UNITED STATES OF AMERICA v. LORENZO ANTHONY WILSON, а/k/a Baby Ann
No. 06-4180
No. 09-4573
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: August 11, 2010
Revised Opinion Filed: September 8, 2010
REVISED OPINION PUBLISHED. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:03-cr-00457-PJM-2). Argued: May 13, 2010. Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.
COUNSEL
ARGUED: Robert Kelsey Kry, MOLOLAMKEN, LLP, Washington, D.C., for Appellant. Sandra Wilkinson, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Mary Elizabeth Davis, DAVIS & DAVIS, Washington, D.C.; Paul F. Enzinna, BAKER BOTTS LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Deborah Johnston, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
OPINION
AGEE, Circuit Judge:
Lorenzo A. Wilson appeals from his conviction for conspiracy to kidnap, in violation of
I.
Wilson, Kenneth Jamal Lighty, and James Everett Flood, III, were charged in a five-count bill of indictment with kidnapping resulting in the death of Eric Hayes, and aiding and abetting the same, in violation of
Wilson‘s case was severed from the joint trial of Lighty and Flood because of statements Wilson mаde implicating them. Following a jury trial, Wilson was convicted of Count II, conspiracy to kidnap, but acquitted of the other charges. Wilson was sentenced to life imprisonment. In their separate trial, Lighty and Flood were found guilty on all counts. Flood was sentenced to life imprisonment on the kidnapping conviction and a sixty-five year consecutive sentence on the remaining counts, while Lighty received the death penalty for the kidnapping conviction and a consecutive fifty-five year sentence on the remaining counts.1 The parties noted separate, timely appeals, which were subsequently placed in abeyance pending the district court‘s resolution of motions by Wilson and Lighty for a new trial. After a joint evidentiary hearing, the district court denied those motions, and both Wilson and Lighty noted timely appeals from those orders as well.2
Because the cases of Wilson, Lighty, and Flood overlap in significant respects, not only in the underlying facts and evidence presented at the respective trials, but also in two of the legal issues raised, this opinion refers to or quotes without citation from our decision in Lighty and Flood‘s appeal, United States v. Lighty, No. 06-6 and 09-0006. A more detailed factual summary is contained in Lighty. Briefly, though, the evidence adduced at Wilson‘s trial showed the following.
On the evening of January 3, 2002, Eric Hayes (also known
At approximately 8:30 p.m. the same evening, Michael Davis and Robert Smith, Jr., who both lived in the 12800 block of Hillcrest Parkway in Temple Hills, Maryland, observed a dark Lincoln Continental parked at the end of that street adjacent to vacant land. Davis saw the front passenger and rear passenger exit the vehicle and forcibly pull a man, later identified as Hayes, out of the back passenger area of the vehicle. Hayes was protesting “no” or “don‘t” while on his knees, and then fell over after Davis heard what sounded like two gunshots. Davis testified that after the shots were fired, the passengers of the vehicle reentered the vehicle on the passenger side and the vehicle departed. Smith аlso testified that he saw Hayes being shot that evening. Smith was located further away from the vehicle than Davis’ location. Smith saw two individuals exit from the passenger side of the vehicle, and heard gunshots, after which one person reentered the vehicle on the passenger side. Smith and Davis separately approached the area where Hayes’ body lay, and placed 911 calls to report the incident. Telephone records introduced into evidence showed a 911 call placed at 8:50 p.m. reporting Hayes’ body. Police subsequently retrieved two .380 caliber shell casings from the scene.
The three men sat in the back seat of Phauls’ vehicle. Lighty, seated in the middle, held a pair of Nike shoes and had blood on his T-shirt. The men talked about having “done something bad or killed someone.” At their direction, Phauls drove to the 2500 block of Keating Street. There, the men got out of the vehicle, looked at the ground, and one of them said “something about blood.” Phauls then dropped Lighty off at an apartment complex in Hillcrest Heights and returned to her home.5 Coles departed, and Phauls and Wilson went to dinner.
On returning to Phauls’ home after dinner, Wilson told Phauls that he had driven Flood‘s vehicle when he, Lighty, and Flood “grabbed” “the boy” “Eazy” on 8th Street. Wilson assured Phauls he had not killed “the boy,” and said Lighty had shot him. As Phauls and Wilson spoke, a two-way black pager went off. Wilson looked at it, said, “the guy wasn‘t lying, his name is Eazy,” and Phauls saw that the screen said “Eazy” on it.6 (J.A. 189-96.)
