Petition for Writ of Certiorari — Matthews v. United States (No. 08-908)

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Sn The

Supreme Court of the GAnited States

ERNEST MATTHEWS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

JAMES R. WILLIS, Esq.

Counsel of Record

430 LAKESIDE BUILDING

323 LAKESIDE AVENUE

CLEVELAND, OHIO 44112

(216) 523-1100

(216) 861-4161 (Fax)

Attorney for Petittoner

January 16, 2009

Becker Gallagher + Cincinnat: OL - Washington, DC + 800 890 SOO]

QUESTIONS PRESENTED FOR REVIEW

1. WHERE THE EVIDENCE ONLY SHOWED AN

ACCUSED’S MERE PRESENCE IN AN OPEN

AREA WHERE CONTRABAND WAS LOCATED

WHILE OSTENSIBLY BEING DELIVERED TO

ITS ALLEGED PURCHASER, SUCH PROOF IS

INSUFFICIENT TO SUPPORT A FINDING OF

GUILT BEYOND A REASONABLE DOUBT.

. WHERE A JUDICIAL FINDING IS MADE IN

THE WAKE OF “NEWLY DISCOVERED

EVIDENCE” THAT THE GOVERNMENT'S

CHIEF WITNESS HAD RENDERED FALSE

TESTIMONY ESSENTIAL TO THE

GOVERNMENTS CASE (INCLUDING HIS

IDENTIFICATION OF THE PETITIONER AS A

PERSON HE HAD PREVIOUSLY MET AND AS

THE PURCHASER) DUE PROCESS AT LEAST

REQUIRES THAT A NEW TRIAL BE GRANTED.

3. GIVEN THE GUILTY VERDICT IN THIS CASE

COULD VERY WELL HAVE BEEN BASED ON

THE JURYS DISBELIEF OF THE DEFENSE'S

EVIDENCE IN THE WAKE OF THE

CONSIDERABLE EVIDENCE PROVIDED BY

THE GOVERNMENTS CHIEF WITNESS,

INCLUDING IDENTIFICATION TESTIMONY

THAT WAS SHOWN TO HAVE BEEN FALSE

DESPITE ITS HEAVY EXTOLMENT BY THE

GOVERNMENT OF THE DEFENSE’S PROOF, IT

FOLLOWS A NEW TRIAL WAS REQUIRED.

. WHERE THE VERDICT IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE, THAT

IS, CONTRARY TO THE WEIGHT OF THE

CRIDIBLE EVIDENCE, THE GRANTING OF A

NEW TRIAL 1S WARRANTED.

WHERE THE POST-TRIAL DETERMINATION IS

MADE THAT THE GOVERNMENT'S CHIEF

WITNESS, AN INFORMANT, HAD PROVIDED

INDISPUTABLY FALSE TESTIMONY (WHICH

EVIDENCE WAS ESSENTIAL TO THE

GOVERNMENT'S CASE, AND VOUCHED FOR

AS BEING SUCH) A GUILTY VERDICT BASED

ON SUCH EVIDENCE PERFORCE IS AGAINST

THE MANIFEST WEIGHT OF

INCONTROVERTIBLE DEFENSE EVIDENCE

WHICH IS BELIEVED TO HAVE BEEN

SUFFICIENT TO WARRANT AN ACQUITTAL.

ill

TABLE OF CONTENTS

PAGE

Questions Presented For Review ......... een

‘Feeee OF Aust Orttiee .. «5 ok at es vi

Cen TOON 4 isc oc es ee eee 1

Statement Of The Grounds On Which The

Jurisdiction Of This Court Is Invoked ....... 1

Constitutional And Statutory Provisions ........ 2

Statement Of The Case and Facts ............. 3

Arguments Relied On For Allowance Of Writ ... 10

Argument No. I:

ONE’S MERE PRESENCE AT THE SITE OF

AN INTENDED CONTROLLED DELIVERY

OF NARCOTICS CANNOT SUPPORT A

FINDING OF GUILT OF AN ATTEMPT TO

POSSESS WITHINTENT TO DISTRIBUTE IN

VIOLATION OF 21 UNITED STATES CODE,

SPO SC OIE TE PO, 5 os Sb hoo ec ee esean ss 12

Argument No. II:

A NEW TRIAL IS REQUIRED WHERE IT IS

HIGHLY PROBABLE THAT INDISPUTABLY

FALSE AND OTHERWISE FLAWED

EVIDENCE INFLUENCED THE VERDICT. 15

Argument No. IIT:

A NEW TRIAL IS WARRANTED BY THE

DISCOVERY, POST-TRIAL, THAT FALSE

TESTIMONY WAS PROVIDED BY A MOST

CRUCIAL, INDEED INDISPENSABLE,

PROSECUTION WITNESS WHERE THE

VERDICT COULD VERY WELL HAVE BEEN

BASED ON DISBELIEF OF DEFENSE

3g 1 ere aia re aera te

Argument IV:

A VERDICT THAT IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE - -

THAT IS, CONTRARY TO THE WEIGIIT OF

THE CREDIBLE EVIDENCE, WARRANTS

THE GRANTING OF ANEWTRIAL. .....

Argument V:

A NEW TRIAL, IF NOT A JUDGMENT OF

ACQUITTAL, ISWARRANTED BY THE POST-

TRIAL DISCOVERY OF PROOF THE

GOVERNMENT’S CHIEF WITNESS

PROVIDED FALSE TESTIMONY AND

COUNSEL FOR THE GOVERNMENT NOT

ONLY VOUCHED FOR THIS WITNESS’

CREDIBILITY, BUT ASSURED THE JURY HE

HAD BEEN “BRUTALLY HONEST”. ......

COTIGTABMIOOR,. «kw ww i ee ches

Appendix

Appendix “A” - Opinion, United States Court of

Appeals for the Sixth Circuit, dated October 21,

Bs ae Pa ea ae ee er eae la

Appendix “B” - Opinion, United States District

Court for the Northern District of Ohio, Eastern

Division, dated October 23, 2006 ......... 16a

Appendix “C” - Memorandum of Opinion, by the

United States District Court for the Northern

District of Ohio, dated August 4, 2005 ..... 59a

TABLE OF AUTHORITIES

Berger v. United States,

290 U.S. TACIMAR) . «ww ww we es

Donnelly v. DeChristoforo,

eee er Oe CREE) 6 i kee ween.

Kyles v. Whitely,

SE RGR MS 26) re

United States v. Bagley,

rE TRIO? fic cece ee eee

United States v. Johnson,

440 F.3d 832 (6" Cir. 2006) ......

United States v. Kirk,

935 F.2d 932 (8" Cir. 1991) .........

United States v. Modica,

663 F.2d 1173 (2nd Cir. 1980) ........

United States v. Perdomo,

929 F.2d 967 (3'"" Cir. 1991) .........

United States v. Rualph,

403 F.2d 805 (6"" Cir. 1968) .....

United States v. Young,

17 F.3d 1201 (9" Cir. 1994) ........

PAGE

Vil

CONSTITUTION

eee ea ee re ee 2

Fes CO IS Wo oe oo ne ce ee ewe 2

RULES, STATUTES AND

OTHER AUTHORITIES

ge at ee Bes ere eS rere 26

Be Meee Ns + oe sk oe ee oe 12

21 U.S.C. $64MaXi) ....... jigee yee oo een ane eed 2

(Ete Cem | I rien ear re 3

ee Re MN, i 46-654 5554 ee 12

ea ee ss eka ooo ee aoe ee ee ee ee 3

Be Gs. DTD a cs oe ee ee ees ]

]

To The Honorable, The Chief Justice

And Associate Justices Of The

Supreme Court Of The United States:

The Petitioner, Earnest Matthews, respectfully

prays that a Writ of Certiorari be issued to review the

judgment of the United States Court of Appeals in and

for the Sixth Circuit, entered herein on October 30,

2008. See Appendix “A,” at p. la.

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Sixth Circuit, affirming the conviction (as

indicated above), is included in the Appendix as

Appendix “A.” The “Memorandum Opinion and

Order” of the United States District Court for the

Northern District of Ohio (denying the Motion for New

Trial) is designated as Appendix “B,” p. 16a.

Appendix “C,” p. 59a, is another Memorandum of

Opinion and Order by the United States District

Court.

STATEMENT OF THE GROUNDS

ON WHICH THE JURISDICTION

OF THIS COURT IS INVOKED

The Opinion by the Court of Appeals, as shown

above, wav entered October 21, 2008. The jurisdiction

of this Court is seasonably invoked under Title 28

U.S.C., §'257(3).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The principal provisions of the Constitution

involved are:

Fifth Amendment: No person shall be held to

answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of

a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in

actual service in time of war or public danger;

nor shall any person be subject for the same

offense to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be

taken for public use, without just compensation.

Sixth Amendment: In all criminal

prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial

jury of the State and district wherein the crime

shall have been committed, which district shall

have been previously ascertained by law, and to

be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of Counsel for his defense.

The principal provisions of the Statutes involved are:

Title 21, United States Code, §$841(a)(1):

Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or

intentionally --(1)to manufacture, distribute, or

dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance;

Title 21, United States Code, §841(a)(2): to

create, distribute, or dispense, or possess with

intent to distribute or dispense, a counterfeit

substance.

STATEMENT OF THE CASE AND FACTS

The facts show Petitioner, Earnest Matthews, was

convicted for attempting to possess with intent to

distribute more than 100 kilograms of marijuana, in

violation of 21 United States Code, §846, 841(a) &

841(b). On Appeal, the Court rejected inter alia the

contention that petitioner's “mere presence” was

insufficient to support the guilty verdict. And, it also

ruled that a new trial was not warranted in the wake

of certain very compelling newly discovered evidence.

This evidence both Courts below conceded, in cogent

findings, undisputably showed the chief witness

against the Petitioner had falsely identified him as the

person he had met in Arizona and the person to whom

he was to deliver the drugs to in Ohio.

This witness, one Arnolfo Quintana, after being

discovered by a Kansas State Highway Patrol Officer

in possession of “thirty nine bales of marijuana

weighing 749 pounds,” capitulated and agreed to

cooperate with the authorities (Appendix “A,” at p.

Za). To this end, he agreed “to continuc with the load

and make a controlled delivery” under the auspices of

the Drug Enforcement Agency (DEA). Agents of the

DEA, who were involved in the surveillance of

Quintana as he drove from Kansas to the Cleveland,

Ohio area, contacted DEA Special Agent Leppla in

Cleveland, Ohio. This agent was advised of the

impending delivery and was told where it was to take

place. (Id., pp. 2a-3a.) At around 6:00 pm, Agent

Leppla and another officer, one Jamal Ansari, took

settled positions in what can be described as a

warehouse area at the destination point. As the Court

noted, “there was virtually no traffic on the street it

was Easter Sunday.” (Id., p. 3a.) Here, the Opinion

compellingly noted, and it is repeated here because of

its significance, that:

Leppla testified that at about 6:40 pm, two

vehicles - a two-tone Chevrolet Suburban

followed by a black Chevrolet Trailblazer, each

driven by a black male and containing no other

passengers - pulled up to a garage door at the

warehouse. Leppla stated that the driver of the

Suburban, whom he later identified as

Matthews, exited the vehicle, entered the

warehouse through a ‘main door,’ and then

pulled up the garage door from the inside... .

Leppla testified at trial the entire visit lasted

about fifteen minutes, although this was

inconsistent with his testimony at the

suppression hearing that they had stayed for

about twenty six minutes.

At approximately 7:10 pm, Quintana arrived at

the garage, driving the tractor trailer. Minutes

later, the Trailblazer and Suburban reappeared.

Leppla testified that they were driven by the

same men who had departed minutes earlier.

Matthews, the driver of the Suburban, again

opened the garage door. Tle met briefly with

Quintana and the driver of the Trailblazer, later

identified as Matthews’ co-defendant Edward

Jackson, then entered the garage out of Leppla’s

sight. Jackson climbed into the bed of the

tractor-trailer and, with Quintana’s assistance,

began loosening the canvas straps of the pallet

containing the marijuana. . . . Approval was

given, and more than six officers emerged from

hiding, identified themselves as officers, and

arrested Quintana, Matthews and Jackson. A

search of Matthews revealed approximately

$3200 in cash, and the officers found

approximately $500 in cash on the floor near

where they had arrested him. The Trailblazer

contained rental car papers, gallon sized plastic

baggies, and rolls of contact paper.

Id., pp. 4a-5a.

The Record shows the parties stipulated that

Matthews departed, via air, to Las Vegas, on March 1,

2005. And, he returned in the early morning hours on

March 14, 2005. Significant here, after the officers

(arguably for ulterior reasons) told Quintana that

Matthews had been in Tucson, he suddenly

remembered that he met Matthews in mid March at a

meeting with a man named Guzman at a truck stop

outside of Tucson, AZ. And, that (it was said by

Quintana) it was there Matthews was introduced as

the “boss and the person [he] would be delivering the

marijuana to.” (Id., p. 6a.)

The defense produced evidence that showed

Matthews, our Tetitioner, and a girlfriend had

traveled from Las Vegas and they were in Tucson from

March 7 through March 9, where she was

“interview|ed]| for a job.” (Id., p. 7a.) The girlfriend

also testified that at all times she and Matthews were

together and that “Matthews did not meet anyone ata

truck stop.” (Ibid.) Other defense evidence disputed

Leppla’s testimony that Matthews was the driver of

the Suburban vehicle seen on the premises that

arrived and departed after a short while before

Quintana arrived with the drugs. (Ibid.)

Indeed, a defense witness, a friend of the co-

defendant, named Dartanyan Thompson, testified that

he not only owned the Suburban, but, contrary to the

agent’s testimony, he (not Matthews) had driven it

there on the occasion referred to by the agents. His

evidence also showed he was there to look at “some

motorcycle parts.” (Ibid.) Also, Matthews’ aunt

testified that she had “rented the Trailblazer,”

Matthews drove to the site. Even this is not all, her

testimony was that she “owned the contact paper and

baggies” found in her vehicle. (Ibid.) Significant here,

the Court regarded these items as having a drug use - -

as the Government had contended. And, the Court of

Appeals, not unlike the jurors, inferentially showed it

disbelieved her testimony. Both of these Courts

clearly believed the jurors would have reached this

same conclusion even if they had not heard the proof

that showed Quintana was a liar, or if he had not even

testified.

Most critical here, the tria] Court, in dealing with

the Petitioner's “Motion for a New Trial,” compellingly

provided us with the following utter castigation of

Quintana’s testimony. The essence of this unqualified

factual determination (that the witness had provided

false evidence) is truly manifest. Here, the District

Court wrote:

Quintana testified that he had visited

Cleveland, Ohio in January 2005 to have a

truck repaired. He further testified that he had

not visited Cleveland at any other time prior to

the arrest. Moreover, Quintana testified that

he met Matthews in [Tucson in] mid-March

2005 (specifically March 15, although he was

unsure regarding the exact date) and the semi-

tractor trailer was loaded with marijuana the

following day. . . . Beyond damaging the

credibility of Quintana’s entire testimony, the

newly discovered evidence is relevant in two

significant respects: (1) it demonstrates that

Quintana could not have met with Matthews on

March 15, 2005 [in Tucson] as [Quintana] was

in Cleveland, Ohio; and (2) Quintana’s presence

in Cleveland, Ohio in March 2005... provides

corroboration to Jackson’s claim that he washed

Quintana’s semi-tractor trailer in March, 2005.

Appendix “B,” at pp, 54a-55a. (Emphasis supplied.)

Again, despite concluding that Quintana had

presented indisputably false testimony, the District

Court nonetheless managed to deny Matthews’ Motion

for a new trial. The Court, in doing so, literally

oraculated that the newly discovered evidence was

largely cumulative and impeaching and that it would

not have impacted the outcome of the trial. (Id., p.

55a-56a.) This the Court surprisingly did after it had

categorically concluded the witness had_ given

considerably “false testimony.” (tbid.) Also

significant here, the Court of Appeals perforce had to

have credited the District Court’s florescent finding

that the “entirety” of Quintana’s testimony was

damaged by this evidence. (Appendix “B,” p. 57a.)

(Emphasis supplied.) Simply put, the Court agreed

the “newly discovered evidence” established that

Quintana could not have met Petitioner in Tucson.

And, it is likewise clear these Courts agreed this was

so because Quintana was in Cleveland when Petitioner

was in Arizona. Even this is not all, these Courts also

found that clearly Quintana had outright lied about

not having been in Cleveland since the January prior

to this arrest.

