|  It is clear that much of the government evidence admitted at trial, with the exception of Tanya Nicosia and her three character witnesses, would not be admissible on the question of whether XXXX XXXX threatened to kill David McDermott, Joseph Revesz and Shenna Fisher on or about October 30, 1994 in the Dallas County Jail.
First, allegations that Ms. XXXX coerced and threatened Ms. Fisher to send letters to various judges in the Northern District of Texas recanting her previous trial testimony by, inter alia, forging a letter and telling Ms. Fisher the letter was written by Judge Fitzwater and threatening Ms. Fisher's mother and children are not relevant as to whether Ms. XXXX made the threats alleged in Counts 1-3. Second, allegations by Ms. Fisher that Ms. XXXX threatened to "knock off" David McDermott and Joseph Revesz during the time she and Ms. XXXX were incarcerated at FPC-Bryan in April-June 1994, four to six months before the threats alleged in Counts 1-3, would clearly be inadmissible in a trial on Counts 1-3 alone. Indeed, as will be discussed in the next section, such "did it once will do it again" type of evidence is exactly the type of evidence that is prohibited under Fed. R. Evid. 404. See, e.g., United States v. Brown, 71 F.3d 1158, 1162 (5th Cir. 1995) ("The only way in which Ms. Whitson's cross-examination testimony could help identify Mr. Brown was through the inference that because Mr. Brown committed the crime of possession with intent to distribute before, he had done so again. This is the inference that Rule 404(b) prohibits."). Third, the testimony of Raymona Galloway that, on the day she and Ms. XXXX were arrested, Ms. XXXX threatened "to get" the person responsible for her arrest would be inadmissible for similar reasons. Even if Ms. XXXX had, in fact, threatened "to get" the person that was responsible for her arrest (undoubtedly a common reaction immediately following an arrest), such a fact bears little, if any, relevance as to whether Ms. XXXX would actually threaten to hire a hit man to kill David McDermott, Joseph Revesz and Shenna Fisher more than a year later. Fourth, the testimony of Lindy Lovett regarding Ms. XXXX's alleged attempt to trick Ms. Fisher to recant her testimony by forging a letter from Judge Fitzwater would be irrelevant on the issues involved in Counts 1-3. Ms. Lovett's testimony regarding Ms. XXXX's writing of the "Peaches letter," using an alias to communicate with another prisoner in violation of prison rules, would also be irrelevant on those issues. Fifth, the testimony of Danette Williams regarding Shenna Fisher being scared of XXXX XXXX in no way addresses whether Ms. XXXX threatened to kill those individuals set forth in Counts 1-3 of the indictment in the presence of Tanya Nicosia. Sixth, while limited testimony from Shenna Fisher, David McDermott and Joseph Revesz would likely be admissible to explain their positions and to offer a motive as to why Ms. XXXX might want to threaten to kill them, the extensive testimony regarding the detailed facts of Ms. XXXX's treasury check conviction would certainly not be admissible on Counts 1-3 alone. Indeed, both Inspector McDermott and Mr. Revesz were permitted to name the many participants in the treasury check scheme; the fact that Ms. XXXX was the ring leader of the scheme; that all of the participants in the scheme were willing to testify against Ms. XXXX and that most did; that Ms. XXXX's fingerprints were found on the stolen treasury checks; and that the scheme was still under investigation. See, supra, at 15. The government's sole assertion at the time for the admissibility of such damning character evidence was that it showed that Ms. XXXX "knew" she was guilty of the stolen treasury check scheme and, therefore, knew that Shenna Fisher had not testified falsely when she (Ms. XXXX) sent her own letters to Judge Fitzwater (Counts 7-8) claiming that Ms. Fisher had testified falsely. (Tr. 3/15/95 at 247-49). Obviously, this bears no relevance to Counts 1-3. Likewise, Postal Inspector Jack McDonough, in an effort to show consistency between Ms. Fisher's initial statements to postal inspectors and her trial testimony in the treasury check case, was actually permitted to read verbatim Ms. Fisher's initial statement that detailed Ms. XXXX's role in the entire treasury check scheme and that statement was introduced at trial as Government's Exhibit No. 1. (Tr. 3/14/95 at 204-05). b. Fed. R. Evid. 404(b) exceptions inapplicable Ms. XXXX anticipates that the government will offer the Court a laundry list of explanations as to why, under Fed. R. Evid. 404(b), the evidence outlined above would still be admissible in a trial on Counts 1-3 alone. For example, on appeal, the government argued that such evidence would be admissible "to show, inter alia, motive, design, plan and pattern of conduct in making the threats against Fisher, Revesz and McDermott." Nevertheless, commentators have perceptively noted that Judges "should be wary when the proponent of bad act evidence cites a Īlaundry list' of possible purposes, without being able to articulate how the evidence is probative of those purposes or even that those matters are at issue in the case." 1 Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual at 323 (1994). As a preliminary matter, it should be noted that the purpose of evidence