Wilson also told his friend CW7 that he had participated in the Hayes kidnapping. CW testified Wilson said he “was riding with [Lighty] and [Flood] and someone else [and that the men] road up 8th Street and [Lighty] got out [of] the car, [and] asked a guy for some drugs or something.” “When the guy went and got the drugs or whatever, when he was coming back towards [Lighty], [Lighty] snatched him, pulled out his gun, made the dude get in the car, and they pulled off . . . .” (J.A. 415-20.)
On January 30, 2002, less than one month after the Hayes kidnapping and murder, Lighty and Wilson were involved in a drive-by shooting on Aftоn Street in Temple Hills, Maryland (“the Afton Street Shooting“), which resulted in the death of Antoine Newbill. Over Wilson‘s objection, the Government introduced evidence of the Afton Street shooting, including Wilson‘s confession to CW to having participated in the event, eyewitness testimony regarding the shooting, and ballistics evidence regarding the firearms used in the shooting. That evidence is described in greater detail below and in the Lighty opinion.
Lighty was arrested on the evening of January 31, 2002. At the time of his arrest, he was carrying a .380 caliber handgun. Phauls testified that Wilson told her of Lighty‘s arrest and that he said Lighty had been arrested with “the gun that he used to kill the two boys with.” (J.A. 198.) CW also testified that after Lighty was arrested, Wilson told him the handgun Lighty had been arrested with had “a body or two on it” from “Afton [Street]” and “Eighth Street.” (J.A. 415-16.)
Dr. Laron Locke, a medical examiner, examined Lighty‘s .380 caliber handgun and concluded that one of the abrasions found on Hayes matched the barrel portion of Lighty‘s handgun and that another patterned abrasion matched the clip release of the handgun. Dr. Locke concluded these abrasions were consistent with Hayes being struck by Lighty‘s .380 caliber handgun.
II.
On appeal, Wilson raises four issues relating to the conduct of his trial and sentencing hearing, three of which warrant discussion.9 First, he asserts the district court erred in allowing
A.
Wilson first argues the district court erred in allowing the Government to introduce evidence of the Afton Street Shooting, which he maintains should have been excluded under
1.
Prior to trial, Wilson moved in limine to exclude evidence of the Afton Street Shooting. The district court denied the motion without prejudice, concluding that Wilson‘s statements that Lighty had been arrested with the firearm used in both the Hayes and Afton Street Shootings was “enough to
As noted earlier, both Phauls and CW testified at trial that Wilson told them the .380 caliber handgun in Lighty‘s possession when he was arrested had been used to kill two males, one of whom was Hayes. During the course of CW‘s testimony, the Government elicited additional information rеgarding the Afton Street Shooting. CW testified that Wilson told him that he “and a couple of guys went [to Afton Street] and started shooting” “at a crowd of guys down there” in order to confront a man known as “Boo-Boo.” According to what Wilson told CW, “they pulled up, [Wilson‘s] window was rolled down and... he started firing at Boo-Boo.” Wilson claimed to have “two guns in his hand,” and CW recalled that Wilson thought “one of them was probably a .25 or a .380, and the other one was probably a 9-millimeter.” (J.A. 411-13.)
Thomas Hart, one of the Afton Street Shooting victims, then testified that he, Newbill, and a man known as “Boo-Boo” were standing on the street when a Ford Taurus drove by and shots were fired at them from the front passenger side and the rear of the car. Boo-Boo was not injured. Hart was shot in the foot, the arm, and the chest, and Newbill died as a result of gunshot wounds he received.
After CW and Hart‘s testimony, but before the introduction of other evidence regarding the Afton Street Shooting, Wilson renewed his objection to the admission of any evidence of the Afton Street Shooting. The district court again overruled the objection, but gave the following limiting instruction:
You have heard testimony about the shooting of Anthony Newbill on Afton Street. You are instructed that Mr. Wilson, the defendant in this case, is not charged with that offense and you may not consider
that evidence to indicate that Mr. Wilson has a propensity to commit crimes or is otherwise a bad character. The evidence of the Newbill murder may be considered by you in this case only insofar as it may indicate Mr. Wilson‘s knowledge of the weapon used in the Hayes kidnapping and Mr. Wilson‘s presence and involvement in the Hayes kidnapping.