Yet, despite these categorical findings these Courts

somehow were able to convince themselves Quintana’s

testimony (although heavily endorsed by counscel-

opposite) was nonetheless harmless. Indeed, to reach

this point the Court of Appeals indulged itselfin a very

clever play on words. Here, the Sixth Circuit first

premised its ad hoc rationales on the naked and

unclad assertion that at the trial the defense “had

already fatally damaged Quintana’s credibility”

(Appendix “A,” p. Il4a). (Emphasis supplied.)

Clearly, the Court’s apparent misuse of the root word

“fatal” is compellingly significant. Simply put, its use

cannot be defended. This follows because the word

“fatal” carries with it a strong suggestion of the

inevitability of fate. Also, it is a word that is

interchangeable with “deadly.” Yet, the Court itself

shows it was not so persuaded. For if it were, clearly

it could not have resolved against Petitioner's

contention that his “mere presence” in the area (where

Quintana was arrested with the drugs) failed to

provide a sufficient basis for the jury to conclude guilt

beyond a reasonable doubt. (Id., p. 15a.) Consider

here, the following excerpt from the Court’s dispositive

thesis:

Finally, the Government presented

Quintana’ s testimony suggesting that Matthews

had met earlier in Arizona with Guzman, the

alleged source of marijuana.

Id., p. 10a. (Emphasis supplied.)

Of course, counsel is bewildered, as this Court

surely will be, as to how the Court (after labeling it

false) was able to resurrect the most impactful

seyments of Quintana’s condemned testimony, 2.e., (a)

his identification of Ernest Matthews as the man he

was introduced to in Arizona, and (b) his identification

of Matthews as the person to whom he would be

delivering the drugs to in Cleveland. Indeed, the

Court did this in a most remarkable way. This follows

because the Court was able to somehow divine from

evidence if had compellingly regarded as being

“fatally” flawed, the idea that “Quintana’s testimony

suggesting that Matthews had met earlier in Arizona

with Guzman, the alleged source of the marijuana”

(ibid), could nonetheless still be credited and relied on

by the jury. Also, it seems clear that to the extent the

Court was willing to credit Quintana’s evidence as

proof he was indeed with Matthews in Arizona, it

perforce had to be their belief the defense witnesses

wilfully failed to tell the truth in their evidence -- a

conclusion that was only possible if Quintana was

believed. Stated another way, the Court not only fully

credited testimony it branded as false as being proof of

guilt, it elevated this “false” testimony to being proof

the defense witnesses had lied. Obviously then, if the

jury so reasoned then clearly there is no way it can be

said with impunity the jury did not rely on “false”

evidence in convicting Ernest Matthews.

Talk about mental gymnastics. Clearly, something

is amiss here. For how can the Court of Appeals

possibly credit, and elevate to a proved level, what it

says was merely suggested in the witness Quintana’s

testimony (ante, pp. 8-9), i.c., that he and Ernest

Matthews had met with a man named Guzman in

Arizona, and that this Guzman had supplied the drugs

(here involved) that were loaded the next day after this

meeting into Quintana’s truck? Given Quintana

testified he then headed to Cleveland with this load,

how could these Courts also credit (or stated another

way, how could they believe, as would have to be the

case) Ernest Matthews with being in Arizona with

Guzman and Quintana within several days of the

arrest in Cleveland - - as would have had to be the

case? If nothing else, the jury clearly was persuaded

by what the Court labeled as a mere “suggestion”

(ante, pp. 8-9).

For our part, and this is said in all deference to the

Courts below, there is no way it can even arguably be

said this jury did not believe Ernest Matthews was in

Arizona with Quintana as the Government persuaded

the jury was the case. The fact. that counse!]

punctuated the false evidence with a grossly

impermissible peroration accentuates the wrongs

visited on Petitioner.

ARGUMENTS RELIED ON FOR

ALLOWANCE OF WRIT

The metaphysical acumen that would have enabled

the jurors, in this case, to have heard devastatingly

prejudicial testimony that was attached to (as an

integral part of) the Government’s case and not credit

its impact on their verdict is really too abstract to be of

any practical use.

The point referenced above, and discussed below,

deals with the Rulings of the Courts below. All of

these Rulings seem clearly to ignore an indelible fact.

Simply put, the Rulings being assailed in this Petition

are premised by the fact that the Courts below found

the newly discovered evidence conclusively showed the

State’s chief witness lied in his identification of the

Petitioner as the person to whom he was delivering the

drugs centralized in this case. And, that he lied as to

his own whereabouts as they relate to certain critical

dates. Yet, despite the significance here of the cogent

findings, these lower Courts have taken the position,

outlandish in our judgment, that the verdicts were

uninfluenced by the jury's consideration of these

brazen falsehoods. The upshot of this ruling, that

there wus no likelihood that the verdict affected the

outcome of the case, is that Ernest Matthews has been

sorely victimized.

What makes the position taken by these Courts

even more ridiculous is that it is layered by the raw

fact that the Government continues to effectively

vouch for Quintana’s credibility and endorse his

evidence. With this being so, since the jury was

unaware of the dics Quintana told, surely counsel’s

assertions in this regard cannot continue to be ignored.

ARGUMENT NO. I

ONE’S MERE PRESENCE AT THE SITE

OF AN INTENDED CONTROLLED

DELIVERY OF NARCOTICS CANNOT

SUPPORT A FINDING OF GUILT OF AN

ATTEMPT TO POSSESS WITH INTENT TO

DISTRIBUTE IN VIOLATION OF 21

UNITED STATES CODE, §§841 (a) AND (b).

The trial Court precisely concluded the testimony

provided by the Government’s chief witness, Quintana,

was simply not worthy of belief. (Appendix “B,” pp.

54a-56a.) Despite this awesome fact, the Court of

Appeals nonetheless credited segments of this

testimony in its resolution of this appeal (ante, p. 9).

But, even this false validation pales into insignificance

in the wake of the Court’s indefensible belief that the

jury did not feed into. and rely on, his evidence as the

prosecutor expressly’ advised them to do (tr., p. 6638).

Indeed, this was even more true because clearly to

convict the jury had to reject the defensc’s evidence.

This inexorably follows because it had been carefully

tailored and presented to show Quintana could not

even possibly have seen the Petitioner in Arizona as he

proclaimed (in the Government’s effectively

orchestrated testimony) and as the Government

vigorously assured the jury was the case. Despite this

dispositive flaw in the Court’s expressed

ratiocinations, given even the Court’s total open

‘Actually what counsel said (in her wholesale endorsement of this

perjyurer) was the jury “should believe him because he was

brutally honest” (tr., p.663), and because “he did not equivocate.”

(Ibid }

condemnation of Quintana’s proof (arguably credited

by the jury) that showed Petitioner was in Arizona and

had purchased these drugs there, and given the

Government’s further conclusion the defense witnesses

lied in their evidence, it could not be any clearer that

the Government’s proof simply does not establish

anything other than Matthews’ presence at the site of

his arrest.

Now, we readily concede, in advance of the

Government’s response argument, that a defendant’s

presence at the place, orin the area, where contraband

was being delivered may very well not be coincidental.

But, the culpability of this presence depends on,

indeed hinges on, whether the circumstances can be

said to fairly imply criminal participation by the

accused. Distilled then, the Courts below seem clearly

to have inexplicably overlooked the fact that, at most,

they only show Matthews arrived in a vehicle and

entered a building on the premises. It was the co-

defendant who engaged the Government’s stooge in

conversation and was dealing with the truck loaded

with drugs when the agents made their summary

appearance and their arrests. Inexorably this point

thus raises the dispositive question here.

Simply put that question asks: would the jury have

convicted Matthews if they had known the

Government's counsel falsely placed Petitioner in

Arizona; had falsely proclaimed that Matthews was

the person their witness met in Arizona; that he (the

witness) had falscly testified he was told Matthews

was the “boss” in connection with the purchase of the

drugs he, the witness, would be transporting: and that

he (t.e., Matthews) was indeed the person to whom he

would be delivering these drugs to in Cleveland?

Surely the Courts’ trivialization of this evidence can no

more survive meaningful scrutiny than counsel’s

personal assurances that Quintana had been “brutally

honest” in testimony the Government fully endorsed as

being worthy of belief.

Also significant here are the following

condemnatory remarks of the District Court dealing

with its assessment of the testimony provided by

“Quintana,” the Government’s prime witness. In the

Court’s version, which arguably was the version fully

credited by the jury, Quintana had testified that he

met Guzman prior to loading his tractor-trailer at a

truck stop in Arizona. Assertedly (and this is worth

repeating) it was at this meeting Quintana had

convincingly, albeit falsely, sworn Guzman, the drug

supplier, had introduced him to Matthews. He then

swore that the very next day the vchicle was loaded.

and the day after that he left for Cleveland arriving

the following day, ’.ec., Easter Sunday (Appendix “B,”

pp. 3la-32a). Also see Tr., pp. 410-420.

While the above itinerary shows Quintana’s

admitted involvement with these drugs on the surface

seems plausible enough, it is of interest here that.

certain unchallenged time-lines are critical to this

appeal. Indeed, in denying the “Motion to Suppress,”

the Court made various critical findings that arguably

cannot. be reconciled with the Court’s ultimate thesis

Here it was stated: “the Court is mindful of the

potentially strong impact of eyewitness identification

at trial.” (Appendix “C,” p. 62a.) Taking the Court

at its word, when it conceded that the Matthews

identification was a critical issue in this case (as it

surely was) the qucstion then is: How could the Court

nonetheless triviahze, as it did, the compelling

importance to the jury of the identification testimony

of this witness? And, do so indeed with impunity?

For our part, there is simply no way it can ever be

said that Quintana’s powerful and overwhelming

testimony regarding Matthews had no _ effect

whatsoever on the jury’s decision to convict. Indecd,

given the Court’s findings that the considerable

testimony supplied the jury by the Government’s chief

witness was false, it cannot even be assumed that the

jury excluded this evidence from its ratiocinations and

(even worse) that this witness’ evidence had absolutely

no effect on the jury’s verdict. To believe this is so can

be likened to believing in the tooth fairy.

ARGUMENT NO. IT:

A NEW TRIAL IS REQUIRED WHERE IT

IS HIGHLY PROBABLE THAT

INDISPUTABLY FALSE AND OTHERWISE

FLAWED EVIDENCE INFLUENCED THE

VERDICT.

In judging the possible impact of Quintana’s

testimony on the jury, certain facts of consequence

emerge. These we fully contend inexorably lead to the

conclusion that the verdict in this case was

constitutionally unfair. See District Court’s Opinion

(Appendix “B,” pp. 34a-36a). In our specific

references here it is significant that the Court tells us

Quintana could not be certain, because he was “not

sure about any dates,” whether it was on March 1:3" ,

14” , or 15" that he met the Appellant, or which of

these dates his truck was loaded with its illegal cargo

(tr., pp. 451-454). The upshot of the point there made,

augmented as it was by other factors that lhkewise

must be reckoned with, is that this reasoning pattern

thoroughly confutes the District Court’s asserted basis

for denying a new trial. On the other hand, one thing

at least is certain. As forecasted, Quintana provided

the Government with its theory of how these drugs got

into the Cleveland area, and who he asserted he was

delivering them to. According to Quintana (a thesis

wholeheartedly endorsed by the Government) it was on

one of these dates that he was introduced to the person

he identified as Matthews by this Guzman at a “truck

stop” in Tucson. (Tr., pp. 412-415.) Also, it is clear

that it was the very “next day” (after this Tucson

meeting) that he left his semi-tractor trailer with

Guzman to be loaded. And, it was the “next day” that

he headed for Cleveland (id., p. 419). The fact that

the Court actually endorses this time-line becomes all

the more important in the wake of its later

characterization of Quintana as a perjurer in all these

respects. These include his identification of Matthews

as the man he met in Arizona with Guzman. (Tr., pp.

177-182.)

‘The above analysis becomes even more compelling,

in Matthews’ favor, when one realizes the impact had

on the jury when it was shown that Quintana was

debriefed (arguably within hours after he left Arizona

with his load) two days before the time of his arrival in

Cleveland. What he told the agents who arrested him

in Kansas, which was only a day after he left Arizona,

amplifies the flawed investigation conducted by these

agents. The fact that the arrest here occurred on

March 27, 2005, clearly magnifies the significance of

the defense proof that showed Matthews could not

have been the person identified by the Government as

the purchaser of these drugs and as the person to

whom they were being delivered,

Likewise significant here is what the Court wrote

with reference to Quintana’s false _ testimony.

Specifically, it was said:

.,. the newly discovered evidence is relevant in

two significant respects: (1) it demonstrates that

Quintana could not have met with Matthews on

March 15, 2005 as he was in Cleveland, Ohio,

and (2) Quintana’s presence in Cleveland, Ohio

in March 2005 (and most likely February)

provides corroboration to Jackson’s claim that

he washed Quintana’s semi-tractor trailer in

March 2005. ... The Court is faced with a

Government witness that by any reasonable

interpretation of the current records before the

Court presented false testimony.”

Appendix “B,” at p. 55a. (Emphasis supplied.)

Of course, what may have influenced the jury

cannot be as easily characterized as the Court would

do it. This is especially so since the Government has

never retreated, even slightly, from its original thesis.

It continues to entail the prosecutor’s enthusiastic

extolment of Quintana’s credibility and the credit

worthiness of his evidence. Be all that as it may, one

has to wonder, how could the District Court also

believe - - as he said he did, that Quintana’s testimony

was not even slightly credited by the jury? (Id., pp.

“One reading this compelling quote, especially the emphasized

segment, can only wonder what happened to the belief (forged by

(hi. Court) that where, as here, false testimony is presented to the

jury, a convicuion must be set aside if there is a reasonable

likelihood “that the false testimony affected the verdict.” See

Ayles v. Whitley, 514 U.S. 419, at fn. 7 (1995)

55a-56a.) Granted, the Court’s conclusion that the

“newly discovered evidence undeniably strikes at the

heart of the credibility of Quintana’s entire testimony”

fibid) is beyond dispute. Yet, it is this inconfutable

fact that shows clearly the Court truly lost its focus

after taking the position that Quintana was not worthy

of belief - - as it did. Indeed, if it were otherwise, there

is no way the Court could have possibly ignored the

fact that counsel-opposite had improperly emphasized,

to the praiseworthy degree as she did, the testimony of

Quintana in her perorations. Here, of course, the facts

show, she fully credited Quintana as being “brutally

honest” (id., p. 482).

Clearly, counsel sought to exploit, by these “foul

blows,” her prestige and that of her office with the

jury. See Berger v. United States, 295 U.S. 78

(1938). In our judgment, she succeeded. See United

States v. Modica, 663 F.2d 1173, at 1178-1179 (2°

Cir. 1980). Ilow then could these Courts ignore this

unassailable fact?

ARGUMENT NO. III:

A NEW TRIAL IS WARRANTED BY THE

DISCOVERY, POST-TRIAL, THAT FALSE

TESTIMONY WAS PROVIDED BY A MOST

CRUCIAL, INDEED INDISPENSABLE,

PROSECUTION WITNESS WHERE THE

VERDICT COULD VERY WELL HAVE

BEEN BASED ON DISBELIEF OF

DEFENSE EVIDENCE.

With reference to the trial Court's rejections of the

defense’s sufficiency of the evidence contentions,

repeatedly made in this case (/.e, in the Motions for

Judgment of Acquittal made during the trial under

favor of Rule 29[A] and 29|B], and in the post-verdict

submissions on this same issue), the contention is also

being made that the witness Quintana’s testimony

cannot even possibly be regarded as harmless as the

Courts below would do with it. This is especially so

given counsel’s very serious efforts to bolster

Quintana’s testimony for the jury with her vouchment-

laden oratory. (See Tr., pp. 482-483.)

With this being so, counsel is truly perplexed, as

this Court surely will be once it credits the District

Court’s categorical findings concerning his earlier

assessments of the compelling worth of Quintana’s

identification evidence to the Government’s case. See

Appendix “B,” infra, at p. 57a. This follows because

there is simply no way anyone, even a federal Judge,

could rationally conclude this jury was simply not

influenced to convict on the basis of Quintana’s

testimony augmented, as it surely was, by the jury’s

concomitant rejection of the defense’s evidence. This

follows because the considerable defense evidence was

offered to show Matthews could not possibly have been

the person Quintana supposedly met in Tucson. And,

Matthews could not have been the person to whom

(Juintana understood (before he left Arizona) he would

be delivering the drugs to in Cleveland (ante, pp. 5-

6). Who then can say the defense evidence would not

have been credited if the jury had known the

Government's chief witness was outright lying about

having been with Matthews in Arizona - - as he

testified

Given this same Court was later convinced by the

efficacy of the newly discovered evidence, which he

fully credited (post, p. 20), how then could the Court

be so sure the jury would not have acquitted if they

had disbelieved the witness (to the same degree it

seems clear the District Court says it disbelieved him).

