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United States v. Purnell

United States District Court, N.D. Ohio, Eastern Division

May 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD PURNELL, Defendant.

          ORDER

          JOHN R. ADAMS United States District Judge.

         Pending before the Court is Defendant Richard Purnell's motion for a new trial. The motion is DENIED.

         Purnell's 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 motion.

         NEW TRIAL STANDARD

         Rule 33 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).

         RIGHT TO PRESENT WITNESSES ON HIS BEHALF

         Purnell 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 Cir. 2001).

         In the 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 contention.

         In Trial Discussion

         The 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.[1] 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 agreement.
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.

         Doc. 58 at 155, 157.

         Thereafter, 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 ...


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