*1 case, remittitur. accepting the district court’s there was present In the confirmed that this was her jury’s again Counsel support sufficient evidence Accordingly, regard we chent’s choice. was 95% at fault finding that Wal-Mart part of the district court this error on the the discussion Meyers’s injuries. See Thorne v. having as been waived. See the evidence regarding Part II.B. above (8th Inv., Inc., 1205, 1212 197 F.3d verdict, Welk jury’s especially supporting Cir.1999) er (treating the district court’s regu the lack of proof acknowledging a new failing plaintiff to offer the ror despite in the area lar maintenance box election as waived when the the cardboard awareness of Wal-Mart’s trial/remittitur represented through has her “[p]laintiff clutter, by two of its and the admission right to a attorneys that she will waive her was a hazard to employees that the area choice”). Meyers’s given trial if all of this wе customers. Given $300,000 challenging the re- cross-appeal say that the district court abused cannot as moot. mittitur is therefore dismissed jury’s ap upholding its discretion district court’s portionment of fault. The by jury’s remit the verdict
decision not to III. CONCLUSION to account for a an additional amount above, all set forth we For the reasons part of degree of fault on the greater district judgment AFFIRM the Meyers, accordingly, is affirmed. court. E. The court’s failure to offer district
Meyers option accepting the receiving a new trial
remittitur or argument appeal,
Prior to oral parties to submit a brief
we asked both
stating position regarding their provide Meyers with the court’s failure to America, UNITED STATES option submitting of either to a new Plaintiff-Appellant, accepting damages the amount of or v. justified. the district court considered See Timothy WILLIS, Jr., Defendant- of Educ., Bd. Farber v. Massillon Appellee. Cir.1990) (“[A] (6th forced re option mittitur the offer of the of a without No. 99-4432. damages consti new trial on the issue of Appeals, United Stаtes Court error, court to reverse requiring tutes Sixth Circuit. verdict.”); Brewer v. and reinstate the Inc., Uniroyal, Cir. 6, 2001. Argued June 1974) (“[T]he must offer the District Court July Decided and Filed damages of a party awarded the choice amount of the new trial Court’s
remittitur.”). Meyers responded by stat choice, given if he would
ing
accept the remittitur. Meyers’s at the also asked counsel
We Meyers was argument
oral itself whether
willing forego right his to a new *2 briefed), (argued and D. Brunst
Christa Attorney, Cleve- States United Assistant OH, Plaintiff-Appellant. land, briefed), (argued Alan Rossman C. Associates, Cleve- Schrieber, Rossman & (briefed), land, OH, Terry H. Gilbert OH, for Gilbert, Cleveland, Friedman & Defendant-Appellee. MOORE,
Before: BATCHELDER and other than the defendant answer the door BERTELSMAN, Judges; Circuit District at 2267 E. 83rd St. when someone knocked, Judge.* anyone nor did he ever see else enter knocking. the residence without MOORE, J., *3 opinion delivered the 7, 1997, On November Mazur Detective court, BERTELSMAN, in which District arranged to have a confidential informant BATCHELDER, Judge, joined. (pp. J. purchаse heroin at 2267 E. 83rd St. Detec- 649-51), separate concurring a delivered transaction, tive Mazur did not witness the opinion. place which took inside the residence. The informant buy who made the died OPINION before trial. In a hearing prior to MOORE, Judge. Circuit the district any court held that of evidence appeals The Government drug purchase the informant’s would be granting, part, court’s decision in Defen- 404(b).1 inadmissible under Fed.R.Evid. Willis, (“Wil- danb-Appellee Timothy Jr.’s Following the successful drug controlled “defendant”) lis” or motion for a new trial. purchase, Depart- Cleveland Police AFFIRM We the district court’s decision. ment obtained a warrant to search the Upon residence at 2267 E. 83rd St. search- I. BACKGROUND home, ing the the officers discovered in the following complaints October gram bathroom electronic scale that can drug gang-related activity, about sales and be used to measure cocaine and heroin. in detectives the Narcotics Unit of the Also, small, in padlocked a closet in the Department began Cleveland