For our part, the metaphysical acumen that enables

this trial Judge to proclaim that Ernest Matthews

would have still been convicted even if the jury had

disbelieved Quintana’s identification of him (as the

person introduced to him in Arizona and to whom the

drugs were to be delivered) is far too abstract to be of

any practical use. Also, for our part as well, the fact

that the Court branded Quintana’s testimony as false

(t.e., perjurous), casts an impregnable barrier to any of

its segments being credited as proof of guilt - - indeed

even slightly. This follows because his evidence was

not merely exceedingly improbable, its endorsement by

the Government even in its Appellate arguments is,

and was, truly unacceptable. Indeed, this is so for still

other reasons that were likewise called to the District

Court’s attention.

Indeed, in “Defendant Matthews’ Post-Hearing

Brief,” this was said:

Moreover, the testimony of Agent Leppla and

Officer Ansari did not match. Agent Leppla

testified that the Trailblazer was close to the

garage door and the Suburban was closer to the

tractor-trailer, while Officer Ansari testified

that it was the other way around. Moreover,

Agent Ansari testified that another tractor-

trailer and pick-up truck arrived just before the

delivery, while Agent. Leppla stated that no

other vehicles were in the area. /n addition,

Officer Ansari testified that he saw the

Defendants run when the police approached

them, while Agent Leppla said they did not run.

Finally, both Agent Leppla and Officer Ansari

stated that the Defendant Matthews was

wearing beige pants at the time he was there,

when in actuality, the pictures of the

Defendant’s clothes ... when he was arrested

were blue.

The Defendant provided credible and sufficient

evidence to explain what the Defendants were

doing at the scene. They were there to clean the

Defendant Matthews’ aunt’s vehicle and the

Defendant Jackson operated a mobile wash

business from the _ premises. Moreover,

Defendant Jackson’s former employee, Mr.

Robitson, testified that he had seen Mr.

Quintana’s truck before, and had in fact washed

it at the shop. ... Mr. Robitson testified that he

washed the truck in question in March of 2005.

... This testimony of Mr. Robitson, would have

seemed more credible to the Jury if they had

known that Mr. Quintana was in fact in

Cleveland during a number of days in March

2005, contrary to his testimony.

See Id., pp. 8-9. The upshot of the above quote is that

it exposes the trial Court’s refusal to set aside this

verdict as truly being indefensible. This is especially

so since the trial Court, despite its open and detailed

assailment of Quintana’s testimony (tr., pp. 178-182),

augmented by what the Court regarded as “Quintana’s

false testimony” (ibid), would literally tax our

credulity to the extent his dispositive resolutions do.

What 1s most obvious here is that the Court would

ignore the thrust of his well-supported findings that

Quintana gave materially false testimony (1.e., he haa

a conscious intention of distorting the truth)

concerning Matthews. Clearly, and undeniably, this

fact alone perforce provided (a) a basis for discrediting

everything he said, and (b) a reason to question his

motivations. The fact that despite all this the Court

would nonetheless rely on things said by him to reach

the conclusion our Petitioner was not victimized is all

the more baffling

Now, we ure keenly aware that these Courts were

likewise “bound to make all reasonable inferences and

credibility choices in support of the jury’s verdict.”

United States v. Johnson, 440 F.3d 832, at 839 (6""

Cir. 2006). Hiowever, contrary to the efficacy of the

above tenet, our belief is this case falls outside the

ambit of the thrust provided by the tenet cited above.

This follows because of the trial Court’s

characterization of the Government’s chief witness.

whose credibility was lauded, indeed heavily endorsed

(and actually applauded) by the prosecutor in her

compellingly persuasive perorations to the jury. In so

doing, as shown above, the jury heard her characterize

this witness as being “brutally honest” (tr., pp. 483-

484 & 485). And, they heard her praise him for not

having equivocated. (Ibid.) The fact that the

Government, in its Appcllate Bricf, failed to accept the

rejection by the District Court of Quintana’s

testimony, ts likewise as indefensible as it is baffling.

Obviously, the Court’s ability to yield to the

conclusion that Quintana’s testimony could be

relegated to a sort of cannon-fodder status deserves

considcrable assayment. For surely, more was

required of the Courts below than for them to simply

say that’s our opinion and then show they were

sticking with it -- come hell, or high water.

Now, we are aware the trial Court sua sponte

advised the jury, in so many words, that the prosecutor

was out of line when she made those statements about

their chief witness having been “brutally honest” and

the like, and in otherwise vouching for the witness’

credibility. (Tr., pp. 482-485.) On the other hand,

any conclusion that this testimony had no impact

whatsoever on the jury, in addition to being farfetched,

is unrealistic.

We were reminded (the Court was told) of the

statement made by one of this counsel’s all time

favorite Judges, in one of his all time favorite cases.

There, the wise Judge wrote: “It must be remembered

that after the saber thrust, the withdrawal of the

saber still leaves the wound.” United States uv.

Rudolph, 403 F.2d 805, at 807 (6'" Cir. 1968). The

point here being that there is simply no way anyone

can say this jury (despite having so egregiously been

poisoned) would have reached the same verdict in this

case had it been aware, as the Judge was, that the

Government’s case was so thoroughly flawed - - as it

was. So postured, how can it be said by these Judges

that the jury would not have voted differently if they

had known the Government’s case was bottomed on

hes?

ARGUMENT NO. IV:

A VERDICT THAT IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE -

- THAT IS, CONTRARY TO THE WEIGHT

OF THE CREDIBLE EVIDENCE,

WARRANTS THE GRANTING OF A NEW

TRIAL.

Here, the law is clear enough. In making a

determination as to whether to grant a Motion on the

grounds that the verdict is contrary to the weight of

the evidence, the Court should do so where (as here)

the evidence preponderates so sufficiently heavy

against the verdict that a miscarriage of justice may

very well have occurred. Indeed, in these

circumstances, we are convinced the Court need not

view the evidence in the light most favorable to the

verdict. Rather, the Court should do what this trial

Judge actually did - - that is, he weighed the evidence

for himself and in so doing he also evaluated the

credibility of the witnesses. Simply put, this Court, in

making its own evaluation, although admittedly in the

light of the new evidence, reached the right conclusion

- - that is, the Government’s chief witness was not

worthy of being believed.

Here the points to be understood include the fact

that the trial Judge, whose assessment of new

evidence and the credibility of witnesses is almost

impervious to any defense challenge, made the

determination that the Government’s most central

witness could not be believed. In other words, the

Judge declared he should not have been believed by the

jury. Now, we fully concur that position renders it the

law of this case. With this being so, we fully subscribe

to the view that the Appeals Court, in reviewing the

lower Court’s rulings (based on the newly discovered

evidence), owed no deference to the trial Judge’s legal

conclusion that without this witness’ testimony the

verdict would still have been guilty. Cf., United

States v. Perdomo, 929 F.2d 967, at 969-970 (3°

Cir. 1991). Also see United States v. Kirk, 935 F.2d

932, at 934-935 (8'" Cir. 1991), which likewise holds

that unlike conclusions of fact, no deference is owed to

the District Court’s conclusions of law.

We further contended therc, and do so hcre, that

the trial Judge’s analysis as to the effect of the false

evidence was further flawed by his effort to restrict his

assailment of the witness’ flawed testimony to his

credibility. (Appendix “B,” pp. 56a-57a.) In our

view, this clearly is wrong. This follows because the

Court’s well-supported finding that the witness gave

materially false testimony concerning Matthews was

for sure quite extensive. Indeed, it was indisputably

and compellingly convincing. With this being so, it

perforce must be credited with causing the jury to

reject (as it inferentially did) the defense’s

considerable evidence. This fact also provided a

formidable basis for amplifying the verity of the other

prosecution witnesses. This follows because, arguably

at least, some of these witnesses embellished their

testimony in the wake of the Government’s wholesale

endorsements of Quintana’s “false” evidence, because

they knew he would be believed by the jury. And, of

course, the Court had to know the references in the

Government’s opening statements to certain of these

defense witnesses, as well as those in her summations,

defy being trivialized. Yet, this is what the District

Court and the Sixth Circuit obviously did.

ARGUMENT NO. V:

A NEW TRIAL, IF NOT A JUDGMENT OF

ACQUITTAL, IS WARRANTED BY THE

POST-TRIAL DISCOVERY OF PROOF THE

GOVERNMENT’S CHIEF WITNESS

PROVIDED FALSE TESTIMONY AND

COUNSEL FOR THE GOVERNMENT NOT

ONLY VOUCHED FOR THIS WITNESS’

CREDIBILITY, BUT ASSURED THE JURY

HE HAD BEEN “BRUTALLY HONEST”.

Under Rule 33, Rules of Criminal Procedure,

a District Court may grant a new trial “if required in

the interest of justice.” Here, Petitioner has the

benefit of several insuperable judicial findings relative

to the newly discovered evidence. Indeed, as shown

elsewhere, the Government’s chief witness’ testimony

had been found by the Court to be false. This finding

the Court made while fully advised as to the

Government’s indisputable reliance on this testimony.

Proof this is so one gets from an appreciation of the

extent his evidence was. centralized in the

Government’s opening statements (tr., p. 185), in its

trial presentation, and in its summations during which

counsel referred to the witness as having been

“brutally honest” (tr., pp. 483-484), and for that

reason he should be believed - - and they should

convict.

The Court, arguably with an awareness that the

grant of a new trial would be tantamount to an

acquittal, somehow was able to oraculate that the “new

evidence was merely cumulative” (tr., p. 180).

Likewisc ignored in this dubious resolution, painted by

the Court in its ad hoc (so far as we are concerned)

thesis, is the irrepressible fact that a new trial is truly

warranted here. Simply put, the new evidence

supported the defense’s evidence that the witness had

willfully falsified his identification of the Defendant.

This follows, all the moreso, because there is simply no

way anyone can exclude the contention that our

Petitioner’s conviction rested on the jury's disbelief of

his witnesses sworn testimony. It follows, as we

disagree, as did the Sixth Circuit (at least as we read

their Opinion), that the inquiry here comes down to

whether, absent the false evidence provided by the

Government's chief witness, it is possible, indeed

probable, that honest and fair minded jurors might

very well have found Ernest Matthews not guilty.

Consider as relevant to our thesis here United

States v. Young, 17 F.3d 1201 (9'" Cir. 1994). There

it was held a new trial was warranted because clearly

a new trial could probably have produced a different

result. The same is true here. If it is not, who can say

this with impunity?

Also (as indicated above) the Court here, despite

finding, as it did, that Quintana’s testimony could not

survive the newly discovered evidence, failed to reckon

with the fact that this proof totally decimated the

entirety of his credibility. Yet, the Court, in an

awesome feat of mental gymnastics convinced himself

this proof did “not undermine the verdict” (Appendix

“B,” pp. 56a-57a). What the Court seemed clearly not

to understand, or if he did he failed to so indicate, is

that this verdict should also be set aside because

clearly and undeniably there was a “reasonable

likelihood that the false testimony could have affected

the jury verdict.” United States v. Bagley, 473 U.S.

667, at 678-680 (1976). (Emphasis supplied.)

In our view, indeed, hopefully in the Court’s view as

well, clearly and indisputably, here there is a

reasonable likelihood that the false evidence provided

by this witness adversely affected the verdict. For this

reason alone, our belief is that it must be set aside.

Ibid. This result should be reached all the moreso

because of the simple awareness that there is clearly

no way it can be assumed that despite the prosecutor's

touting of their chief witness as having (in her

judgment) been “brutally honest,” the jury did not even

shghtly weigh his evidence against those on trial - -

who were convicted in the wake of this prosecution.

CONCLUSION

No one, except perhaps people who are really

prosecution oriented, would deny the Government’s

case here would have been substantially weaker if

Quintana had not testified, or if the jurors had heard

the evidence that convinced the Court he was a

perjurer. Indeed, no one can dispute that what the

Government told the jury was fully crafted to persuade

them to convict. So, how then can it be said that this

oratory had no effect? Hopefully this Court will agree

with us that this is so.

Quintana’s testimony, no matter how one looks at

it, was so overwhelming it would have been difficult

for the jury not to have factored it into its decision.

Indeed, even if the jury had been instructed to do so,

there is no way that could have happened. No one can

possibly dispute that the prosecutor's success often

depends on the Government’s counsel's ability to

convince the jury of a particular witness’ credibility.

The bottom line here is that there is really no way

it can be said that Ernest Matthews was not

cumulatively prejudiced by the false identification

testimony of the witness Quintana, the jury’s rejection

of the defense’s evidence, counsel-opposite’s fervent

endorsement of this credibility and his evidence. This

is especially so since the Appeals Court and the

District Court literally overlooked, and indeed failed to

credit, the following categorical findings made by the

District Court in the wake of the newly discovered

evidence. Indeed, it was here the District Court wrote,

in irrepressible prose (at least we so thought) that, as

the Defendant suggested, Quintana’s trial testimony,

on its face was inherently lacking in credibility.

Appendix “B,” at p. 56a. And, as discussed, supra,

Quintana’s testimony regarding his alleged meeting

with Guzman and Matthews was lacking in credibility

and was subject to little, if any, weight by the jury.

Id., p. 57a. Given no one can possibly say the

evidence, apart from Quintana’s testimony, was

overwhelming, to say as these Courts must by saying,

it was sufficient not only to overcome the defense

evidence but to prove guilt beyond a reasonable doubt,

can be likened to saying that Matthews’ apparent

association with his co-defendant was sufficient to

prove him guilty (if this person was guilty) on a guilt

by association theory.

Surely something has to be wrong with this

scenario. Here, it is worth repeating, while the Sixth

Circuit, in reaching its conclusions, arguably would

simply ignore (as it did) the amplificatory effect of

counsel-opposite’s having vouched for the formidability

of the Government’s case, and the integrity of its chief

witness as having been “brutally honest,” one thing

seems clear enough. Counsel's statements “so infected

the trial with unfairness as to make the resulting

conviction a denial of due process.” See Donnelly v.

DeChristoforo, 116 U.S. 637, at 643 (1974)

Respectfully submitted,

JAMES R, WILLIS, ESQ.

Reg. No. 0032463

430 Lakeside Building

323 Lakeside Avenue, Suite 430

Cleveland, Ohio 44112

(216) 523-1100

(216) 861-4161 (Fax)

ATTORNEY FOR PETITIONER,

ERNEST MATTHEWS

APPENDIX

APPENDIX A

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 07-3135

[Filed October 21, 2008]

UNITED STATES OF AMERICA

Plaintiff-Appellee,

)

}

Vv. )

)

ERNEST MATTHEWS )

Defendant Appellant )

)

ON APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE NORTEERN DISTRICT OF OHLO

OPINION

BEFORE: COLE and GIBBONS, Circuit Judges;

FORESTER, District Judge.

The Honorable Karl S. Forester, United States District Judge for

the Eastern District of Kentucky, sitting by designation

COLE, Circuit Judge. Defendant-Appellant

Ernest Matthews was convicted of attempting to

possess with intent to distribute 100 kilograms or

more of marijuana, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)B) and § 846. On appeal, Matthews

argucs that (1) the trial evidence was insufficient to

sustain his conviction, entitling him to a judgment of

acquittal under Rule 29(c)of the Federal Rules of

Criminal Procedure, and (2) a new trial is warranted

based on newly discovered evidence and in the interest

of justice. for reasons set forth below, we AFFIRM

Matthews'’s conviction and the district court’s denial of

his motion for a new trial.

I. BACKGROUND

Matthews was tried and convicted of a single-count

charge of attempting to possess with intent to

distribute 100 kilograms or more of marijuana.

The following evidence was introduced at trial. On

March 26, 2005, the Kansas State Highway latrol

stopped a semi-tractor-trailer near Kansas City

because the registration number displayed on the

truck’s door had an extra digit. The truck had a flat

bed that was loaded with sheets of housing insulation

covered by tarps. The police became suspicious and

asked the driver, Arnulfo Quintana, to follow them to

a police station so a drug-detection dog could search

the truck. At the station, Quintana told the officers

that marijuana was hidden in the insulation on a

certain pallet of the truck’s load. There, the wiiicers

discovered thirty-nine bales of marijuana, weighing

749 pounds.

Quintana testified that an individual named

Martin Guzman had proposed that Quintana haul a

load of marijuana to Cleveland, Ohio in exchange for

$25,000. Quintana spoke to Guzman about the

proposition several times, including once at a truck

stop near Tuscon, Arizona. Quintana was inconsistent

about the date of the truck-stop meeting, but sometime

around March 15 or 16 he dropped off an empty

flat-bed tractor-trailer at a location specified by

Guzman. When Quintana returned a day later, the

trailer had been loaded with the insulation sheets and

the marijuana. Quintana admitted that he had been

using crystal methamphetamine around the time of his

truck-stop meeting with Guzman.

