United States v. Corry Thompson , 335 F. App'x 876 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16374 ELEVENTH CIRCUIT
JUNE 30, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-00684-CR-1-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORRY THOMPSON,
a.k.a. Larry Scott,
a.k.a. Corey Thompson,
a.k.a. Bobby Cook,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 30, 2009)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Corry Thompson appeals the district court’s judgment denying him a new
trial based on newly discovered evidence under Federal Rule of Criminal
Procedure 33. Thompson also contends that his motion for a new trial at least
merited an evidentiary hearing. We affirm.
I.
The case against Thompson was based on evidence discovered by the
Atlanta Police narcotics unit in a house on Palmetto Street that was searched in
October 2003 and an apartment on Oglethorpe Avenue that was searched in
October 2002. Each search, undertaken after a confidential informant purchased
drugs at that location, turned up hundreds of grams of cocaine, along with crack
cocaine, ecstasy, and guns. Thompson was charged with two counts of being a
felon in possession of a firearm under 18 U.S.C. § 922(g) and § 924(e), two counts
of possessing a firearm in furtherance of a drug trafficking crime under § 924(c),
and seven counts of possession with intent to distribute cocaine, crack cocaine,
marijuana, and ecstasy, all in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1), and §
851. Thompson went to trial in April 2005 and was convicted by a jury on all
counts. He was sentenced to life.
Thompson appealed, contending that there was insufficient evidence to
connect him to the guns and drugs found in either location. We held that there was
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plenty of evidence to connect Thompson to both the Palmetto Street house and the
Oglethorpe Avenue apartment, and thus to connect him by constructive possession
to the guns and drugs found at those addresses. We affirmed his convictions.
United States v. Thompson, 473 U.S. 1137, 1144 (11th Cir. 2006).
II.
In April 2007, two members of the narcotics unit of the Atlanta police
department pleaded guilty to federal civil rights violations after they killed an
elderly woman in her (drug-free) home in November 2006. To get a search
warrant for that home, the officers had lied to the magistrate by saying that a
confidential informant had purchased drugs at that address, when in fact they had
been unable to get any informant to go there. They also claimed that their
imaginary informant had spotted surveillance equipment, justifying a no-knock
warrant. As the officers later rammed in her door, the terrified elderly woman fired
a .38 pistol at them through the door; they returned fire and killed her. An officer
then planted marijuana in the house and supplied the cocaine that all of the officers
claimed had been bought there. It was a tragic example of police misconduct, but
that is not the end of the story. A federal investigation revealed that:
In some, but not all, cases, while working as APD narcotics officers, Junnier,
Smith, and other officers made false statements in sworn affidavits to state
magistrate judges in order to procure search warrants for residences and
other locations where the officers believed illegal drugs would be found.
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These false statements included representations that Confidential Reliable
Informants (“CRIs”) had made drug purchases that never actually took
place; that information was provided to officers by CRIs when the
information was actually provided by unreliable informants, sometimes after
officers threatened to falsely attribute illegal drugs to such informants; that
the officers had personally observed a purchase by a CRI when they had not
in fact observed the events described in the affidavit; that the CRIs were
searched before and after drug purchases when CRIs were not searched; and
that the occupants of the residence to be searched had surveillance cameras,
were armed with firearms, or were dangerous in other ways to obtain “no-
knock” warrants.
One of the officers who pleaded guilty to a role in the November 2006 shooting
was Officer Junnier, who had also led the team that investigated and searched the
Oglethorpe Avenue address in October 2002. Although Junnier did not procure the
warrant for the Oglethorpe Avenue search, the officer who did get that warrant has
since also pleaded guilty to conspiring to violate civil rights based on a warrantless
search that occurred in October 2005.
Based on these events, Thompson filed a timely motion for a new trial under
Federal Rule of Criminal Procedure 33. The district court denied the motion on
multiple grounds. In short, because Officer Junnier’s misconduct occurred years
after the search in this case, the district court found that the newly discovered
evidence was merely impeaching and that it would be inadmissible anyway under
Rule 404(b). Moreover, Junnier’s testimony had been corroborated by other
officers and by a smorgasbord of physical evidence, meaning that Thompson could
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not show that a new trial would probably produce a different result. Accordingly,
the district court denied Thompson’s motion for a new trial and declined to order
an evidentiary hearing. This is Thompson’s appeal.
III.
Thompson contends that he is entitled to a new trial because new evidence
shows that Atlanta Police narcotics officers engaged in a pattern of illegal behavior
during their investigations, including lying about confidential informants and
planting evidence. He argues that the recently discovered police misconduct
supports his defense, which was that he never possessed any of the drugs, and that
it likely would produce a different result by calling into question his guilt as well
as the veracity of the informant and the officers who testified against him.
Thompson also argues that the district court erred by denying him discovery and an
evidentiary hearing.