introduced pursuant to Fed. R. Evid. 404(b) regarding motive, plan or pattern of conduct is almost always to show the identity of the perpetrator of a crime. For example: The fact that the defendant had a motive for that particular crime increases the inference of the defendant's identity. Many other persons presumably had no motive, and the defendant's motive raises the probability of defendant's identity. "[A] person with a motive to commit a particular crime is more likely to commit the crime than is a person about whom nothing is known." Edward J. Imwinkelried, Uncharged Misconduct Evidence ¤ 3:15 at 69 (1995) (citations omitted). Likewise, plan evidence is also usually admitted for the purpose of showing identity. Proof that the defendant entertained a plan, including the commission of the charged crime, is logically relevant to show the defendant's identity as the criminal. Just as not all persons have the motive or opportunity to commit the crime, not all persons consider a plan to do so. Hence, proof that the defendant entertained a plan in his mind is probative of the defendant's identity as the criminal; the proof raises the probability of guilt by setting the defendant apart from innocent persons who had no such plan. * * * [For example] The defendant's burglary of a pawn shop can be used to show the defendant's plan to obtain the weapons for a robbery. The defendant's theft of a car can be employed to show the defendant's plan to use the car as a getaway vehicle in a kidnapping or robbery. The defendant's theft of a uniform is evidence of the defendant's plan to masquerade as a guard in order to rob an armored car. Id. at ¤ 3:21 at 99 and ¤ 3:22 at 102-03 (citations omitted). Finally, "pattern" evidence is not even mentioned in Fed. R. Evid. 404(b). United States v. Beasley, 809 F.2d 1273, 1277 (7th Cir. 1987). "Pattern" is missing...in Rule 404(b)'s list of permissible uses of bad act evidence. "Pattern" usually is a shorthand for a series of acts that collectively identify the offender - the ten bank robberies by a gang disguised by red polka dot bandannas, the series of counterfeit bills made by an engraver who never gets the Great Seal quite right, and so on. The pattern serves as the signature that enables the jury to determine that this offense, too, was committed by the defendant. See the summaries in McCormick on Evidence 449 (Cleary ed. 1972), and 2 J. Weinstein & M. Berger, Weinstein's Evidence ¦ 404[16] (1986 rev.). This use of pattern to show identity, or sometimes the extent and membership of a conspiracy, is the usual one in this circuit, as in others. Id. Nevertheless, here there is absolutely no question that, if Tanya Nicosia did, in fact, hear somebody threaten to kill David McDermott, Joseph Revesz and Shenna Fisher, it was XXXX XXXX who she heard. The question is whether the crime actually occurred; the question is not the identity of the individual who committed the crime. Considering the government's anticipated 404(b) arguments in turn, Ms. XXXX concedes that the government would have been permitted to explain the role of Inspector McDermott, Mr. Revesz and Ms. Fisher in Ms. XXXX's earlier prosecution in order to offer a possible motive as to why she might be angry enough with the three of them to threaten to kill them in front of Tanya Nicosia. Nevertheless, this does not begin to explain why the details of the stolen treasury check scheme, the steps Ms. XXXX supposedly took to get Ms. Fisher to write letters to judges, and prior threats regarding Inspector McDermott and Mr. Revesz, show a "motive" to kill Inspector McDermott, Mr. Revesz or Ms. Fisher. Likewise, this evidence is not admissible to show "design, plan and pattern of conduct." To begin with, it is difficult to understand the government's claim that an overarching "plan" existed encompassing the evidence in Counts 4-8 and the evidence in Counts 1-3. The alleged plan involved in Counts 4-8 was a plan to get a witness to recant her testimony so that a defendant could get a new trial, whereas the alleged plan involved in Counts 1-3 was a plan to kill those responsible for a defendant's earlier prosecution. Unlike a plan to steal a uniform in order to have a disguise as part of an overarching plan for an armored car robbery, it is difficult to see how a plan to get a new trial is part of an overarching plan that ultimately includes revenge. Likewise, the activities Ms. XXXX allegedly engaged in as the "head honcho" of a stolen treasury check scheme were clearly not part of a plan to then kill the people responsible for her conviction arising out of those activities. It is also simply not enough to show a pattern of criminal conduct, even similar, criminal conduct. Beasley, 809 F.2d at 1278. The pattern must be illustrative of some issue. Id. For example, showing that a defendant sold drugs in the past would not usually be admissible at a defendant's drug trial, but if it could be shown that in past sales the defendant established a pattern of using pink baggies, previous sales might then be admissible in a trial where the defendant is charged with selling drugs and the drugs were in pink baggies. Likewise, in United States v. Krezdorn, 639 F.2d 1327 (5th Cir. 1981), the Fifth Circuit held that it was error to introduce evidence of thirty-two additional forgeries to prove the four forgeries that