After being stopped by the Kansas State Highway

Patrol, Quintana agreed to serve as a cooperating

witness and to continue with the load and make a

controlled delivery. Accordingly, Quintana,

accompanied by Kansas City task force officers,

continued overnight on his planned route to Cleveland.

Once in Cleveland the following day, Quintana and the

Kansas officers went te the Cleveland Drug

Enforcement Agency (“DEA”) office where DEA officers

equipped Quintana with a recording device. Quintana

then drove the tractor-trailer alone to the delivery

destination, with close police surveillance.

Meanwhile, personnel at the Cleveland DEA

contacted DIA Special Agent William Leppla late on

March 26 or carly on March 27 to advise him of the

impendiny delivery of marijuana. Leppla was told the

delivery would occur on March 27 somewhere on

Aurora Road in Warrensville Heights, a suburb of

Cleveland, near a warehouse marked by a parked

brown tractor-trailer. The DEA remained in contact

with the Kansas officials accompanying Quintana and

kept Leppla informed of the progress of the controlled

delivery. Leppla and other agents proceeded to the

Aurora Road location and, by a process of elimination,

determined that the delivery point was a warehouse,

subdivided into garages. Leppla had been in and

around the area beginning at 11:00 a.m. on March 27.

He met with Task Force Officer Jamaal Ansari around

6:00 p.m., and they took settled positions at 6:30 p.m.

Leppla testified that during the time he was surveying

the area, there was virtually no traffic on the street

because it was Easter Sunday.

Leppla testified that at about 6:40 p.m., two

vehicles—a two-tone Chevrolet Suburban followed by

a black Chevrolet Trailblazer, each driven by a black

male and containing no other passengers—pulled up to

a garage door at the warehouse. Leppla stated that the

driver of the Suburban, whom he later identified as

Matthews, exited the vehicle, entered the warehouse

through a “man door,” and then pulled up the garage

door from the inside. The two men then pulled the

vehicles into the garage, stood outside the garage for

several minutes, returned to their vehicles, backed

them out of the garage, shut the door, and left. Leppla

testified at trial that the entire visit lasted about

fifteen minutes, although this was inconsistent with

his testimony at the suppression hearing that they had

stayed for about twenty-six minutes.

At approximately 7:10 p.m., Quintana arrived at

the garage, driving the tractor-trailer. Minutes later,

the Trailblazer and Suburban reappeared. Leppla

testified that they were driven by the same men who

had departed minutes earlier. Matthews, the driver of

the Suburban, again opened the garage door. He met

briefly with Quintana and the driver of the

Trailblazer, later identified as Matthews’s

co-defendant Edward Jackson, then entered the garage

out of Leppla’s sight. Jackson climbed onto the bed of

the tractor-trailer and, with Quintana’s assistance,

began loosening the canvas straps of the pallet

containing the marijuana. The wire Quintana was

wearing recorded Jackson saying something about

“doing it right here.” (Trial Tr. vol. 2, 425, Sept. 14,

2005, Joint Appendix (“JA”) 321.) Quintana testified

that Jackson was referring to unloading the

marijuana. At this point, Leppla became concerned

about the officers’ safety because it was getting dark

outside, so he contacted his supervisor at the DEA for

approval to make the arrests. Approval was given, and

more than six officers emerged from hiding, identified

themselves as officers, and arrested Quintana,

Matthews, and Jackson. A search of Matthews

revealed approximately $3200 in cash, and the officers

found approximately $500 in cash on the floor near

where they had arrested him. The Trailblazer

contained rental car papers, gallon-sized plastic

baggies, and rolls of contact paper.

After the arrest, the police searched Matthews’s

house and learned that he had flown to Las Vegas,

Nevada in March. The parties entered a stipulation

that Matthews had departed Cleveland, Ohio on an

Amcrica West Airlines flight on March 1, 2005, for Las

Vegas, Nevada. The stipulation further provided that

on March 13, 2005, Matthews had departed Las Vegas,

Nevada on an America West Airlines flight, arriving in

Cleveland in the early morning hours of March 14,

2005.

After the police learned that Matthews had

traveled to Las Vegas, Quintana told the police that he

recognized Matthews from his mid-March meeting

with Guzman at the truck stop outside of Tuscon,

Arizona. He stated that at this meeting, Guzman had

introduccd Matthews as “the boss and the person |he|

would be delivering the marijuana to.” (Trial Tr. vol. 2,

459, JA 344.) He stated that he had not seen Matthews

clearly at the meeting because Matthews haa

remained in the passenger seat of Guzman’s car while

Quintana and Guzman discussed the deal. He further

testified that “all the black people look the same, and

fhe] wasn’t paying much attention,” (Trial Tr. vol. 2,

463, JA 348), but that he understood that the man in

the passenger seat was the one who would be waiting

for him in Cleveland, and that Matthews was one of

the two people he had seen on the day of the delivery.

He also stated that he had only becn to Cleveland one

other time, in January 2005, to have a truck repaired.

Leppla testificd that, based on his training and

experience, the baggies and contact paper found in the

Trailblazer were of a type often used by drug dealers

to package large quantities of marijuana. In addition,

he testified that it was not unusual! to find only $3200

in Matthews’s possession-—an amount far too small to

pay for the amount of marijuana deliverecd— because

traffickers generally avoid having drugs and money at

the same location during a drug deal.

At the close of the Government's case, Matthews

moved for a judgment of acquittal pursuant to Federal

Rule of Criminal Procedure 29, arguing that the

evidence, taken in the light most favorable to the

Government, was insufficient to allow a rational jury

to find beyond a reasonable doubt the cssential

elements of the crime charged. Matthews pointed to

Leppla’s contradictory testimony about the length of

time the two individuals haa been in the garage during

their first appearance at the warehouse and to the

unreliability of Quintana’s testimony, given his

uncertainty about dates and his admission to using

drugs around the time of his meeting with Guzman.

The district court denicd the motion, and Matthews

thereupon presented his case.

Matthews introduced several witnesses who

testified to the following: Matthews traveled to Las

Vegas, Nevada on March 1, 2005, to Tucson, Arizona

from March 7 through March 9 so that his girlfriend

could interview for a job, and then back to Cleveland

on March 14; during this trip, Matthews did not meet

with anyone at a truck stop; Quintana had possibly

been to the warehouse on Aurora Road before to have

his truck washed; Matthews’s aunt rented the

Trailblazer and owncd the contact paper and baggics;

Matthews’s aunt prepared an dinner on Easter Sunday

at which Matthews and Jackson were present;

Mathews’s aunt asked Matthews and Jackson to take

the Trailblazer to be washed at the warehouse because

it was due to be returned the following day; the

Suburban was owned by a friend named Dartanyan

Thompson; and Thompson had accompanied Jackson

to the warchousc initially to look at some motorcycle

parts, while Matthews had only been present for the

second trip to the warchouse, for which he had

berrowed ‘Thompson’s Suburban. Matthews’s

co-defendant, Jackson, asserted a theory that after

being arrested in Kansas, Quintana had decided to

conceal the true destination of the marijuana and lead

police to the warchouse in Cleveland where he had

previously had his cruck washed.

The jury returned a guilty verdict, and the district

court scntenced Matthews to 120 months of

imprisonment. Matthews timely appealed.

ANALYSIS

Matthews essentially asserts two claims on appeal:

(1) the district court erred in denying his motion for

judgment of acquittal because the evidence was

insufficient to support a conviction, and (2) the district

court abused its discretion in denying his motion for a

new trial based on newly discovered evidence that

Quintana gave false testimony.

A. Motion for Judgment of Acquittal

1. Standard of Review

“This court reviews de novo a denial of a motion for

judgment of acquittal, but affirms the decision if the

evidence, viewed in the light most favorable to the

government, would allow a rational trier of fact to find

the defendant guilty beyond a reasonable doubt.”

United States v. Solorio, 337 F.3d 580, 588 (6th Cir.

2003) (internal quotation marks omitted); see also

Juckson v. Virginia, 443 U.S. 307, 319 (1979) (when

considering sufficiency of evidence to sustain a

conviction on direct appeal, the “relevant question” ts

whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable

doubt”). Because the issue is one of legal sufficiency,

the court “neit:r independently weighs the evidence,

nor judges the credibility of witnesses who testified at

trial.” United States v. Talley, 164 F.3d 989, 996 (6th

Cir. 1999). An appellate court cannot substitute its

judgment for that of the jury. Wnarted States v Hilltard,

11 F.3d 618, 620 (6th Cir. 1993). “[Clircumstantial

evidence alone can sustain a guilty verdict and... .

lsuch] evidence need not remove every reasonable

hypothesis except that of guilt.” United States v. Stone,

748 F.2d 361, 362 (6th Cir. 1984). This standard is a

great obstacle to overcome, United States v. Winkie,

477 F.3d 407, 413 (6th Cir. 2007), and presents the

appellant in a criminal case with a very heavy burden,

United States v. Jackson, 473 F.3d 660, 669 (6th Cir.

2007).

2. Merits

Matthews asserts that he was entitled to a

judgment of acquittal pursuant to Rule 29(c) because

the Government’s proof at trial established nothing

more than Matthews’s presence at the delivery scene,

which is inadequate to support his conviction of

attempted possession with the intent to distribute

marijuana in violation of 21 U.S.C. § 841(a)(1) and

§ 846. The district court denied the motion, finding

that the evidence introduced at trial was sufficient for

a rational finder of fact to conclude that the elements

of the offense had been proven beyond a reasonable

doubt.

“The elements of a charge of possession with intent

to distribute illegal drugs are (1) the defendant

knowingly; (2) possessed a controlled substance; (3)

with intent to distribute.” United States v. Jackson, 55

F.3d 1219, 1225 (6th Cir. 1995). To obtain a conviction

for an attempt crime, “the yovernment must

demonstrate a defendant’s intent to commit the

proscribed criminal conduct together with the

commission of an overt act that constitutes a

substantial step towards commission of the proscribed

criminal activity.” United States v. Bilderbeck, 168

F.3d 971, 975 (6th Cir. 1999). After consideration of

the evidence introduced at trial in this case, we cannot

say that no rational trier of fact could have found these

elements beyond a reasonable doubt.

It was undisputed at trial that a flat-bed trailer

hauling more than 700 pounds of marijuana arrived at

Jackson's garage on Easter Sunday, March 27, 2005.

Two officers testified that Jackson and Matthews

appeared at the garage briefly and then left several

minutes before Quintana arrived. It is undisputed

that, minutes after Quintana arrived, Matthews and

Jackson appeared ai the garage and spoke with

Quintana. Leppla testified that after the truck pulled

in, Jackson begun io assist Quintana with the removal

of the strups from the area of the trailer that contained

the marijuana. Although the recording from the wire

worn by Quintana does not contain explicit discussion

of drugs, Jackson mentioned “doing it right here,” and

Quintana testified that Jackson was referring to

unloading the marijuana. It is undisputed that

Matthews had approximately $3200 in cash on his

person when he was arrested, and another $500 in

cash was found on the ground near where he was

arrested. Leppla testifie) as an expert in drug

trafficking that the items seized after searching the

vehicles were consisient with the packaging of

marijuana for sale. Finally, the Government presented

Quintana’s testimony suggest ng that Matthews had

met earlier in Arizona with G: zman, the alleged

source of the marijuana.

Taking this evidence in the light most favorable to

the Government, as we must, a rational juror could

conclude beyond 2 rensonable doubt that Matthews

lla

intended to receive the marijuana. Based on the large

quantity of marijuana and the fact that there were

baggies and contact paper in the car, a jury could

conclude beyond a reasonable doubt that Matthews

intended to distribute the marijuana. Matthews points

to discrepancies in several of the witnesses’s

testimony, such as Leppla’s and Ansari’s differing

recollections as to which vehicle—the Suburban or the

Trailblazer—pulled into the garage first. But, as the

district court accurately noted, these distinctions

relate to credibility and Matthews addressed them

thoroughly during cross-examination. Because this

Court is prohibited from independently weighing the

evidence or judging the credibility of witnesses, see

Talley, 164 F.3d at 996. Matthews’s arguments fail.

There was sufficient evidence presented at trial to

support Matthews'’s conviction, and the district court

did not err in denying his motion for judgment of

acquittal.

B. Motion for a New Trial

1. Standard of Review

Federal Rule of Criminal Procedure 33(a) provides

that “[u]pon the defendant’s motion, the court may

vacate any judgment and grant a new trial if the

interest of justice so requires.” When faced with a Rule

33 motion, u'.\ike a motion for judgment of acquittal

under Rule 29, the district court may weigh the

evidence and assess the credibility of the witnesses;

“fi]Jt has often been said that [the trial judge] sits as a

thirteenth juror” when considering a Rule 33 motion.

United States v. Solorto, 337 F.3d at 589 n.6 (quotation

marks and citation omitted), When reviewing the

distmct court's decision to deny a motion for a new trial

based on newly discovered evidence, this Court may

only decide whether the district court’s determination

constitutes an abuse of discretion. United States v.

Jones, 399 F.3d 640, 647 (6th Cir. 2005); see also

United States v. O'Dell, 805 F.2d 637, 640 (6th Cir.

1986) (“Motions for a new trial based on newly

discovered evidence are disfavored, and a trial court’s

determination that a new trial is not warrantec will

not be rcversed absent ‘clear abuse of discretion.~

(quoting United States v. Allen. 748 F.2d 334, 337 (6th

Cir. 1984) (per curiam)))

2. Merits

After the jury found him guilty, Matthews moved

for a new trial claiming he had discovered new

evidence proving that Quintana had given false

testimony. The motion was supported by hotel

reservation confirmations, credit card receipts, and

expert handwriting analyses demonstrating that

Quintana had stayed at a sotel near Cleveland from

March 13, 2005 through March 17, 2005. The district

court summarized the relevance of the evidence as

follows:

Quintana testified that he had _ visited

Cleveland, Ohio in January 2005 to have a

truck repaired. He further testified that he had

not visited Cleveland at any other time prior to

the arrest. Moreover, Quintana testified that he

met Matthews in |Tuscon in] mid-March 2005

(specifically March 15, although he was unsure

regarding the exact date) and the semi-tractor

trailer was loaded with marijuana the following

day .. . . Beyond damaging the credibility of

Quintana’s entire testimony, the newly

discovered evidence is relevant in two

significant respects: (1) it demonstrates that

Quintana could not have met with Matthews on

March 15, 2005 [in Tuscon] as [Quintana] was

in Cleveland, Ohio; and (2) Quintana’s presence

in Cleveland, Ohio in March 2005... provides

corroboration to Jackson's claim that he washed

Quintana’s semi-tractor trailer in March, 2005.

(Mem. Op. and Order, Oct. 23, 2006, JA 178-79.)

Despite concluding that Quintana had presented false

testimony, the district court denicd Matthews’s motion

for a new trial, finding that the newly discovered

evidence was largely cumulative and impeaching and

that it would not have impacted the outcome of the

trial.

To warrant a new trial on the basis of newly

discovered evidence, Matthews must demonstrate that

“(1) the new evidence was discovered after the trial; (2)

the evidence could not have been discovered earlier

with due diligence; (3) the evidence is material and not

mercly cumulative or impeaching; and (4) the evidence

would likely produce an acquittal.” Jones, 399 F.3d at

648 (citing O’Dell, 805 F.2d at 640). Although the

evidence of Quintana’s mid-March stay in Cleveland

was not discovered until after trial, Matthews fails to

meet the three other requirements for a new trial.

While Quintana’s name was not provided to defense

counsel until trial, there is no evidence that Matthews

was surprised that the Government called Quintana as

a witness. Matthews observed Quintana at the time of

the arrest, and Quintana was mentioned in the

prosecution's opening statement, yet Matthews did not

request a continuance or trial subpoena to seek the

evidence that was later discovered. Moreover, other

l4a

evidence indicates that prior to trial, defendants knew

that Quintana had previously stayed in a hotel in

Cleveland. Thus, Matthews has not established that

the newly discovered evidence could not have been

discovered with duc diligence prior to trial.

Further, the district court concluded that the newly

discovered evidence was merely cumulative and

impeaching. The district court found, and the record

reflects, that defense counsel had already “fatally

damayed” Quintana’s credibility during trial. (Mem.

Op. and Order, Oct. 23, 2006, JA 180.) Quintana was

shown to be unable to recall dates and unable to

remember that Matthews had large, visible scars on

his face. He stated that “all the black people look the

same” to him, (Trial Tr. vol. 2, 463, JA 348), that he

was using drugs at the time of the events at issue, and

that he hoped for leniency from the Government in

exchange for his cooperation. Accordingly, to the

extent that the new evidence would have contradicted

Quintana’s testimony, the district judge did not abuse

his discretion in finding that such evidence would

merely have been cumulative and impeaching.

