The opinion of the court was delivered by: James P. Jones Chief United States District Judge
The defendants have filed motions for a new trial based on newly discovered evidence. For the following reasons, the motions will be denied.
The defendants Anthony Eugene Duty and Robin Marie Davis were convicted in a joint jury trial of knowingly conspiring to distribute and to possess with intent to distribute fifty grams or more of crack cocaine, in violation of 21 U.S.C.A. §§ 841(b)(1)(A), 846 (West 1999 & Supp. 2009). After I denied their original posttrial motions, United States v. Duty, No. 1:08CR00024, 2009 WL 88540 (W.D. Va. Jan. 13, 2009), Duty filed a Second Motion for New Trial and Davis filed a Motion for New Trial Under Rule 33, both based on newly discovered evidence. On June 18, 2009, I held an evidentiary hearing on these motions and allowed the parties to file supplemental briefs. This Opinion sets forth the evidence before the court and my rulings on the latest motions for a new trial filed by Duty and Davis.
Fifty-one defendants were charged in this case for offenses relating to the distribution of crack cocaine. Following the Indictment, the defendants were severed into four separate groups for trial. Most of the defendants eventually pleaded guilty, and as to those who went to trial, all but one were convicted by juries.
During the first three trials, co-defendants Paul Vaughn, Derrick Evans, and Marcus Watkins testified for the government. Since then, Vaughn, Evans, and Watkins have recanted their trial testimony and have moved to withdraw their guilty pleas. In support of the present motions, both Duty and Davis rely on the recanting statements made by Vaughn, Evans, and Watkins. Duty also claims that the government failed to disclose impeaching evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
These issues have been briefed and are ripe for decision. I will address them in turn.
Under all the circumstances, including my opportunity to preside at all of the trials and hearings in the case and my review of the extensive record, I do not believe that either Vaughn, Evans, or Watkins fabricated their prior trial testimony. Therefore, on this ground, the motions for a new trial will be denied.
Early in this case, Vaughn, Evans, and Watkins agreed to cooperate with the government. Vaughn testified before the Grand Jury. They each signed plea agreements and testified consistently throughout the first three jury trials. In advance of the fourth trial, however, Vaughn, Evans, and Watkins sent letters to the court recanting their prior testimony. At the evidentiary hearing, Vaughn, Evans, and Watkins testified and affirmed statements made in their letters.
Vaughn, Evans, and Watkins provided detailed testimony for the government. Vaughn testified at the Grand Jury proceeding and at the first and second trials. Evans testified at the first three trials, while Watkins testified only at the first trial.*fn1
On May 28, 2008, Vaughn testified before the Grand Jury. He acknowledged that he was "currently charged in [the] case and [was] subject to being indicted... [.]" (Hr'g Gov't Ex. 1 at 3, June 18, 2009.) He knew that he could be charged with perjury if he told "a willful falsehood to the Grand Jury." (Id. at 4.)
Vaughn told the Grand Jury that Derrick Evans, Oedipus Mumphrey, Kerry Lee, Charles King, Tyree Slade, Marcus Watkins, Andre Watkins, Reginald Morton, Emanuel Morton, and Brian Morrison traveled from Burlington, North Carolina, to Bristol, Virginia, and Bristol, Tennessee, to sell crack cocaine. He explained that Evans had provided Watkins and Mumphrey locations from which to distribute crack cocaine. Mumphrey sold crack at a Bristol motel. Vaughn acted as a lookout. Reginald Morton and his girlfriend Jessica Rodriguez, an individual named Drake, and Candace Maynard helped deliver the crack for Mumphrey.
On his first trip to the Bristol region, Vaughn and others encountered law enforcement. Vaughn, Mumphrey, Reginald Morton, Emmanuel Morton, Drake, and Rodriguez traveled to Bristol from Burlington in three separate cars. While at a motel, law enforcement officers searched one of the cars. In it they found materials used to transform powder cocaine into crack cocaine, including a hot plate and a scale. Officers did not search the car driven by Rodriguez, a gold Buick, which contained two kilograms of cocaine. After this incident, Vaughn and the others returned to Burlington.