(J.A. 520-21.)
The Government then called Marlon Hines, who lived off of Afton Street and was in his home the day of the shooting, as a witness. Hines described Hart, Newbill, and Boo-Boo entering his home after the gunshots were fired. Newbill told Hines he could not catch his breath and that he thought he was shot. Hines testified that Newbill died in his (Hines‘) home shortly thereafter. Hines also described an incident a day or two before the shooting. He and Newbill were driving together on Afton Street when Hines observed Boo-Boo, Wilson, Lighty, and another man engaged in a heated argument.
Mills, the FBI ballistics expert, testified concerning similarities between the .380 caliber shell casings retrieved from the scene of the Afton Street Shooting and the Hayes murder ballistic evidence. In addition, he testified that the .380 caliber handgun Lighty had on his person at the time of his arrest conclusively matched shell casings retrieved from the scene of the Afton Street Shooting.
During the final jury instructions, the district court reiterated its limiting instruction with regard to the Afton Street Shooting evidence:
Now you‘ve heard testimony about the shooting of Anthony Newbill on Afton Street. You are instructed that the defendant, Lorenzo Anthony Wilson, is not
charged with that offense in this case. You may not consider that evidence to indicate that Wilson has a propensity to commit crimes or is otherwise a bad character. The evidence of the Newbill murder may be considered by you in this case only insofar as it may indicate the defendant‘s knowledge of the weapon that was used in the Eric Hayes kidnapping and insofar as it may indicate the defendant‘s presence at and involvement in Eric Hayes’ kidnapping.
(J.A. 719-20.)
2.
Wilson challenges the admission of all of the Afton Street Shooting evidence at his trial.10 He contends this evidence is “classic propensity evidence” and should have been excluded under
3.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Importantly,
The Afton Street Shooting evidence was not admissible as an intrinsic act because it was not inextricably intertwined to Hayes’ kidnapping and murder.11 That evidence was not an “integral and natural part of” any “witness‘s account[ ] of the circumstances surrounding” Hayes’ kidnapping and murder. The only connection between the two shootings occurred in CW‘s testimony relating Wilson‘s statements that the .380 caliber handgun in Lighty‘s possession at his arrest had been used to kill two men, one of whom was Hayes.12 Although some of the information regarding the Afton Street Shooting may have been a “natural” part of CW‘s explanation of what Wilson‘s statement meant, it was by no means an integral part of CW‘s testimony. The salient evidence at the trial was CW‘s testimony about Wilson‘s knowledge of what firearm had been used to shoot Hayes. CW‘s protracted explanation of the second shooting to which Wilson referred, which included Wilson‘s confession to participating in the Afton Street Shooting, a description of that event, and CW‘s identi-
The testimony of Hart, Hines, and the law enforcement personnel was even more tangential than CW‘s testimony. Their testimony did not connect the Afton Street Shooting and the Hayes kidnapping and murder because no connection existed. The events occurred at different times, at different places, and involved completely different motives. These witnesses provided absolutely no testimony about the Hayes kidnapping and murder.
The Afton Street Shooting evidence was not inextricably intertwined with the Government‘s case against Wilson for the Hayes kidnapping and murder. See United States v. Stephens, 571 F.3d 401, 409-10 (5th Cir. 2009) (holding that evidence that co-defendants acted together to create and register a website patterned after the official Red Cross website was not intrinsic to the charged crimes of identity theft and wire fraud stemming from the creation and use of a website patterned after the official Salvation Army website); United States v. Eckhardt, 466 F.3d 938, 946 n.4 (11th Cir. 2006) (holding that evidence of uncharged threatening telephone calls made during 2003 were not inextricably intertwined with the charged offense of making threatening phone calls between 1997 and 1999 because the defendant‘s “crime could be fully presented via the interstate phone calls he made” during the charged time frame).
