United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
This matter is pending for consideration of Defendant Meredith Lawrence's pro se motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83, 83 (1963). [Record No. 121] Lawrence claims that the government failed to disclose favorable evidence, thereby prejudicing his defense, and requests an evidentiary hearing on the issue. Having considered the record, the Court concludes that neither an evidentiary hearing nor a new trial is warranted.
Following a jury trial, Lawrence was convicted of three counts of filing false tax returns in violation of 26 U.S.C. § 7206(1), stemming from his failure to report income earned from multiple sources during the 2003-2006 tax years. [Record No. 47] Lawrence was sentenced to 27 months of incarceration, followed by one year of supervised release. [Record No. 87] Lawrence promptly appealed to the United States Court of Appeals for the Sixth Circuit. However, his conviction was affirmed and Lawrence's subsequent petition for certiorari was denied by the United States Supreme Court. [Record Nos. 117, 120] The defendant's current motion alleges newly discovered evidence and the improper suppression of favorable evidence at trial. [Record No. 121]
"The question of whether to decide [the] motion on the supporting evidence filed with the motion or to hold an evidentiary hearing is within the discretion of the trial court." United States v. O'Dell, 805 F.2d 637, 642 (6th Cir. 1986). Here, there is no need for an evidentiary hearing because there is no evidence from which the undersigned could conclude that the government violated its duty to disclose all material exculpatory evidence in its possession to the defendant prior to trial. Likewise, there is no evidence to support Lawrence's claim that the United States in prosecutorial misconduct. As a result, Lawrence's request for an evidentiary hearing will be denied.
Under Rule 33 of the Federal Rules of Criminal Procedure, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Motions "grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case." Fed. R. Crim. P. 33(b)(1). A motion on any other ground "must be filed within 14 days after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(2).
To fulfill its due process obligations, the government must disclose any favorable evidence before trial. Brady v. Maryland, 373 U.S. at 83. 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 punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. The essential elements of a Brady claim for the government's nondisclosure of evidence are: (i) evidence favorable to the accused, either exculpatory or impeaching; (ii) the evidence was suppressed by the government, either willfully or inadvertently; and (iii) resulting prejudice. Banks v. Dretke, 540 U.S. 668, 691 (2004). A defendant is prejudiced when there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).
Similarly, motions for a new trial based on newly discovered evidence under Rule 33 are viewed with great caution. For the Court to grant a new trial on these grounds, the defendant bears the burden of establishing that the evidence: (i) was discovered after trial; (ii) could not have been discovered earlier with due diligence; (iii) is material and not merely cumulative or impeaching; and (iv) would likely produce an acquittal if the case were retried. United States v. Kenny, 505 F.3d 458, 462 (6th Cir. 2007). Lawrence argues that the government suppressed Brady material - information that was favorable to his defense - and violated Rule 33 in two ways: (i) withholding amended tax returns suggesting that Lawrence "had in fact overpaid his federal taxes" in the relevant years and (ii) failing to disclose impeachment evidence regarding government's witness Donna Bond.
A. Amended Tax Returns
Following his conviction, Lawrence retained a Certified Public Accountant ("CPA") to prepare and file amended tax returns for the years related to his charges. According to Lawrence, the CPA "determined Defendant had significantly overstated his adjusted gross income on each indicted years' 1040 return and had in fact overpaid his federal taxes in each year." [Record No. 121, p. 2] This purported "determination" was made in 2014. [ Id. ] Relying on the CPA's findings, Lawrence argues that the amended returns constitute newly discovered evidence warranting a new trial under Rule 33.
Rule 33 requires that the evidence - not merely the legal implications of the evidence - be newly discovered. As the government correctly points out in its response, the tax returns cited by Lawrence do not constitute not "newly discovered evidence." Instead, they are post-trial documents created by the defendant that, at most, constitute an opinion. See Barrow v. United States, 1997 U.S.App. LEXIS 3401, at *6 (6th Cir. 1997) (Defendant's recalculated tax returns were not "newly discovered evidence."). In essence, the defendant is attempting re-litigate his case by hiring a new expert to re-interpret the legal significance of evidence that was available and presented during trial: Lawrence's 2003-2006 tax returns. Moreover, Lawrence has not shown that the same evidence could not have been discovered earlier with due diligence. There is no reason why the defendant's trial team and tax experts could not have made the same calculations prior to his criminal trial. Thus, the amended tax returns do not suffice under Rule 33 to warrant a new trial.
In the alternative, Lawrence argues that the amended returns constitute material, exculpatory evidence that was withheld by the government in violation of Brady. However, because the returns were not available to anyone, including the prosecution, until 2014, the government could not have disclosed them in time for use at trial. Thus, they were not evidence improperly suppressed under Brady. See United States v. Jones, ...