the defendant was charged with committing. Id. at 1331. The Court held that this extrinsic evidence "would, at best, merely demonstrate the repetition of similar criminal acts, thus indicating [the defendant's] propensity to commit this crime." Id. In the alternative, the Court held that the admission of the evidence violated Fed. R. Evid. 403. Moreover, even if the thirty-two forgeries could somehow be considered relevant to the existence of a plan, the evidence fails to satisfy the second prong of the test for admissibility under Rule 404(b). A primary danger inherent in the admission of evidence of extrinsic offenses is that the jury might, inadvertently perhaps, punish the defendant for the uncharged activity. Here, where the extrinsic evidence involves precisely the crime with which Krezdorn was charged, to allow the introduction of the extrinsic offense evidence would be to allow the jury to be overwhelmed by the sheer numerosity of the offenses. Thus, not only does the evidence relate only to defendant's character, which is specifically prohibited by Rule 404(b), but in addition, the probative value is substantially outweighed by the unfair prejudice. Id. at 1332. See also United States v. Fortenberry, 860 F.2d 628 (5th Cir. 1988). Here, evidence that Ms. XXXX is alleged to have made prior threats against the purported victims named in Counts 1-3 simply shows the repetition of similar criminal acts and is exactly the type of evidence Fed. R. Evid. 404(b) protects against. See Brown, 71 F.3d at 1162. Finally, the government will likely argue that the evidence on Counts 4-8 is intertwined with the evidence on Counts 1-3. It seems prosecutors use the words "inextricably intertwined" when they have run out of legitimate arguments for admissibility. Indeed, they have been content to allow the "inextricably intertwined" argument to "swallow up" Fed. R. Evid. 404(b). See United States v. Ridlehuber, 11 F.3d 516, 524 (5th Cir. 1993). Evidence is "inextricably intertwined" only if it is "inseparable from the evidence of the charged offense." United States v. Price, 877 F.2d 334, 337 (5th Cir. 1989). While the existence of the treasury check case is admittedly intertwined with Counts 1-3 because it explains the relationship between the defendant and the alleged victims, the details of the treasury check scheme are not so intertwined. Likewise, there is no reason Counts 1-3 could not be tried without prejudicing Ms. XXXX with evidence that she allegedly forged letters from judges, circumvented prison correspondence rules and was an otherwise "devious" person. c. Fed. R. Evid. 403 Even assuming arguendo that some of the evidence admitted in the instant trial may have had some evidentiary value under Rule 404(b) in a trial on Counts 1-3 alone, it is nevertheless clear that the prejudicial effect of such evidence would substantially outweigh its probative value; thereby making it inadmissible under Fed. R. Evid. 403 in any event. For example, the allegations that Ms. XXXX forged a letter from Judge Fitzwater and threatened Ms. Fisher's mother and young children creates a huge potential for juror prejudice against Ms. XXXX. Likewise, the dishonesty inherent in Ms. XXXX's being a leader of a stolen treasury check ring that was still under investigation clearly prejudiced Ms. XXXX when the government was allowed to offer extensive testimony as well as witness statements related to that case. Indeed, had such evidence been admitted in a trial on Counts 1-3 alone and had Ms. XXXX been convicted, there is no question that the tail would have wagged the dog. Fortenberry, 860 F.2d at 632. d. Prejudicial spillover In its Opinion, the Court of Appeals did not seem to quarrel with this Court's conclusion that any error in admitting evidence on Counts 4-8, assuming it was error, was not harmless. See Opinion at 11. Indeed, there can be little doubt that the presence of Counts 4-8 at Ms. XXXX's trial had an extreme spillover effect prejudicing her defense of Counts 1-3. First, the government was not content to let the seemingly separate set of facts as to the two groups of counts be presented separately, but continually asked the jury to consider the facts from Counts 4-8 to bolster its evidence as to Counts 1-3. Second, the jury's determination that Ms. XXXX pressured and tricked Ms. Fisher into writing five false letters to two different United States District Court judges undoubtedly aroused the jury as to the lengths that Ms. XXXX might allegedly go in order to protect or vindicate herself and allowed the government prosecutor to repeatedly characterize her as a "devious" person in his final argument to the jury. (Tr. 3/21/95 at 79 (Arguing that writing letters to judges allegedly using Shenna Fisher's grammar and spelling is an example of XXXX XXXX being devious)); Id. (Arguing that writing "Peaches" letter using alias in circumvention of prison rules shows that "XXXX XXXX is devious...."); (Tr. 3/21/95 at 86 (Again arguing that the "Peaches" letter shows Ms. XXXX's deviousness)). Indeed, the evidence on the false statement counts and the prosecutor's repeated characterization of Ms. XXXX as "devious" would certainly make Ms. XXXX's plea of not guilty on Counts 1-3 almost devoid of credibility in the mind of the jury. Finally, the facts and dishonesty related to Ms. XXXX's conviction in the treasury check