The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is Defendants Rex and Everly Hatfield's Motion for New Trial Based on Newly Discovered Evidence (Doc. 292). Specifically, Defendants seek a new trial pursuant to FED.R.CRIM.P.33(b) due to the Government's alleged Brady and Napue violations. The Government has filed a response in opposition to the motion (Doc. 304). On September 10, 2010, the Court held an evidentiary hearing and heard testimony and further arguments from the parties. After having reviewed the arguments and the testimony at the evidentiary hearing, the Court rules as follows.
Rex and Everly Hatfield were indicted on two counts of conspiracy to commit pharmacy robberies in violation of 18 U.S.C. §§ 2118(b) and (d) and conspiracy to distribute and possess with intent to distribute controlled substances, namely morphine, methadone, oxycodone, fentanyl, alprazolam, cocaine, and hydrocodone, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C), all in violation of 21 U.S.C. § 846. Count II also alleged that the distribution of those drugs resulted in the death or serious bodily injury of six individuals (Doc. 43). The jury returned a guilty verdict on both counts on October 29, 2008 (Docs. 170-181). In finding both Defendants guilty of conspiracy to distribute and possess with intent to distribute, the jury found that the distribution of controlled substances to several individuals by the Defendants resulted in the death of Carol S. Walker (Docs. 176 & 178) and the serious bodily injury of Richard Ward (Docs. 177 & 181). The jury also found that drugs distributed by Rex Hatfield led to the death of Deborah Ann Smith (Doc. 174) and Mark D. Honaker (Doc. 175). Further, the drugs distributed by Everly Hatfield led to the death of Jimmy L. Dishmon (Doc. 180). However, the jury found that drugs distributed to Christopher P. Allen did not result in death (Doc. 179).
Defendants filed an appeal challenging several of this Court's rulings. In particular, the Defendants challenged the wording of the special jury instruction of the meaning of the statutory term "resulting from" as it related to the distribution counts. Further, Defendants challenged one of the special verdict forms which omitted the date of the overdose which Defendants argued "constructively amended" the Indictment, the allowance of a certified document from a dismissed case involving one of the Defendants used by the Government to back up its argument that the Defendants planned to kill one of the individuals, and the disallowance of statements by an individual who had claimed he had committed one of the burglaries the Defendants were charged with.
The Seventh Circuit affirmed the Court's ruling on the witness testimony, special verdict form, and documents from the dismissed case. However, in regards to the jury instruction on the deaths resulting from language, the Seventh Circuit found that the additional language in the instruction did not "[contribute] to the understanding of causation" and made the statutory language less clear. United States v. Hatfield, 591 F.3d 945, 949 (7th Cir. 2010). Finding that the instruction was given in error, the Seventh Circuit remanded the case back to this Court to be retried on the "results from" charge only. The Seventh Circuit upheld the jury's findings on the other counts as the convictions for conspiracy to burglarize pharmacies and distribute controlled substances "were supported by overwhelming evidence unrelated to the evidence of the causes of the injury and deaths." Id. at 953.
On remand, the Government sought to dismiss the "resulting from" portions of the Indictment (Doc. 279). The Defendants objected to the dismissal of the allegations, but the Court granted the Government's request and dismissed all of the "resulting from" allegations and set the case for re-sentencing. Subsequently, Defendants filed a motion for new trial based on newly discovered evidence (Doc. 292) which is currently pending before the Court.
Specifically, in Defendants' motion for new trial, the Defendants seek a new trial for what they allege are Brady and Napue violations by the Government in failing to turn over registration records at the Knights Inn, formerly the Econo Lodge, the Hatfields were allegedly staying at the night before Jimmy Dishmon's death. Further, Defendants argue that the Government failed to correct Pamela Hatfield and Shiela Acklin's testimony regarding whether they registered at the hotel on the night in question even though the Government knew the testimony to be false.
In regards to the Brady violation, Defendants allege that the Government obtained registration records from the hotel in question which showed that none of the Defendants, nor any of their accomplices, were registered at the hotel on the night before Jimmy Dishmon's death. The Government, or more specifically the DEA agents, had those documents in their position before trial and as early as 2006. Further, Defendants allege that the Government violated Napue when the Government allowed two witnesses, Pamela Hatfield and Shiela Acklin, to testify falsely, testifying that they did, in fact, stay in the hotel on the books and that one of them registered at the hotel. Defendants argue that the Government knew the evidence was false but never sought to correct the testimony or to inform the Defendants.