Police con- bathroom, jacket officers discovered a con- ducting at surveillance 2267 East 83rd (10.5 taining heroin; seven grams) bricks of Street, two-family a residence in Cleve- a containing just Nike shoe box over a land, month, Throughout Ohio. Detec- cash; thousand pair jeans dollars in tives Mazur ap- and Kooser conducted containing grams 93.52 of crack-cocaine proximately fifty stationary moving and $6,000 cash; in gun and a Taurus surveillances of the residence. The detec- loaded with ten rounds of ammunition. tives noticed “a constant flow of traffic The search of the closet also revealed sev- house[,]” coming in and out of this receipts eral with the name “Tim Willis” peoрle which would arrive the house them, on with some of them also contain- and then leave short time later. Joint ing the “2267 E. 83rd St.” address. (“J.A.”) (Mazur Test.). Appendix at 143 Throughout their surveillance of the resi- addition to the items found dence, bathroom, consistently detectives noticed many the officers retrieved defendant, Jr., Timothy Willis, papers addressed to or for intended present “Timothy the house. Detective Ma- Willis” one residence’s anyone zur bills, testified he never saw bedroom.2 papers These included * Bertelsman, Willis, The Honorable William O. United from record when Sr. was released Judge States District prison, Eastern District from if at all. Some correspondence Kentucky, sitting by designation. specifically retrieved from the home denoted "Sr.,” recipient the intended as "Jr.” or evidentiary 1. This issue is not before us. simply "Timothy whereas some listed Willis.” Willis, Timothy acknowledged Sr. also livеd at 2267 E. Detective Mazur at trial that Willis, period being Timothy 83rd St. for a of time before home’s utilities were in incarcerated in March 1996. It is unclear Sr.'s name. only person papers whose were found correspondence, and firm receipts, law Timothy all addressed Mazur did not personal letters at the residence. While Willis, Jr. Timothy court, Willis present any papers of these he with the names seeing recalled documents from the evidence seized Based on the “Tyano Montgom- “William Warren” residence, was issued an arrest warrant them, ery” addressed to 2267 E. also and he was thereafter for the defendant possessing with two counts of indicted on 83rd St. heroin and crack-
the intent to distribute
witnesses,
As for its own
the defense
21 U.S.C.
in violation
cocaine
Willis,
Timothy
Tyano Montgomery,
called
841(a)(1),
being
§
count of
felon
and one
Montgomery
fiancé.
lived in
Sr.’s former
violation of 18
of a firearm in
possession
*4
portion
separate upstairs
of the house
arrest, offi-
922(g)(1). Upon
§
his
U.S.C.
point
at 2267 E. 83rd
from some
in
St.
driver’s license
obtained defendant’s
cers
January
through
Montgomery
1998.
listed 2267
registration,
car
both
and
which
in
people
that a lot of
lived
testified
home address.
E. 83rd St. as his
of the residence from
quarters
downstairs
large
in
government
At
relied
January
through January
at 2267 E.
part upon the evidence seized
police investigation
year during which the
testimo-
coupled with the officers’
83rd St.
ongoing. Montgomery
was
also testified
in
was often seen
ny that the defendant
Willis,
in
Timothy
stopped living
that
Jr.
the house. The
and around
in August
residence
the downstairs
Reginald
presented
also
receiving threats in school.
began
after he
boyfriend,
mother’s
Bryant, defendant’s
had
Montgomery stated that the defendant
given the Taurus
he had
who stated that
Cleveland,
рad-
to the west side of
police
moved
firearm found
in or around
closet to the defendant
where.
though
locked
she was not sure
brought
also
May 1996. The
that the defendant
Montgomery testified
Profitt,
probation
defendant’s
offi-
Virginia
occasionally in
residence
visited the
cer,
the stand. Profitt
testified
to
Montgom-
pick up
to
his mail.
sometimes
parole
course of defendant’s
during the
retrieved the mail each
ery stated that she
office,
monthly visits to her
he
and his
specifically
mail
ad-
day, and would leave
E.
as his
consistently listed 2267
83rd St.
Willis,
on the
“Timothy
Jr.”
dressed to
Furthermore, Profitt
testified
address.
for him
downstairs residence
table
parole
that
had a scheduled
visit
Willis
Montgomery
explained
also
pick up.