We now turn to whether the Afton Street Shooting evidence was admissible into evidence under the four-part test for
“Evidence is necessary where, considered in the light of other evidence available to the government, it is an essential part of the crimes on trial, or where it furnishes part of the context of the crime.” Id. at 998 (internal citations and quotation marks omitted). The only information from the Afton Street Shooting evidence probative to Wilson‘s participation in the charged offenses was his knowledge that Lighty‘s .380 caliber handgun had been used to shoot Hayes. Wilson‘s knowledge that Lighty‘s weapon had also been used in an unrelated shooting does not add anything to that evidence. Moreover, because the Government had Lighty‘s .380 caliber handgun, it could — and did — introduce ballistics evidence supporting the conclusion that the firearm had indeed been used in the Hayes kidnapping.14 And, as discussed below, the
Government had Wilson‘s confessions to Phauls and CW admitting his participation in the Hayes kidnapping and murder, as well as a host of other circumstantial evidence showing that he participated in that offense. It cannot be said, then, that the Afton Street Shooting evidence was “necessary” to the Government‘s case against Wilson. There was simply nothing about the Afton Street Shooting evidence that was “an essential part of the crimes on trial,” particularly in view of the mountains of non-Rule 404(b) evidence introduced at trial. Compare United States v. McCallum, 584 F.3d 471, 477 (2d Cir. 2009) (finding other acts evidence unnecessary where government рresented “extensive” physical and testimonial evidence on the same issue), with United States v. DiZenzo, 500 F.2d 263, 266 (4th Cir. 1974) (finding other acts evidence necessary where that evidence “furnished more dependable proof” than “sparse” intrinsic evidence). Because the Afton Street Shooting evidence fails the “necessity” requirement for admissibility under
However, whether this error requires reversal of the judgment depends upon whether admission of the Afton Street Shooting evidence was harmless error. “Where error is founded on a violation of
Having reviewed the record of Wilson‘s trial, we conclude with fair assurance that the admission of the Afton Street Shooting evidence did not affect the judgment against him. The evidence of Wilson‘s participation in the сonspiracy to kidnap Hayes was overwhelming. Wilson confessed to his role in the kidnapping to two individuals, Phauls and CW. Their testimony about Wilson‘s confession was substantially the same, and was consistent with other evidence in the record. Wilson admitted to Phauls and CW that he drove Flood‘s vehicle during the course of the kidnapping, which began when Lighty grabbed someone named “Eazy” on Eighth Street. During Wilson‘s confession to Phauls, a text pager started to ring, and Wilson — who did not own a pager — looked at it, said, “[T]he guy wasn‘t lying, his name is Eazy,” and Phauls observed that the name “Eazy” was scrolling across the screen. Forrest corroborated that Hayes had been kidnapped off of Eighth Street, that Hayes’ nickname was “Eazy,” and that Hayes owned a two-way pager. Wilson said that Lighty shot Hayes, and that Lighty had been arrested with the firearm he used to shoot Hayes. Ballistics evidence indicated the .380 caliber handgun Lighty possessed at the time he was arrested shared numerous rifling characteristics with the firearm used to shoot Hayes.
In addition to testifying about Wilson‘s confession, Phauls also provided a first-hand account of Wilson‘s actions later on the evening of Hayes’ death. Phauls and her friend Coles testified that Wilson called Phauls in the time frame of the kidnapping and asked her to pick him up off of Iverson Street. Wilson did not own a cell phone, and Phauls did not know Flood or recognize the calling number. Telephone records confirmed that numerous telephone calls were placed between
Upon arriving at Iverson Street as the 9:03 p.m. call was ending, Phauls and Coles observed Lighty, Flood, and Wilson walking away from a house on Iverson Street.16 Neither woman knew Flood, but he was introduced by his nickname “Junebug.” The women observed that Lighty carried a pair of Nike shoes that matched the description of the shoes Hayes was wearing the evening of his murder; in addition, Lighty had blood on his T-shirt. While in the car, Lighty, Flood, and Wilson discussed having “done something bad or killed someone.” At Wilson‘s direction, Phauls drove to the 2500 block of Keating Street. When Phauls stopped her vehicle, the three men exited the car and checked the ground for blood.
