USA v. Farris

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-CR-00099-RJC-DCK
THIS MATTER is before the Court on the defendant’s pro se Motion for New
Trial based on Brady Violations, (Doc. No. 165), the government’s response in
opposition, (Doc. No. 169), the defendant’s Motion Requesting Judicial Notice, (Doc.
No. 167), and his Motion to Correct Typographical Error in Motion for New Trial,
(Doc. No. 168).
Rule 33(a) of the Federal Rules of Criminal Procedure allows a court to
vacate a judgment and grant a new trial if the interest of justice so requires. A
motion grounded on newly discovered evidence must be filed within 3 years of the
verdict and a motion based on grounds other than newly discovered evidence must
be filed within fourteen days of the verdict. Fed. R. Crim. P. 33(b).
The defendant was found guilty of three drug trafficking offenses by a jury on
April 4, 2019. (Doc. No. 61: Verdict). The defendant through counsel previously
asserted he was entitled to a new trial claiming former trial counsel was ineffective
failing to seek dismissal of Count Two based on the government’s alleged bad faith
failure to obtain potentially exculpatory video footage of a Wal-Mart parking lot.
(Doc. No. 98: Motion at 3, 9). The Court dismissed the motion as untimely, (Doc.
USA )
)
v. ) ORDER
)
GARLIN RAYMOND FARRIS )
)
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No. 109: Order at 3), which the United States Court of Appeals for the Fourth
Circuit affirmed, (Doc. No. 125: Opinion at 3).
In the instant motion filed on April 4, 2022, the defendant pro se repackages
that claim as a Brady violation and adds a claim that the government failed to
correct allegedly false testimony of Silver Jones that she drove her black Dodge
Charger to the Wal-Mart where she bought drugs from the defendant. (Doc. No. 165
at 1). The government concedes that the motion is timely, but disputes that it is
based on newly discovered evidence and denies that the government engaged in any
misconduct. (Doc. No. 169: Response).
“In determining whether a new trial should be granted under Rule 33 of the
Federal Rules of Criminal Procedure on the basis of newly discovered evidence, this
circuit utilizes a five-part test: (i) is the evidence, in fact, newly discovered; (ii) are
facts alleged from which the court may infer due diligence on the part of the
movant; (iii) is the evidence relied upon not merely cumulative or impeaching; (iv) is
the evidence material to the issues involved; and (v) would the evidence probably
result in acquittal at a new trial? Unless the answer to each of these inquiries is
affirmative, a new trial is not appropriate.” United States v. Chavis, 880 F.2d 788,
793 (4th Cir. 1989) (internal citation omitted).
“To prevail on a Brady claim, the defendant must demonstrate (1) that the
evidence is favorable, either because it is exculpatory or impeaching; (2) that the
government suppressed the evidence; and (3) that the evidence was material to the
defense.” United States v. Higgs, 663 F.3d 726, 735 (4th Cir. 2011). Here, the
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evidence relating to the parking lot recording and Jones’s testimony is neither new
nor favorable to the defendant.
At trial, Jones testified that the defendant met her at a Wal-Mart around
midnight on June 10, 2017. (Doc. No. 91: Trial Tr. at 335). She reviewed two clips of
surveillance video recording, (Gov’t Trial Exhibits 23A, 23B), and identified the
defendant with her inside and walking out of the Wal-Mart, (Doc. No. 91: Trial Tr.
at 338-40). Jones explained that she went to his car where she paid $18,000 for a
previous kilogram of methamphetamine and the defendant fronted her another one
packaged in a Tupperware container.1 (Id. at 342). The defendant likewise testified
that he met Jones inside the Wal-Mart and walked with her to his car in the
parking lot. (Doc. No. 92: Trial Tr. at 533-34). However, he claimed he was there to
sell a pound of marijuana, which she refused after examining it. (Id. at 535). A Wal-
Mart employee testified that she reviewed all the available surveillance video and,
although there were cameras in the parking lot, the only two relevant clips were
from inside the store. (Doc. No. 91: Trial Tr. at 391).
The defendant bases one of his Brady claims on the failure of law
enforcement to obtain and preserve video recordings from the parking lot cameras.
(Doc. No. 165: Motion at 4-11). However, this information is not newly discovered
as the Wal-Mart employee testified during the trial about showing an officer all the
1 Jones was later stopped by law enforcement officers, who were tracking her
vehicle that evening. (Doc. No. 91: Trial Tr. at 270). They found approximately a
kilogram of methamphetamine in a Tupperware container in the trunk. (Id. at 271-
73).
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available surveillance and trial counsel questioned her about the parking lot
recording and the various camera locations there. (Doc. No. 91: Trial Tr. at 391-92).
The defendant’s own testimony establishes that the parking lot recording would not
have been favorable because he admitted meeting with Jones in his car to conduct a
drug transaction. He has not shown that the parking lot recordings would have
been material to his defense to Count Two, which was based on his alleged intent to
sell marijuana, not methamphetamine, to Jones.2 Accordingly, this issue is without
merit.
The defendant bases his other Brady claim on the government’s use of
allegedly perjured testimony by Jones that she drove a black Dodge Charger to the
Wal-Mart. (Doc. No. 165: Motion at 11-15). As noted above, law enforcement was
tracking Jones’s vehicle on the night at issue. The defendant relies on a GPS report
that does not show a “ping” at the Wal-Mart to argue Jones testified falsely. (Id. at
13). This information is not new as the report was provided to trial counsel in
discovery.3 (Doc. No. 169: Response at 5). It is also not favorable or impeaching of
Jones’s testimony because it merely shows the absence of data from the tracker
2 The defendant testified that he was only selling marijuana during the time at
issue and explained that his post-arrest admissions of selling kilogram quantities of
methamphetamine were lies to get out of jail and cooperate with law enforcement.
(Doc. No. 92: Trial Tr. at 528, 540-44, 550-57).
3 The defendant has asked the Court to take judicial notice of materials related to
his efforts to obtain a copy of the GPS report. (Doc. No. 167: Motion Requesting
Judicial Notice). Since the report is attached to the government’s response, (Doc.
No. 169-2), consideration of his Freedom of Information Act request is not necessary
for resolution of the issues before this Court.
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between 9:12 pm and 11:59 pm,4 (Doc. No. 169-2 at 2), where the Wal-Mart
recording shows Jones and the defendant together at 11:46 pm, (Gov’t Trial Exhibit
20). Thus, the defendant has not shown that Jones committed perjury. He has also
not shown that this issue was material to his defense, considering his testimony
that Jones drove to the Wal-Mart from out of town,5 met up with him, and went to
his car to buy marijuana, not methamphetamine. (Doc. No. 92: Trial Tr. at 534-35).
IT IS, THEREFORE, ORDERED that the defendant’s Motion to Correct
Typographical Error in Motion for New Trial, (Doc. No. 168), is GRANTED.
However, the Motion for a New Trial based on Brady Violations, (Doc. No. 165), as
amended, is DENIED.
IT IS FURTHER ORDERED that the Motion Requesting Judicial Notice,
(Doc. No. 167), is DISMISSED as moot.
4 The 11:59 ping was at a location approximately 2.4 miles from the Wal-Mart in
Charlotte, North Carolina. (Doc. No. 169: Response at 6).
5 The 9:12 pm ping was at a location in Newton, North Carolina. (Doc. No. 169:
Response at 5).
Signed: May 19, 2022
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