19, 1997,
day
the Cleveland
November
generally
addressed
that when mail was
of 2267 E. 83rd
Police executed the search
Willis,”
open it to see
“Timothy
she would
visit,
again listed 2267
For that
Willis
St.
Willis,
address,
If the mail
and further
if it
intended for
Sr.
E. 83rd St. as his
was
Willis, Jr.,
changed
had not
noted on a form
he
she would
was intended
past month.
his address within the
in the
again
it for the defendant
leave
fur-
Montgomery
downstairs residence.
witnesses
presented several
The defense
Charles, Richard, and
ther testified
own,
in some effec-
engaged
its
and also
defendant,
Warren, cousins of the
William
government’s
tive cross-examination
residence at
keys to the downstairs
cross-examination,
all had
Detec-
witnesses. On
St.,3
that both Charles
E.
and
was not 2267
83rd
tive Mazur admitted
Willis
changed
the locks were
residence after
Montgomery
that she did not believe
3.
stated
May
key
the downstairs
1997.
the defendant had a
(Rich-
and
were
living
William Warren
for [Richard’s] arrest.” J.A. at 531
Dire).
ard
May
residence after
Warren Voir
sidebar,
At
interviewing
Richard
Betty
called
Fitzger-
defense also
Warren,
the district court notеd its con-
ald,
grandmother.
the defendant’s
Fitz-
having
cern with
testify
Richard Warren
gerald’s testimony was consistent with
under these circumstances:
Montgomery’s in that she also testified
you
my
Let me tell
what
concern is.
I
that the defendant moved to the
side
west
any problem
don’t have
prose-
with the
Cleveland,
although she did not know
police
cutors and
going
officers
out to
where, in August 1996 because
“[h]e
get
person
potential
who is a
having problems.” J.A. at 493 (Fitzgerald
and talk with them
bring
and to
them in
Test.). Fitzgerald acknowledged that she
them,
generally
prepare
not about
owned the residence at 2267 E. 83rd St.
getting
but about
the facts
and stated that after Willis left 2267 E.
information,
they
which
can then
St.,
83rd
William
Charles Warren and
testify here to in court.
others still
lived
the downstairs resi-
just
I’m
having
problem
“And
under-
Fitzgerald
dence.
testified that
locks
why
standing
the mechanism is used if a
*5
changed
were
in the summer of 1997 after
brоther who came over here and is obvi-
burglarized,
the house was
and that she
ously
wits,
scared out of his
but who
did not believe the defendant
key
had a
things
court,
heard some
or told some
stated,
Fitzgerald
after this time.
howev-
things,
go
to
out and talk to the other
er, that she had seen Charles and William
potential witness and
him
tell
what those
using keys
Warren
to enter the downstairs
things are rather
than to have the
residence.
agents
themselves
person
seek out the
and to make sure
Following
presentation
the
of the de-
they
properly
are
prepared without that
witnesses,
fense’s
in-
then
kind of intervention.”
formed the
judge
district
that it wished to
Warren,
(Richard
Dire).
call Richard
cousin
J.A.
of the defen-
at 536-37
Warren Voir
dant,
purposes
Despite
concerns,
of rebutting Montgom-
these
the district court
ery’s
Fitzgerald’s testimony.
permitted
and
still
testify,
dis-
Richard
to
The
Warren
trict
calling
his
“аppropriate
interviewed Richard
to
Warren
rebuttal
(Richard
determine if he
evidence.” J.A. at 546
any
had observed
Warren
Dire).
proceedings
Voir
or had contact with
someone who had. Richard
in-
Warren
examination,
the course of direct
judge
brother, William,
formed the
that his
Richard Warren testified that
the defen-
had called him earlier
day
that same
and
dant had lived at 2267 E. 83rd St. for as
told him that
testify
Richard
have to
would
long
long
him,
as
as Richard had known
in court because “somebody
trying to
was
which,
stated,
as Richard
was “[a]ll [his]
put
dope
some
money against
and
[Rich-
(Richard
life.”
J.A. at 551-53
Warren
ard], talking about
...
selling
Dire).