Matthews has also failed to show that the newly

discovered evidence would likely have resulted in an

acquittal. The district court concluded that even if all

portions of Quintana’s testimony, except those that are

undisputed, were removed from the record, there

would still be sufficient evidence to convict Matthews.

As recounted above, there is no dispute that Quintana

was apprehended with a load of marijuana and that he

indicated Jackson’s garage as the delivery location.

There is no dispute that minutes after Quintana

arrived at the warehouse on Easter Sunday, Matthews

and Jackson arrived and spoke with Quintana. There

l5a

is no dispute that one of the vehicles in which

Matthews and Jackson arrived contained materials

commonly used for packaging marijuana. There is no

dispute that Matthews had approximately $3200 on

his person at the time of his arrest and that another

$500 was found on the floor near where he was

arrested. Agent Leppla testified that Jackson climbed

onto the truck and began to undo the straps where the

marijuana was hidden, saying something about “doing

it right here.” Based on this evidence, nearly all of

which is undisputed, the district court did not abuse

its discretion in concluding that the newly discovered

evidence would not have resulted in an acquittal and

in denying Matthews’s motion for a new trial.

CONCLUSION

lor the foregoing reasons, we AFFIRM Matthews’s

conviction and the district court’s denial of his motion

for a new trial.

16a

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHLO

No. 1:05 CR 00204

[Filed October 23, 2006]

UNITED STATES OF AMERICA )

PLAINTIFF )

)

Vv. )

)

EDWARD JACKSON, et al. )

DEFENDANTS )

)

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon the following

motions and post-trial memoranda: (1) Defendant’s

Edward Jackson Motion for a New Trial or in the

Alternative Judyment of Aquittal [sic], see (Dkt. #

115); (2) Defendant Ernest Matthews’ Motion to Join

Defendant Edward Jackson’s Motion for New Trial or

in the Alternative Judgment of Acquittal, see (Dkt. #

116); (3) Defendant Matthews’ Motion to Set Aside the

Verdict and Enter a Judgment of Acquittal and/or

Motion for New Trial, see (Dkt. # 117); (4)

Government’s Response to Defendants’ Motion for New

‘Trial, see (Dkt. # 125); (5) Detendant Matthews’ Reply

on Motion to Set Aside the Verdict and Enter a

17a

Judgment of Acquittal and/or Motion for New Trial,

see (Dkt. # 126); (6) Government’s Response to

Defendant Matthews’ Reply on Motion for Judgment

of Acquittal and/or Motion for New Trial, see (Dkt. #

127); (7) Defendant Edward Jackson’s Motion to Join

Defendant’s Response (Reply) to Government’s Motion

in Opposition to Defendant’s Motion for a New Trial,

see (Dkt. # 131); (8) Defendant Matthews’ Second

Motion for New Trial, see (Dkt. # 139); (9) Defendant

Edward Jackson’s Supplement to his Motion for a New

Trial, see (Dkt. # 142); (10) Government’s Response to

Detendant Matthews’ Second Motion for New Trial,

see (Dkt. # 143); (11) Defendant Matthews’ Reply to

Second Motion for New Trial, see (Dkt. # 146); (12)

Defendant Matthews’ Supplement to Reply for Second

Motion for New Trial, see (Dkt. # 148); (13) Defendant

Edward Jackson’s Motion to Join Defendant Ernest

Matthews’ Reply to Government’s Response to Second

Motion for New Trial, see (Dkt. # 149); (14)

Government’s Response to Defendants’ Motion for a

New Trial, see (Dkt. # 158); (15) Second Supplemental

Motion for a New 'I'rial Based on Newly Discovered

Evidence, see (Dkt. # 160); (16) Defendant Matthews’

Reply to Government’s Response to Second Motion for

New Trial, see (Dkt. # 164); (17) Defendant Ernest

Matthews Motion toJoin Defendant Edward Jackson’s

Second Supplemental Motion for a New Trial Based on

Newly Discovered Evidence, see (Dkt. # 165); (18)

Defendant Edward Jackson’s Motion to Join

Defendant Ernest Matthews’ Reply to Government’s

Response to Second Motion for New Trial, see (Dkt. #

167); (19) Defendant Matthews’ Post-Hearing Brief,

see (Dkt. # 176); (20) Post Hearing Supplemental

Brief, see (Dkt. # 177); (21) Government’s Corrected

Response to Defendants’ Post-Hearing Briefs, see (Dkt.

# 150); (22) Defendant Matthews’ Reply — to

18a

Government's Corrected Response, see (Dkt. # 183);

and (23) Defendant’s Reply to Government’s Response

Post Hearing Briefs, see (Dkt. # 184). The Court held

a hearing regarding the foregoing motions and filings

on May 31, 2006. The parties concluded their briefing

of the matter on July 17, 2006.

I. BACKGROUND

Special Agent William Leppla (“SA Leppla”) of the

Department of Justice, Drug Knforcement Agency

(“DEA”) in Cleveland, Ohio appeared before United

States Magistrate Judge William H. Baughman, Jr. on

March 28, 2005 and swore out a criminal complaint

against the defendants, Edward Jackson (“Jackson”)

and Ernest Matthews (“Matthews”), alleging violations

of 21 U.S.C. § 841(a)(1), (b)1)(B). See (Dkt. # 1).

Magistrate Judge Baughman immediately issued

arrest warrants for the defendants. See (Dkt. # 2; Dkt.

# 3).

The defendants thereafter appeared before

Magistrate Judge Baughman, represented by counsel,

for initial appearances. See (Dkt. # 4). Upon oral

motion of the Government, Magistrate Judge

Baughman ordered the temporary detention of each

defendant. See (Dkt. # 5).

Following a detention hearing held on March 31,

2005, Magistrate Judge Baughman issued an order

placing Matthews into the custody of the Attorney

General. See (Dkt. # 7). Magistrate Judge Baughman

ordered the Defendant Edward Jackson released on a

$15,000.00 unsecured bond with pre-trial supervision

and conditions. See (Dkt. # 7; Dkt. # 8) Magistrate

Judge Baughman additionally held a preliminary

19a

examination whereby he found probable cause for the

case to be bound over to the Grand Jury for the United

States District Court for the Northern District of Ohio

(the “Grand Jury”).

On April 27, 2005, the Grand Jury issued an

Indictment charging the defendants with one count of

possession with the intent to distribute marijuana in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). See (Dkt. #

12).

On June 14, 2005, the Grand Jury issued a

Superceding Indictment charging the defendants with

one count of attempted possession with the intent to

distribute marijuana in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B) & 846. See (Dkt. # 54).

The Court held a suppression hearing on July 19,

2005. The Court denied the defendants’ motions to

suppress by a written Memorandum Opinion and

Order issued August 4, 2005. See (Dkt. # 72).

Trial commenced on September 13, 2005.

The Government’s Theory of the Case

Assistant United States Attorney Linda Barr

presented the Government’s theory of the case during

her opening statement. Specifically, the Government

alleged that on March 26, 2005, the Kansas State

Highway Patrol conducted a traffic stop of a flat-bed

semi-tractor trailer operating near Kansas City,

Kansas. See (Tr. of Trial (“Tr.”) at 146-47). The law

enforcement officers thereafter discovered thirty-nine

bales of marijuana secreted within a shipment of sheet

insulation located on the trailer. See (Tr. at 147). Each

20a

bundle weighed approximetely 19 or 20 pounds. See

(Tr. at 147).

The driver of the semi-tractor trailer — identified

during the opening statement as Arnulfo Quintana

(“Quintana”) — informed the law enforcement officers

that he had met in Tucson, Arizona severa! weeks

earlier with an individual known as Martin Guzman

(“Guzman”). See (Tr. at 146-48). Guzman had

requested Quintana to haul marijuana to Cleveland,

Ohio in exchange for compensation. See (Tr. at 148).

Quintana had a second mecting with Guzman in

Tucson, Arizona during March 2005 whereby he

encountered the Defendant, Ernest Matthews. See (Tr.

at 149).

At the request of law enforcement officers,

Quintana agreed to serve as a cooperating witness and

make a controlled delivery. See (Tr. at 147-48).

Quintana accordingly continued his journey to

Cleveland accompanied by a law enforcement officer.

See (Tr. at 147-48).

The Kansas authorities meanwhile advised SA

Leppla that a shipment of marijuana would be

entering his jurisdiction on March 27, 2005 - a date

which was Easter Sunday for various Christian faiths.

See (Tr. at 148-49). SA Leppla received information

that the delivery would occur in Warrensville Heights,

Ohio. See (Tr. at 148).

l ; . . . ‘ . A

As discussed tnfra, the Government provided the defense with

Quintana’s identity immediately prior to jury selection

2la

At approximately 6:30 p.m., SA Leppla observed

two vehicles — a black Chevrolet Trailblazer and a

black/grey Chevrolet Suburban — enter the destination

area. See (Tr. at 149). SA Leppla further observed the

driver of the Chevrolet Suburban, alleged to be

Matthews, exit the vehicle and open a garage door. See

(Tr. at 149). The two vehicles entered the garage, and

after “about ten minutes”, the vehicles departed from

the area. See (Tr. at 149).

The law enforcement officers meanwhile equipped

Quintana with a microphone as well as a transmitter,

and proceeded with the controlled delivery. See (Tr. at

150).

Quintana then arrived at the destination. See (Tr.

at 150). Five to ten minutes later, the black Chevrolet

Suburban arrived operated by Matthews, followed by

the black/grey Chevrolet Trailblazer operated by

Jackson. See (Tr. at 150).". e defendants exited their

vehicles and engaged uw. an conversation with

Quintana near the flatbed trailer. See (Tr. at 150-51).

SA Leppla immediately became concerned for the

surveillance officers’ safety as it was growing dark. See

(Tr. at 152-53). He issued a predetermined signal and

the law enforcement officers initiated the arrest of the

defendants. See (Tr. at 152-53). A subsequent search

of the Chevrolet Trailblazer revealed a black duffle

bag, three boxes of clear plastic bags, a small amount

of marijuana, a tarp, and cellophane’ sharing

characteristics to that covering the marijuana brought

from Kansas. See (Tr. at 153).

The Government closed its opening statement by

acknowledging that Quintana was_ subject to

22a

prosecution in Kansas for the offense and that

Quintana “will have a choice in that case whether to

let it be heard by a jury or plead guilty.” (Tr. at 154.)

Defendant Jackson’s Theory of the Case

Counsel for Jackson commenced Jackson’s theory

of the case by advising the jury that Jackson owns and

operates a business known as Mobile Wash from the

garage referenced in the Government’s opening

statement. See (Tr. at 155). Defense counsel further

advised that on March 27, 2005, Jackson arrived at the

garage because co-)Defendant Matthews had requested

him to steam clean the Chevrolet Trailblazer. See (Tr.

at 156).

Defense counsel then presented an alternative

theory to that presented by the Government. He

asserted that the Government’s “principal and star

witness”, Quintana had been to Cleveland, Ohio in

February 2005 and met Jackson at the garage. See (Tr.

at 156). At that time, Jackson had presented Quintana

with a business card and invited Quintana to utilize

his semi-truck washing services whenever Quintana

was in Cleveland. See (Tr. at 156-57). Consequently

Quintana arrived in Cleveland in mid-March 2005 and

Jackson washed Quintana’s semi-tractor trailer. See

(Tr. at 157). In providing a rationale for Quintana

arriving in late-March with marijuana, defense

counsel asserted that “Quintana did not want to

expose his true connections elsewhere, and that he

singled out Mr. Jackson as a pawn in his deception

with the [Glovernment.” See (Tr. at 157). The opening

statement concluded with the contention that the tape

recording of the alleged transaction did not mention

“pickups, deliveries, money or drugs.” See (Tr. at 158).

23a

Defendant Matthews’s Theory of the Case

Counsel for Defendant Matthews briefly restated

the Government’s theory and advised that Quintana

did not provide any description of the marijuana’s

intended recipients at the time of the Kansas arrest.

See (Tr. at 159). Counsel for Matthews went on to

contend that Matthews did not arrive with Jackson at

the garage prior to the arrival of Quintana’s

semitractor trailer —rather, Jackson was accompanied

by an individual known as Dartanyan Thompson. See

(Tr. at 160). Matthews thereafter returned with

Jackson to the garage for the purposes of cleaning the

Chevrolet Trailblazer, as it was a rental vehicle that

needed to be returned the following day. See (Tr. at

160). Additionally, Matthews accompanied Jackson to

inspect motorcycle parts that Jackson stored at the

garage See (Tr. at 161).

Counsel for Matthews advised that the items

discovered in the vehicles following the arrest belonged

161). Furthermore, Matthews possessed $3,000.00 at

the time of his arrest, “[n]ot the amount of money that

someone would get for transporting those drugs.” (Tr.

at 161.)

Counsel for Matthews summarized his theory that

SA Leppla selected the destination, radioed back that

destination to the semi-tractor trailer, and “sure

enough, this individual [Quintana] comes to that

location ”(Tr. at 162.)

Defense counsel also explained that following the

arrest, Matthews consented to a search of his home

whereby the law enforcement officers discovered

24a

luggage tags indicating that Matthews had been to Las

Vegas in early-March. See (Tr. at 162). Matthews

admitted to law enforcement officers that he had been

to Arizona, but it “wasn’t for a drug deal.” See (Tr. at

162).

The next morning, Quintana advised law

enforcement officers for the first time that Matthews

had been in Arizona with Guzman on March 15, 2005.

See (Tr. at 163). Counsel for Matthews advised the

jury “[t]hat’s not even possible.” See (Tr. at 163).

Counsel for Matthews concluded his opening

statement by demonstrating that the Government

lacked any photographs or video of the alleged

transaction. See (Tr. at 163).

SA Leppla’s Testimony

The Government presented SA Leppla as its first

witness. See (Tr. at 148). SA Leppla testified that late

in the night of March 26, 2005/early in the morning of

March 27, 2005, he received notice from DEA Acting

Group Supervisor, Special Agent Harry Tideswell (“SA

Tideswell”) in Cleveland, Ohio that a shipment of

marijuana would be entering their jurisdiction on

March 27, 2005 as part of a controlled delivery. Sec

(Tr. at 167-69). Specifically, SA Leppla was advised

that the controlled delivery would occur in the “general

vicinity” of Aurora Road in Warrensville Heights,

Ohio. See (Tr. at 168). SA Leppla was aware that the

alleged destination was a commercial area. See (Tr. at

168-69). SA Leppla further was aware that SA

Tideswell was in communication with the DEA agents

in Kansas that were accompanying the semi-tractor

25a

trailer (containing the marijuana) to Cleveland. See

(Tr. at 169).

SA Leppla attempted to determine the destination

for the marijuana. See (Tr. at 171). SA Leppla received

information that the destination was near a warehouse

marked by a parked brown tractor-trailer. See (Tr. at

171). Based on that description, SA Leppla traveled to

the Aurora Road area at approximately 11:00 a.m on

March 27, 2005 and through a “process of elimination”,

believed that the delivery point was a warehouse, sub-

divided into garages, located at 20905 Aurora Road,

Warrensville Heights, Ohio. See (Tr. at 171-72; Gov’t’s

Exs. ## 1-6). SA Leppla conducted surveillance on the

area throughout the remainder of the day. See (Tr. at

173-74).

SA Leppla testified that at approximately 6:40

p.m., he observed two vehicles — a black Chevrolet

Trailblazer and a black/grey Chevrolet Suburban —

enter the destination area. See (Tr. at 175-76). SA

Leppla further observed the driver of the Chevrolet

Suburban, who he later described as an African-

American male wearing a “black puffy jacket”, exit the

vehicle and open the garage door. See (Tr. at 176, 179).

The two vehicles entered the garage and each driver

then stood in the outside area near the garage’s

entrance. See (Tr. at 179). After conversing “for a few

minutes”, the drivers returned to their vehicles and

departed from the area. See (Tr. at 179). SA Leppla

observed the drivers, who he identified as African-

American males, remain at the garage for

approximately “fifteen or sixteen” minutes. See (Tr. at

179).

26a

At approximately 7:10 p.m., SA Leppla observed

Quintana arrive at the destination garage and park

the semi-tractor trailer parallel to the garage. See (Tr.

at 183, 185-86). SA Leppla then observed Quintana

exit the semi-tractor trailer and wait. See (Tr. at 187).

Five to ten minutes later, the black Chevrolet

Suburban and the black/grey Chevrolet Trailblazer

arrived at. the location. See (Tr. at 188). According to

SA Leppla, the Chevrolet Trailblazer parked

perpendicular to the garage door. See (Tr. at 188, 191).