On a different occasion, Mumphrey paid Vaughn $1,000 to drive him to Bristol. They went to a mobile home on Anderson Street in Bristol, Tennessee, to sell crack. There, Vaughn again served as a lookout. In November, 2007, a mobile home in the neighborhood caught on fire and several law enforcement and emergency personnel arrived at the scene. Mumphrey and Vaughn went outside. While outside, they were approached by two officers. They gave the officers false names, leading to their arrest. The officers found the keys to Mumphrey's grandmother's car, which Mumphrey was driving, and searched it. In it, they discovered crack cocaine.
Vaughn described a dispute he had with Mumphrey after their arrest. Mumphrey bailed Vaughn out of jail. He then asked Vaughn to take his gun back to North Carolina in a separate car. Vaughn refused. In retaliation, Mumphrey assaulted Vaughn and kicked him out of his mobile home. Vaughn returned to North Carolina alone. Later, in Burlington, Mumphrey insisted that Vaughn take responsibility for the drug charge that had resulted from the arrest in November, 2007. Vaughn again refused. Again in retaliation, Mumphrey struck Vaughn in the ribs with a wrench and knocked him unconscious.
During his Grand Jury testimony, Vaughn provided information about specific individuals. Lee traveled to Bristol from Burlington to supply cocaine to various distributors. At first, he operated from Mumphrey's mobile home, but then moved to Frederick Cato's house, where he was eventually arrested. Vaughn described one occasion when Lee gave him $18,000 to give to Mumphrey for a half-kilogram and a "big eight[,]" which he defined as four and a half ounces. (Id. at 18.)
Vaughn identified various associates and customers of Mumphrey. Bruce Baumgardner bought a quarter-ounce of crack from Mumphrey at least four or five times a day. Shantha Calhoun visited Mumphrey to buy half-ounces of crack, and then resold it. Douglas Stallworth bought small quantities of crack from Mumphrey at his mobile home on Anderson Street. Vaughn stated that Stallworth "was a good customer." (Id. at 21.) Marcus Watkins regularly bought two ounces of crack from Mumphrey. Marcus Watkins' girlfriend, Le Ann Berry, was "real, real tall" and acted as Watkins' runner. (Id. at 22.) Vaughn observed Mumphrey sell a half-ounce to King and give a half-ounce to Andre Watkins. Mumphrey also supplied Brian Morrison. Tyson Anderson and Tamaray Lea worked as lookouts for Mumphrey and Marcus Watkins. Additionally, Vaughn testified that Lee and Mumphrey ran Evans' drug business while Evans was in jail. Vaughn knew that some of the individuals who traveled from Burlington to Bristol had worked for Evans' recording label called "Kant Stop Records," and had had a reputation for dealing drugs.
On May 28, 2008, the Grand Jury returned the Indictment in the case. Over the following four months, Vaughn, Evans, and Marcus Watkins signed plea agreements with the government. Under the terms of each Plea Agreement, Vaughn, Evans, and Watkins agreed to plead guilty to the conspiracy charge and to cooperate with the government and disclose their knowledge of any criminal activity. In return for Evans' cooperation, the government agreed to dismiss two of his three prior North Carolina felony drug convictions from a Sentencing Enhancement Information, a benefit that reduced the applicable statutory mandatory minimum sentence from life imprisonment to twenty years. See 21 U.S.C.A. § 841(b)(1)(A) (providing for mandatory minimum sentence of twenty years if there is a prior felony drug conviction and for a mandatory minimum sentence of life imprisonment without release if there are two or more prior felony drug convictions) and 21 U.S.C.A. § 851(a)(1) (West 1999) (providing that a person cannot be sentenced to increased punishment by reason of one or more prior convictions unless government files information stating the previous convictions to be relied upon). In Vaughn's Plea Agreement, the government agreed to do the same with respect to one of Vaughn's two prior North Carolina felony drug convictions. In Watkins' Plea Agreement, the government stipulated that Watkins was previously convicted for only one felony drug offense.
I accepted the pleas of Vaughn, Evans, and Watkins at their guilty plea hearings. They confirmed that they had had an adequate opportunity to discuss their case with their attorneys, and to read and discuss the Plea Agreements with their lawyers. They stated that they were fully satisfied with their lawyer's representation. The terms of each Plea Agreement were summarized by the prosecutor and Vaughn, Evans, and Watkins each agreed that those terms were included as they understood their agreements. They agreed that no promises had been made to them other than those contained in their Plea Agreements, and that no one had attempted in any way to force them to plead guilty.