case that were brought before the jury in support of Counts 4-8 almost certainly prejudiced Ms. XXXX in the eyes of the jury, again making her "not guilty" plea devoid of credibility and a conviction on Counts 1-3 much more likely. In short, there can simply be no doubt that the jurors utilized the evidence introduced as to the alleged events at Bryan and the facts of the treasury check case to conclude in their minds that Ms. XXXX was "devious," that her "not guilty" plea was meaningless, and that Tanya Nicosia must have been telling the truth. Given Nicosia's "credibility gap," the government obviously needed something to firm up its weak proof on Counts 1-3, and that "something" was its much more substantial proof on Counts 4-8 as well as the details of Ms. XXXX's alleged dishonesty involved in her treasury check conviction. 2. Credibility of Tanya Nicosia In its previous order granting a new trial, even without consideration of the mountain of post-trial evidence bearing on Nicosia's credibility (see, supra, Section III), the Court noted that Tanya Nicosia was "a witness of questionable credibility." See New Trial Order at 2. The Court, however, did not elaborate on what weight Nicosia's "questionable credibility" played in its granting of a new trial. Ms. XXXX submits that on remand, the Court should make clear that its New Trial Order was based, in part, upon Nicosia's lack of credibility. It should be noted that when considering a motion for a new trial under Fed. R. Crim. P. 33, it is well established that a trial court "may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses." United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). Indeed, a district court's power to grant a motion for a new trial is much broader than its power to grant a motion for judgment of acquittal. On a motion for judgment of acquittal, the court is required to approach the evidence from a standpoint most favorable to the government, and to assume the truth of the evidence offered by the prosecution. If on this basis there is substantial evidence justifying an inference of guilt, the motion for acquittal must be denied. On a motion for new trial, however, the power of the court is much broader. It may weigh the evidence and consider the credibility of witnesses. If the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted. 3 Charles A. Wright, Federal Practice and Procedure ¤ 553 at 245-46 (1982). Accord, Tibbs v. Florida, 457 U.S. 31, 38 n.11 (1982); Alston, 974 F.2d at 1211-12; United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985). Cf. Dula, 989 F.2d at 778. If anything, the Court's characterization of Tanya Nicosia's credibility was charitable. Nicosia "previously" made her living lying and stealing from individuals and entities in numerous states. See, supra, at 3. In the course of her criminal activities, she would ordinarily be arrested, jump bond, and then simply continue her criminal schemes. Id. Nicosia herself testified that she had been "a housewife and a thief." (Tr. 3/15/95 at 37-38). Suspiciously, Ms. XXXX is at least the third person in the third different jail that Nicosia claims opened up to her, upon minutes of meeting her, and confessing to a crime. (Tr. 3/15/95 at 66-68). Moreover, in the past, Nicosia has given false information to law enforcement officials regarding other individuals. (Tr. 3/20/95 at 123). In the instant case, Nicosia denied numerous details relating her meeting of Ms. XXXX and other inmates in Tank 7E03 of the Dallas County Jail that were later testified to by two other inmates who were incarcerated with Nicosia and Ms. XXXX. More importantly, the key portions of her testimony were simply incredible. First, realizing that she would have to explain how she and Ms. XXXX could have a private conversation between 5:00 a.m. and 7:00 a.m. that was not heard by any of the other inmates despite the poor acoustics of the tank's day room, Nicosia explained that "XXXX wanted to sit by the table under the T.V. so the noise would be drowned out." (Tr. 3/15/95 at 105). Nevertheless, pictures reveal that there are no tables under the tank's television and two witnesses testified at trial that the television was never turned on until 7:00 a.m. (Tr. 3/20/95 at 45; 82-83; Defense Exhibits 19a-e). Second, Nicosia testified that Ms. XXXX told her that her (Ms. XXXX's) "Daddy" came from Pueblo, Colorado "to visit with her" and make arrangements for five people to be killed. (Tr. 3/15/95 at 21; Tr. 3/17/95 at 63-64; Tr. 3/15/95 at 89). Nevertheless, there was credible testimony that Ms. XXXX's father was in Colorado during the months of September and October and never traveled to Dallas and after trial it was learned that the government had records in its possession during Nicosia's testimony showing conclusively that Ms. XXXX's father never visited Ms. XXXX at any time at the Dallas County Jail. (Tr. 3/20/95 at 103-04; 111). Third, Nicosia testified that she overheard Ms. XXXX talking to her father by telephone on October 29, 1994 about arranging "hits." (Tr. 3/15/95 at 24). Nevertheless, it was proven conclusively that Ms. XXXX's father was incarcerated in Colorado from October 18, 1994 to November 3, 1994 and, because Dallas County Jail inmates could only make outgoing, collect calls and would be hung up upon if they attempted a three way call, such a telephone