[Richard]
Voir
Richard Warren stated that
drugs
something
or
out of the house on he never knew the defendant to have lived
83rd,
something
or
like that.” J.A. at 530 on the west side of Cleveland. Richard
(Richard
Dire).
Warren Voir
William
only
Warren further
testified that
his
Warren аlso
brother,
told Richard that if he
William,
did not
had ever lived at 2267 E.
to
testify,
come
the courthouse to
gov-
St.,
83rd
and that
William had
lived in
ernment was “going to have a warrant
upstairs
out
residence at that address. Fi-
in his
further stated
Richard Warren
jacket
Richard Warren identified
nally,
by the
pressured
that he felt
affidavit
during the
found
was
heroin
in which
testify that
lived
Willis
prosecutor
belonging to
the residence as
search
jacket
ques-
and that the
83rd St.
East
defendant.
Willis,
those
but
belonged to
tion
cross-examination,
attorney
Willis’s
On
“complete
J.A.
lie[s].”
were
statements
suspicious circumstances
pointed out
Aff.).
(Richard
Richard
Warren
testify-
was
Richard Warren
under which
testify-
he lied
also stated that
Warren
car had
police
a
the fact that
ing, including
not have access
that his
did
ing
brothers
him to the
brought
up
him
and
picked
E.
St. Richard
at 2267
83rd
the house
brother had
courthouse,
Richard’s
had cоme
finally stated that he
Warren
if
be arrested
Richard would
him that
told
“a
free will because of
on his own
forward
testify. Defense counsel
not
did
he
conseienee[,]”
that no one had
guilty
pho-
with
impeach
witness
also able
any
made
anything
him
promised
evidence after
tographic
come forward.
that he would
threats so
congregated
he had never
claimed
Aff.).
(Richard
at 29
Warren
J.A.
2267 E. 83rd
porch at
on the
with others
op
response
government filed
St.
motion for a new
to defendant’s
position
1998,
9,
7,
short of one
May
1998. Just
On
trial on October
later,
defendant
concluded,
jury
government,
because
year
found
on defen
in the indictment.
had not ruled
court still
of all three counts
guilty
a motion
1998,
mo-
filed
following several
motion for new
August
dant’s
On
date,
sentencing. On
Wil-
the case to
sentencing
advance
continue
tions to
issued
light
motion for new
October
lis filed а
*6
denying
part
and
granting
order
by Richard Warren
an
submitted
affidavit
trial
for a new
por-
the defendant’s motion
significant
part
Richard recanted
in which
recantation
on the Richard
affida-
Warren’s
testimony.
In his
based
trial
of his
tions
granted
court
testimony. The
his trial
testi-
vit,
that he
of
stated
Richard Warren
respect
trial motion with
new
“extremely scared Willis’s
he was
fied because
in
with the
possessing
for
his conviction
testify, he would be
if he did not
that”
heroin,
and
crack-cocaine
to distribute
at 28
J.A.
tent
some crime.
charged with
respect
motion with
Aff.).
denied Willis’s
(Richard
Richard Warren
but
Warren
posses
a felon
being
conviction
to the court- his
during his ride
stated
granting Willis’s
a firearm.4 In
car,
the officers
sion
one of
police
in the
house
”
“
the district
for a new
‘yet.’ motion
arrest
not under
him he was
told
in this circuit
adopted
Aff.).
test first
(Richard
applied the
Accord-
at 28
Warren
J.A.
States,
of his trial
because
it was
trial motions
newly
based on
discovered
See,
satisfied that
Turns,
Richard Warren’s trial testi-
e.g.,
evidence.
II. ANALYSIS
fendant can prove that the evidence was:
(1)
trial;
discovered
A.
Standard
Review
(2) could not have been discovered earli-
A district court’s
grant
decision to
er with
diligence;
due
a defendant’s motion for a new trial will
not be overturned absent a clear abuse of
(3) is
merely
material and not
cumula-
the district court’s discretion. United
or impeaching;
tive
Lewis,
(6th
137,
States v.
