The opinion of the court was delivered by: William D. Stiehl District Judge
MEMORANDUM AND ORDER STIEHL, District Judge:
Before the Court are defendant's pro se motion for New Trial (Doc. 890) a Supplement to that motion (Doc. 904) and two Motions to Appoint Counsel (Docs. 899 and 925), as well as other related motions. The government has filed a response to the motion for new trial, and the supplement (Doc. 918) and the defendant has filed a reply (Doc. 923).
The defendant was indicted on a Fourth Superseding Indictment and charged with Conspiracy to distribute and possess with intent to distribute controlled substances (Count 1); using and carrying a firearm during and in relation to a drug trafficking crime (Count 2); causing the interstate travel of Debra Abeln, with the intent to murder Debra Abeln (Count 3); conspiracy to cause the interstate travel of Debra Abeln with the intent to murder Debra Abeln (Count4); the murder of Debra Abeln with the intent to prevent her communication to law enforcement regarding a drug trafficking conspiracy(Count 5); and using and carrying a firearm during and in relation to a crime of violence (See Fourth Superseding Indictment, Doc. 648)
The Court bifurcated the trial and held the trial related to the drug charge in August of 1998. (Westmoreland I trial), and the murder-related charges in 2001. The drug conviction was appealed and affirmed, United States v. Westmoreland, 240 F.3d 618, 637 (7th Cir. 2001) (Westmoreland I). The murder related charges were appealed and affirmed in United States v. Westmoreland, 312 F.3d 302 (7th Cir. 2002) (Westmoreland II).
This motion for new trial relates to the trial on the murder-related charges. The defendant asserts that he is entitled to a new trial on the grounds that he has "newly discovered evidence" that the affair between the investigating case agent, Marty Milkovich, and the defendant's wife, Bronnie Westmoreland *fn1 (which was revealed before the trial) was of such a nature that it warranted a new trial, and a hearing on this matter. He also raises claims that Milkovich recanted his testimony from the first trial (he did not testify at the second trial) concerning Westmoreland's post-arrest statement; and his third claim is that Special Agent Kevin Martens testified falsely during Milkovich's disciplinary hearing.
The defendant and his co-defendants conspired to murder Debra Abeln, in part to protect a drug trafficking scheme (although it was later learned that she was not a threat to that scheme, she was just a marital encumbrance to her husband, Westmoreland's co-conspirator, Richard Abeln). The scheme was carried out among Westmoreland, the victim's husband, Richard Abeln, and DeAndre Lewis, who was the person hired to commit the murder. The evidence at trial revealed that, at Richard Abeln's request, Lewis, who had worked for Westmoreland, was hired by Westmoreland to kill Debra Abeln at CRT Aviation, in Sauget, Illinois. Richard Abeln and Westmoreland conspired to have the victim brought to the Airport by her husband (in the company of their 12 year old son) where she was shot by Lewis while still in her car.
Westmoreland and Richard Abeln had been friends and business associates in the early 1990s. In late 1996 or early 1997 they began purchasing and distributing cocaine. During the period between the start of their drug conspiracy and the death of Debra Abeln, they acquired some seven kilograms of cocaine and approximately two hundred pounds of marijuana. Richard Abeln had decided that he no longer wanted to be married to Debra Abeln, and complained to Westmoreland that Debra Abeln had learned of their drug activities and had threatened to turn them in to authorities. Westmoreland then made arrangements to take care of Abeln's "problem." They agreed to have Debra Abeln murdered at CRT Aviation in Illinois, and Westmoreland made arrangements with Lewis to commit the murder. Lewis testified that after a failed first attempt, Richard Abeln brought Debra Abeln to CRT Aviation a second time and she was murdered. Westmoreland was on a family cruise during the time of the murder. *fn2
As part of the evidence at trial in Westmoreland II, the defendant's wife, Bronnie Westmoreland, testified as to the destruction of evidence (directed by Westmoreland after his arrest) including the destruction of a vehicle involved in the murder. As the government details, the affair between the defendant's wife and Milkovich, was discovered before the second trial, and was disclosed to the defense. The affair was a "significant issue in the case," and was the reason why the government chose not to seek the death penalty against the defendant and his co-conspirator Deandre Lewis (See, Doc. 577). The defendant asserts that the affair actually started earlier than the government has stated, and, therefore, supports his claim to entitlement to a new trial.
