United States v. Poynter ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Case No. 07-48
WILLIAM F. POYNTER,
Defendant.
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MEMORANDUM OPINION
Defendant william F. Poynter, who is proceeding pro se, has
filed a motion and various supplemental motions for a new trial
pursuant to Federal Rule of Criminal Procedure 33. Defendant
has also filed a separate motion to correct alleged inaccuracies
in transcripts of his trial and a subsequent hearing, and
several other procedural motions regarding his receipt of trial
transcripts and his legal representation. For the reasons
explained below, defendant's motions will be DENIED.
I. BACKGROUND
On March 1, 2007, defendant William Poynter was charged
with one count of Conspiracy to Launder Monetary Instruments, in
violation of 18 U.S.C. § l956(h). Two alleged co~conspirators,
James Franklin “Frank” Smith and Christopher Cook, were also
charged. On December 12, 2007, a jury returned a verdict of
guilty against Mr. Poynter.1 On April 2, 2008, prior to
sentencing, defendant requested and received the assistance of a
new court-appointed attorney.
On September 12, 2008, defendant, through counsel, filed a
motion for a new trial, citing ineffective assistance of trial
counsel. Defendant subsequently filed several lengthy pro se
supplements to his motion for a new trial. In those
supplemental motions, defendant made many arguments, including
that he was entitled to a reversal of his conviction and a new
trial because prosecutors engaged in misconduct and presented
false evidence. Defendant also argued that his alleged co-
conspirator, Frank Smith, should not have been permitted to
avoid testifying in Poynter's trial by exercising his Fifth
1 Mr. Poynter filed a Notice of Appeal to the D.C. Circuit on
January 29, 2008. His appeal was subsequently stayed by the
Circuit until after he was sentenced. In the appeal, he is
represented by Assistant Federal Public Defender Lisa B. Wright.
Ms. Wright filed an appellate brief on June 7, 20l2, advancing
defendant's ineffective assistance claims. Shortly thereafter,
defendant sought to represent himself, and filed a motion to
terminate his counsel, which the Circuit Court denied, finding
that an appellant in a direct criminal appeal does not have a
constitutional right to self-representation. Case No. 08-3006,
August l5, 2012 Order (D.C. Cir.). In this case, on June 1l,
20l2, defendant filed a pro se “Second Request for Removal of
Court Appointed Counsel and Demand to Represent Myself.” ECF
No. l62. In the motion, defendant states that he has not been
able to file an appeal because he has counsel, and the Circuit
Court allegedly will not accept his filings. He requests “back-
up counsel” for the purposes of assisting him with “addressing
court room protocol.” This motion appears to have been filed in
error in this Court, since defendant has been permitted to file
pro se pleadings and the Court is ruling upon them. Accordingly,
the motion for self-representation will be DENIED as moot.
2
Amendment rights. On November 6, 2008, the Court held a hearing
on defendant's motions for a new trial and heard testimony from
several witnesses. The Court subsequently denied defendant's
motions. On February 13, 2009, defendant was sentenced to 108
months incarceration and 24 months of supervised release.
After defendant was sentenced, he continued filing various
requests for relief from this Court. On April 6, 2009,
defendant filed a pro se motion to vacate his sentence pursuant
to 28 U.S.C. § 2255, followed by a pro se motion to reduce his
sentence filed on June 16, 2009. Several months later,
defendant filed a request to withdraw all of his pending pro se
motions and “any motion which may have been characterized as a
motion under Section 2255.” ECF No. 141.
On December 7, 2010, defendant filed the first of many
motions for a new trial under Federal Rule of Criminal Procedure
33. Those motions are the subject of this Memorandum Opinion.
In his first motion, defendant argues that his conviction was
obtained through the prosecution's tampering with evidence,
perjury by various witnesses, and improper jury instructions
given by the Court, See ECF No. 144. On December 17, 2010,
defendant filed a pro se “Motion for Reversal of Conviction or a
New Trial" that was substantially similar to his December 7
filing and which appeared to only contain minor edits. ECF No.
