspin Street in Buffalo while a search warrant was being executed. The vehicle
the defendant was driving contained a quantity of cocaine packaged for sale. A
search warrant was obtained for a Hummer truck identified as defendant’s in a
garage at 93 Elmer Street in Buffalo later on November 16, 2009, and
approximately three kilograms of cocaine, three loaded firearms, including a fully-
automatic machine gun, were seized from the truck. There was more that
adequate evidence, including evidence proffered in the United States’ pretrial
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memorandum and eventually introduced at trial, to support the Court’s preliminary
findings during the trial by the applicable standard of proof that Myron Johnson’s
testimony recounting out-of-court statements during and in furtherance of the
alleged cocaine-trafficking conspiracy alleged in Count 1 of the Indictment was
admissible testimony under Federal Rule of Evidence 801(d)(2)(e).
For reasons also adequately stated during the trial, the Court finds that it
properly excluded from evidence a recording of a cryptically-worded telephone
call between Myron Johnson and a friend of defendant Howard’s that defendant’s
counsel sought to admit into evidence during the cross examination of Johnson.
The defendant correctly points out that Myron Johnson was able to authenticate
the voices recorded on the call. The defendant seems to contend that the call
contained a more accurate portrayal of Myron Johnson’s role in the conspiracy
with defendant, but the call was far from clear and was potentially confusing to
the jurors. In lieu of playing the call, the defendant was given free reign to cross
examine Johnson on all the topics addressed during the recording.
Defendant Howard’s counsel was also advised during the trial that he could
renew the request to introduce some or all of the recording into evidence if an
inconsistent statement was elicited from Myron Johnson during cross-
examination. Defendant’s counsel did not elicit a material inconsistency between
Myron Johnson’s statements during the recorded call and his statements during
cross-examination. Defendant’s counsel declined to renew the request to
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introduce the recording of the call, or part of it, during or after the cross
examination of Myron Johnson. Because the recording would have been
confusing to the jury and would have not contributed to defendant’s counsel’s
attempts to impeach Myron Johnson during cross examination, it was properly
excluded from evidence.
Also during cross examination of Myron Johnson, defendant Howard’s
counsel sought to elicit testimony from Johnson of the names and addresses of
all other persons who participated in the conspiracy to distribute cocaine with
Johnson and the defendant. Myron Johnson answered that he was reluctant to
identify others. Myron Johnson expressed fear for himself and refused to identify
anyone else. After Myron Johnson was pressed further by defendant’s counsel to
name other participants in the conspiracy, Johnson refused again by purporting to
invoke a Fifth Amendment privilege.
Defendant Howard’s counsel sought an immediate order from the Court
directing Myron Johnson to identify any other participants in the conspiracy.
Counsel made no proffer of the expected results of this line of cross examination.
The Court responded to the request that Myron Johnson be ordered to answer
defense counsel’s questions by stating that the witness had answered by refusing
to answer. That particular line of cross examination ended.
Whether Myron Johnson was willing to name others in the cocaine-
trafficking conspiracy was a general test of his credibility. It did not bear directly
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on the many specific details of his testimony about defendant Howard’s
participation in the conspiracy with Johnson. Defendant’s counsel had numerous
other avenues available to confront and challenge the testimony of Myron
Johnson concerning the specific details of his testimony and he could have used
Johnson’s refusals to identify other conspirators in follow-up questioning to try to
establish that the line of cross examination was more significant. Counsel
elected instead to argue to the jury in his closing argument that Myron Johnson’s
refusals to identify other conspirators made Johnson’s testimony unworthy of
belief. This was likely more damaging to Myron Johnson’s credibility than
directing Johnson name other participants, without more, would have been.
Even now, defendant Howard proffers no reason that Myron Johnson’s
testimony of the identities and addresses of other co-conspirators would have
potentially impeached Johnson’s credibility regarding the details of his testimony
about his role and the defendant’s role in the conspiracy. It was a proper
exercise of authority over the mode of cross examination under Fed. R. Evid. 611
to decline, on the record before the Court, to summarily order Myron Johnson to
answer questions asking him name other participants in the conspiracy or to
strike Johnson’s testimony.
Finally, “[t]he Second Circuit has cautioned that motions for a new trial are
generally not favored. Even where there are allegations of trial perjury by a
government witness, such motions should be granted only with great caution and
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in the most extraordinary circumstances. The threshold inquiry in such cases is
whether the evidence demonstrates that the witness did in fact commit perjury. If
so, then whether to grant a new trial on that basis depends on the materiality of
the perjury to the jury’s verdict and the extent to which the prosecution was aware
of the perjury. Even where courts in this Circuit have clearly identified perjured
testimony, they have refused to grant a new trial unless the court could find that
the jury probably would have acquitted in the absence of the false testimony.”
U.S. v. Donald, 669 F. Supp. 2d 336, 339 (W.D.N.Y. 2009) (internal quotation
marks and citations omitted).
Here, defendant Howard’s arguments about perjury repeat credibility
arguments made to the jury at trial. A reasonable jury could have decided that
Myron Johnson was mistaken about whether utilities services had been activated
at 93 Elmer Street. Deputy Carney could have been mistaken when he did not
note in reports or other records finding a rental agreement to the Kia Sportage in
the defendant’s Hummer, or he could have been mistaken about where he
located the agreement. The witness’ memories may have been wrong without
the witness having intentionally offered false testimony. See U.S. v. Sanchez,
969 F.2d 1409, 1414 (2d Cir. 1992) (“It is only in the rare instance where it can be
shown that the prosecution knowingly used false testimony that we would apply a
less stringent test and permit the granting of new trial where the jury ‘might’ have
acquitted absent the perjury. There is nothing whatsoever in the record before us
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in this case to indicate that the prosecutor knowingly used false testimony to
convict [defendant].”) (citations omitted). In any event, even if the Court agreed
with defendant that witnesses testified falsely, a reasonable jury could have
credited other substantial evidence of defendant’s participation in the cocaine-
trafficking conspiracy. Under these circumstances, defendant’s arguments
amount to a disagreement with the credibility findings that the jury reasonably
made. The Court finds no miscarriage of justice on that basis.
CONCLUSION
For all of the foregoing reasons, the Court denies defendant Harold
Howard’s motion pursuant to Fed. R. Crim. P. 33 for a new trial.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: June 7, 2013
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