United States District Court, N.D. Illinois, Eastern Division
November 8, 2004.
UNITED STATES OF AMERICA, Plaintiff,
TONY L. WARREN, Defendant.
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
On July 16, 2004, defendant Tony L. Warren was convicted by a
jury on four counts of bank fraud, two counts of possessing
forged securities, and five counts of transportation of stolen
goods/securities. Mr. Warren moves for a new trial on a number of
grounds. Rule 33 allows motions for a new trial where required by
the interests of justice. FED. R. CRIM. P. 33. However, such
motions are disfavored, and properly granted only in the most
extreme cases. United States v. Linwood, 142 F.3d 418, 422
(7th Cir. 1998). Mr. Warren presents eight alleged errors,
none of which justify the extraordinary remedy of a new trial.
The motion is denied.
Mr. Warren first argues that he is entitled to a new trial
because the government failed to turn over documents pursuant to
Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Mr. Warren
seeks disclosure of any documents the United States Secret
Service maintains in relation to the deactivation of confidential informants, stating that such information is crucial to Mr.
Warren's defense of public authority. The government has
steadfastly denied the existence of any such documents. Before I
may grant a new trial for a Brady violation, Mr. Warren must
establish that "(1) the prosecution suppressed evidence; (2) the
evidence allegedly was favorable to the defense; and (3) the
evidence was material to an issue at trial." United States v.
Reyes, 270 F.3d 1158, 1166 (7th Cir. 2001).
Mr. Warren contends that the government has suppressed evidence
which should have been disclosed pursuant to Brady. However,
Mr. Warren presents no evidence that the documents he is seeking
deactivation forms for Secret Service confidential informants
even exist. The government continues to deny that such a form
exists, submitting the affidavit of Special Agent Douglas Farrell
in support. The government further asserts that any notation or
memos specific to Mr. Warren were destroyed in the attack on the
World Trade Center on September 11, 2001. Mr. Warren rests his
contention that the documents do exist on Mr. Farrell's earlier
reference to the formal deactivation of Mr. Warren, stating that
such phrasing implies that form documents for that purpose do
exist. In the face of the government's steadfast denial, as well
as Mr. Warren's failure to specifically question Special Agent
Matthew Quinn about the existence of such documents at trial,
this unspecific reference is not enough to evidence the existence of
the documents Mr. Warren seeks.
Mr. Warren next argues that the failure of the prosecution to
disclose notes of a telephone conversation with Mr. Warren made
by Assistant United States Attorney Richard Donoghue until just
prior to Mr. Donoghue's testimony warrants a new trial. On
November 5, 2002, Mr. Warren apparently called Mr. Donoghue, who
subsequently made notes of the conversation for an on-going
investigation. Mr. Warren states that the notes were discoverable
under Rule 16(a)(1)(A), which provides that the government must
disclose, upon request, any statement made by the defendant in
response to interrogation by a known government agent if the
government intends to use the statement at trial. FED. R. CRIM.
P. 16(a)(1)(A). Rule 16 provides that the government shall
the substance of any relevant oral statement made by
the defendant, before or after arrest, in response to
interrogation by a person the defendant knew was a
government agent if the government intends to use the
statement at trial.
FED. R. CRIM. P. 16(a)(1)(A).
Mr. Donoghue's notes of the telephone conversation are arguably
material to be produced under Rule 16. However, prejudice for
belatedly producing such material only exists when the defendant
is "unduly surprised and lacks an adequate opportunity to prepare
a defense, or when the violation substantially influences the
jury." United States v. Stevens, No. 03-1104, 2004 WL 1853718
(7th Cir. Aug. 19, 2004). Mr. Donoghue's notes were provided
to Mr. Warren shortly before Mr. Donoghue took the stand. Mr. Warren did
not request a continuance or any other remedy at the time, and
had the opportunity to fully cross-examine Mr. Donoghue. See
id. Even now, Mr. Warren makes no argument as to how he would
have questioned Mr. Donoghue differently with prior knowledge of
the notes. Even if the government erred in not producing Mr.
Donoghue's notes until just before his testimony, that error does
not rise to the level of a constitutional harm and does not
warrant a new trial.
Mr. Warren also argues that he was denied a fair trial because
the government was permitted to question Mr. Donoghue about the
reasons underlying dismissal of earlier charges against Mr.