We review the district court’s denial of Thompson’s motion for a new trial
pursuant to Rule 33, as well its decision to deny him an evidentiary hearing, only
for abuse of discretion. United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir.
2002); United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996).
Rule 33 provides that “the court may vacate any judgment and grant a new
trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “Motions for a
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new trial based on newly discovered evidence are highly disfavored in the Eleventh
Circuit and should be granted only with great caution. Indeed, the defendant bears
the burden of justifying a new trial.” United States v. Campa, 459 F.3d 1121, 1151
(11th Cir. 2006) (en banc) (citation omitted). The court should only grant a such
motion if the defendant shows that:
(1) the evidence was discovered after trial, (2) the failure of the
defendant to discover the evidence was not due to a lack of due
diligence, (3) the evidence is not merely cumulative or impeaching,
(4) the evidence is material to issues before the court, and (5) the
evidence is such that a new trial would probably produce a different
result.
United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quotation
omitted). “The failure to satisfy any one of these elements is fatal to a motion for a
new trial.” United States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995).
A.
The district court did not abuse its discretion by deciding that Thompson had
failed to demonstrate that a new trial “would probably produce a different result.”
Jernigan, 341 F.3d at 1287. First, the search of the Palmetto Street house in
October 2003 remains above reproach. None of the officers who were later
investigated for misconduct were involved in that search. A confidential informant
testified at the trial that he had purchased drugs from Thompson himself at the
Palmetto Street house. An officer testified that he observed Thompson entering the
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house using a key and carrying a dog food bag that was later found full of drugs.
Officers also observed Thompson leaving the Palmetto Street house and locking
the door with his key. A few minutes later, when they pulled over Thompson’s
car, he threw the house keys onto the ground and walked away from them. Six or
seven officers entered the Palmetto Street house, including not only Atlanta police
but also a Georgia parole officer and an ATF agent. Both of these outside-agency
officers provided corroborating testimony about the search and the drugs that were
found there. None of the evidence and none of the officers involved in the
Palmetto Street search have ever been called into question. Thus, there is certainly
no showing that “a new trial would probably produce a different result” with
regard to the six counts stemming from the Palmetto Street search. See Jernigan,
341 F.3d at 1287.
Thompson focuses instead on the Oglethorpe Avenue search. He contends
that because the two officers primarily responsible for that search— Sergeant
Stallings, who procured the warrant, and Officer Junnier, who led the search—
were later convicted of civil rights violations involving warrantless searches, lying
to magistrate judges, manslaughter, and planting evidence, that he has shown that a
new trial would probably produce a different result. Thompson argues that United
States v. Espinosa-Hernandez, 918 F.2d 911, 913–14 (11th Cir. 1990), requires a
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new trial, or at least an evidentiary hearing.
In that case, the defendant had been convicted of conspiracy to import
cocaine based on evidence from a drug sting headed by Customs Special Agent
David Urso. Espinosa-Hernandez, 918 F.2d at 913. After the trial, Espinosa
learned that Urso had made false statements to the grand jury and in an affidavit
relating to Espinosa’s case. Id. Urso had also been indicted for lying about his
previous sale and use of drugs on his application to become a customs agent, and
he was under investigation for distribution of cocaine and for aiding the escape of
an incarcerated government informant. Id. Espinosa argued that Urso had played
a key role in his conviction by testifying that Espinosa had been anxious to accept
the cocaine, which Espinosa (who never possessed any of the drugs) had
vigorously denied. Urso had also told the court that a witness Espinosa had sought
was a government informant who was unavailable to testify. Id. In light of Urso’s
misconduct, we held that discovery might show “that Urso committed perjury in
Espinosa’s trial or a related proceeding” and stated that his testimony “had a
tremendous impact” on the conviction. Id. at 913–14. We remanded the case for
an evidentiary hearing concerning Urso’s misconduct as it related to the new trial
motion. Id. at 914.
Thompson’s case is different. In Espinosa-Hernandez, we knew that Urso
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had made false statements to the grand jury in that case and had submitted a false
affidavit in that case. Moreover, Urso’s misconduct, as shown by the investigation
into his activities and his indictment, reached all the way back to the beginning of
his service as a customs agent, meaning that his lies about his sales and use of
drugs, as well as other possible misconduct, had occurred before the sting and trial
that led to Espinosa’s conviction. As we noted, that also raised the possibility that
the U.S. Attorney’s office had violated Bagley or Giglio by failing to disclose
exculpatory or impeaching information. Id. at 914.
By contrast, in this case Officer Junnier and Sergeant Stallings’ convictions
were based on events that occurred in late 2005 and late 2006— three to four years
after the Oglethorpe Avenue search and six to eighteen months after Thompson’s
trial. In other words, there is no evidence that the Atlanta narcotics officers
committed any misconduct until more than three years after the Oglethorpe
Avenue search. In fact, the confidential informant involved in both the Palmetto
Street and Oglethorpe Avenue drug buys recently confirmed his 2005 testimony
against Thompson in an interview with Thompson’s counsel. That informant
worked for at least five years with many police officers, including ones who were
never investigated, and has made hundreds of drug buys.
