United States District Court, N.D. Ohio, Eastern Division
R. ADAMS United States District Judge.
before the Court is Defendant Richard Purnell's motion
for a new trial. The motion is DENIED.
jury trial was conducted on August 30, 2016 through September
6, 2016. On September 6, 2016, the jury convicted Purnell on
the sole count in the indictment. On November 4, 2016,
Purnell moved for a new trial. The Government filed its
opposition on December 5, 2016. Purnell replied in support of
his motion on December 13, 2016. The Court now resolves the
provides that “[u]pon the defendant's motion, [a
district] court may vacate any judgment and grant a new trial
if the interest of justice so requires.” Fed.R.Crim.P.
33(a). The rule “does not define ‘interest[ ] of
justice' and the courts have had little success in trying
to generalize its meaning.” United States v.
Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). However,
“it is widely agreed that Rule 33's “interest
of justice” standard allows the grant of a new trial
where substantial legal error has occurred.” United
States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010).
TO PRESENT WITNESSES ON HIS BEHALF
first asserts that a new trial is warranted because he was
denied the right to call witnesses on his own behalf.
Specifically, Purnell contends that the Government improperly
intimidated Ronnie Pratt, Jr. thereby causing him to invoke
his Fifth Amendment rights. The Sixth Circuit has expressed
the standard for reviewing such a claimed error as follows:
A defendant's right to present his own witnesses to
establish a defense constitutes a fundamental element of due
process and is protected by the Compulsory Process Clause of
the Sixth Amendment. Washington v. Texas, 388 U.S.
14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Various
prosecutorial and judicial actions aimed at discouraging
defense witnesses from testifying deprive a defendant of this
right. See, e.g., Webb v. Texas, 409 U.S. 95, 98, 93
S.Ct. 351, 34 L.Ed.2d 330 (1972) (per curiam) (reversing a
conviction when the trial judge severely admonished the sole
witness proffered by the defense who declined to testify as a
result); Thomas, 488 F.2d at 336 (reversing a
conviction obtained after a Secret Service agent in an ex
parte communication advised a defense witness of possible
prosecution if he testified). Neither Webb nor
Thomas, however, “stand[s] for the proposition
that merely warning a witness of the consequences of perjury
demands reversal.” United States v. Pierce, 62
F.3d 818, 832 (6th Cir. 1995) (citing United States v.
Smith, 997 F.2d 674, 679-80 (10th Cir. 1993)). For this
reason governmental conduct must amount to a substantial
interference with a witness's free and unhampered
determination to testify before we will find a violation of
due process or the Sixth Amendment. Id. at 833
(citing Smith, 997 F.2d at 680). Even when such
interference occurs, a violation of a defendant's right
to call witnesses in his defense is subject to harmless error
analysis. United States v. Foster, 128 F.3d 949, 953
& n. 4 (6th Cir. 1997).
United States v. Emuegbunam, 268 F.3d 377, 400 (6th
instant matter, Purnell claims that conversations between
Assistant United States Attorney Bridget Brennan and counsel
for Pratt, Attorney William Norman, violated his right to
compulsory process. The Court finds no merit in such a
issue of Pratt's testimony was discussed at length
during the trial of this matter. Following an
interview by Purnell's counsel, Attorney Norman was
contacted by AUSA Brennan. Purnell's counsel asserted
during trial that Attorney Norman “was advised that --
he was advised by AUSA Brennan that if Mr. Pratt were to
testify on behalf of Mr. Purnell and testify as to the things
he wanted to testify to, that he was in danger of losing his
acceptance of responsibility before Judge Boyko at
sentencing.” Doc. 58 at 149. Purnell's counsel
continued by offering: “And then I later learned from
Mr. Pratt's lawyer that today he was in -- he spoke with
[AUSA] Barr. And [AUSA] Barr basically made statements
to him concerning, you know, there is a lot of other
juveniles out there that we think may be involved with your
client. He's not only in danger of losing acceptance
points, but he could also lose points for -- have points
added for obstruction, things of that nature.” Doc. 58
at 151. In response, AUSA Brennan gave her version of her
conversation with Attorney Norman:
And I spoke with Mr. Norman because it was important. When I
heard that he was going to testify, it was incumbent upon me
to let Mr. Norman know that if he testified in a manner
that's inconsistent with the factual basis or if he
testified in a manner that was inconsistent with what our
evidence was, yes, we would have - it's in the plea
Your Honor, to be clear, I did not ever say that defense
counsel should not be allowed - Purnell's defense counsel
should not be allowed. I did not say -- and I had witnesses
to the conversation. I had people with me. I never said any
such thing. I did say that if he testifies in a manner
that's inconsistent with the plea agreement, that he
could run afoul potentially of acceptance of responsibility.
But also even in the plea agreement it says if he does
something that's considered obstructive, the plea
agreement - these are all points that are set forth in the
plea agreement. So I pointed them out to defense counsel and
said you need to consider these points.
at 155, 157.
Attorney Norman offered his view on the conversation he had
with AUSA Brennan:
Second, to be very clear, [AUSA] Brennan did not say if your
client testifies, he will face some harsher sanction. She did
say specifically that -- and I asked the pointed question. I
said, are you saying that if he testifies that he never
personally received funds or never personally met Mr.
Purnell, that you would seek to argue against his acceptance
of responsibility. And she did say yes to that.
But I don't want that to be confused with some general if
you testify we will come after you.
Doc. 58 at 161. Attorney Norman further indicated: “I
did not take the conversation from [AUSA] Brennan as kind of
overtly inappropriate or something. I just -- she was telling
me something about the ...