United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
a jury trial in May 2016, Defendant Christopher Allen was
convicted of various drug offenses, including distributing
heroin and fentanyl, the use of which resulted in the
overdose death of Chantel Nicole Alvarez. Allen was sentenced
to 365 months' imprisonment. [Record No. 40, p. 2] The
United States Court of Appeals for the Sixth Circuit affirmed
Allen's convictions on appeal. United States v.
Allen, No. 16-6375, 2017 WL 5593506 (6th Cir. Nov. 21,
2017). Allen now seeks a new trial pursuant to Rule 33 of the
Federal Rules of Criminal Procedure. [Record No. 51] For the
reasons that follow, Allen's motion for a new trial will
seeks a new trial based on what he characterizes as newly
obtain a trial based on newly discovered evidence, the
defendant must establish that
(1) the new evidence was discovered after the trial; (2) the
evidence could not have been discovered earlier with due
diligence; (3) the evidence is material and not merely
cumulative or impeaching; and (4) the evidence likely would
produce an acquittal.
United States v. Seago, 930 F.2d 482, 488 (6th Cir.
attorney from the federal public defender's office
represented Allen during his appeal. [See Record No.
44.] An investigator from that office interviewed an
individual named Harmony Horan on January 20, 2017. [Record
No. 51-5] Horan claimed to be an associate of both Allen and
Alvarez and reported having used drugs with both of them in
the past. Horan advised the investigator that Alvarez was
using drugs with her and two other individuals (both named
Sam) on the night that Alvarez died. Horan stated that the
four of them bought drugs from Horan's supplier, Lily.
Horan advised that, when they dropped Alvarez off at home,
Alvarez still had some of the heroin they had purchased from
Lily. Horan said that Alvarez seemed fine when they took her
home and that “Chris [Allen] was absolutely not there
that night.” Id. at p. 2.
statement to the investigator does not warrant granting the
defendant a new trial. First, there is no indication that the
evidence could not have been discovered earlier with due
diligence. Text messages introduced at trial showed that
Alvarez contacted Allen to purchase drugs on the afternoon of
September 15, 2015, the day prior to Alvarez's death.
[Record No. 46');">46, p. 150] One of the messages from Alvarez to
Allen read: “Hey, Chris, it's Nicole. Could you
please help me? I'm sick . . . . Me and Harmony were
supposed to split the money, and she took it all, and I
ain't seen her since.” Id. Alvarez further
advised Allen that she needed “something to get [her]
well, ” and that she did not “need much.”
Id. at 151. These message were introduced through
the testimony of Detective Timothy Graul, who had extracted
the messages from Allen's cell phone. Id. at p.
suggests in his reply brief that the government withheld
exculpatory evidence concerning Horan, but he waived this
argument by failing to raise it earlier. See United
States v. Owens, 458 F. App'x 444, 446');">46 (6th Cir.
2012). Regardless, there is no suggestion that the government
possessed any evidence concerning Horan other than the text
message introduced through Graul. The defendant does not
allege that the government failed to provide the text message
during discovery and he raised no objection to the
government's introduction of the text message at trial.
[Record No. 46');">46, pp. 44, 149]
Horan's interview statements may constitute “new
evidence, ” her identity and alleged involvement with
Alvarez near the time of her death were known to the
defendant. See id. at p. 150. Horan's statements
indicate that she and Allen were well acquainted. She stated
that Allen was a drug dealer she had met through narcotics
anonymous and she and Allen “were fighting” on
the night in question. [Record No. 51-5] Despite the
defendant's failure to interview Horan before the trial,
it is likely that, with reasonable diligence, he could have
discovered and produced her testimony at trial.
(and perhaps more importantly), the introduction of
Horan's statements would not be likely to produce an
acquittal in this case. There are inherent relevance and
credibility issues concerning Horan's purported
testimony. Horan advised the investigator that she was with
Alvarez “the night that [she] died, ” but she did
not provide the date or any other details to establish that
it was, in fact, the night prior to Alvarez's death.
Horan stated that she did not learn of Alvarez's death
until approximately one month later, but she had wondered why
Alvarez never contacted her after that night. [Record No.
51-5] Horan was using heroin during the time period she
described to the investigator, and her ability to perceive
and remember the events were likely altered. For these
reasons, it is unlikely that Horan's statements are
sufficient to establish that she was with Alvarez on
September 15, 2015. See United States v. Pierce, 62
F.3d 818 (6th Cir. 1995) (“The remedy of a new trial
seems particularly inappropriate when . . . the newly
discovered evidence lacks credibility [and] conflicts
directly with believable testimony.”).
is another problem with Horan's version of events.
Horan's timeline for “the night that Nicole
died” conflicts with substantial evidence introduced at
trial. While Horan told the investigator that she dropped
Alvarez off at home “extremely late, ”
Alvarez's live-in boyfriend, Raymond Lamb, testified that
Alvarez was home when he returned from work at 7:00 p.m. or
8:00 p.m. [Record No. 46');">46, p. 34] Text messages introduced at
trial also conflict with Horan's story about Alvarez
obtaining drugs from Lily that day. The messages show that
Alvarez contacted Allen repeatedly from approximately 3:00
p.m. to 11:00 p.m. on September 15, 2015. Following
Alvarez's initial text message seeking something to
“get [her] well, ” Allen advised her that he was
in Cincinnati, but would bring her something when he returned
to Lexington. Id. at p. 151. ...