146. Pursuant to the Court's Order, the government responded to
defendant's motions on June 17, 2011. ECF No. 154. In its
response, the government argued that defendant's motions should
be characterized as arising under 28 U.S.C. § 2255, rather than
Federal Rule of Criminal Procedure 33, because they did not
concern any newly-discovered evidence and merely sought to
challenge the validity of defendant's conviction.
On June 22, 2011, defendant filed a pro se “addendum” to
his Rule 33 motion. EcF No. 155.2
In that motion, he argues
that the government fabricated evidence during his trial to
create “an illusion of criminal conduct.” He also contends that
prosecutors accused him of making statements under oath that he
never actually made, then conspired to change the trial
transcripts in order to conceal their wrongdoing. On August 15,
2011, defendant filed a pro se reply in further support of his
Rule 33 motion, ECF No. 157. In the reply, he rejects the
government's argument that the motion should be converted into a
Section 2255 motion, and argues that there are various
categories of newly-discovered evidence that require a reversal
of his conviction.3
2 Although several of defendant's motions were filed after the
government responded to defendant's motion for a new trial,
defendant's subsequent filings raise no new issues that are
material to the outcome of the Rule 33 motion, See, e.g., ECF
NO. l59; ECF NO. l60.
3 Because the Court is satisfied that defendant has made clear
his intent not to bring these claims as part of a Section 2255
motion, both in his voluntary withdrawal of his previously-filed
4
On December 8, 2011, defendant filed another pro se motion
seeking reversal of his conviction on the grounds of
“prosecutorial misconduct.” ECF No. 159. Defendant argues
again that prosecutors fabricated evidence, including statements
made by the defendant while on the stand. On March 9, 20l2,
defendant filed a pro se addendum to his December 8, 2011 Motion
for Reversal of Conviction. ECF No. 160. Defendant argues
again that prosecutors knowingly solicited perjured testimony
from trial witnesses.
In addition to his various Rule 33 motions and supplemental
briefs, defendant also filed a pro se “Motion to Settle Record -
Inaccuracies in Transcript” on September 14, 2012. ECF No. 164.
Defendant lists several parts of his trial transcript that he
claims contain errors and requests that the Court correct them.
The motion merely repeats defendant's prior arguments that
testimony was fabricated. On October 3, 20l2, the government
filed an opposition to defendant's motion to settle inaccuracies
in the transcripts. ECF No. 166. The government argues that
defendant's motion should be denied for two reasons: 1) because
defendant filed a pro se motion even though he is represented by
counsel; and 2) because defendant has proffered no evidence in
Section 2255 motion and his reply to the government's opposition
to his motions for a new trial, the Court will not convert these
Rule 33 motions into Section 2255 motions. Cf. United States v.
Palmer, 296 F.3d 1135 (D.C. Cir. 2002).
support of his argument that the transcript is inaccurate, and
defendant therefore cannot overcome the presumption that
official court transcripts are accurate.
Despite the many documents that have been filed, there are
essentially only two motions pending before the Court.4 The
first is defendant's motion for reversal of the verdict or for a
new trial under Rule 33. ECF Nos. 144, 146, l55, 159, l60.
Defendant also seeks to settle alleged inaccuracies in the
record. ECF No. 164. The Court will address these categories
in turn.
II. STANDARD OF REVIEW
Federal Rule of Criminal Procedure 33 permits “a court [to]
vacate any judgment and grant a new trial if the interest of
justice so requires.” Fed. R. Crim. P. 33(a). “The Rule does
not define ‘interests of justice' and the courts have had little
success in trying to generalize its meaning.” United States v.
Cabrera, 734 F. Supp. 2d 66, 87 (D.D.C. 2010) (quoting United
States v. Kuzniar, 881 F.2d 466 (7th Cir. 1989)).
“Nevertheless, courts have interpreted the rule to require a new
4 Defendant also filed several motions requesting copies of
various transcripts. See ECF No. 148, 158. He has since,
however, stated that he received the transcripts he requested,
see ECF No. 161, and the Court will therefore DENY those motions
as moot. In view of today’s ruling, the Court will also DENY as
moot defendant's March 21, 2012 “Motion to Compel the Court to
Make Rulings.” See ECF No. 161.
trial ‘in the interests of justice' in a variety of situations
in which the substantial rights of the defendant have been
jeopardized by errors or omissions during trial.” Id. A
defendant has a heavy burden under Fed. R. Crim. P. 33(a).