conversation could not have taken place. (Tr. 3/20/95 at 30-31; 46; 64; 133; 137; Defense Exhibits 20a-c; Government Exhibit 24). Fourth, Nicosia claimed that she took contemporaneous notes of her alleged conversations with Ms. XXXX "within a few minutes or so" of the alleged conversations. (Tr. 3/15/95 at 85). Nevertheless, when cross examined regarding these "contemporaneous" notes, Nicosia had to make numerous corrections and actually rearrange the chronology of the notes. See Defendant's Exhibit 28. The government will argue that there is no way that Nicosia could have lied about the threats and also known of the events at Bryan involving Shenna Fisher. Nevertheless, there was testimony at trial that Nicosia was actually observed reviewing Ms. XXXX's legal papers and correspondence and that Ms. XXXX had kept her transcript from the treasury check trial in her cell. (Tr. 3/20/95 at 56-57; 66). Moreover, Nicosia's testimony to the contrary, Ms. XXXX's federal criminal problems were common knowledge among the inmates in Tank 7E03. (Tr. 3/20/95 at 54; 93). Therefore, by reviewing Ms. XXXX's files and/or talking to other inmates, Nicosia could have easily learned the details of Ms. XXXX's treasury check trial as well as details regarding Shenna Fisher's allegations. B. TWO CATEGORIES OF NEW FOUND EVIDENCE ALSO SUPPORT GRANTING MS. XXXX A NEW TRIAL. In addition to the grounds set forth and implied in this Court's previous New Trial Order, Ms. XXXX submits that she is also entitled to a new trial pursuant to Fed. R. Crim. P. 33 based upon new found evidence. As noted above, the new found evidence consists of 1) evidence withheld from the defense by the government's case agent during the trial, and 2) a series of post-trial events involving Nicosia which indicate that allowing a conviction to stand against Ms. XXXX on Counts 1-3, without a jury having knowledge of the new evidence, would "pollute the waters of justice." 1. The government withheld exculpatory evidence from the defense during the trial As discussed above, during the trial in this case, Nicosia testified that Ms. XXXX told her during their discussions that her (Ms. XXXX's) "Daddy" came to visit her in the Dallas County Jail from Pueblo, Colorado on or about October 3, 1994 for the purpose of hiring a hit man. After the trial, it was learned that the government's case agent, Bill Randall, listened to Nicosia's testimony in this regard and, the whole time, never informed the defense that he had obtained Dallas County Jail records that proved unequivocally that Ms. XXXX never received any visits from her father or a man from Pueblo, Colorado during the entire time that she was incarcerated in the Dallas County Jail. Ms. XXXX submits that either the government knowingly allowed Nicosia to perjure herself and/or it seriously breached its obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). No matter whether this Court concludes that the government knowingly or negligently allowed perjured testimony or concludes that the government violated its Brady and Giglio obligations, this new evidence that was suppressed by the government independently merits a new trial on Counts 1-3. a. Knowing use of perjured testimony Where it is shown the government's case included false testimony and the government knew or should have known of the falsehood, a new trial must be held if there is any likelihood that the false testimony would have affected the jury. Antone, 603 F.2d at 569. Ms. XXXX submits the Court could correctly conclude that the government either knowingly or negligently allowed Nicosia to perjure herself when she testified that Ms. XXXX's father had come to visit Ms. XXXX in the Dallas County Jail on or about October 3, 1994 and that there is a reasonable likelihood that this testimony may have affected the jury's verdict on Counts 1-3. See United States v. Duke, 50 F.3d 571, 577 (8th Cir. 1995) ("Any reasonable likelihood" standard applies when a court finds that the government knowingly, recklessly or negligently used false testimony). Nevertheless, the government will respond by pointing out that Nicosia testified as to what Ms. XXXX allegedly told her and, therefore, the Dallas County Jail records, while making Nicosia's testimony less plausible, do not show outright perjury. Of course, it defies logic in the context of this case to argue that Ms. XXXX would tell Nicosia about a visit that is now known to have never taken place. Therefore, Ms. XXXX submits that the government knowingly or negligently allowed Nicosia to perjure herself. Moreover, it is beyond peradventure that Nicosia's false testimony, that Ms. XXXX had her father travel from Colorado to visit her in jail in Dallas for the purpose of hiring a hit man, gave support and an air of believability to Nicosia's allegations regarding Ms. XXXX's alleged threats against David McDermott, Joseph Revesz and Shenna Fisher and that there is at least some likelihood the false testimony affected the jury's verdict on Counts 1-3. b. Violations of Brady and Giglio Obligations Even assuming arguendo that, because Nicosia simply purported to recite what she was told by Ms. XXXX, her testimony was not outright perjury, the government still had an obligation pursuant to Brady and Giglio to produce the jail records in question. It is axiomatic under Brady that the prosecution in a