338 F.2d
(4)
likely produce
would
an acquittal if
Cir.1964). “A
clearly
district court
abuses
the case were retried.
its discretion
applies
when it
wrong
Barlow,
lished in Gordon as appropri B. Apply Did the District Court ate Gordon, standard in such cases. In
Proper Legal Standard? defendant, following conviction, his filed a motion for a new trial based on the
The
and Willis ada
principal government witness’s recantation
mantly disagree over
proper
whether the
testimony.
his trial
In addressing the
legal standard for deciding motions for a
motion,
trial
this court followed the
new trial was
gov
used
this cаse. The
U.S.
Appeals
Court of
for the Seventh
traditional,
ernment contends that
Circuit’s decision in Larrison v. United
four-part
evaluating
test
motions for a new
States,
(7th Cir.1928),
643 Supreme of the United States (2)without jury decision false conclu- have reached a different of the decision might requires Court modification sion; and sitting or this en banc overrules the Court (3)the new trial was seeking the party Sec’y v. Health prior decision.” Salmi the false testi- by surprise (6th when
taken
Servs.,
685,
F.2d
689
& Human
774
and was unable to
mony
given,
was
206(с).
Cir.1985); 6th Cir. R.
falsity
not know of its
meet it or did
occasions,
several
this circuit has
On
trial.
until after the
acknowledged
applies
that the Gordon test
Gordon,
where all
Lewis,
137,
States v.
138-
United
recanted,
is
against the defendant
witness
(6th Cir.1964),
denied, 380
40
cert.
U.S.
defendant be sur
requirement
(1965),
978,
1342,
where a material Chambers, this government witness. *8 recants his later half of Barlow test for new cited both to the opinion in testimony. published No trial newly discovered trial motions based on explicitly called the use this circuit has test for new and to the Gordon evidence Nor have question. test into the Gordon the recantation of motions based on trial published opinions applied any of our Although government witness. material at issue in test to facts like those Barlow Barlow cited to both the Chambers court As the the current case. Gordon and Gordon, deny to the de the decision require, panel circuit of this rules of this on an trial motion was based fendant’s new published opin by prior bound test. application of the Gordon an inconsistent this circuit “unless ions of 644 Chambers, Cir.), denied,
The district court in
875,
cert.
531 U.S.
121 S.Ct.
examining
recanting
179,
witness’s demean-
(2000);
defendant’s motion for a new trial. While this circuit has applied the Barlow
Although the Chambers court cited to one, test in cases similar to this it is clear both the Barlow and Gordon tests in ad- that different concerns are at issue in dressing the defendant’s motion for a new cases like Pierce and Turns. In both test, applied only we Turns, the Gordon and Pierce and attempt- defendants our decision by was dictated the defen- ed to come forward after the trial with dant’s satisfy failure to entirely the Gordon test’s new evidence never before heard first element. We do not by jury believe that attempt to exonerate provides any Chambers basis for question- cases, themselves. arguably these ing continuing Gordon’s applicability in stricter Barlow standard should applied did, however, this circuit.5 if it Even light of concerns that defendants might the extent that ques- Chambers calls into sandbag prosecution, waiting to if see prior tion a published opinion of this cir- they are convicted before bringing forth cuit, we remain bound holding attempt new evidence in an get a second the earlier case. Sowards v. Loudon chance at acquittal. As this court stated Tenn., County, 1 n. in Turns: *9 fact, Appeals U.S. Court of recanting government for the on a witness. United recognized, First post-Chambers, Circuit has Huddleston, States v. 194 F.3d that our circuit apply continues to the Gor- (1st Cir.1999). test to new trial motions based don/Larrison recanta coerced check on second The [granting decision court’s district
If the being charges perjury of the threat stand, is tions then to allowed trial] a new witness. recanting against brought encouraged be would defendants other un previously a in Barlow cases Whereas sole- trials based for new file motions to a sub not incur witness will defense called un- previously of existence ly upon the coming by charges perjury risk of stantial learning who, after witnesses called evidence, in testimonial new with forward conviction, for the state defendant’s bar, at one and the Gordon cases like testify willing to they are time that first under oath witness, admitting by recanting behalf. defendant’s on the truthfully not at trial was he testimony gave that encourage also would precedent Such up perjury to himself true, clearly opens two witness hold a to defendants by government. brought charges being lost at they if reserve, knowing that chance another get might they argu- place, two checks these With from their affidavits sworn producing the recan- on based motions ably, new trial witnesses. witness, reserve of a material tation newly based motions new trial unlike Turns, at 588. 