“[T]he evidence must preponderate heavily against the verdict,
such that it would be a miscarriage of justice to let the
verdict stand . . . . This power should be exercised with
caution, and is invoked only in those exceptional cases in which
the evidence weighs heavily against the verdict.” United States
v. Howard, 245 F. Supp. 2d 24, 30 (D.D.C. 2003) (quoting United
States V. E’dmOHdS, 765 F. Supp. lll2, 1118 (D.D.C. 1991)). “[A]
new trial should be granted only if the defendant has shown that
the error was substantial, not harmless, and that the error
affected the defendant's substantial rights.” United States v.
Williams, 825 F. Supp. 2d 128, 132 (D D.C. 2011) (internal
quotations omitted). “An error affecting ‘substantial rights'
must have a ‘substantial and injurious effect or influence in
determining the . . . verdict '” United States v. Lawson, 494
F.3d 1046, 1053 (D C. Cir. 2007) (quoting United States v.
Dominguez Benitez, 542 U.S. 74, 81 (2004)).
Since defendant's motion was not filed within 14 days of
the verdict, the only ground upon which he can seek a new trial
is the existence of “newly discovered evidence.” See Fed. R.
Crim. P. 33. In order to be considered newly-discovered, the
7
evidence must have been in existence at the time of trial,
United S'Cates V. Lafayette, 983 F.Zd 1102, 1105 (D.C. Cir.
1993), and “discovered since the trial.” United States v. Ortiz,
136 F.3d 161, 168 (D.C. Cir. 1998). See also United States v.
Dale, 991 F.2d 819, 839 (D.C. Cir. 1993) (emphasizing that
because the evidence must have been discovered since trial, the
“post-trial testimony of a co-conspirator who refused to testify
at trial” would not be considered newly discovered); United
States v. Howard, 267 F. Supp. 2d 1, 4 (D.D.C. 2003) (finding
that information revealed to the defendant several years earlier
“cannot be characterized as ‘newly discovered' ”). Defendant
must also establish that (1) the party seeking the new trial
showed diligence in the attempt to procure the newly discovered
evidence; (2) the evidence relied on must not be merely
cumulative or impeaching; (3) it must be material to the issues
involved; and (4) [it must be] of such nature that in a new
trial it would probably produce an acquittal. United States v.
Johnson, 519 F.3d 478, 487 (D.C. Cir. 2008) (quoting United
Staf;es V. Lafayette, 983 F.Zd 1102, 1105 (D.C. Cir. 1993))
(brackets in origina1).
III. DISCUSSION
The Court notes at the outset that much of what defendant
alleges to be “newly-discovered” evidence is based on
defendant's post-trial examination of the trial transcripts.
Because defendant and his counsel were present at the trial,
nothing in the transcript of the trial could properly be
considered “newly-discovered.” See, e.g., Johnson, 519 F.3d at
487 (newly-discovered evidence must be discovered after the
trial). To the extent that the defendant is seeking to
challenge his counsel's failure to address certain issues during
trial, those claims would relate to defendant's ineffective
assistance of counsel claim, which this Court denied and which
is currently being appealed.
A.Al1eged1y Withheld Evidence
Defendant argues that the government altered recorded
evidence and withheld exculpatory recorded evidence in their
presentations during trial. See, e.g., ECF No. 155 at 12.
Specifically, defendant argues that a recorded conversation
between defendant and Jerome Thomas lacked a critical segment
when played in Court. See, e.g , ECF No. 144 at 4; ECF No. 146
at 7. Defendant contends that earlier in the recording, he
indicated his consent to record the conversation, but that this
information was excluded from what was presented in Court.
Defendant believes that this earlier statement in the recording
would make the later statements seem less criminal in nature.
Defendant states that he did not learn about the exclusion of
evidence until “he received the trial transcripts . . . and read
the details of a conference he had been excluded from.” ECF No.
144 at 4. Unfortunately for defendant, this evidence, which
consists of defendant's own statements in a recording made prior
to trial, is not in any way “newly-discovered.” See Howard, 267
F. Supp. 2d at 4. Moreover, to the extent that the excluded
excerpt was discussed during a bench conference at trial,
defendant's counsel was also expressly made aware of the
excluded portion if she had not been aware of it before.