Against this evidence, we are confident Wilson‘s conviction “was not substantially swayed by” the errant admission of the Afton Street Shooting evidence. Two additional factors lend further support to this conclusion, the jury instructions and limited use of the evidence. The district court issued two cautionary instructions limiting how the jury was to use the Afton Street Shooting evidence. Those instructions expressly informed the jury that it could not infer from the Afton Street Shooting evidence that Wilson had “a propensity to commit crimes or is otherwise a bad character.” In addition, the instructions informed the jury that the evidence was relevant only to establish Wilson‘s “presence and involvement in” Hayes’ kidnapping and murder. During her closing argument, the Assistant United States Attorney (“AUSA“) referred to the Afton Street Shooting on three separate, but brief, occasions
As we recognized and cautioned with regard to Lighty, the admission of evidence of an uncharged murder is undoubtedly prejudicial. See, e.g., Chin, 83 F.3d at 88. Even assuming some information about the Afton Street Shooting was relevant or provided context to CW‘s testimony, the testimony of Hart and Hines, which detailed the Afton Street Shooting and its aftermath, was not. Moreover, none of the Afton Street Shooting evidence was necessary to prove an element of the charged crime. However, given the strength of the Government‘s case and the extensive evidence of Wilson‘s guilt, the AUSA‘s limited use of the evidence during the trial, and the court‘s cautionary instructions to the jury, we are satisfied that the erroneous introduction of the Afton Street Shooting did not affect the jury‘s verdict.17
B.
Wilson next contends the district court erred in allowing the Government to make improper statements during closing argument, and thereby denied him a fair trial. He points to three statements made by the AUSA that he asserts misstated
Consistent with Supreme Court precedent, we have recognized that a prosecutor‘s improper argument may “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.” United States v. Wilson, 135 F.3d 291,
Read in context, the AUSA‘s statements do not satisfy this high burden and did not deny Wilson a fair trial. Wilson‘s argument takes these statements out of context, isolating them not only from the AUSA‘s surrounding remarks, but also from the other crimes for which Wilson was being tried. Although Wilson was only convicted of conspiracy to kidnap, he was tried on four additional charges, all of which were substantive criminal offenses. Indeed, the first two of the foregoing statements Wilson challenges occurred while the AUSA was reviewing theories of liability (the Pinkerton doctrine19 and “aiding and abetting“) relevant to the substantive, i.e., non-conspiracy charges. The AUSA‘s statements were not misstatements as to the law of conspiracy because they did not address how Wilson could be held liable for participating in the conspiracy. In describing the Pinkerton theory, the
The third statement Wilson challenges is the AUSA‘s explanation for a purported inconsistency in the testimony about which passenger told Phauls to drive to Keating Street. The AUSA stated that it did not matter which man told Phauls where to drive because the men were “co-conspirators.” (J.A. 824-25.) The comment does not, as Wilson contends, improperly argue that he could be guilty of conspiracy based on events after Hayes’ death. Rather, the AUSA‘s stаtement responded to Wilson‘s closing argument drawing attention to the inconsistency and suggested a reason short of fabricated testimony to explain it. The AUSA‘s fleeting mention of the men being “co-conspirators” was not the focus of her discussion at that time, as she immediately turned to an explanation of how individuals often recollect details of the same events differently.
The AUSA‘s closing arguments did not misstate the law of conspiracy or otherwise mislead the jury, nor did it prejudice Wilson‘s trial so as to deny him due process. Accordingly, there was no error by the district court.
C.
Wilson next contends that his sentence should be vacated and the case remanded for resentencing because his sentence was based, in part, on what he contends was an involuntary, and therefore inadmissible, statement he made to civilian investigators. Approximately eighteen months after the Hayes kidnapping, FBI Agent G. Joseph Bradley and Prince George‘s County Police Department detectives Sean Chaney and Michael Straughan, questioned Wilson at Schofield Barracks, Honolulu, Hawaii, where Wilson was then stationed with the United States Army. Prior to interrogating him, the investigators read aloud to Wilson an Advice of Rights form that informed Wilson, inter alia, of his right to remain silent. They then had Wilson read aloud the paragraph describing “waiver of rights” in order to ascertain that Wilson read and understood English. Wilson signed the form indicating that he understood his rights; he then proceeded to answer the investigators’ questions and set forth his account of the Hayes kidnapping and murder in a hand-written statement (“written statement” or “statement“).