The Chevrolet Suburban parked “ten or fifteen feet”

from the side of the semi-tractor traile.. See (Tr. at

188, 191). The driver of the Chevrolet Suburban,

identified as the “larger of the two individuals”, walked

toward the garage and opened the garage door. See

(Tr. at 189-91). The driver of the Chevrolet Trailblazer

meanwhile approached Quintana. See (Tr. at 190). The

driver of the Chevrolet Suburban then exited the

garage, the three men “meet for a short period of time

... behind the cab . . near the [d]river’s side”, and the

“larger of the two individuals” returned to the garage.

See (Tr. at 191-92). SA Leppla identified the drivers as

the “exact same individuals that had arrived earlier.”

See (Tr. at 190).

SA Leppla then observed Quintana standing on the

flat-bed of the semi-tractor trailer apparently in order

to remove the outside canvas straps from the area of

the trailer carrying the marijuana. See (Tr. at 193).

The driver of the Chevrolet Trailblazer appeared to

assist Quintana. See (Tr. at 193). The driver of the

Chevrolet Suburban exited the garage. See (Tr. at

1933)

SA Leppla immediately became concerned for the

surveillance officers’ safety as it was growing dark. See

27a

(Tr. at 50). Consequently, he requested SA Tideswell

to issue a predetermined signal to effectuate the

arrest. See (Tr. at 194). Approximately six law

enforcement officers emerged from the foliage,

identified themselves as law enforcement officers, and

initiated the arrest of the three men. See (Tr. at 195).

Law enforcement officers arrested the driver of the

Chevrolet Suburban, subsequently identified as

Matthews, in the large open bay area of the garage.

See (Tr. at 196). SA Leppla arrested the driver of the

Chevrolet Trailblazer, subsequently identified as

Jackson, in a back room located within the garage. See

(Tr. at 197). A black puffy coat was observed on the

floor of the warehouse. See (‘I'r. at 197).

A subsequent search of Matthews’s person revealed

mobile telephones and $3,235.00 in U.S. currency. See

(Tr. at 197). An additional $500.00 in U.S. currency

was found on the floor near Matthews. See (Tr. at 197).

A search of the Chevrolet Trailblazer that was

operated hy Jackson revealed a rental agreement

issued in the name of Chantay Robinson, a black duffle

bag, three boxes of gallon size Glad-zipper bags, and

three rolls of contact paper sharing charac‘eristics to

that covering the marijuana. See (Tr. at 204, 215 &

Gov't.’s Exs. ## 16 -18 ).

SA Leppla testified that it was his expert opinion

with regard to drug trafficking that the Glad-zippe1

bags and contact paper were commonly utilized to

28a

repackage marijuana.” See (Tr. at 209-10). SA Leppla

went on to testify that the marijuana weighed

approximately 749 pounds. See (Tr. at 215). SA Leppla

further testified that “lglenerally, the traffickers will

do everything they possibly can to avoid having the

contraband, tle drugs, whether it be marijuana or

cocaine, and the large sum of money used to pay for

* The Court issued the following instruction to the jury:

DEA Agent Leppla is testifying in this case as a fact

Vitness, and now is also being allowed to testify as an

expert regarding drug trafficking because of his

knowledge and experience. And such testimony

remember, you've got to separate his fact testimony and

his testimony now as an expert. And such testimony ts

permitted since knowledge of such activity, drug

trafficking, is generally beyond the understanding of the

average layman. But it’s up to you folks to give DEA

Special Avent Leppla’s expert opinion the weight that you

think it deserves.

See (Tr. at 204). The Court gave the jury a supplemental

instruction:

Although I'm permitting Special Agent Leppla to testify

as an expert because of his expericnce and knowledge of

drug trafficking, it’s up to you, ladies and gentlemen, to

give his opinions such weight as you think they deserve.

In deciding how much weight you should give his

opinions, consider his knowledge of the things to which he

is testifving to, and his experience, and how he reached

his conclusions [If you should decide that the opinions

that he is giving are not sound or later on outweighed by

other evidence, you may disregard his opinions. In other

words, you don't have to accept the opinions ofthe expert

It’s up te you folks to decide

See (Tr at 219)

29a

that at the same location at the same time.” See (Tr. at

224). Accordingly, he opined that it was unsurprising

that a large sum of money was neither discovered on

the defendants’ persons nor in the warehouse. See (‘I'r.

at 224-25).

The Government presented the audio recording of

the alleged drug transaction to the jury and SA Leppla

testified as to his preparation of the transcript. See

(Tr. at 228-34 & Gov’t’s Exs. ## 13-14 ).

Counsel for Jackson began his cross-examination of

SA Leppla by enquiring if Quintana was de-briefed

prior to leaving Kansas. See (Tr. at 238). SA Leppla

responded that Task Force Officer Bailiff (“TFO

Bailiff’) in Kansas had debriefed Quintana in Kansas

however, SA Leppla had no direct contact with TFO

Bailiff prior to the arrest of the defendants. See (Tr. at

238). SA Leppla then described his surveillance of the

Aurora Road location. He indicated that he did not

take any photographs, see (Tr. at 245), that he moved

closer to the garage when the vehicles arrived, see (Tr.

at 250), and that he did not have a description of

Jackson, see (Tr. at 251). In describing his post-arrest

investigation of the alleged drug activity, SA Leppla

acknowledged that he did not obtain phone records for

the phones seized from the defendants, see (T'r. at

255), that he lacked any “records that ever indicated

Mr. Jackson contacted Mr. Quintana, Mr. Guzman,

anyone”, see (Tr. at 255), and that a search of the

garage, as well as a consent search of Jackson's home

revealed neither “drug records”, large sums of currency

nor drug paraphernalia. See (Tr. at 258-59). SA Leppla

acknowledged that no mention of drugs or marijuana

was found on the audio-taped conversation between

Quintana and the defendants. See (Tr. at 266).

30a

For his part, counsel for Matthews enquired

whether SA Leppla had any description of Matthews

prior to the arrest. See (Tr. at 277). SA Leppla again

testified that he had no description of the intended

reciptents or the number of recipients. See (‘T'r. at 277-

73). Defense counsel then pressed SA Leppla as to the

exact time that the Chevrolet Suburban and Chevrolet

Trailblazer first arrived at the garage. See (Tr. at 280).

SA Leppla admitted that he “completely messed up all

those times’ at the suppression hearing and that the

exact time was 6:40 p.m. Sce (Tr. at 280). SA Leppla

further admitted that he had made varied statements

regarding the duration that the two drivers waited at

the garage — ranging from 26 minutes (suppression

hearing), 10-15 minutes (preliminary hearing) and 15-

i6 minutes (testimony on direct examination) — and

that the accurate period was 15-16 minutes. See (Tr. at

282-83)

SA Leppla again testified as to the nature of his

surveillance on the date of the arrests, as well as his

post-arrest investigation. SA Leppla testified that a

records check indicated that the Chevrolet Suburban

was owned by Dartanyan Thompson. See (Tr. at 297).

He also test’fied that when the vehicles initially

arrived, he repositioned himself from a vantage point

of 300 yards away from the garage to approximately 75

yards. See (Tr. at 299). SA Leppla stated that when

vehicles arrived for the second time, the Chevrolet

Trailblazer arrived first, followed by the Chevrolet

Suburban. See (Tr. at 311). SA Leppla again testified

that there lacked any video, photographs, finger-print

analysis, or phone records arising from the alleged

drug transaction. See (Tr. at. 325). Upon cross-

cxam/nation regarding the Glad zipper-lock bags and

contact puper, SA Leppla opined that the materials

—_—_—

3la

were insufficient to repackage all of the marijuana.

See (Tr. at 356).

Quintana’s Testimony

Following thie introduction of expert testimony

regarding the testing of the marijuana,’ the

Government called Quintana as a witness. Quintana,

testifying through an interpreter, stated that he was

a self-employed truck driver. See (Tr. at 391). Upon

refreshing his recollection with a statement provided

to the DEA in Kansas, Quintana testified that he met

Guzman sometime in January 2005 while delivering

pipes to Guzman’s construction company. See (T'r. at

412). Guzman requested that Quintana deliver

marijuana in exchange for $25,000.00. See (Tr. at 417).

Quintana agreed to provide his semi-tractor trailer for

the loading of the marijuana in Tucson, Arizona. See

(Tr. at 414-15).

Quintana testified that he met Guzman prior to the

loading of the semi-tractor trailer at a truck stop in

Arizona. See (Tr. at 415). At this meeting, Guzman

was introduced to “a black man .. .in the parking lot

.. .wnile the person was in the passenger’s seat.” See

(Tr. at 416).

.The “next day”, Quintana left his semi-tractor

trailer for loading at an appointed location in ‘Tucson,

Quintana picked up the semi-tractor trailer and began

3 ;

The government presented the testimony of James Defrancesco,

Senior Forensic Chemist at the DEA North Central Laboratory in

Chicago, Hitnois. See (Tr. at 372-387).

32a

his journey to Cleveland, Ohio. See (Tr. at 419).

Guzman instructed Quintana to travel to Exit 25 of

Interstate 480, then “make a right, and at the first

light to turn right and then left.” See (Tr. at 396).

Quintana testified that on March 26, 2005 he

stopped at a rest area near Emporia, Kansas and

encountered law enforcement officers. See (Tr. at 392-

93). The law enforcement officers were investigating

registration numbers and discovered that Quintana’s

semi-tractor trailers registration contained an

additional digit. See (Tr. at 394). The law enforcement

officer obtained Quintana’s consent to perform a dog-

sniff search of the payload. See (Tr. at 394). Quintana

admitted to the law enforcement officers that there

was u load of marijuana concealed in the insulation.

See (Tr. at 395). Quintana advised the law

enforcement officers of the destination and agreed to

perform a controlled delivery. See (Tr. at 396).

Quintana testified that a law enforcement officer

drove the semi-tractor trailer to a police station in

Cleveland, Ohio. See (Tr. at 396-98). There, Quintana

was equipped with a radio transmitter and recorder.

See (Tr. at 399). He then drove the semi-tractor trailer

to the destination provided by Guzman. See (Tr. at

399).

Quintana testified as to his version of the controlled

delivery. He arrived at the warehouse and waited for

the arrival of the recipients. See (Tr. at 401). About ten

minutes later, two “black” men arrived in a “Station

Wagon” and a “Suburban.” See (Tr. at 401). The pair

“srected” Quintana and asked him to back the truck

closer to the garage. Quintana testified that law

enforcement officers previously had instructed him to

33a

not back up the truck — consequently, he “told them

the transmission was broken and it did not have a

reverse.” See (Tr. at 403). Quintana then advised the

pair that he required pliers to cut the banding around

the insulation. See (Tr. at 402). The “bigger one”

entered the garage and the “little man” assisted

Quintana with loosening the load. Sce (Tr. at 403-404).

Law enforcement officers then arrived at the scene and

placed Quintana under arrest. See (Tr. at 407).

Quintana identified the “big guy” as the individual

that accompanied Guzman in Tucson, Arizona.

Quintana concluded his testimony on _ direct

examination by acknowledging that he was subject to

criminal charges in Kansas arising from this

transaction. He advised that no promises regarding

sentencing had been made and that he “hope[d]” the

judge would give him favorable treatment. See (Tr. at

407-08). Quintana admitted that he had been

convicted previously on charges of tampering with

identification numbers as well as possession of 60

pounds of marijuana in Arkansas. See (Tr. at 424).

Quintana further admitted that he was a user of

crystal methamphetamine and that he used the drug

on the date he met Guzman and the “big man” in

Tucson. See (Tr. at 423).

On cross-examination, counsel] for Jackson explored

whether Quintana had received any consideration for

the testimony presented at trial. Quintana responded

that he was told the testimony may “help a little bit,

but not much.” See (Tr. at 430). Quintana went on to

testify that he previously cooperated with the

Government upon his arrest for transporting 60

pounds of marijuana. See (Tr. at 432). Quintana

34a

testified that he received 24 hours in jail for that

arrest and a fine. See (Tr. at 433). Defense counsel

then explored Quintana’s admitted history of drug

abuse.

Quintana later testified that he had been in

Cleveland in January, 2005 because his semi-tractor

trailer required repairs. See (Tr. at 446-47). He

expressly denied visiting Cleveland in either Febraury

or March, 2005. See (Tr. at 446).

As for his cross-examination, counsel for Matthews

enquired as to whether Quintana was aware of the

identity of the recipients of the marijuana at the time

of the delivery. Quintana testified that he was

unaware of their identity. Counsel explored the alleged

meeting between Quintana, Guzman, and Matthews in

Arizona. Quintana could not testify with any certainty

whether the meeting occurred on March 13, 14 or 15,

2005. See (Tr. at 451, 453). Quintana explicitly

testified that he was “not sure about any dates” in

regard to the meeting or the date that the trailer was

loaded with marijuana. See (Tr. at 454). In regard to

his identification of Matthews, Quintana testified that

“all [he] saw was his face” and that he “couldn’t see

him that well.” See (Tr. at 460-61). Quintana testified

that Matthews did not have any distinctive features on

his face, whereupon defense counsel proffered thac

Matthews had three distinctive scars on his forehead.

See (Tr. at 461). Quintana stated, “I didn’t pay

attention because all they told me was he was the boss,

and [ turned and looked at him.” See (Tr. at 462). The

following colloquy occurred between counsel for

Matthews and Quintana:

35a

. Yeah but you didn’t know what the boss

looked like, correct?

. Well, I saw his face, but they all look the

same, but I didn’t know what size he was

until I got here.

. What does he mean by “they all look the

same”?

. Because all black people look the same, and

I wasn’t paying much attention.

. If they all look the same, how can he identify

one from another?

. Because they told me he was going to be

here, and he was here because he came and

said hi.

. Yeah, but you didn’t know what he looked

like prior +o being here on March 27, correct?

. Well, no. Who I saw, I didn’t know if it was

him or if it was somebody else. But whoever

was here and greeted me, that was the boss.

. Okay. So you don’t know if it was him or not,

correct?

. Well, Mr. Guzman pointed him out and told

me that was the boss an he was going to be

waiting for me.

. And you didn’t see him standing, correct?

36a

No.

In Arizona?

No.

o > D&

You couldn't get a real good feel for how big

he was then, correct?

A. That’s correct.

See (Tr. at 462-63)

Testimony of Task Force Officers Debra Harrison

and Jamaal Ansari

The Government proceeded to introduce the

testimony of Task Force Officers Debra Harrison

(“TFO Harrison”) and Jamaal Ansari (“TFO Ansari”).

TFO Harrison testified that she conducted the

search of Chevrolet Trailblazer following’ the

defendants’ arrest. TFO Harrison discovered a rental

agreement requiring that the vehicle be returned on

March 8, 2005, Glad-zipper lock baggies, contact

paper, and a black duffle bag.’ See (Tr. at 474-76). On

cross-examination, TFO Harrison testified that no

fingerprint analysis had been conducted on the seized

evidence. See (Tr. at 482).

* The Government intended to introduce evidence that a small

amount of mariyuana was discovered inside of the bag Upon

objection from the defendants, the Court precluded any eviderze

regarding this small amount of marijuana. See (Tr. at 476-77).

37a

TFO Ansaari testified that he conducted

surveiliance at the Aurora Road location on March 27,

2005 from approximately 2:30 p.m. until the time of

the defendants’ arrest. See (Tr. at 487-88). TFO Ansari

testified that approximately “45 minutes” after SA

Leppla’s arrival at 6:30 p.m., a “blue Suburban and a

dark — I think it was a Chevy — pulled up.” See (Tr. at

489). TKO Ansari testified that the Suburban pulled

up to the garage door, the driver wearing a black

jacked opened the garage door, and the two vehicles

entered the garage. See (Tr. at 489). The pair,

identified as African American males, stayed “less

than ten minutes”, and departed. See (Tr. at 489).

TFO Ansari testified that following the arrival of

the semi-tractor trailer, the Suburban arrived and

“pulled past the garage duvur.” See (Tr. at 491). The

other vehicle was obstructed from TFO Ansari’s field

of view by the semi-tractor trailer. See (Tr. at 491).

TFO Ansari observed a “brief meeting, shaking hands”

between the three drivers, see (Tr. at 493), and

witnessed the arrest signal. TFO Ansari testified that

it was his task to secure a ravine near the garage —

therefore, he did not participate in the arrest. See (Tr.

at 494),

On March 28, 2005, TFO Ansari transported the

defendants from jail to the United States Marshall’s

Office in Cleveland, Ohio where they were scheduled

to meet with a United States Pretrial Services Officers

prior to arraignment. See (Tr. at 495). En route, TFO

Ansari testified that Matthews enquired as to the

reasons for his arrest. See (Tr. at 495). TFO Ansari

testified:

38a

Mr. Matthews asked why he was being arrested

and stated that he hadn’t done anything. I then

advised him that on the 27th, Special Agent

Leppla had advised him of his Miranda rights.