Accordingly, this evidence cannot be the basis for a new trial.
B.A11egedly Fa1se Evidence
Defendant also alleges that a new trial is warranted
because the government knowingly presented false evidence during
his trial. A defendant is entitled to a new trial if he proves
that there is a reasonable likelihood that evidence admitted at
trial and known by the government to be false could have
affected the jury verdict, Napue v. Illinois, 360 U.S. 264, 269
(1959); United States v. Price, 357 F. Supp. 2d 63, 69 (D.D.C.
2004). To prevail on this claim, defendant must show that (1)
the evidence was actually false; (2) the prosecution knew or
should have known that the testimony was false; and (3) the
false testimony was material. United States v. Zuno-Arce, 339
F.3d 886, 889 (91'.1'1 Cir. 2003), C€l”f;. denied, 540 U.S. 1208(2004); Sha.$'t€en V. Savel”, 252 F``.3d 929, 933 (7t1’1 Cir. 2001).
Defendant argues that Jerome Thomas falsely testified that
a recording was made in the fall of 2005 when it was actually
10
made in March 2006. ECF No. 144 at 7. In support of this
argument, defendant also offers an affidavit from a woman named
Maria Perez, a former employee of defendant's, to establish that
the call could not have occurred when Thomas said it did.
Defendant argues that these factors reveal that Thomas was
dishonest about material points in his testimony. ECF No. 144
at 7. As a threshold matter, this evidence is not “newly-
discovered” because it could have been obtained prior to trial.
See, e.g., Dale, 991 F.2d at 839. Furthermore, this evidence
does not conclusively establish that Thomas testified falsely in
Court, Rather, if it had been presented at trial, it merely
would have cast doubt on Thomas's testimony.5 Even if defendant
is correct that Thomas testified falsely in Court, however,
defendant has failed to establish either that the government
knew the testimony was false or that the testimony was material
to defendant's conviction. Defendant's conclusory allegations
about the government's knowledge of falsity are therefore
insufficient to warrant a new trial.
Defendant also challenges testimony relating to Frank
Smith, a co-defendant who was not a witness at trial but who
5 Though the Court does not reach the question of whether the
affidavit would have been admissible at trial, the Court notes
that the affidavit appears to have been executed under somewhat
questionable circumstances. Specifically, it is a form that
begins with a plea to the affiant for help because “Will is in
legal trouble.” ECF No. 159-1 at 34.
11
testified at an evidentiary hearing in November 2008, subsequent
to the trial. During trial, a witness named Phillip Robinson
testified that Frank Smith told Robinson that Smith worked for
the defendant. Defendant states that after trial, at the
November 2008 hearing on defendant's first motion for a new
trial, Frank Smith testified that he had never told Robinson
that he worked for the defendant.6 ECF No. 144 at 7. Defendant
contends that this testimony establishes that Robinson's
testimony was false. Defendant also argues that the testimony
was known to be false by prosecutors. He argues that if Frank
Smith's testimony had been presented at trial, it “would likely
have affected the verdict and resulted in an acquittal.” ECF
No. 144 at 8. As to this issue, defendant again fails to set
forth anything other than his conclusory allegations that the
government knowingly presented false testimony. Defendant has
also failed to establish that any such alleged false testimony
was material to the outcome of his trial. According1y, his
request for a new trial also fails on this ground. See, e.g.,
Price, 357 F. Supp. 2d at 69.
C.A11eged Fabrication of Official Transcripts
Defendant also makes several arguments regarding false
trial transcripts and hearing transcripts, and argues that the
6 As part of his motion to correct the transcripts, defendant
contends that this allegedly favorable testimony is erroneously
missing from the transcript of that hearing.
12
prosecution and the Court conspired to cover up evidence of
their wrongdoing by omitting or altering testimony that was
favorable to the defendant.7 Even if plaintiff's allegation of
fabrication were to be true, however, it would be wholly
irrelevant to plaintiff's claim for a new trial based on newly-
discovered evidence. The jury's verdict was based on the live
testimony at trial and not the written transcript. The jury
would not have known that the allegedly false testimony they
heard in court was transcribed incorrectly. Likewise,
plaintiff's challenge to the November 6, 2008 transcript of
Frank Smith's testimony would also fail because the Court issued
an oral ruling at the close of the hearing that day, prior to
the issuance of the transcript.