Prior to trial, Wilson moved to suppress the written statement, arguing it was involuntarily made. After an evidentiary hearing, the district court held that the statement was voluntarily made and admissible at trial. Despite the court‘s ruling, the Government elected not to introduce the written statement into evidence against Wilson at trial based on its belief that portions of the statement were untruthful.21
During the sentencing hearing, the parties disputed what offense level the conspiracy conviction constituted under the Sentencing Guidelines. If Wilson was held responsible for a
The district court referred to the written statement as part of its explanation for concluding Wilson could be held responsible for Hayes’ death and that the offense level should be set at the higher level. The court observed that it did not “accept everything the defendant says [in the written statement] as gospel on this. The things that are clearly incriminating to him, I‘m inclined to accept. The other items in which I find him incriminated are really supplied by other people.” (J.A. 881-82.) Expounding on this view, the Court stated:
I think [Wilson] clearly was trying to position himself to be out of the murder when he gave the statement, but he was — as the Government says, he stepped directly into the conspiracy when he did that . . . but the reality is that all these people are telling different stories. . . . I mean they‘re all trying to pass the buck here in terms of where they are.
(J.A. 882.)
Wilson asserts the district court erred in relying on the written statement during sentencing because it was involuntarily made as a matter of law. He contends he could not waive his
We review the district court‘s factual findings underlying a motion to suppress for clear error and its legal determinations de novo. United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
Wilson‘s argument lacks merit. The two cases he relies on, Dohle and Duga, are inapposite, addressing a military accused‘s rights under Article 31 of the Code of Military Justice rather than his constitutional right to remain silent. Moreover, they involve the rights of a military accused when he is questioned by other members of the military rather than when he is questioned by non-military investigators, as occurred here. Dohle, 1 M.J. at 226 (“[W]e hold that where a person subject to the Code interrogates — questions or requests a statement from an accused or suspect over whom the questioner has some position of authority of which the accused or suspect is aware, the accused or suspect must be advised in accordance with Article 31.“); Duga, 10 M.J. at 208-12. Neither case supports the broad proposition Wilson аdvances regarding the legal capacity of a member of the military to waive his constitutional right to silence in questioning by civilian authority. Wilson does not cite to — nor did we find — any other authority that would support the broad proposition he advances.
The record supports the district court‘s conclusion that Wilson‘s statement was voluntarily made after the civilian authorities informed Wilson of his constitutional right to remain silent. At the hearing on the motion to suppress, Wilson testified that he “believe[d] [he was] being ordered to speak to the men that were in that room that day.” However, the district court concluded that Wilson‘s testimony was not credible, and its determination was not clearly erroneous. No other evidence in the record supports Wilson‘s self-serving testimony or the conclusion that Wilson‘s commanding officer ordered him not just to “show up” at the interview, but also specifically to provide a statement to the investigators.
Moreover, the circumstances surrounding the interview show that the civilian authorities informed Wilson of his right to remain silent, and he voluntarily waived that right. Agent Bradley and Officer Chaney testified that Wilson was not handcuffed prior to or during the interview; no military personnel were present during the interview. Both described Wilson as being “eager” to tell his side of the stоry, and that Agent Bradley had to stop Wilson from speaking in order to Mirandize him prior to speaking with him. Agent Bradley read Wilson “the FBI‘s version of the Advice of Rights” “word for word.” (J.A. 52.) In addition, at Agent Bradley‘s request, Wilson read the Waiver of Rights paragraph aloud. Wilson then signed the Advice of Rights form, spoke with the investigators, and provided the written statement. On this record, the district court did not err in determining Wilson knowingly and voluntarily waived his right to remain silent. Accordingly, the written statement was admissible, and the district court did not err in using it in determining Wilson‘s sentence.
III.
Wilson contends the district court erred in denying his motion for a new trial based on newly-discovered evidence
We review the district court‘s denial of a motion for a new trial under an abuse of discretion standard. Perry, 335 F.3d at 320. In so doing, we “may not substitute [our] judgment for that of the district court; rather, we must determine whether the court‘s exercise of discretion, considering the law and the facts, was arbitrary or capricious.” United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2000) (quoting United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995)).
A.
Wilson moved for a new trial based on an alleged Brady violation. He asserts the Government unlawfully withheld a copy of police notes summarizing Lighty‘s statements to the police following his January 31, 2002 arrest.23 At the time of his arrest, Lighty was in possession of a .380 firearm; the police notes indicate that Lighty stated he “shot the [.380] one time in the air” during the Newbill shooting. Wilson posits that he was entitled to the police notes as Brady material because Lighty‘s statement contradicted CW‘s testimony that Wilson told him he had shot the .380 during the Newbill Shooting. Wilson asserts that in addition to using the statement to impeach CW‘s testimony, he could have used
The district court denied Wilson‘s motion for a new trial, explaining that Lighty‘s statement did “not exculpate Wilson in any way” and was “not favorable to him in the Brady sense. It doesn‘t tend to show that he‘s not guilty” of conspiracy to kidnap. (Supp. J.A. 157-58.) In addition, the court noted there were “no corroborating circumstances of the trustworthiness of [Lighty‘s statement]” and the “result would not have been different” “had this statement bеen made available to Wilson at his trial.” (Supp. J.A. 158-59.)