Warren.*fn1 Mr. Warren argues that this testimony was
irrelevant and prejudicial, because he had never been informed of
the government's reasons for dismissing the charges. During the
pretrial conference, I made it clear to Mr. Warren and his
counsel that if the issue of the New York charges and subsequent
dismissal was raised, I would permit the government to present
witnesses to explain the reasoning behind its actions. Not only
did Mr. Warren's counsel fail to object at that time, counsel
stated that he "would love them to" present such a witness to
allow the jury to evaluate the reasonableness of the government's
explanation. Mr. Warren wanted to present his assumptions resulting from the
dismissal; it was reasonable to allow the government a chance to
explain its actions.
Mr. Warren next argues that he was denied a fair trial by my
admonition during defense counsel's closing argument that the
jury was to disregard counsel's statement about reasonable doubt.
This argument misconstrues counsel's statement. During closing
arguments, defense counsel stated
But if you've got any doubt about whether or not he
[Mr. Warren] was deactivated, the law says and the
Judge will . . . [cut off by objection]
After a brief sidebar during which I reminded counsel that
"reasonable doubt" is not defined as "any doubt," I instructed
the jury to disregard defense counsel's last statement regarding
the law. When the law is misstated during a closing argument, it
is proper for the court to instruct the jury to disregard the
misstatement. See United States v. Fruth, 36 F.3d. 649, 654
(7th Cir. 1994).
Mr. Warren contends that he was prevented from impeaching a
government witness with a prior inconsistent statement, depriving
him of a fair trial. At trial, Mr. Warren sought to impeach
Mathew Quinn with a statement Mr. Quinn had made during a
telephone interview with counsel for Mr. Warren regarding the
length of time Mr. Quinn oversaw Mr. Warren's confidential
informant activities. I sustained an objection to use of the
unsworn telephone interview. (Tr.p. 50-51) A full transcript of the interview shows that the
statement (page 39 of the transcript of the interview) is
entirely consistent with Mr. Quinn's testimony at trial on this
point, but Mr. Warren does not appear to be arguing otherwise.
(Tr.p. 47) In his post-trial motion for a new trial, Mr. Warren
argues that he was not allowed to impeach Mr. Quinn's testimony
at trial that "he told Warren he was deactivated." Defendant's
Motion for a New Trial at 6. At that point, I did not have a
transcript of the testimony but I assumed that Mr. Warren was
accurately reporting both the trial testimony and the telephone
interview, and it appeared there was an inconsistency that I had
not allowed Mr. Warren to question Mr. Quinn about since a
partial transcript of the pretrial telephone interview, quoted by
Mr. Warren in his motion, quoted Mr. Quinn stating that he had
never told Mr. Warren he was "deactivated."*fn2 A comparison
of the actual transcript of the interview and the trial
transcript shows there was no inconsistency. At trial, Mr. Quinn
testified that he would not use the word "deactivation," although
he had told Mr. Warren he was no longer working for the
government. (Tr.p. 57, 53, 55) In the telephone interview, Mr.
Quinn stated that he never used the word "deactivate" but he did
"personally tell him he is to no longer to [sic] do anything on behalf of the Secret Service. (Tr.p. 53)
Since there is no inconsistency Mr. Warren was not prejudiced by
my ruling at trial.
Mr. Warren finally argues that a number of jury issues deprived
him of a fair trial. Mr. Warren argues that the Federal Rules of
Criminal Procedure do not allow for special verdicts, such as
that rendered by the jury here. Special verdicts are permitted in
federal criminal trials. United States v. Smith, 938 F.2d 69,
70 (7th Cir. 1991). Mr. Warren also claims that several of
the instructions given to the jury denied him a fair trial,
including instructions that did not state the government had to
disprove Mr. Warren's defense of public authority beyond a
reasonable doubt and an admonishment to reach a verdict without
considering potential sentences. None of these instructions
deprived Mr. Warren of a fair trial. The government need not
disprove Mr. Warren's defense of public authority beyond a
reasonable doubt. Patterson v. New York, 432 U.S. 197, 210
(1977) (upholding New York requirement that defendant prove
affirmative defense). It was also proper to instruct the jury to
disregard potential sentences while reaching its verdict.
Shannon v. United States, 512 U.S. 573, 579 (1994).