I then advised him and Mr. Jackson again of

their Miranda rights, and I said, “Here’s a clue:

Have you ever been to Tucson?”

His statement to me was, yes, ne had been in

Tucson but that he didn’t go there to make a

deal.

I advised Mr Matthews, | didn’t say that he

made a deal.

He asked, wasn't he free te go to Tucson?

I said, you can go wherever you want to go, but

just remember, you said you were in Tucson and

about a deal. I didn’t say anything about a deal.

(Tr. at 495-96.)

On cross-examination, counsel for Jackson enquired

to the number of officers involved in the arrest

‘whereupon 'TFO Ansari replied ten to fourteen. See

(Tr. at 497). Counsel for Jackson further enquired as

to whether TFO Ansari had observed any other

vehicles at the Aurora Koad location during his

surveillance. TFO Ansari responded that a semi-truck

had arrived at the location in the carly evening. A

pick-up truck subsequently arrived, the semi truck's

driver entered the pick-up truck, and the pair

departed. See (Tr. at 501). TFO Ansari testified that

the drivers of those vehicles were “long gone” by the

time the Chevrolet Trailblazer and Chevrolet

Suburban initially arrived at the scene. See (Tr. at

501).

39a

Upon further cross-examination, counsel for

Matthews explored TFO Ansari’s surveillance of the

garage. Specifically, Ansari testified that the Chevrolet

Suburban appeared to be “navy-blue”, sce (Tr. at 508),

and that the defendants ran from the scene at the time

the arrest signal was issued, sce (Tr. at 510).

Stipulation and the Government's Resting of its

Case

The parties thereafter entered a stipulation into

the record. The stipulation provided:

If Sharon Ginther were called to testify she

would state that she is an employee of America

West Aijrlincs, 4000 East Sky Harbor,

Boulevard, Phoenix, Arizona. As such, she is

charged with keeping the records of America

West Airlines as it relates to the travel of

passengers on that airline. She would testify

and it is stipulated that the defendant, Ernest

Matthews, departed Cleveland on an Amcrica

West Airlines flight on March 1, 2005 for Las

Vegas, Nevada. On March 13, 2005, the

defendant, Ernest Matthews, departed Las

Vegas, Nevada on an America West Airlines

flight and arrived in Cleveland in the early

morning hours of March 14, 2005.

(Tr. at 517; Gov’t’s Ex. # 22).

The Government submitted its exhibits into the

record and rested its case in chief. The defendants

jointly moved for Judgment of Acquittal pursuant to

Rule 29 of the Federal Rules of Criminal Procedure.

40a

See (Tr. at 522-24). The Court denied the motions. See

(Tr. at 525-26).

Testimony of Gregory Robitson

The defendants clected to present a defense.

Jackson advanced the testimony of Gregory Robitson,

a former employee of Mobile Wash. See (Tr. at 528).

Robitson testified that he was employed at Mobile

Wash by Jackson and cleaned with high pressure

instruments various fixtures including restaurant

stoves/hoodings and floors. See (Tr. at 528- & Def.’s

Exs. ## 1-10, 26-31). Robitson further testified that he

washed a “couple” of semi-trucks during his

employment at Mobile Wash. See (Tr. at 545).

According to Robitson, he washed a “red-semi” in

March 2005 that was owned by a “|dlude that had a

strong accent.” See (Tr. at 553). Nevertheless, Robitson

testified that he did not speak with the owner of the

semitruck and he was “not sure” if Jackson talked with

the owner at that time. See (Tr. at 557).

On cross-examinetion, the Government enquired at

to whether Robitson had talked with Jackson since the

date of Jackson’s arrest whereupon’ Robitson

responded in the affirmative — nevertheless, he

qualified that it was “nothing serious.” See (Tr. at 561).

Robitson further testified that he could not remember

any details regarding the make and model of the red

semi-tractor trailer, nor any writing on the side of the

trailer. See (Tr. at 564-65).

Testimony of Chanitay Robinson

» B

Matthews presented us the next witness his aunt,

Chantay Robinson. Robinson testified that she

4la

traveled to Las Vegas in March 2005 with Matthews,

Matthews’s girlfriend Cynthia Harris, her son Fred,

her brother Frank Robinson, and a friend Damon

Wheat. See (Tr. at 573-577). Robinson further testified

that she had been in an automobile accident prior to

the trip and rented a replacement vehicle, a black/grey

Chevrolet Trailblazer. She stored in the rear of the

rental vehicle the following: (1) Glad zipper-lock bags

that she utilized for food storage; (2) rolls of contact

paper for ongoing home improvement projects; and (3)

a black duffle bag for use in her employment as a

nurse. See (Tr. at 580-84).

Robinson went on the describe the events preceding

the defendants’ arrests. Specifically, Robinson hosted

Easter dinner for her family that was attended by her

brother, sister and Matthews, as well as several

friends, including Jackson. See (Tr. at 585-89). At

some point in the evening, Robinson requested

Matthews to take the vehicle to Jackson’s garage and

wash the vehicle as it was required to be returned the

following day. See (Tr. at 587-589).

Testimony of Dartanyan Thompson

Matthews next presented Dartanyan Thompson as

a witness. Thompson testified that he was a friend of

the defendants and attended Robinson's Easter dinner.

See (‘Tr. at 594-95). At some point during the dinner,

he exited and drove his Chevrolet Suburban to

Jackson’s garage in order to inspect motorcycle parts

as well as mobile washing machines. See (Tr. at 595-

96). Jackson followed in a Chevrolet Trailblazer. See

(Tr. at 596). The pair remained at Jackson’s garage for

“15,20 minutes’ and returned to Robinson’s home. See

(Tr. at 597).

42a

Matthews subsequently borrowed ‘Thompson’s

Chevrolet Suburban in order to accompany Jackson to

the garaye. See (Tr. at 599-600). Thompson opined that

Matthews borrowed his vehicle because the Chevrolet

Suburban was the last car parked in the driveway. See

(Tr. at 599-600).

On cross-examination, the Government enquired as

to the events preceding the arrest. Thompson was

unable to recall details regarding the time that he ate

dinner and the defendants’ and his clothing. See (Tr.

at 606-608). Additionally, Thompson testified that he

had talked to Jackson since the arrest “three or four”

times and that they discussed the pending case. See

(Tr. at 608).

Testimony of Tom Pavlish

Matthews then presented as a witness Tom

Pavlish. Testifying in his capacity as a_ private

investigator, Pavlish testified that he took photographs

of the defendants’ clothing as well as the interior of the

garage following the arrest. See (Tr. at 615-618). His

photos included a “blueish green” pair of pants and a

blue sweatshirt. See (Tr. at 616).

Testimony of Cynthia Harris

Matthews next presented the testimony of his

girlfriend, Cynthia Harris. Harris testified that she

and Matthew traveled to Las Vegas on March 1, 2005

and returned to Cleveland, Ohio on March 14, 2005.

See (Tr. at 625-26). During the trip, Matthews and

Harris traveled to Phoenix and Tucson in order that

Harris could interview for employment. See (Tr. at

626). The pair were in Phoenix on March 6-7, 2005,

43a

arrived in Tucson later on March 7, 2005, and

departed two days later. See (Tr. at 631-33). Matthews

and Harris did not leave each other’s company while in

Tucson and Matthews did not attend any meetings at

a truck stop. See (Tr. at 635).

The Defendants’ Resting of their Case

The defendants then submitted their exhibits and

rested their cases. The defendants reasserted their

Rule 29 motions, and the Court denied the same.

Closing Statements

The Government presented its closing statement

and restated its theory of the case. Defense counsel

presented their closing statement with cach party

devoting a substantial effort to attacking Quintana’s

credibility.

The Verdict and the Present Motions

The jury returned verdicts against each defendant

on September 19, 2005. The Court accepted the

verdicts and ordered the same verdicts filed.

The present motions ensued.

Il. Rule 29 Motion for Judgment of Acquittal

The defendants’ initial claim is there was

insufficient evidence to support the convictions and the

verdicts were contrary to the weight of the evidence.

Whether viewed under a sufficiency of evidence

standard, Jackson v. Virginia, 443 U.S. 307, 319

(1979), or a manifest weight of evidence standard,

44a

United States v. Ashworth, 836 F.2d 260, 266 (6th Cir.

1988), the defendants contend that the evidence was

inadequate to support the convictions for attempted

possession with the intent to distribute marijuana in

violation of 21 U.S.C. § 841(a)(1), (bX iB).

When considering a challenge to the sufficiency of

evidence to sustain a conviction, the relevant question

is whether “any rational trier of fact could have found

the essential elements of the crime beyond a

reasonable doubt.” Jackson, 443 U.S. at 319. The Court

must view all evidence and resolve all reasonable

inferences in favor of the government. Id; see also,

United States v. Searan, 259 F.3d 434, 441 (6th Cir.

2001). Because the issue is one of legal sufficiency, the

Court may neither “independently weigh|| the

evidence, nor judge|]| the credibility of witnesses who

testified at trial.” United States v. Talley, 164 F.3d

989, 996 (6th Cir. 1999). Neither may the Court

substitute its judgment for that of the jury. See United

States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993).

Finally, “circumstantial evidence alone can sustain a

guilty verdict and... |such| evidence need not remove

every reasonable hypothesis except that of guilt.”

United States v. Stone, 748 F.2d 361, 362 (6th Cir.

1984).

In order to convict a defendant under 21 U.S.C.

§ 841(a)(1), the government must prove beyond a

reasonable doubt that the defendant (1) knowingly, (2)

possessed a controlled substance, (3) with intent to

distribute it. See United States v. Jackson, 55 F.3d

1219, 1225 (6th Cir. 1995) (citing United States v.

Peters, 15 F.3d 540, 544 (6th Cir. 1994)). To convict a

defendant of attempt, the government must prove

(1) the defendant's intent to commit the criminal

45a

activity; and (2) that the defendant commiitted an overt

act that constitutes. a “substantial step” toward

comrnission of the crime. United States v. Bilderbeck,

163 F.3d 971, 975 (@th Cir. 1999).

The application of the foregoing standard to the

case at bar reveals that the defendants’ Rule 29

motiors ure without legal or factual support. The

undisputed evidence presents compelling «factors

supporting the convictions. It was undisputed at trial

that a semi-tractor trailer containing more than seven

hundred pounds of marijuana departed Arizona and

ultimately arrived at Jackson’s garage. It was further

undisputed that Jackson arrived at the garage prior to

the’ arrival of the marijuana. Additionally, it is

undisputed that Matthews and Jackson appezred at

the garage shortly after the arrival of the marijuana

and held conversations with the driver of the semi-

tractor trailer. Moreover, it was undisputed that the

pertinent events occurred on Easter Sunday at a time

when there would be a less chance of observation by

third parties.

The evidence presented by the Government further

supports the convictions. At least two officers

witnessed a figure fitting Matthews’s description

appear with Jackson at the garage prior to the

maryuana’s arrival. Additionally, SA Leppla observed

Jackson begin to assist Quintana with the removal of

the straps from the area of the semi-tractor trailer

containing marijuana. An audio-recording of the

conversation between Jackson and Quintana lacks any

explicit mention of drugs - however, it is

uncontroverted that Jackson attempted to have

Quintana back the semi-tractor trailer nearer to the

garage and that he was concerned with suspected on-

46a

lookers. Furthermore, SA Leppla testified as an expert

in drug trafficking that the evidence seized from the

Chevrolet Trailblazer — including, a tarp, contact

paper, and Glad zipper-lock plastic bags — were

consistent with marijuana trafficking.

In short, the Government presented evidence that

(1) the defendants appeared at the garage in

preparation for the arrival of the semi-tractor trailer;

(2) the semi-tractor trailer arrived at the destination;

(3) the defendants again appeared shortly after the

arrival of the semi-tractor trailer; (4) the defendants

held a discussion with the driver of the semi-tractor

trailer; (5) Jackson appeared to assist with the

removal of the marijuana from the semi-tractor trailer;

and (6) the defendants had in their possession items

utilized in drug trafficking. Moreover, the Government

presented the testimony of Quintana that suggested

that Matthews had appeared in Arizona with the

alleged source of the marijuana several week earlier.

The defendants attempt to challenge the evidence

by arguing that SA Leppla and TFO Ansari presented

different accounts of the events preceding the arrest.

The defendants additionally emphasize the lack of any

evidence describing them as the intended recipients of

the marijuana. Furthermore, the defendants

repeatedly stress that they never observed the

marijuana.

A review of the entirety of the record reveais that

SA Leppla presented an account that differed from

TFO Ansari’s in several respects. First, SA Leppla and

TFO Ansari testified differently as to which vehicle —

the Chevrolet Suburban or the Chevrolet Trailblazer

— appeared first at the garage. Similarly, SA Leppla

47a

testified that there was little traffic near the garage on

the date of the arrest, while TFO Ansari testified to

the events surrounding the semi-tractor trailer driver

being pick-uped by a white pick-up truck. SA Leppla

also testified that he did not observe the defendants

run at the time of the arrest, while TFO Ansari

testified that he observed the defendants run toward

the garage. Nonetheless, these distinctions were

emphasized by the defendants during cross-

examination. They merely address the credibility of

the defendants — a factor this Court is prohibited from

considering under Rule 29.

Likewise, the lack of any reference to “marijuana”

on the audio-recording or any direct testimony

indicating that the marijuana was exposed to the

defendants does not necessarily negate the inferences

to be drawn from the other evidence presented in the

record. These alleged deficiencies were presented and

emphasized by the defendants during cross-

examination. The defendants further advanced

alternative theories for their appearance at the garage

as well as the existence of evidence such as the contact

paper, Glad zipper-lock plastic bags, and the bag.

Taking the evidence in the light most favorable to

the Government, the Court finds that a rational juror

could conclude beyond a reasonable doubt that

Jackson’s and Matthews’s independent conduct, when

viewed objectively, unequivocally corroborates their

individual and subjective intent to commit the crime as

charged. As a result, the Court finds that there was

sufficient evidence presented at trial to support their

convictions for attempted possession with the intent to

distribute marijuana.

48a

Lil. Rule 33 Motion for New Trial

The defendants request a new trial pursuant to

Rule 33 of the Criminal Rules of Federal Procedure.

Rule 33 of the Federal Rules of Criminal Procedure

provides that “[u]pon a defendant’s motion, the court

may vacate any judgment and grant a new trial if the

interest of justice so requires.” FED. R. CRIM. P. 33(a).

When presented with a Rule 33 motion, the district

court may weigh the evidence and assess the

credibility of the witnesses; “it has often been said that

[it] sits as a thirteenth juror.” United States v. Solorio,

337 F.3d 580, 589 n.6 (6th Cir. 2008) (internal

citations omitted).

The defendants’ motions seek a new trial citing

various instances of newly-discovered evidence. To

warrant a new trial on the bas‘s of newly-discovered

evidence, the defendants generally must establish:

“(1) the new evidence was discovered after the trial; (2)

the evidence could not have been discovered earlier

with due diligence; (3) the evidence is material and not

mercly cumulative or impeaching; and (4) the evidence

would likely produce an acquittal.” United States v.

Jones, 399 F.3d 640, 648 (6th Cir. 2005) (citing United

The Court shall consider each of the defendants’

assertions in turn.

The Government's Purported Brady Violations

The defendants repeatedly have asserted

throughout the proceedings that the Government has

violated various discovery rules by failing to provide a

statement made by Quintana following his arrest in

Kansas. ‘The matter was the subject of multiple

49a

discussions at trial and was fully addressed by the

Court at that time. In short, the Government provided

a packet to defense counsel immediately prior to jury

selection indicating that it was Jencks material. See

(Tr. at 7-8). Included in this material, inter alia, was a

report prepared by TFO Bailiff therein referring to

statements made by Quintana following his arrest.

Defense counsel suggested that this material was

exculpatory Brady material as Quintana did not have

any description of the defendants and_ that,

notwithstanding, that Quintana indicated that he

would be compensated in the amount of $25,000.00 for

delivering the marijuana, the defendants possessed

approximately $3,500.00 at the time of their arrest.

See (Tr. at 136-137). The Court agreed that the

information may be “beneficial” to the defendants and

ordered the defendants to hold Quintana in the

immediate area for potential re-cross examination by

the defendants. As the Government intended to call

Quintana on Wednesday, the Court ordered the

Government to hold Quintana until the following

Monday thereby providing the defendants with the

opportunity to review the material over the weekend.

