The opinion of the court was delivered by: Reagan, District Judge
A. Background and Introduction
Defendant Leamon A. Hatfield was indicted by the United States on February 23, 2007 for conspiracy to unlawfully enter pharmacies with the intent to steal controlled substances in violation of 18 U.S.C. § 2118(b) and (d). A jury trial commenced October 29, 2007, and the jury found the Defendant guilty on November 2, 2007. Hatfield timely moved for a new trial,*fn1 raising six issues. First, he argues that the Court erred in denying his motion for mistrial. Second, he argues that the Court erred in permitting certain hearsay statements over counsel's objections. Third, Hatfield argues that the Court erred by not instructing the jury that venue is an element of the offense. Fourth, he argues that the jury verdict was against the manifest weight of the evidence. Fifth, he argues that the Court erred in denying his motion for acquittal, both at the close of the Government's case and at the close of Defendant's case. Finally, Hatfield argues that the Government committed a violation of Brady v. Maryland, 373 U.S. 83 (1963), by not fully disclosing its knowledge of Rex Hatfield's status as an FBI informant.
As the parties have fully briefed these issues (see Docs. 94, 98, 104), the Court now rules on the instant motion for new trial. For the reasons stated below, the Court DENIES Hatfield's motion for new trial.
FEDERAL RULE OF CRIMINAL PROCEDURE
33governs motions for new trial. Rule 33 provides that, upon a defendant's motion, "the court may vacate any judgment and grant a new trial if the interest of justice so requires." As explained by the United States Court of Appeals for the Seventh Circuit, "A defendant is entitled to a new trial if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict." United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006) (citing United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996)).*fn2
The district court may consider the credibility of the witnesses in making this determination. United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999). But the district court may notreweigh the evidence or set aside the verdict just because the court "feels some other result would be more reasonable." United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989). Rather, the evidence must preponderate so heavily against the verdict that it would be a miscarriage of justice to let the verdict stand. Id.
Additionally, the Seventh Circuit has warned that when considering a motion for new trial, "Courts are to grant them sparingly and with caution, doing so only in those really 'exceptional cases.'" Id. Accord United States v. DePriest, 6 F.3d 1201, 1216 (7th Cir. 1993) (explaining that motions for new trial must be approached with great caution, and that judges should be wary of second-guessing determinations made by juries).
First, Hatfield argues that the Court erred in denying his motion for a mistrial. On the second day of trial, October 30, 2007, Assistant United States Attorney Robert Garrison called Officer Maria Cutshaw to testify. Officer Cutshaw testified that she was on duty for the Sevierville, Tennessee Police Department on January 20, 2002 and was dispatched to a local pharmacy after receiving a report that a burglary was in progress. Upon arrival, she found the back door of the pharmacy open and two Caucasian males in the process of burglarizing the pharmacy - Rex and Leamon Hatfield. She and other officers arrested the suspects, recovered wire cutters and prescription pill bottles from the, and found a police scanner nearby.
During direct examination, Mr. Garrison asked, "Did you take a statement from Leamon Hatfield?" to which Officer Cutshaw responded, "He did not make a statement." Rough Transcript, Oct. 30, 2007, pp. 103-04. At that point, defense counsel objected on the grounds that the testimony violated Hatfield's Fifth Amendment right against self-incrimination, moved to strike the testimony, and moved for a mistrial. The Court took the motion for mistrial under advisement and granted the motion to strike. In giving a curative instruction, the Court stated:
Folks, there was a question and answer that was just asked and answered that you are not permitted to consider, so I am going to repeat it for you so that you know what you should not consider. Now there is some harm in that because I am repeating something you shouldn't consider. I am not trying to reinforce it but I want you to be certain what you cannot consider. The question and answer you cannot consider and should completely disregard and put totally out of your mind is as follows.
Question: And did you take a statement from Leamon Hatfield?
Answer: He did not make a statement.
You must completely disregard that answer in this case.
Id. at 105-06. The undersigned Judge then asked the jury whether there was anyone who could not completely disregard the testimony, and no juror indicated that they were unable to disregard it.
After the United States rested its case on November 1, 2007, the Court heard additional argument on the motion for mistrial. Defense counsel cited Doyle v. Ohio, 236 U.S. 610 (1976), and California v. Griffin, 380 U.S. 609 (1965), for the proposition that commenting on a defendant's silence is a violation of his constitutional rights. Rough Transcript, November 1, 2007, pp. 253-55. The Government argued that the testimony involved an isolated and minor reference to the fact that Hatfield did not make a statement, such that any prejudice resulting therefrom was harmless because of other incriminating evidence regarding the event. This other evidence consisted of Officer Cutshaw's testimony that Hatfield was caught inside the pharmacy at the time of the burglary and a videotaped interview during which Hatfield admitted his involvement in the burglary, but claimed to have been acting at the direction of a government informant.
The Court denied the motion for mistrial on the grounds that Officer Cutshaw's answer would not deprive Hatfield of a fair trial. The Court reasoned that her answer, "He did not make a statement," was not a clear violation of his Fifth Amendment privilege, because it was a generic statement and did not convey the reason that Hatfield did not make a statement, nor did it explain whether he had been asked to do so. The Court also found that the subsequent instruction cured any harm that may have been done by the testimony. Finally, the Court noted that on at least four occasions, the jury had been or would be instructed of Hatfield's absolute right not to testify and that they could not consider his exercise of that right in arriving at their verdict.
In the motion at hand, Hatfield argues that the Court erred in denying the motion for mistrial and again cites Griffin and Doyle. Though each of these cases stresses the importance of a defendant's Fifth Amendment right against self-incrimination, neither case is instructive here.
In Doyle, the defendant took the stand and told an exculpatory story for the first time. 236 U.S. at 611. The trial court permitted the prosecution to cross-examine the defendant about the fact that he failed to tell this story to police at the time of his arrest. Id. The Supreme Court found that it was "fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id. at 618.
In Griffin, the state trial court instructed the jury that it could consider the defendant's failure to testify as tending to indicate the truth of matters about which he had knowledge if the defendant could "reasonably be expected to deny or explain" those facts. 380 U.S. at 610. The prosecution also made multiple references to the defendant's failure to testify and suggested that the jury should draw an inference of guilt from that silence. Id. at 610-11. Under these facts, the Supreme Court found a violation of the Fifth Amendment and reversed Griffin's conviction. Id. at 615.
Nothing of the sort happened here. Contrary to the facts of Doyle, the prosecution here never insisted that an inference of guilt be drawn from the fact that the Defendant did not make a statement. In fact, Mr. Garrison supported the motion to strike the testimony and acknowledge the need to issue a curative instruction. And unlike Griffin, the Court gave no instruction indicating that the jury could consider Hatfield's failure to testify at trial as an indication of guilt. To the contrary, the Court specifically instructed the jury that it could not make such an inference. Nor did the prosecution ever comment on Hatfield's decision not to testify. The only testimony that arguably implicated the Fifth Amendment was a single, minor answer given by Officer Cutshaw that Hatfield did not make a statement after his 2002 arrest. The undersigned Judge then explicitly told the jury that it "must completely disregard" the statement, and all jurors indicated that they could do so.
The fact that these cases are distinguishable, however, does not mean that the response elicited by the Government's question was permissible. Even where the prosecution does not directly suggest that a defendant's silence is evidence of guilt, there is a danger that the jury will draw prejudicial inferences from that information. As noted in Griffin, "[T]he Fifth Amendment, in its direct application to the Federal Government . . . forbids either comment by the ...