MEMORANDUM OPINION & ORDER
Beginning on March 5, 2012, Defendants stood trial for conspiracy to distribute oxycodone and methadone, and conspiracy to money launder. The trial lasted roughly a month, and the jury found Defendants guilty on both counts. Subsequently, Defendants filed their post-verdict motions for judgment of acquittal notwithstanding the verdict and new trial under the framework of Rules 29 and 33 of the Federal Rules of Criminal Procedure.
After a jury has reached a verdict, a defendant is permitted to file a motion for judgment of acquittal challenging the sufficiency of the evidence pursuant to Federal Rule of Criminal Procedure 29. Fed.R.Crim.P. 29(a), (c). "A defendant making such a challenge bears a very heavy burden." United States v. Tocco, 200 F.3d 401, 424 (6th Cir.2000). When undertaking such review, the court "must decide whether, after viewing the evidence in a light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Gardner, 488 F.3d 700, 710 (6th Cir.2007). Moreover, courts are precluded from weighing the evidence, considering witness credibility, or substituting its judgment for that of the jury. United States v. Chavis, 296 F.3d 450, 455 (6th Cir.2002). "A judgment is reversed on insufficiency-of-the-evidence grounds 'only if [the] judgment is not supported by substantial and competent evidence upon the record as a whole.' " Gardner, 488 F.3d at 710(quoting United States v. Barnett, 398 F.3d 516, 522 (6th Cir.2005); United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir.1992)).
Rule 33 establishes 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." U.S. v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010); see also Fed.R.Crim.P. 33(a). The phrase "interest[ ] of justice" is not defined within the rule, and courts have had marginal success in trying to "generalize its meaning." Id. (quoting United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir.1989)). Still, several themes remain constant in the Rule 33 context. The conventional use of a Rule 33 motion "is to seek a new trial on the ground that 'the [jury's] verdict was against the manifest weight of the evidence.' " Id. (quoting United States v. Crumb, 187 Fed.Appx 532, 536 (6th Cir.2006)); see also United States v. Legette-Bey, 147 Fed.App'x 474, 486 (6th Cir.2005); United States v. Graham, 125 Fed.App'x 624, 628 (6th Cir.2005); United States v. Solorio, 337 F.3d 580, 589 n. 6 (6th Cir.2003). Finally, "[w]ith a Rule 33(a) motion for new trial on the ground that the verdict is against the weight of the evidence, the power of a court is much broader because a court may weigh the evidence and consider the credibility of the witnesses."
U.S. v. Dimora, 879 F.Supp.2d 718, 724 (N.D. Ohio 2012).
The Defendants begin with the rather unremarkable assertion that a witness at trial was not telling the truth. According to Defendants, Tonia Snook manufactured several statements forming what they characterize as the "Big Lie." [R. 178-1, at 3.] The key question, however, is whether the testimony was offered by the prosecution knowing that it was false, a far more significant and troubling assertion.
The first four portions of testimony that were allegedly fabricated occurred during direct examination. First, they proffer that she credited herself for the June 8, 2005 discovery of fraudulent MRIs in the files of the Kentucky patients at the Philadelphia clinic. Defendants contend that based on Claxton Crowder's testimony, then a doctor at the Philadelphia clinic, he discovered the fraudulent documents. [178-1, at 4.]
Second, they assert that Snookmanufactured a series of brief conversations involving Crowder, Leman, and herself. In the first conversation, she told Leman that she had discovered forged documents, and according to her, upon hearing this information he instructed her not to worry about them. [R. 178-1, at 5.] During the second conversation, Snook testified about a discussion between her and Crowder in which she advised that Leman instructed them not to worry about forged prescriptions. [Id.] The third conversation recounted by Snook regarded a speakerphone exchange between Crowder and Leman. Snook testified that Leman instructed Crowder to "take the G.D. . . MRIs and write the prescriptions or you won't get paid." [Id.] In the fourth conversation, Snook recalled calling Leman to inform him that Dr. Crowder had left the office. [Id.] In the fifth conversation occurring 30 minutes after the prior phone call, Snook recounted that she and Leman talked again and that he informed her that "Dr. Rowland would write the prescriptions and fax them over" from Philadelphia. [Id.]
Third, Defendants assert that Snook manufactured testimony regarding Dr. Rowland's participation in the fabrication of forged prescriptions. According to Snook, Dr. Rowland faxed and signed off on prescriptions for patients whom he did not examine. [Id. at 6.] Defendants claim that Dr. Rowland denied that this occurred, and thus leads to only one conclusion: Snook lied. [Id.] They also argue that Snook lied about the source and origin of Brenda Goble's prescriptions. [Id.at 9.] They claim that Snook forged Brenda Goble's prescriptions by altering the prescriptions written for her dad, Larry Goble. [Id.]
Finally, Defendants proffer that on cross-examination, Snook lied under oath about forging MRIs. [Id.] Defendants claim that based on the testimony of Larry Goble, Brenda Goble, William Marsillet, Crowder, and Weiss, it is clear that Snook perjured herself. Moreover, they claim that the relevant medical records prove that Snook is not telling the truth. [Id. at 10.]
The government counters against Defendants protestations by noting that the Court provided them with an opportunity to recall Snook to inquire about, among other things, the striking similarities between Larry and Brenda Goble's prescriptions. [Id. at 5.] It asserts that because Defendants did not take advantage of this opportunity, they have no indisputable evidence of perjury. [Id.]
Under neither the Rule 29 nor Rule 33 framework are Defendants entitled to the relief they seek. "[T]he knowing use of false or perjured testimony constitutes a denial of due process if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury" Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). To succeed, the defendant "must show (1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false." Id. Further, to show falsity, defendants must demonstrate that the testimony was "actually perjured," whereas "mere inconsistencies are not sufficient to establish knowing use of false testimony." Id. The statement must be "indisputably false," instead of simply misleading. Byrd v. Collins, 209 F.3d 486, 517-18 (6th Cir. 2000); Akrawi v. Booker, 572 F.3d 252, 265 (6th Cir. 2009). To that point, "[a] false statement is material ... and '[a] new trial is required[,] if the false testimony could in any reasonable likelihood have affected the judgment of the jury.' " Brooks v. Tennessee, 626 F.3d 878, 895 (quoting Giglio v.United States, 405 U.S. 150, 154 (1972)).
Defendants have failed to establish that Snook's statements were indisputably false. Notably, their claim is not cognizable under Rule 29 because courts are precluded from weighing the evidence, considering witness credibility, or substituting its judgment for that of the jury. United States v. Chavis, 296 F.3d 450, 455 (6th Cir.2002). As to Rule 33, Defendants' arguments are also unpersuasive because they have not established that Snook proffered indisputably false testimony.
The first prong of the Coe analysis must be satisfied with a showing that Snook's statement was indisputably false and not a mere inconsistency. Rosencratz, 568 F.3d at 585 (citing Coe, 161 F.3d at 343). Although Defendants have expanded their argument and provided more detail regarding the alleged manufactured statements, the argument, that Snook perjured herself on the witness stand, has been previously raised. In an order dated March 23, 2012, their Motion to Strike Tonya Snook's Testimony in Whole or in Part based on alleged perjured statements was denied. [R. 160.] There, this Court noted that Sixth Circuit precedent placed the burden "on the defendants to show that the testimony was actually false, and mere inconsistencies in testimony by government witnesses does not establish knowing use of false testimony." [Id. at 4 (citing United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989); see ...