The record reveals that prior to trial, the government revealed, both to the Court and to defense counsel, information it had concerning the affair. In fact, the government provided exhaustively detailed records and investigative files concerning this relationship. The defendant has asserted that the affair actually started as early as March of 1998. There is nothing in those materials which would support any finding other than that the affair began in and around November of 1999.
Before trial the Court ruled, as part of its ruling on the government's motion in limine (Doc. 758), that the defendant could not call Milkovich (whom the government did not call) as a witness in his case solely to impeach him concerning their affair. The Court noted that the affair began more than year after the defendant's conviction on the drug conspiracy charges. Id. at 3. With respect to Bronnie, the Court held that the defendant could explore the nature of their affair as a means of impeaching her testimony. The Court noted in that Order, "Defendant's ex parte submission in support of his contention that the affair began earlier is not highly persuasive. It only hints at an earlier meeting between the two, but does not clearly, or even likely, establish any sexual relationship existed." Id. at n.3. The Court further directed that before such evidence would be a grounds for impeachment inquiry that the defendant would have to "satisfy the requirements of Fed. R. Evid. 613(b)." Id.
The Court is well satisfied that the record which was before it before trial on the murder-related charges, and the record before it now, support a finding that the affair did not start before November of 1999. Nonetheless, the Court will review each of defendant's allegations individually, in an effort to determine whether the defendant is entitled to a hearing on the motion for new trial, and, therefore to the appointment of counsel, or if the motion can be resolved on the pleadings.*fn3
The defendant first asserts that he is entitled to a new trial because his information indicates that the affair between Bronnie and Milkovich began earlier than November of 1999, as was asserted at trial. The defendant asserts that it had started as early as March of 1998, and would have impacted the entire investigation of the case. The defendant claims that the Court's finding that the affair began in November of 1999 was prejudicial, because by November of 1999, the bulk of the murder investigation had concluded. The defense, during the murder trial, was allowed to cross-examine the witness Bronnie Westmoreland, about the affair, when it began, and how it was carried out. (Transcript of Trial, vol. IX, p. 12 and following).
The defendant's second assertion is that after the trial in Westmoreland I, Milkovich changed his testimony regarding the defendant's post-arrest statement. Milkovich had testified that Westmoreland admitted being involved in drug trafficking with his co-defendant, Richard Abeln, but denied that he was involved in the murder-for-hire scheme. Westmoreland's statement was made to both Milkovich and to Master-Sergeant Calvin Dye. He has provided the affidavits of persons other than Milkovich as to that recantation, but does not address the fact that it was Dye who testified as to his post-arrest statement at the second trial on the murder-related charges. Therefore, the "recanted" testimony of Milkovich does not change the fact that the jury in Westmoreland II heard only Dye's testimony as to the confession, and any recantated testimony from the first trial could not have influenced the verdict in the murder trial.
Finally, he asserts that Special Agent Kevin Martens lied during the disciplinary hearing for Malkovich concerning a visit to property that the Westmoreland family owned in Bland, Missouri, in 1999. The defendant asserts that this visit occurred in 1998, not 1999.
A Standard of Review of Motion for New Trial
Rule 33 of the Federal Rules of Evidence provides that a motion for new trial may be granted based on "newly discovered" evidence if required in "the interests of justice." To receive a new trial based on such a claim, "the defendant must demonstrate that the evidence (1) came to [his] knowledge only after trial; (2) could not have been discovered sooner had due diligence been exercised; (3) is material and not merely impeaching or cumulative; and (4) would probably lead to an acquittal in the event of a retrial." (Insert citation) . As the Seventh Circuit set forth in United States v. Erivn, 540 U.S. 623, 631 (7th Cir. 2008), "To obtain a new trial based on newly discovered evidence, a defendant must show, among other things, that the evidence in question 'is material and not merely impeaching or cumulative,' and that it 'probably would lead to an acquittal in the event of a new trial.' United States v. Hodges, 315 F.3d 794, 801 (7th Cir.2003)."
With respect to "recanted testimony" the Court must determine whether it is reasonably well satisfied that the testimony in question was false; that the jury might have reached a different conclusion if the false testimony had not been admitted or if it had known that the testimony was false; and that the defendant was taken by surprise by the false testimony and was "unable to meet it or did ...