See (Tr. at 208-10). The defendants did not recall

Quintana as a witness.

In spite of the defendants’ repeated and lengthy

arguments regarding the late disclosure by the

Government of the purported Jencks and Brady

material, their legal argument lacks merit. It is well-

settled that in the context of a motion for new trial

that the defendants’ burden is less rigorous where, as

here, the new evidence is exculpatory evidence which

the Government failed to turn over in violation of the

requirements of Brady v. Maryland, 373 U.S. 83

(1963). See United States v. Frost, 125 F.3d 346, 382

50a

(6th Cir. 1997). To warrant a new trial arising from a

Brady violation, (1) “the evidence at issue must be

favorable to the accused, either because it is

exculpatory, or because it is impeaching;” (2) “that

evidence must have been suppressed by the

[government], either willfully or inadvertently,” and

(3) “prejudice must have ensued.” Strickler v. Greene,

527 U.S. 263, 281-82 (1999). Prejudice (or materiality)

is established by showing that “there is a reasonable

probability that the result of the trial would have been

different if the suppressed documents had been

disclosed to the defense.” Strickler, 527 U.S. at 289. “A

reasonable probability 1s one sufficient to undermine

confidence in the outcome.” United States v. Phillip,

948 F 2d 241, 249 (6th Cir. 1991) (internal quotation

omitted). Thus, “the question is not whether the

defendani would more likely than not have received a

different verdict with the evidence, but whether in its

absence he rece‘ved a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Strickler,

527 U.S. at 289-90.

This Court need not resolve whether’ the

information presented in the material was exculpatory

information subject to Brady’s’ disclosure

requirements. Faced with the potential that the

Government had failed to meet its Brady obligations,

the Court employed the approach endorsed by the

United States Court of Appeals for the Sixth Circuit in

United States v. Davis, 306 F.3d 398 (6th Cir. 2002)

and United States v. Patrick, 965 F.2d 1390 (6th Cir

1992). There, the court held that a no prejudice arises

fiom a tardy Brady or Jencks disclosure where the

court provides the defendant with the opportunity to

recall the witness for cross-examination upon

reviewing the materials. See Davis, 306 F.3d at 421;

5la

Patrick, 965 F.2d at 400; see also United States v.

Blackwell, 459 F.3d 739, 760 (6th Cir. 2006) (“No

Brady violation occurred in this case. The Defendant

received all three documents during. trial.

Furthermore, the district court expressly granted

Defendant the opportunity to re-cross examine

Stephan-Blackwell and took no action to prevent

Defendant from calling Benoit as a_ witness.

Accordingly, Defendant had the opportunity to

examine both Stephan-Blackwell and Benoit in light of

the disclosed documents and any prejudice resulting

from Defendant’s failure to do so is not attributable to

the government’s violation of the principles set forth in

Brady.”) (Internal citations and quotations omitted).

In the present case, the Court provided the

defendants with the opportunity to re-cal] Quintana

following a review of the information provided by the

Government. The defendants neither recalled

Quintana, nor advised the Court that additional time

was necessary to review the materials. In an attempt

to demonstrate any prejudice, the defendants

presently suggest that they would have subpoenacd

TFO Bailiff had they possessed this information prior

to trial. The argument is spurious at best. All parties

to this case were aware from the date of the

preliminary hearing that Quintana had been arrested

in Kansas. It was reasonable to conclude that TIO

Bailiff - identified throughout the preliminary and

suppression hearings as the agent in Kansas that

traveled with Quintana to Cleveland — may have

information relevant to the case. Nonetheless, at no

time during the pre trial or trial proceedings did the

defendants express an intention to subpoena TFO

Bailiff. Accordingly, the defendants are precluded from

raising the issue at this late stage.

52a

The Court reaches a similar conclusion regarding

the defendants’ claims that the Government failed to

disclose a tape recording of a telephone conversation

made between Quintana and Guzman following the

Kansas arrest. It is undisputed that the existence of

the tape recording was not disclosed until the material

was provided to the defendants. See Kyles v. Whitley,

514 U.S. 419, 4383 (1995) (finding that the

constitutional duty of disclosure attaches regardless of

the government’s good or bad faith, and regardless of

whether the defense requested that evidence or failed

to make any request at all). It is further undisputed

that the audiotape is completely inaudible. The Court

agrees with the defendants that the issue of

inaudibility should have been made by the Court. The

Court further agrees that prudence commands that the

Government disclose the existence of such a tape to the

defendant. While it is well-settled that the government

“has no Brady obligation to ‘communicate preliminary,

challenged, or speculative information”, United States

v. Diaz, 922 F.2d 998, 1006 (2d Cir.1990) (quoting

United States v. Agurs, 427 U.S. 97, 109 n. 16 (1976)

(citations omitted)), the government maintains an

“affirmative duty to resolve doubtful questions in favor

of disclosure”, Agurs, 427 U.S. at 106.

However, the defendants’ arguments in support of

a new trial again fail as a matter of law. First, as

discussed supru, the principles of Brady are not

violated by a tardy disclosure. Sce United States v.

Islood, 435 I.3d 612, 627 (6th Cir. 2006) (“Brady

generally does not apply to delaved disclosure of

exculpatory information, but only to a complete failure

to disclose” and || a “|dJelay only violates Brady when

the delay itself causes prejudice”) (quotation marks

and citation omitted). The defendants concede that

53a

they possessed information regarding the existence of

the tape upon the Government’s disclosure of the

purported Jencks material. However, they did not

become aware of the matter until after they “re-

examined” the documents post-trial. Consequently,

this was not “newly discovered” evidence as required

pursuant to Rule 33. Secondly, as the tape was

inaudible, the defendants are unable to demonstrate

any prejudice emanating from the Government’s

failure to disclose. While the defendants assert that

they would have utilized such evidence to further

demonstrate the alleged ineptness of the Government’s

investigation, such evidence would have been

cumulative in light of their persistent attempts to

demonstrate the lack of any photographic, video, and

telephonic evidence during the cross-examination of

the Government’s witnesses.

The Purported Plea Agreement Between Quintana

and Kansas Authorities

The defendants raised in their post trial motions

and memoranda the notion that the Government and

the state authorities in Kansas had colluded to provide

Quintana with a reduced sentence in his state

proceedings in exchange for his co-operation in the

federal matter. When the issue was raised during trial,

AUSA Barr advised the Court outside of the presence

of the jury that she had communicated with state

authorities in Kansas, who in turn advised her that

Quintana was required to enter a plea of guilty or

proceed to trial. As discussed supra, the Court

permitted defense counsel to enquire into the state

proceedings during Quintana’s cross-examination. The

Court instructed the jury during the cross-examination

of Quintana and at the close of the evidence to exercise

54a

caution when considering Quintana’s testimony in

light of the potential consideration offered by state

authorities. After the trial, defense counsel received

correspondence from authorities in Kansas that all

charges had been dismissed against Quintana.

The parties explored the issue during the post-trial

hearing. The record before the Court reveals no

evidence suggesting that AUSA Barr had any contact

or communication with the Kansas authorities

regarding an offer of consideration for Quintana’s

testimony in the federal proceedings. Accordingly, the

defendants’ arguments lack merit.

Quintana’s False Testimony

A review of the post-trial filings reveals the

defendants’ central contention that Quintana’s

testimony was patently false. Notwithstanding the

volumes of filings and evidence presented to the Court,

the issue is relatively straightforward. Quintana

testified that he had visited Cleveland, Ohio in

January 2005 to have a truck repaired. He further

testified that he had not visited Cleveland at any other

time prior to the arrest. Moreover, Quintana testified

that he met Matthews in Cleveland in mid-March 2005

(specificaily March 15th, although he was unsure

regarding the exact date) and the semi-tractor trailer

was loaded with marijuana the following day.

The defendants have presented the Court with

evidence — including hotel reservations, credit card

receipts, bills and expert handwriting analyses —

demonstrating a substantial likelihood that Quintana’s

allegations regarding his visits to Cleveland, Ohio and

his meeting with Matthews and Guzman were false.

55a

Beyond damaging the credibility of Quintana’s entire

testimony, the newly discovered evidence is relevant in

two significant respects: (1) it demonstrates that

Quintana could not have met with Matthews on March

15, 2005 as he was in Cleveland, Ohio; and (2)

Quintana’s presence in Cleveland, Ohio in March, 2005

(and most likely February) provides corroboration to

Jackson’s claim that he washed Quintana’s semi-

tractor trailer in March, 2005.

This Court need not delve into the procedural

gymnastics that the parties have raised concerning

whether the defendants could have discovered this

evidence at an earlier date by issuing trial subpoenas

or that the defendants may have been aware of

Quintana’s visits to these hotels prior to trial. The

Court is faced with a Government witness that by any

reasonable interpretation of the current record before

the Court presented false testimony.

The Court determines, however, that Quintana’s

purportedly false testimony does not undermine

confidence in the verdict in this case. Having heard the

testimony and evidence at trial, and the benefit on

extensively examining the record in this case, the

Court finds that newly-discovered evidence is merely

cumulative and impewching to the extent that it

pertains to the dates and meeting with Guzman and

Matthews. Succinetly stated - defense counsel fatally

damaged Quintana’s credibility throughout their cross-

examination. As discussed supra, Quintana could not

remember dates,; he held a sporadic memory of any

events; he lacked any ability to identify Matthews

notwithstanding severe scarring on Matthews’s

forehead; he admitted to using’ crystal

methamphetamine during important events; and he

56a

had prior convictions for drug use. As further

discussed supra, Quintana admitted to previously

cooperating with the Government in a drug case and

that he “hoped” for cooperation in the current case.

Indeed, as the defendants suggest in other portions of

the present motions, Quintana’s trial testimony, on its

face, was inherently lacking in credibility. As a result,

any additional evidence regarding the falsity of the

alleged meeting between Quintana, Guzman and

Matthews is cumulative.

The Court therefore must determine whether the

addition of the other aspects of the newly discovered

evidence — particularly Quintana’s visits to Cleveland

throughout early 2005 - would impact the verdicts in

this case. At first blush, Quintana’s visit to Cleveland

appears to support the evidence adduced at trial

regarding Jackson’s and Robitson’s washing of the

semi-tractor trailer in mid-March 2005. In theory, this

evidence supports Jackson's assertion that upon the

arrest in Kansas, Quintana desired to conceal the true

destination of the marijuana and merely selected

Cleveland because he had been there recently to have

his semi-tractor trailer washed. However, an extensive

review of the record reveals a significant shortcoming

in this theory. Robitson’s testimony does not support

the defense’s arguments. Robitson provided no details

regarding the semi-tractor trailer that he washed

other than it being red. Ilis testimony was inconsistent

as he suggested that the owner had a Spanish accent

~ yet, he did not speak to the owner nor could he recall

ifanyone else engaged in conversation. Assuming that

the evidence of Quintana’s visit was included into the

record, it would be a leap in speculation for the jury to

accept Jackson's theory of the case.

57a

The newly-discovered evidence undeniably strikes

at the credibility of Quintana’s entire testimony.

Assuming arguendo that all portions of Quintana’s

testimony are removed from the record except those

that are undisputed — i.e., that he was arrested in

Kansas with more than 700 pounds of marijuana, and

that he traveled to Jackson’s garage with the

marijuana — the question before the Court is whether

the convictions stand. The Court answers this enquiry

in the affirmative. As discussed supra, Quintana’s

testimony regarding his alleged meeting with Guzman

and Matthews was lacking in credibility and was

subject to little, if any, weight by the jury. As further

discussed supra, there was substantial undisputed

evidence linking Jackson and Matthews to the

marijuana such as their timely arrivals to the garage

on Easter Sunday. The jury was instructed to engage

in these considerations in their thorough review of all

the evidence.

As a result, this Court will not disturb the

conclusions reached by the jury following a

nainstaking and well-reasoned analysis of the

evidence. See, e.y.. United States v. Sullivan, 431 F.3d

976, 985-86 (6th Cir. 2005) (finding no Brady violation

where government became aware of allegedly

exculpatory DNA samples post-trial, but conviction

nevertheless worthy of confidence in light of other

corroborating evidence).

Accordingly, the foregoing motions for new trial are

DENIED.

IT IS SO ORDERED.

58a

s/ Peter C. Economus - October 23, 2006

PETER C. ECONOMUS

UNITED STATES DISTRICT JUDGE

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

No. 1:05 CR 00204

[Filed August 4, 2005]

UNITED STATES OF AMERICA

PLAINTIFF

EDWARD JACKSON, et al.

)

DEFENDANTS )

)

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon the Motion for

Disclosure of Confidential Government Informant, see

(Dkt. # 26); and Motion for Voir Dire of Identification

Witnesses and for Order Disclosing Other Evidence

Used in the Identification Procedure, see (Dkt. # 25).

Disclosure of Confidential Informant

The defendant, Ernest Matthews, requests the

disclosure of the confidential informant / cooperating

witness (“CW”) that assisted law enforcement officers

in the completion of a contre!’ »d delivery of marijuana

on March 27, 2005. Sec (Dk # 26). The Government

60a

opposes disclosure on grounds that it intends to call

the CW as a witness at trial. See (Dkt. # 40 at 6-7).

In determining whether to disclose the identity of

a confidential informant, the Court balances “the

public interest in protecting the flow of information

against the individual's right to prepare his defense.”

United States v. Perkins, 994 F.2d 1184, 1190 (6th Cir.

1993). The United States Court of Appeals for the

Sixth Circuit has held that disclosure of a confidential

informant’s identity was unnecessary where:

Government counsel in his opening statement

identified by name his witnesses, revealing at

the time the name of the informant. The

informant was then called as the Government’s

first witness und was cross-examincd in great

detail. There is nothing in the record to indicate

that counsel was in anywise taken by surprise.

There was no request for continuance. Under

the circumstances, we find no persuasive reason

to depart from the aforementioned general rule

that in a case of this type the Government need

not disclose prior to trial the identity of any of

its witnesses.

Perkins, 994 F.2d at 1191. Similarly, in the present

case, the Government has expressed well in advance of

trial its intention to call the CW as a witness. The CW

therefore will be subject to cross-examination.

Furthermore, as the defendants had the opportunity to

observe the CW at the time of arrest, as well as

question law enforcement officers during pre-trial

proceedings as to the nature of the CW's involvement,

it cannot reasonably be argued that prejudice or

surprise will result) from the CW's testimony

6la

Consequently, this case presents no facts compelling

the Court to depart from the general rule that

disclosure is not required where the CW will testify at

trial.

Voir Dire of the CW

The defendant next requests that he be permitted

to examine the CW, outside the presence of the jury,

regarding a spontaneous identification made by the

CW." See (Dkt. # 25). Specifically, the CW informed

law enforcement officers at the time of the arrests that

he recognized the defendant Matthews from a prior

meeting in Tucson, Arizona. The CW indicated that he

observed the defendant Matthews in the company of

the alleged source of the marijuana, Martin Guzman.

The defendant sceks to voir dire the CW as to the

circumstances giving rise to this identification.

As a threshold matter, the Court observes that the

defendant’s motion crroneously asserts that the

identification occurred through a traditional line-up or

photograph array. See (Dkt. # 25 at 3-5). In addition,

counsel for the defendant’s questioning during the

motion to suppress hearing also revealed the defense’s

view that the law enforcement officers may have

brought the CW to the defendant and requested an

identification. Counsel for the Government advised the

Court that was not the case; rather, the CW

spontaneously made the identification at the time of

the arrest. The Government agreed to provide the

"The defendant’s motion refers to another defendant, David P.

Klis. See (Dkt # 25 at 5) David P Ellis is not a party to the

present action

62a

defendant with all information pertinent to the

identification

In light of the foregoing, the Court finds that

circumstances of this case do not give rise at the

present time to the due process / right to counsel

concerns expressed in United States v. Wade, 388 U.S.

218 (1967), Gilbert v. California, 388 U.S. 263 (1967),

and their progeny. While the Court is mindful of the

potentially strong impact of eyewitness identification

at trial, see United States v. Smithers, 212 F.3d 306

(6th Cir. 2000), the facts of this case, coupled with the

Government's assurance that it will) provide all

pertinent evidence regarding the identification to the

defendant, render a voir dire of the CW unnecessary.

Accordingly, the Court hereby orders that the

Motion for Disclosure of Confidential Government

Informint, see (Dkt. # 26); and Motion for Voir Dire of

Identification Witnesses and for Order Disclosing

Other Evidence Used in the Ideatiicatton Procedure,

see (Dkt. # 25), are DENTED.

IT IS SO ORDERED.

s/ Peter C. Economus - August 4, 2005

PETER C. ECONOMUS

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.