Moreover, there remains substantial evidence of Thompson’s role in the
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Oglethorpe Avenue drug operation and thus of his guilt. When the six officers
entered the Oglethorpe Avenue apartment, they found four people inside, as well as
over 100 grams of cocaine, 50 grams of crack cocaine, 318 doses of ecstasy, two
guns, baggies, and scales. The drugs were found in a safe, in both bedrooms, in a
closet, and in the kitchen. Believing that six officers planted all of that evidence
and photographed it in the presence of four suspects requires a big stretch of the
imagination.
And in addition to the drugs, guns, and paraphernalia, the officers found
“[d]ocuments that were undisputedly Thompson’s,” including three traffic citations
that Thompson had received less than two miles from the Oglethorpe Avenue
address and while driving a car owned by another occupant (who unquestionably
was involved in the drug operation). Thompson, 473 F.3d at 1142–43. The police
also found a Red Cross application filled out by Thompson and dated just one day
before the search. Id. Finally, there was a list of phone numbers and nicknames—
a drug dealer’s address book— that matched Thompson’s cell phone records. Id.
All of these documents were found in one of the bedrooms, along with more than
100 grams of powder cocaine and 10 grams of crack. In addition to the amount of
drugs, the paperwork that undoubtedly belonged to Thompson connected him to
the Oglethorpe Avenue address and dispels any reasonable inference that the
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evidence against him was somehow faked.
Finally, Thompson testified at his trial. About the Oglethorpe Avenue
address, he first conceded that he had been in that apartment but on cross-
examination denied that he had ever been there. Id. at 1143. The government
presented evidence that Thompson had six prior felony convictions, as well as
evidence that he had repeatedly lied to police about his identity and had given false
testimony in an earlier hearing in this same case. Id. at 1143.
In sum, there is plenty of evidence to dispel any concern that Officer Junnier
or any other officer planted the evidence against Thompson. Notably, Thompson
does not even argue that the evidence against him was fabricated; instead, he
argues essentially that he could impeach the officers in a new trial in light of their
later misconduct. But to the extent that is his goal, under Jernigan impeachment
evidence alone is not enough to merit a new trial. 341 F.3d at 1287. In any event,
Thompson would not be entitled to a new trial so that he may impeach a witness
based on that person’s actions that occurred after his original trial. Thompson, in
effect, is arguing that his first trial was unfair because the police did not testify that
they would, years later, commit crimes and other misconduct in similar cases. That
is not a reason for a new trial.
B.
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Nor did the district court abuse its discretion in denying Thompson his
requested discovery and an evidentiary hearing. As Thompson admits, the district
court has discretion to decide the motion for a new trial without a hearing. United
States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997) (“[T]he acumen gained by a
trial judge over the course of the proceedings” makes the same court “well
qualified” to rule on a motion for a new trial based on new evidence without an
evidentiary hearing.).
In United States v. Slocum, 708 F.2d 587 (11th Cir. 1983), we held that:
[W]e find ourselves in agreement with the decision on the merits of the new
trial motion and where the defendants failed to file even an affidavit by []
the person whose post-trial statement clearly came the closest to requiring a
new trial, we hold that the trial court did not abuse its discretion in denying
the motion without an evidentiary hearing.
Id. at 600. In this case, Thompson has not filed any affidavits supporting his new
trial motion. Instead, Thompson discloses that he has interviewed one of the police
officers and the confidential informant and that both confirmed their 2005
testimony and denied any wrongdoing by anyone with regard to the Palmetto
Street and Oglethorpe Avenue searches.1 Thompson has found nothing at all to
connect the officers’ misconduct during 2005 and 2006 to the Oglethorpe Avenue
1
The defense also contacted Officer Junnier who, through his attorney, declined to
comment.
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search in 2002.2 Thus, it is hard to see what could be achieved by holding an
evidentiary hearing, especially because the same district judge who presided over
his trial decided the motion for a new trial.
In light of the “highly disfavored” nature of new trial motions, see Campa,
459 F.3d at 1151, the district court did not abuse its discretion by concluding that
Thompson failed to show that the new evidence probably would change the result
of his trial. For that reason, and because the same judge presided over both
Thompson’s trial and his Rule 33(a) motion, the district court was well qualified to
rule on that motion without a hearing, and it did not abuse its discretion by
declining to order discovery. Therefore we affirm.
AFFIRMED.
2
Thompson relies on United States v. Fernandez, 136 F.3d 1434, 1437–38 (11th Cir.
1998), but importantly, in that case the police misconduct occurred “during the relevant time
period.”
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