198 F.3d evidence, the fur- not need do discovered current and the Gordon cases like standard. probability aof “check” ther are not concerns case, sandbagging these for justifications policy Regardless case like Instead, in a fear at issue. tests, that it clear separate having two friends, defendant, his is that one this сircuit, and this good law is still Gordon the witness reached have family or his district by it. The bound remain that we recant his him to convinced trial the Gordon applying err did not court surely is this testimony. While damaging new trial. for a motion test Willis’s are concern, two there legitimate in these tampering on witness “checks” This Test the Gordon Applying C. Barlow into factor not cases do Case scenario. district to the turning Before ” “ test, it is Gordon application court’s ele ‘primary’ is the first check reviews this court note that important district that the test: Gordon ment whether court’s decision the district that the satisfied reasonably well court be trial for a new motion a defendant’s grant now- by the given trial original Lewis, 338 of discretion. an abuse for was false. witness recanting government the dis findings of Factual at 139. F.2d Kear (quoting Chambers, F.2d at con clearly erroneous are court that trict 220). thе district Because 682 F.2d ney, Turns, 198 of discretion. an abuse stitute original satisfied must be relatively apply While we at 586. substantially false, this testimony was trial to a of review standard tam lenient posttrial allays concerns mo trial a new regarding decision court’s a success as the basis will serve pering the fact that this is against Gordon, tion, weighing Indeed, in motion. trial ful new disfavored are trial motions new Chambers, the defendants’ Lewis, and Id. Fur caution. with granted should denied because were all motions recognized thermore, as had test of the Gordon element primary re by witnesses affidavits opinion, its Gordon, F.2d at satisfied. not been to be are canting their 139-40; Cham Lewis, 900; suspicion.” extreme “with upon looked bers, at 1263-64. *10 (Dist.Ct.Order)
J.A. at 52 (citing (Richard Cham- ed[.]” J.A. at 547 Warren Voir bers, 1264). Dire). 944 F.2d at The district court The district court also noted in its also acknowledged that the order skepticism granting Willis’s motion for a new that, with which a court [s]idebar, examines such “during affi- the it was davit clear heightens that only was frightened when “the Warren recanting scared that he family would is either be member and the wit- accused of the crimes against feelings ness has Defendant or or guilt family other crimes if he did not testify against members seek to influence the Defen- witness to dant.” J.A. at 53. (Dist.Ct.Or- change story.” his at 52 J.A.
der). Despite these inherent concerns Not did the district court believe with credibility of Richard Warren’s that Richard Warren’s at trial case, affidavit this the district court was of questionable veracity, it also but granted, part, Willis’s motion for a new the timing found of his testimony to be trial. nowWe examine whether the dis- suspicious. The district that, court stated trict court abused its discretion in doing government after the presented had its so. ease, there still was no evidence linking
Willis to the clothes in padlocked сloset 1. The District Court Must Be Rea- in which the drugs were found. Further-
sonably Well Satisfied
more,
That
it was not until after the defense
Testimony
by
Trial
Given
Richard
had presented
case,
its
and it appeared
Warren Was
possible
False
that
drugs
in the residence at
2267 E.
may
83rd St.
have belonged to one
requirement
first
of the Gordon test
or several of
brothers,
the Warren
that
is that the district court must be reason-
Richard Warren came forward to testify.
ably well satisfied
original
Both Montgomery and Fitzgerald testified
testimony given by
wit-
for the defense that several of the Warren
ness is false.
It is essential to
note
brothers had been seen
entering
resi-
court,
by
district
presiding over the
dence, that the brothers
keys
had
to the
trial at which the recanting government
residence after May
and that William
testified,
witness first
“uniquely
quali-
and Charles Warren even lived in the resi-
fied” to address the defendant’s motiоn for
period
dence
some
of time after May
a new trial based on
posttrial
the witness’s
Only
after presented
defense
its
Chambers,
recantation.