After I accepted their plea of guilty, Vaughn, Evans, and Watkins appeared for the government during the first three trials and gave consistent testimony. They demonstrated a detailed understanding of their Plea Agreements, explained their background in drug distribution and their involvement in the charged conspiracy, and testified about their relationship with other defendants and the extent of their criminal activity.
First, Vaughn, Evans, and Watkins each acknowledged the terms of their Plea Agreements. They understood that they faced a mandatory minimum sentence of twenty years in prison and that they could potentially receive a life sentence. They affirmed that the government had not promised them anything for their cooperation. They hoped for leniency, but understood that their sentence would be set by the court, and not the government.
Next, Vaughn, Evans, and Watkins each described how they became involved with the distribution of crack cocaine in Burlington. Vaughn testified that Mumphrey had introduced him to crack distribution and that through Mumphrey he had met Evans, Lee, and Marcus Watkins. The lucrative drug trade enticed Vaughn. Mumphrey gave him his "first pair of Jordans." (Duty Trial Tr. 65, vol. I, Oct. 7, 2008.)*fn2 Vaughn stated that in Burlington, Evans "would basically man handle somebody, or take their drugs, or sell at their spot...." (Id. at 66-67.) Lee "fronted" drugs to distributors, which meant that distributors would obtain drugs from Lee in advance of payment. (Id. at 67.) Mumphrey supplied crack to Marcus Watkins, who then sold it.
Evans testified that in Burlington, he was a "go getter," which meant that he robbed drug dealers of their supply and sold it to other drug dealers for a less expensive price. (Duty Trial Tr. 181, vol. II, Oct. 8, 2008.) Watkins testified that he knew Evans and Bryant Kelly Pride from Burlington and traveled with them to Bristol, where they originally intended to expand Kant Stop Records, but turned to crack distribution instead.
Finally, Vaughn, Evans, and Watkins each testified about their drug dealings in Bristol and about their relationships with other drug dealers. Vaughn explained that he had made several trips to Bristol with Mumphrey. As to the Grand Jury, Vaughn related the story about his encounter with law enforcement at the motel, except he added that once they had returned to Burlington, Mumphrey had given Reginald Morton thirteen-and-a-half ounces of cocaine out of the supply. Mumphrey returned to Bristol without Vaughn and sold the remainder.
Vaughn testified that he and Mumphrey initially sold crack from various motels in the Bristol area. Vaughn acted as a lookout while Mumphrey distributed the crack. Mumphrey regularly met with Stallworth and Stallworth bought quarter-ounces of crack on a regular basis. Then, Mumphrey established a distribution point at a mobile home on Anderson Street in Bristol, Tennessee. Again, Vaughn testified that he had been a lookout. Both Baumgardner and Stallworth bought crack from Mumphrey at the mobile home. Stallworth bought "fifties" and eight-balls (3.5 grams). (Stallworth Trial Tr. 108, vol. I, Oct. 28, 2008.) Vaughn explained that a "fifty" was "a fifty of a quarter ounce, like half a gram" and that a "hundred rock" was a gram, "$100 worth of cocaine." (Id. at 108-09.) Baumgardner bought quarter-ounces three or four times a day and was Mumphrey's "VIP." (Id. at 107.)
Vaughn accounted for the circumstances of his arrest in November, 2007, just as he did in front of the Grand Jury. He added that the police had found $3,000 on him, which he stole from Mumphrey. He testified that Berry, who was known as "Seven [F]ooter," purchased crack from Mumphrey and delivered it to her boyfriend Marcus Watkins. (Duty Trial Tr. 77, vol. I, Oct. 7, 2008.) As he did to the Grand Jury, Vaughn explained that on one occasion, Lee had given Vaughn $18,000 to give to Mumphrey for a half-kilogram and a "big eight." (Id. at 78.)