criminal trial has a sacred obligation to disclose to the defense evidence that is favorable to the accused and material to either guilt or punishment. Brady, 373 U.S. at 87. The government's Brady obligation includes an obligation to produce evidence that may be used to impeach the credibility of a government witness. Giglio, 405 U.S. at 153-54. "Successful establishment of a Brady claim requires three findings: (1) that evidence was suppressed; (2) that this evidence was favorable to the accused; and (3) that the evidence was material either to guilt or punishment." Smith v. Black, 904 F.2d 950, 963 (5th Cir. 1990), overruled on other grounds, 503 U.S. 930 (1992). i. Suppression of Evidence Prior to Nicosia's testimony, Ms. XXXX had absolutely no knowledge that Nicosia would claim that she was told that Ms. XXXX's father visited her at the Dallas County Jail for the purpose of hiring a hit man. See Broden Dec. at ¦ 3. While Ms. XXXX was not obligated to specifically request Brady or Giglio information, defense counsel requested Agent Randall to obtain the Dallas County Jail records showing Ms. XXXX's visitors on two separate occasions following Nicosia's testimony. See Id. at ¦¦ 5-6. On neither occasion did Mr. Randall tell defense counsel or Mr. Snipes that he had already obtained the records months before. Because defense counsel only learned of Nicosia's allegations during the course of her testimony, it would have been virtually impossible, using reasonable diligence, for defense counsel to have subpoenaed the information already obtained by the government and to have received that information in a timely fashion. Based upon prior dealings with the Dallas County Sheriff's Department, defense counsel concluded that it would have been futile to file a subpoena application with the Court, wait until the application was granted, serve the application, wait for the records, and to have received the information prior to the defense resting its case. Id. at ¦ 4. Indeed, when the defense served a subpoena requesting this information in connection with sentencing in this case, it took a few weeks before the information was produced. Id. at ¦ 13. Of course, defense counsel did not know that the records were at the table next to him. Thus, the government had information in its possession that it did not produce to the defense despite two unequivocal requests. Clearly it cannot be argued that the evidence was not "suppressed." ii. Exculpatory Nature of Evidence Likewise, that the suppressed evidence was exculpatory, there should be no question. Had the defense been able to show that Ms. XXXX's father definitely did not come to visit Ms. XXXX in the Dallas County Jail, this showing would have severely undermined Nicosia's testimony that Ms. XXXX made serious threats against Mr. McDermott, Mr. Revesz and Ms. Fisher. Indeed, had the jury learned that Ms. XXXX had not been visited by her father, it would almost definitely had to have reached one of two conclusions. The first conclusion would have been that Ms. Nicosia, a witness of questionable credibility in the first place, had lied about being told of the supposed visit. In the alternative, the jury would have concluded that Ms. XXXX was simply boasting during her alleged conversations with Nicosia and was not making "serious" threats. In short, had the evidence not been suppressed, Ms. XXXX likely could have further undermined Nicosia's credibility and served a death kneel. This particular impeachment evidence, unlike most of the Nicosia impeachment evidence presented at trial, would have went to the very heart of Nicosia's allegations in this case. However, even in the unlikely event that the jury determined that Ms. XXXX had actually boasted to Nicosia about her father visiting, this would have had serious ramifications on the government's ability to prove that Ms. XXXX's threats were "serious" - a necessary element of Counts 1-3. See Court's Jury Instructions. Thus, under either analysis of the suppressed evidence, it was clearly exculpatory. iii. Materiality Evidence is material if there is a reasonable probability that had the evidence been disclosed to the defense in time for it to make full and effective use of the evidence, the result of the proceeding would have been different. Bagley, 473 U.S. at 682 (Blackman, J.); id. at 685 (White, J.). "A Īreasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 682 (Blackman, J.). See also Id. at 686 (White, J.). In this case, the materiality analysis is almost identical to the analysis used to determine if the evidence was exculpatory. This Court has already determined that "the principal direct evidence [at trial] on Counts 1-3 was the testimony of Tanya Nicosia, a witness of questionable credibility." See New Trial Order at 2. Nevertheless, the impeachment of Nicosia at trial was collateral impeachment. The suppressed evidence, however, would have likely impeached Nicosia regarding a central issue of her testimony and of the government's primary proof on Counts 1-3. As noted above, even if the jury nonetheless believed that Ms. XXXX did tell Nicosia that her father visited her for the purpose of hiring a hit man, this would have severely undermined the seriousness of Ms. XXXX's threats allegedly made during the same conversation. Therefore, the Dallas County Jail records were exculpatory and their suppression created a reasonable probability that had they been produced to the defense when they were requested, the jury would have concluded either that Nicosia lied or that Ms. XXXX's alleged threats were not serious. Regardless of whether this Court analyzes this issue as the government knowingly or negligently allowing Nicosia to perjure herself or whether it analyzes it as the government seriously breaching its Brady and Giglio obligations, the new found jail records evidence independently supports a new trial on Counts 1-3. 