647
Rich-
the
holds
explained
newly-
unlike
Whereas
Barlow test
that
district court
merit
testi-
discovered evidence can
a new trial
self-exculpatory
ard Warren’s
only
likely
if that
produce
of Richard’s
evidence “would
mony,
the trustworthiness
retried,”
if
by
acquittal
the fact
the case were
Bar
posttrial affidavit was bolstered
low,
added),
way
(emphasis
for
have reаched a different outcome without
Evidence,
Jury
testimony”). Although
Warren’s
we are
Without
Might
possibility
bound
standard as stated
Have Reached A Different
Gordon, it
that
significant
is
even under
Conclusion
exacting
a more
standard
second
of the Gordon test re
part
The
the Gor-
held that the second element of
quires the court to find that without the
had, indeed,
don test
been satisfied.
jury
might
false
“the
have
Gordon,
likely”
holding
“highly
that it
that
reached a different conclusion.”
is
jury
would have reached a different
Finally, U.S. Court the court of Appeals stressed the for the Sev Circuit, enth Montgomery of Fitzgerald, and the circuit that first who both devel oped test, that this stopped testified Willis has also openly questioned living importance house as of August necessity 1996. of “Because a the sur prise element number of of personal individuals had the test. United items States v. Leibowitz, at 2267 East Street 83rd and could have Cir. 1990). house,” Leibowitz, lived Judge the district court Posner held ex plained that it that “highly wаs while likely surprise surely is jury rele cases, vant would have in some reached a it different should not be outcome re quired case, in every without especially Warren’s as where there “the principal (though would have been not only) a reasonable as to evidence of doubt (with guilt whether the testimony the clothes is drugs accomplice of eyewitness, money) belonged only [and] resource Defendant.” (Dist.Ct.Order). defendant in J.A. unmasking falsity, even with all the warning world, advance in the After a thorough record, review of the may cross-examination, which—much we are confident that the district court did mythology to contrary notwithstand rely not any clearly erroneous findings ing not an infallible lie detector.” Id. —is fact of in reaching its determination re- at 484. garding the testimony’s recanted likely ef- jury’s on the fect verdict. We say cannot Just as in Leibowitz, Gordon and that the distriсt court abused its discretion crucial this case has in holding that the second element of the all of recanted his damaging testimony. Gordon test has been met in this case. We follow both Gordon and Leibowitz in holding satisfaction the final By Was Surprise Willis Taken element of the test is Gordon/Larrison not Testimony When the False Was precedent condition defendant re Given, and Was He Unable to ceiving a new trial. As the district court Testimony Meet This or Learn of case, stated in this “[i]f Warren’s testimo Falsity Its Until After the Trial ny concerning Defendant’s clothes and liv Concluded? ing false, residence was Defendant surely
Although the Gordon court announced
knew it at
the time of his testimony.”
aas
factor to be
(Dist.Ct.Order).
when
considered
J.A. at Furthermore,
determining
grant
whether to
a motion for while the defense counsel was able to im
a new trial based on the
of a peach
recantation
Richard Warren on the witness
government witness,
quickly
stand,
it
backpe-
there is
so much the attorney
daled on
necessity
of satisfying this
could do to refute Richard
poten-
Warren’s
separately for
I write
abuse its discretion.
he had
stating that
false
tially
two reasons.
jacket
wearing the
defendant
seen
padlocked
in the
later found
which
I.
2267 E. 83rd St.
closet
First,
requirement of
discussing the
motion
a defendant’s
granting
party seeking the
that “the
Gordon
remedy
surprise
substantial
the false
taken
a new
trial was
when
*13
to
and
unable
testimony
given
was
was
caution. Never-
with
be exercised
must
until
falsity
of
it or did not know its
meet
court’s
theless,
the trial
decision
we review
900,
trial,”
major-
178 F.2d at
the
after the
an
only for
these motions
respect to
with
final
of the
ity holds that “the satisfaction
in this stan-
Inherent
of discretion.
abuse
not
test is
of the
element
Gordon/Larrison
dis-
the notion
the
of review is
dard
defendant re-
precedent to the
a condition
fact,
far
court,
is in a
trier of
trict
the
Maj. Op. at 20. This
ceiving a new trial.”