At the evidentiary hearing, the parties stipulated that the DEA received the hotel records from the owner, Mr. Ronald Mann, in 2006 but returned them on April 10, 2006. However, prior to the trial, the DEA reacquired the documents sometime in May of 2008 and mailed the documents back once the trial ended in October 2008. The Defendants also argued that while they had received discovery regarding the Defendant's stay in July 2003, they did not receive information about the night at issue. Defendants also pointed out that the discovery originally produced by the Government sometime in February or March of 2006 in two DEA-6 reports*fn1 showed that the events at issue took place at an Econo Lodge in Cool Ridge, West Virginia. In actuality, however, the Econo Lodge was not located in Cool Ridge but in Ghent, West Virginia and was no longer an Econo Lodge but had been renamed a Knights Inn, making any due diligence, arguably, on the Defendants' part impossible to uncover the exact location of the hotel at issue. Defendants' counsel further pointed out that even if his due diligence had uncovered the actual name and location of the hotel, Mr. Mann no longer had the proper documents as they were in the sole possession of the Government.
On the stand, Mr. Mann testified that even though he had sold the hotel after twenty years of ownership, he still maintained all of the records and registration going back to 1987. While he did not remember the exact date, he recalled that two DEA agents contacted him and went through his records sometime in 2007. Further, he recalled that the records were obtained sometime before the trial. He believed that all of his employees were truthful and that the manager on duty that night, Justin Farley, was truthful, trustworthy, and honest. He also testified that it would not have been appropriate, nor would he have allowed, any of his managers to rent out rooms to people off the books nor could he recall when any such guests stayed at the hotel without registering. He also acknowledged that the daily auditor for September 8, 2003 was Ron Hatfield, although he doesn't remember that employee specifically and the auditor report would have been prepared by the auditor on duty on September 9, 2003.
The night manager on duty on September 8, 2003, Justin Farley, confirmed that Ron Hatfield had to have worked on September 9, 2003 in order to have filled out the audit reports from the night before as all reports from the previous night were filed by the managers on duty the subsequent night. Further, he denied allowing anyone to stay at the hotel without registering and denied allowing Defendants to stay. He also stated that he relied on only the records when filling out the audit forms and did not check each individual room.
Jimmy Dishmon's daughter and son also took the stand to testify as to their father's whereabouts on the night before his death. Mr. Dishmon's daughter, Whisper Dishmon, testified that her father had been at home the whole night before his death. She recalled that her father was remodeling their bathroom on the night of September 8th. She recalled talking to him that night as he worked on the bathroom. She also recalled that he laid down for awhile due to a pain he had developed in his arm. When she got up for school the next day between 4:30 and 5:00, she remembered speaking with her father because he told her he had purchased an electric tooth brush. She recalled that it was unusual for him to be up that early as he was not usually up when she got ready for school. It was not until she came home from school that day that she found her parents in their bedroom asleep. She testified that she woke her mother up but that her mother came out of the bedroom to tell her that something was wrong with her father and that she went back to her parents bedroom and found her father not breathing, with blood around his mouth.
On cross-examination, she denied ever telling her father's sister that she would back her mother and her uncles and would do whatever she could to help them. She admitted that she did not tell the defense before trial about her encounter with her father on the night before his death because no one ever asked her and she felt that she was just a kid. She also stated that she did not remember seeing any pills around her father when she found him in bed and did not recall hearing her mother say that she was going to help get her brothers off and that Whisper and her brother would help. She also denied that her mother sold pills.
Whisper's brother, Jimmy Dishmon II, also testified to seeing his father at his house the night before his death. He recalled seeing his father between 11:00 and 11:30 the night before his death. He had been playing video games at a cousin's house all day had was going to spend the night with his cousin so he stopped by the house to ask his father's permission to stay out all night. He recalled his father was in the back bedroom and he told him Mars was visible that night as they both enjoyed astronomy. He also stated that he rarely saw his uncles, Rex and Everly, and had only met Pam on a couple of occasions. He denied that his mother used pills or sold them and was ...