2. New evidence going to the core of Nicosia's credibility reveals that allowing the verdict to stand solely on the sworn word of Tanya Nicosia would "pollute the waters of justice." Assistant United States Attorney for the Middle District of Florida Terri Donaldson is to be commended for her adherence to the concept that it should not matter to the government whether it wins a case, but only that justice is done. See Berger v. United States, 295 U.S. 78, 88 (1935) (A prosecutor "is in a peculiar and very definite sense, the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer."). Indeed, as noted above, Ms. Donaldson is "most troubled" by Nicosia's role in the instant case. See Nicosia Tr. at 36. Nevertheless, despite the new evidence regarding Nicosia's credibility, the conclusion by the United States Attorney's Office for the Middle District of Florida that Nicosia has a propensity to falsely implicate fellow inmates in the commission of serious crimes, and Assistant United States Attorney Donaldson's strong concerns over the instant case, the United States Attorney's Office for the Northern District of Texas has informed the defense that it will still oppose a new trial on Counts 1-3. a. New evidence involving post-trial conduct Seeking a win, rather than justice, the United States Attorney's Office for the Northern District of Texas will argue that, because the new evidence regarding Nicosia involves post-trial activities, it should be ignored by this Court. While the government's result oriented argument is generally correct, several courts, including the United States Supreme Court, have refused to let convictions stand under similar, but less egregious, circumstances. In Mesarosh v. United States, 352 U.S. 1 (1956), the Supreme Court considered a new trial motion in a case in which the main government witness was later accused of post-trial perjury by the government. Mesarosh and his codefendants were convicted of using their alleged Communist Party ties to overthrow the United States Government largely on the testimony of Joseph Mazzei. Id. at 3, n.4; 10. Following that trial, Mazzei committed several instances of perjury, including false allegations of Communist Party membership against several other individuals. Id. at 5-7. The government informed the Court that Mazzei had perjured himself in these other cases, but it nevertheless argued that Mazzei's testimony against Mesarosh and his co-defendants was truthful and credible. Id. at 4. The Supreme Court reversed the convictions of Mesarosh and his co-defendants and ordered a new trial. Mazzei, by his testimony, has poisoned the water in this reservoir, and the reservoir cannot be cleansed without first draining it of all impurity. This is a federal criminal case, and this Court has supervisory jurisdiction over the proceedings of the federal courts. If it has any duty to perform in this regard, it is to see that the waters of justice are not polluted. Pollution having taken place here, the condition should be remedied at the earliest opportunity. * * * The government of a strong and free nation does not need convictions based upon such testimony. It cannot afford to abide with them. The interests of justice call for a reversal of the judgments below and direction to grant the petitioners a new trial. Id. at 14. In Williams v. United States, 500 F.2d 105 (9th Cir. 1974), the United States Court of Appeals for the Ninth Circuit considered a conviction based largely upon the testimony of a narcotics agent. Six months after Williams' trial, the agent pleaded guilty to perjury and depriving another individual of his civil rights. Id. at 106. The Ninth Circuit, in reversing Williams' conviction, noted that the agent's perjury, while subsequent to the case at bar, was in connection with an investigation similar in nature and contemporaneous in time to the investigation of Williams. Id. at 108. In Alvarez v. United States, 808 F. Supp. 1066 (S.D. N.Y. 1992), the defendant moved for a new trial pursuant to Fed. R. Crim. P. 33 based upon newly discovered evidence involving instances in which the main government witness against him committed perjury subsequent to his trial. The District Court for the Southern District of New York applied a three pronged test to determine if a new trial was justified. Id. at 1089. First, it concluded that the evidence could not have been discovered prior to Alvarez' trial because each instance of the witness' perjury occurred after the trial. Id. at 1092. Second, it concluded that the evidence was not "merely cumulative" or impeaching. Id. at 1092-94. In the case at bar, Diaz [the government witness] was subjected to vigorous cross-examination. Counsel for Alvarez attacked his credibility on cross and in his closing statement to the jury. Counsel urged the jury to