credibility of
judge the
position to
superior
broadly and miscon-
sweeps too
holding
presented
evidence
the
the witnesses and
and
opinion
circuit’s
in Gordon
strues this
a
whether
and to decide
in Larrison.
decision
the Seventh Circuit’s
risk of
the substantial
is needed
avoid
Gordon,
“backpedaled,”
the
in this
district
injustice. The
a
necessity for
maj.
on the
op.
the trial
case,
presiding over
the
element of
satisfy this
defendant
credibility
the witnesses
of
examining the
facts
upon
peculiar
the
standard based
believed,
Rich-
evidence,
light
of
and the
there:
presented
recantation,
injustice
that an
ard Warren’s
perti-
seem
ground does not
This last
drug possession con-
if
likely Willis’s
was
special
the
consideration of
nеnt
our
face
stand in the
victions were allowed
case, as, certainly,
circumstances of
ev-
testimonial
tainted
government’s
of the
testimony given against
if all
of
recanted,
record,
it would
we
of the
convicted man were
From
review
idence.
our
that the
necessary to show
not appear
to state that
upon
no basis
which
find
taken
seeking a new trial was
party
conclusion,
court,
arriving at its
such
unable to meet
surprise and was
its discretion.
abused
falsity
not
of its
testimony or did
know
the trial.
until after
III. CONCLUSION
added). As
(emphasis
at 900
cir-
special
passage, “the
by this
indicated
reasons, we AFFIRM
foregoing
For
case
Gordon
presented
cumstances”
granting
decision
the district court’s
govern-
by the
the recantation
consisted of
for a new trial.
motion
defendant’s
testimony
of his
principal
ment’s
charged
implicating the defendant
Indeed,
prеsented
BATCHELDER,
Judge,
this witness
Circuit
offense.
the de-
against
virtually
evidence
concurring.
also
See
F.2d at 897-99.
fendant.
case
majority that this
with
agree
I
States,
v. United
Gordon
an-
of the standard
application
calls
Cir.1947)
(6th
(affirming the conviction
States, 178
v.
United
prin-
nounced
Gordon
based
conviction
noting
“the
was
(6th Cir.1949),
under
Herman
and that
cipally upon
F.2d 896
under
Banning, a co-defendant
Frank
not
district court did
that standard
indictment”). Accordingly, the court rea-
case such as this in which the principal II.
(though not only) guilt evidence of accomplice of an eye- More importantly, I deeply am troubled witness, resource the defen- by way in which the district court dant in unmasking falsity, even "with conducted the defendant’s trial. After re- all the warning world, advance in the viewing the record of the proceedings be- may cross-examination, which—much fore the district entirety, its I am mythology to the contrary notwithstand- at a explain loss to many of the court’s ing not аn lie infallible detector. evidentiary procedural rulings. —is For that the defen- the record shows example, TECHNOLOGIES, INC., DBM Warren, and William placed Charles
dant Plaintiff-Appellant, brothers, his Richard Warren’s two of Notwithstanding separation list. witness v. court, de- entered order & COM- UNITED FOOD LOCAL Warren allowed Charles fense counsel INTERNA- WORKERS MERCIAL trial. during the courtroom in the sit UNION, Defendant-Appellee. TIONAL call sought to prosecution then When a rebuttal stand as Warren Charles No. 00-5449. objected on the
witness, defense counsel Appeals, States Court United proffered had seen the that he ground Circuit. Sixth separate two courtroom on separation or- violation of occasions 4,May 2001. Argued dire, Warren During his voir Charles der. July Decided and Filed in fact had the court that he informed days. two of the trial over part observed the district upon this admission
Based objection and the defense
court sustained calling from prosecution
precluded short, Warren.
Charles *15 the United States penalized when de- separation order of a
violation as had listed Charles Warren counsel
fense witness, in the him observed potential days, and faded over two
courtroom notify the court any action to
take and numer- remedy' it. This or to
violation necessary rulings, it is not other which
ous here, that the me to conclude lead
to list effectively prevented its case. putting from
prosecution rulings are before of these none
Since however, majority in con-
court, join I not court did
cluding the defen- by granting its discretion
abuse trial. motion for a
dant’s