The district court did not abuse its discretion in denying Wilson‘s motion.24 In Brady, the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. In order to prove that the Government‘s failure to tender certain
Lighty‘s statement is not Brady material because it is neither exculpatory nor material.25 Evidence is “exculpatory” and “favorable” if it “may make the difference between conviction and acquittal” had it been “disclosed and used effectively.” United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence is “material” if it is “likely to have changed the verdict.” Moseley v. Branker, 550 F.3d 312, 318 (4th Cir. 2008).
Lighty‘s statement fails on both fronts because it has no bearing on Wilson‘s participation in the Hayes kidnapping and therefore provides no information relevant to the offense Wilson was convicted of committing — conspiracy to kidnap Hayes. The statement does not contradict any of the evidence introduced to prove Wilson‘s participation in the Hayes conspiracy. Moreover, Lighty‘s statement does not diminish the relevance of CW‘s testimony that Wilson stated the .380 caliber handgun had “two bodies” on it, thereby establishing Wilson‘s knowledge that this firearm had been used in both the Newbill and Hayes shootings. At most, Lighty‘s statement places the .380 in Lighty‘s hands at some point during the Newbill shooting.26 That evidence is not inconsistent with
Accordingly, Lighty‘s statement was neither exculpatory nor material, and it does not constitute Brady material. For this reason, the district court did not abuse its discretion in denying Wilson‘s motion for a new trial based on the Government‘s failure to turn over the statement to Wilson prior to trial.
B.
1.
Wilson also moved for a new trial on the basis of newly-discovered evidence in the form of testimony from JM27 as well as CW‘s recantation of parts of his trial testimony regarding Lighty and Wilson. The district court held a joint evidentiary hearing to determine the nature of this evidence and consider both Lighty and Wilson‘s motions for a new trial. The evidence presented at that hearing is discussed in greater detail in the Court‘s opinion in Lighty at Section II.M.1.
Briefly synopsizing that testimony, in July 2006, JM was arrested on felony gun charges. JM was a frequent informant for law enforcement officials, and at the time of his arrest he made — for the first time — statements concerning the Hayes
In February 2009, CW was interviewed by Lighty‘s counsel and signed a declaration recanting parts of his trial testimony against Lighty. He claimed that he had lied about Lighty confessing to the shooting because he was facing serious charges. In the written statement CW signed at the time of this interview, he stated, “The only other person who was rumored to be involved in this case who spoke to me about it directly was Tony Mathis.” Because CW asserted his Fifth Amendment rights, he did not testify at the evidentiary hearing. George Steel, a private investigator for Lighty‘s counsel, was present during CW‘s interview and testified regarding the
After considering this evidence and hearing the parties’ arguments, the district court denied Wilson‘s motion. In reaching its decision, the district court reiterated the proper standard for a motion for a new trial and concluded that the new evidence did not satisfy Wilson‘s burden to meet that standard. The court noted many reasons to doubt JM‘s testimony, including the length of time that had passed before he came forward, the similarity between his testimony and previous testimony he had provided as an informant in unrelated cases, and discrepancies between JM‘s testimony and prior statements he had made regarding what he claimed to have seen. Moreover, in light of the overwhelming evidence against Wilson presented at trial, the district court concluded that JM‘s testimony would not have made a difference in the outcome of the trial.
With regard to CW‘s recantation, the district court determined that CW‘s extensive prior statements had greater credibility and corroborating evidence than his current recantation. The court also noted threats CW had received as a result of his testimony at the trials and the significant fact that Mathis had died in the intervening period between CW‘s trial testimony and recantation.
2.
In determining whether a new trial should be granted on the basis of newly discovered evidence, the Court uses a five-part test:
(a) the еvidence must be, in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.
Fulcher, 250 F.3d at 249 (quoting United States v. Curtis, 988 F.2d 1355, 1359 (4th Cir. 1989)). “Without ruling out the possibility that a rare example might exist, [the Court has] never allowed a new trial unless all five elements were established.” Id. (citing United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995)).