disbelieve the testimony of the former drug dealer, Diaz, and believe the testimony of the defendant, Alvarez. The jury evidently believed Diaz. While other testimony may have assisted the jury in its search for the truth about the conversation between the CI [Diaz] and the defendant, there is no denying that, ultimately, the case was a "swearing contest" as to who was telling the truth and who was telling the lie--Alvarez or Diaz. "The jury was squarely faced with the hard question of whom to believe." Given the importance of this single credibility determination, I hold that the newly discovered evidence of--inter alia--Diaz's later lies, is vital impeachment material and not "merely cumulative." Id. at 1093 (citation omitted). Finally, the Court concluded that this new evidence of the witness' post-trial perjury would probably produce an acquittal. Id. at 1094-97. Finally, in United States v. DiBernardo, 552 F. Supp. 1315 (S.D. Fla. 1982), the United States District Court for the Southern District of Florida dismissed an indictment when the government's case agent's "serious credibility problems" arose subsequent to his grand jury testimony. Several post grand jury events gave the Court cause to find that the case agent "ha[d] a great propensity to lie." Id. at 1323. Relying upon Mesarosh, the Court dismissed the indictments. Id. at 1324 ("Special Agent Livingston's subsequent behavior and perjurious propensities have created a significant taint on the administration of justice. In the Court's opinion, the Mesarosh reasoning is just as compelling with regard to testimony before a grand jury as it is before a petit jury. Therefore, the only way of being absolutely sure that the taint is removed is to dismiss the instant indictments and allow the government to go before a new grand jury and present the evidence with full disclosure of all the facts."). b. New trial test It is clear, therefore, that this Court is not precluded from considering the new evidence regarding Nicosia's credibility to determine if a new trial is warranted under Fed. R. Crim. P. 33. The Court, nevertheless, must still determine whether the new evidence, in fact, justifies a new trial. A new trial based upon new found evidence requires a defendant to show: 1. the evidence is newly discovered and was unknown to the defendant at the time of the trial; 2. the defendant's failure to detect the evidence was not due to a lack of diligence; 3. the evidence is material, not merely cumulative or impeaching; and 4. the evidence would probably produce an acquittal at a new trial. United States v. Freeman, 77 F.3d 812, 815 (5th Cir. 1996). Obviously, the first two prongs of the new trial test are met. As discussed above, the new evidence occurred post-trial and could not have been discovered with due diligence. See, e.g., Alvarez, 808 F. Supp. at 1092. Moreover, while the evidence is obviously impeaching, it is not "merely impeaching." Indeed, the credibility of Nicosia in this case was determinative of Ms. XXXX's guilt on Counts 1-3, making this new evidence of vital importance. Id. at 1092-93. The only question that remains then is whether the new evidence revealed by the United States Attorney's Office for the Middle District of Florida would probably produce an acquittal. Of course, "if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." United States v. Agurs, 427 U.S. 97, 113 (1976). The government's entire argument on Counts 1-3 was that Tanya Nicosia was a credible informant because she could not have known about the events at FPC-Bryan concerning Shenna Fisher and because she did not benefit from her testimony. See, e.g., TR 3/21/95 at 33-36. However, the government now admits that Nicosia will, in fact, search through other inmates legal papers in order to falsely implicate inmates in serious offenses. See Gov't Proffer at 15. It is also known now that Nicosia has told others that she will never receive a substantial jail sentence because she will simply provide information about others. Id. at 14. Moreover, it is also known now that the government has concluded that Nicosia "presents a grave risk of providing false information that may result in the prosecution of others." Id. at 14-15. Finally, it is known now that a District Court Judge has went so far as to refuse to allow law enforcement officials to interview Nicosia regarding alleged criminal activities of others without special permission. As to the government's contention at trial that Nicosia received nothing for her testimony, apparently it did not appreciate its Faustian bargain with Nicosia. Indeed, undersigned counsel was informed by Assistant United States Attorney Michael Snipes that he was recently contacted by Nicosia's attorney seeking a sentence reduction from her three year supervised release revocation term for her prior testimony against Ms. XXXX. While Mr. Snipes declined, there can be no doubt that Nicosia viewed her testimony in this case as a debt to be called due when she next found herself in trouble. In short, the new found evidence in this case regarding Nicosia's credibility independently warrants a new trial. The government, given the new evidence produced by its Middle District of Florida United States Attorney's Office, cannot afford to abide by a conviction based upon the testimony of Tanya Nicosia. See Mesarosh, 352 U.S. at 14. |