Evans testified that one of his drug robbery victims had eventually retaliated, causing him and his family to move to Johnson City, Tennessee, near Bristol. Once there, Evans' cousin, Alexander Poole, introduced him to Stallworth. Stallworth convinced Evans to move to Bristol, because it was "wide open" for crack distribution. (Stallworth Trial Tr. 13, vol. I, Oct. 28, 2008.) Evans established his first distribution point in Bristol, Virginia. Thereafter, Stallworth acted as a middleman between Evans and other users.
Evans explained that he had had two main sources of supply, Pride and Lee. Evans brought Pride to Bristol, after Pride was released from prison in North Carolina. They sold crack out of a house on Texas Avenue. No dealer trusted Evans, given his history of drug robberies, so Pride traveled alone to purchase their product. Evans purchased kilograms of cocaine from Pride, which Evans then distributed to the customer base that he had established in the area.
Evans stated that at some point, Evans and Pride had traveled to Atlanta. Lee, a cousin to Evans, traveled from Burlington to Bristol to take Evans' "spot," meaning that while Evans was in Atlanta, Lee sold drugs from the same house that Evans used as a distribution point. (Duty Trial Tr. 189, vol. II, Oct. 8, 2008.) Evans and Lee subsequently became partners. They bought crack in Burlington and distributed it in the Bristol area. They imported as much as five kilograms of cocaine on each trip. For approximately two or three years, Evans regularly dealt in kilograms.
Evans testified that when Lee moved to the Bristol area, Mumphrey came with him. Mumphrey originally worked for Lee, but then established his own distribution ring with the help of Vaughn and Reginald Morton. Evans knew that Mumphrey had sold crack from a mobile home on Anderson Street in Bristol, Tennessee. He added that across that street was Morton, selling from a different mobile home. Mumphrey eventually supplied Evans; first with small quantities but then with kilograms.
Additionally, Evans testified that he had used the profits from his drug trade to establish a music recording label called Kant Stop Records. It involved several of his co-defendants, including Marcus Watkins, Slade, Andre Watkins, and King. After the company failed financially, some of its members joined Evans in his drug pursuits.
Evans explained that his cohorts helped him maintain his drug business while he was jailed on state charges for possession of marijuana. During trial, the government introduced telephone calls that Evans had made from a local jail. During one conversation, Evans directed Anderson "to cut [his] phones off." (Stallworth Trial Tr. 32, vol. I, Oct. 28, 2008.) Evans, Lee, Mumphrey, and Vaughn used cell phones to communicate with their customers. The phones were vital: Evans testified that approximately 70 to 100 addicts in the area knew his number and that approximately 500 addicts knew the number of either Evans, Lee, Mumphrey, or Vaughn. While Evans was in jail, Mumphrey obtained Evans' phones and gave them to Lee so that Lee could make money. Lee had again left Burlington for Bristol. He distributed crack from Cato's house with help from Mumphrey and Vaughn. That attracted attention, and law enforcement executed a search warrant there. Because of that, Evans ordered Anderson to cut the phones off.
The recorded jail conversations also demonstrated Evans' relationship with his family. Evans testified that he had attempted to isolate his wife and children from his drug business.
Evans testified against specific defendants. He stated that he had sold crack from Duty's car shop on Sixth Street in Bristol, Tennessee, that he had paid Duty crack for rent, and that Duty often served as a middleman between him and other users who frequented Duty's shop. Stallworth and Baumgardner bought crack from Evans at Evans' garage on Mary Street in Bristol, Virginia. Occasionally, Baumgardner and Stallworth did errands for Evans in return for crack.
Marcus Watkins testified about his experience as a distributor in Bristol. Until 2006, Pride and Evans supplied him. Thereafter, he bought from Mumphrey at his mobile home on Anderson Street. For a time he distributed from Travis Steele's apartment on Lowry Street in Abingdon, Virginia, and during that time, an individual named Amigo provided his product. While at that apartment, the defendant Robin Davis, whom he saw drive a Lincoln Town Car, and her son Herschel Davis, helped him sell crack. His girlfriend, Berry, regularly assisted him in his trade as well.
After the first three trials, Vaughn, Evans, and Watkins sent a series of letters to the court in which they recanted their prior testimony. At the evidentiary hearing, Vaughn, Evans, and Watkins testified under oath and ...