With regard to the fifth prong, the “district court is required to make a credibility determination as part of its probability-of-acquittal” determination. United States v. Kelly, 539 F.3d 172, 189 (3d Cir. 2008). In making this determination, a district court should focus on whether a jury probably would reach a different result upon hearing the new evidence. Id. at 189. Of course, if the district court does not find a witness credible, it follows that the district court would not find the witness sufficiently persuasive to enable the district court to conclude that witness testimony would probably produce an acquittal at a new trial. Id. at 189 n.14. “To make a determination under this standard, the district court cannot view the proffered testimony in a vacuum; it must weigh the testimony against all of the other evidence in the record, including the evidеnce already weighed and considered by the jury in the defendant‘s first trial.” Id. at 189.
If a motion for a new trial is based on a witness’ recantation of trial testimony, the motion should be granted only if the court is “reasonably well satisfied” (1) that the testimony given by a material witness was false; (2) the jury might have
3.
Wilson asserts the district court erred in determining that JM‘s testimony and CW‘s recantation lacked credibility and therefore did not satisfy the fifth prong (“would probably produce an acquittal“) of the standard for granting a new trial. He contends the district court improperly limited the scope of its review and weighed the proffered testimony in a vacuum instead of considering it in light of the weak evidence presented against him at trial. Wilson also claims that the court erred in refusing to evaluate whether the new evidence would have affected the jury‘s determination regarding Phauls’ credibility. And he asserts the court improperly disregarded the incentive both Phauls and CW had to lie when it compared their testimony at trial to the new evidence.
We disagree. In reviewing JM‘s testimony and CW‘s purported recantation, the district court properly found that neither was credible. As we observed when examining the court‘s decision on this issue in Lighty, there were numerous inconsistencies between JM‘s testimony at the evidentiary hearing and earlier statements he made to investigators regarding the events in question. Specifically, in a 2006 interview with the police, JM stated “Tony Mathis was the shooter” in Hayes’ murder, and that “after the murder, [Mathis] kept the victim in the trunk and drove around and
The timing of JM‘s initial statements to the police, and his motives for making them, also undermine his credibility. Although he had been a frequent confidential informant for law enforcement for several years, JM did not mention anything about Hayes’ kidnapping and murder until many years after it occurred. JM‘s initial statement to police implicating Mathis in Hayes’ murder occurred after Mathis had been murdered. He was facing serious charges at the time he provided his initial statement. Moreover, no physical or other evidence corroborates JM‘s version of events. All of these factors support the district court‘s basis for finding JM was not credible.
Contrary to Wilson‘s contention, the district court did not improperly limit the scope of its review or refuse to consider JM‘s testimony in the context of all the evidence adduced at trial. The record shows that after finding JM not credible, the court addressed whether JM‘s testimony would probably produce an acquittal and concluded it would not. In so doing, the court considered all of the trial evidence, including Phauls’ testimony that she picked up Wilson, Lighty, and Flood on the evening of Hayes’ murder and drove them to Keating Street, as well as Wilson‘s confessions to having participated in the
With regard to CW‘s recantation, we also conclude the district court had an adequate basis on which to find the recantation lacked credibility and would not have probably resulted in an acquittal.29 The district court had ample opportunity to assess CW‘s credibility at trial, and was in the best position to determine whether that prior testimony was credible. As discussed above, CW‘s testimony was corroborated by the trial testimony of numerous other witnesses, as well as physical evidence. Of particular importance to Wilson‘s reliance on the recantation, CW did not explicitly recant his testimony against Wilson, save for the general statement that Mathis was the “only other person who was rumored to be involved in this case who spokе to me about it directly.” Moreover, several reasons supported CW‘s incentive to lie by recanting his trial testimony, including community pressure to do so, threats CW had received as a result of his trial testimony, and the fact that CW did not recant and point the blame at Mathis until after Mathis was ever so conveniently dead. As we concluded with regard to Lighty, in light of the evidence corroborating CW‘s trial testimony and undercutting his post-trial recantation, we
IV.
For the aforementioned reasons, we affirm Wilson‘s conviction for conspiracy to kidnap and his sentence of life imprisonment. We also affirm the district court‘s order denying Wilson‘s post-trial motions for a new trial.
AFFIRMED