In any event, defendant has failed to meet his burden of
establishing that the transcripts are incorrect. “The
transcript . . . shall be deemed prima facie a correct statement
7 For example, defendant argues that the government manipulated
trial transcripts that indicate that defendant stated in Court
that it was his first time in court. The government argued that
this statement “opened the door” to evidence of defendant's
prior convictions and the Court allowed the government to ask
defendant about them. Defendant now argues that he did not say
it was his first time in court. Defendant contends that what he
said was that his back hurt because he was not used to sitting
in a chair for such a long time. Defendant argues that the
government tampered with the trial transcripts to make them
appear to show that he said it was his first time in court.
See, e.g., ECF No. 144 at 3; ECF No. 146 at 4. Defendant also
argues that evidence was wrongfully omitted from Frank Smith's
testimony in the November 6, 2008 hearing transcript.
13
of the testimony taken and the proceedings had.” 28 U.S.C. §
753. Unsubstantiated assertions that the record is wrong are
not sufficient to overcome this statutory presumption. See
Veillon v; Exploration Servs., 876 F.2d 1197, 1201 (5th Cir.
1989); United States V. Riggs, NO. 10-Cr-02, 2012 WL 10287, at
*1 (W.D. Va. Jan. 3, 2012). Other than conclusory statements
regarding the omission of favorable testimony, plaintiff has
failed to overcome the statutory presumption. Moreover, the
Court finds that with respect to the December 10, 2007 trial
testimony, the context of the testimony strongly suggests that
defendant did indeed say that it was his “first time in court.”
See Dec. 10, 2007 Tr. at 135-36. The Court is further persuaded
by the government's own representation that the transcripts for
both the December 10, 2007 trial date and the November 6, 2008
hearing accurately reflect the testimony taken on those days.
See ECF No. 166 at 5. Accordingly, defendant's motion to alter
the transcripts is denied.
To the extent not expressly discussed herein, defendant's
other claims of prosecutorial misconduct, including that
“federal agents bribed Frank Smith and later Chris Cook and
prepared false reports,” ECF No. 144 at 6, are hereby deemed
insufficient to warrant a new trial.8 Furthermore, defendant's
8 Defendant also makes a number of arguments regarding his
counsel's inexperience and ineffective assistance. See, e.g.,
14
claim that the Court gave an improper jury instruction, ECF No.
144 at 4, is not properly raised in a Rule 33 motion for a new
trial based on “newly-discovered evidence ”
IV. CONCLUSION
For all of the foregoing reasons, [144] “Motion for
reversal of verdict or a new trial under Rule 33,” [146] “Motion
for a Reversal of Conviction or New Trial,” [148] “Motion for
District Court to Provide an Unmodified Discovery Package and
Verbatim Transcripts for the Named Proceedings,” [155] “Addendum
to the Defendant's Motion Requesting a Reversal of Verdict or a
New Trial Based on Newly Discovered Evidence in Compliance with
Rule 33,” [158] “Motion for the District Court to provide the
Defendant with an Unmodified Discovery Package and Verbatim
Transcripts for the Named Proceedings,” [159] “Motion for
Reversal of Conviction Based on Prosecutorial Misconduct,” [160]
“Addendum to My Motion for Reversal of Conviction Based on
Prosecutorial Misconduct and Violation of Rule 52(b) for the Use
of Plain Error,” [161] “Motion to Compel the Court to Make
Rulings on Outstanding Defense Motions,” [162] “Second Request
for the Removal of Court Appointed Counsel and Demand to
Represent Myself,” and [164] “Motion to Settle Record
ECF No. 155 at 13. The Court will not address these arguments,
as it has already denied defendant's ineffective assistance
claim and that ruling is currently on appeal,
15
Inaccuracies in Transcript” are hereby DENIED.
Order accompanies this Memorandum Opinion.
Emmet G. Sul1ivan
United States District Judge
December 7, 2012
Signed:
16
An appropriate