United States v. George Russell Van Kirk ( 1991 )

MORRIS SHEPPARD ARNOLD, District Judge.

George Van Kirk was tried on a four-count indictment charging him with violation of 18 U.S.C. § 641, conversion of government property, namely attempting to sell a fire hose which was the property of the Grand Forks Air Force Base (“GFAFB”), where he was employed as fire chief (Count One); inducing Richard Arries to destroy or conceal records with intent to impair their use in official proceedings in violation of 18 U.S.C. § 1512 (Count Two); tampering with a witness in violation of 18 U.S.C. § 1512 through dealings with William Niswonger and efforts to influence Mr. Niswonger’s grand jury testimony (Count Three); and making false statements to a federal investigator in violation of 18 U.S.C. § 1001 (Count Four). After trial by jury Van Kirk was convicted on Count Three; however, the jury acquitted him on Count Two and was unable to reach a verdict as to Count One. The district court had entered a judgment of acquittal on Count Four at the conclusion of the government’s case in chief.

After the verdicts were rendered, defendant moved for judgments of acquittal as to Counts One and Three, or, in the alternative, for a new trial as to Count Three. The district court denied the motion for judgments of acquittal but granted the motion for a new trial as to Count Three on the ground that the jury should have been instructed on an entrapment defense. The government filed this appeal, contending that the district court erred in granting a new trial on these grounds when Van Kirk neither requested an entrapment instruction nor attempted at trial to argue the substance of that defense. We agree with the government and therefore reverse and remand for reinstatement of the witness-tampering verdict and for sentencing.

I.

The defense evidence, which included the testimony of senior Air Force officers and of two fire chiefs stationed at other Air Force bases, portrayed Van Kirk as a strong fire chief, with an excellent reputation for truth and honesty (Tr. 681-82, 700-01, 776, 805, 1029) who sometimes stepped on the toes of the Corps of Engineers in performing his duties. Thus with regard to the charges of attempting to sell the used fire hose (Count One), the defendant presented evidence that he intended to trade a 4-inch hose in order to obtain 5-inch appliances needed for a new 5-inch hose that GFAFB had acquired (Tr. 720) 722, 757, 913-16, 1031-32). Although it was permissible to trade in equipment, the fire chief at Ellsworth Air Force Base testified that the procedures were highly complicated and difficult to follow without creating a false appearance of wrongdoing. So, too, both GFAFB officers and the fire chiefs at two other Air Force bases substantiated appellee’s testimony that his dealings with the contractors were proper actions that benefited the Air Force and were at worst poor judgment (Tr. 549-64, 696-97, 797-98, 1060). Apparently some jurors were not convinced by this evidence for they were unable to reach a verdict on this charge.

With regard to Count Three, the defendant denied that he had intended to intimidate or corruptly persuade Mr. Niswonger to lie or to conceal documents (Tr. 925-28, 998, 1013-14). Through examination of both Van Kirk and Mr. Niswonger, defense counsel attempted to elicit innocent explanations for incriminating statements by Van Kirk which had been recorded by Mr. Niswonger. According to Van Kirk, his intention had simply been to urge Mr. Nis-wonger to support him as much as possible without lying (Tr. 1013). At no time in opening or closing arguments did defense counsel urge that Van Kirk should be acquitted as to Count Three because he was entrapped. In fact, defense counsel alluded to entrapment only once during the trial, and then out of the hearing of the jury when he moved at a bench conference to strike Mr. Niswonger’s testimony on the ground that he was a government agent and had entrapped Van Kirk (Tr. 623-24). The district court denied this motion (Tr. 626).

In ruling on Van Kirk’s motion for a new trial as to Count Three, the district court found that “[circumstances surrounding the tapes ... preponderated sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred ... and that an entrapment defense existed, yet the jury was not instructed on the defense.” The court explained that Mr. Niswonger’s repeated requests for advice as to how he should answer questions put by the grand jury “call[ed] into question whether [Van Kirk] had the subjective intent to obstruct justice.” Accordingly, the district court, under Rule 33 of the Federal Rules of Criminal Procedure, ordered a new trial on the witness-tampering charge, finding that the jury should have been “afforded the opportunity to consider whether [the defendant] would have obstructed justice had it not been for the enticement of Niswonger.”

II.

Defense counsel, in both opening and closing statements, outlined a unified defense that focused on showing: (1) that the fire hose had not been unlawfully converted (Tr. 17); (2) that Mr. Niswonger was unworthy of belief (Tr. 16, 1136-38, 1146); (3) that appellee’s relation with various contractors was entirely above-board (Tr. 1139-42); (4) that appellee did not intimidate or seek corruptly to persuade either Mr. Arries or Mr. Niswonger (Tr. 1126-27, 1147); and (5) that appellee was a person who enjoyed a reputation for truth and honesty (Tr. 18-19, 1147). As we have noted, defense counsel developed these themes both during the cross-examination of government witnesses and the presentation of defense witnesses. Van Kirk neither relied on an entrapment defense in questioning witnesses nor requested that the jury be instructed on it. His counsel, after trial, asserted that he simply forgot to ask for such an instruction.

Defendant urges us first to affirm the trial court’s decision under the auspices of the plain error rule, Rule 52(b) of the Federal Rules of Criminal Procedure. The “ ‘plain error rule should be applied with caution and should be invoked only to avoid a clear miscarriage of justice.’ ” Johnson v. United States, 362 F.2d 43, 46 (8th Cir.1966), quoting Gendron v. United States, 295 F.2d 897, 902 (8th Cir.1961). I do not believe that this record contains matter from which the district court could have reasonably concluded that there had been “a clear miscarriage of justice” in the trial of this case. I am of this view because a competent defense lawyer could well have concluded that urging an entrapment defense as to Count Three would have undermined the effort to avoid all the charges on the ground that the defendant was simply not guilty. The defense of entrapment and factual innocence are contradictory defenses, and while they may of course be simultaneously pursued, see Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988), doing so involves serious risks of impairing or destroying a defendant’s credibility with the trier of fact. Whatever may have been the subjective intentions of counsel in this case, since an objectively competent attorney could have deliberately eschewed an entrapment instruction I conclude that there cannot have been “a clear miscarriage of justice” in this case.

For the same reasons, it was error for the trial court to grant the defendant a new trial. Rule 33 allows a trial judge to grant a new trial “if required in the interest of justice.” I decline to hold that the interests of justice could require a new trial when a decision not to pursue an entrapment defense could have just as well resulted from strategic decision-making as from counsel’s forgetfulness.

I am mindful that district courts ordinarily have broad discretion in passing upon motions for new trial and that their rulings are subject to reversal only for a clear abuse of that discretion. See, e.g., United States v. McBride, 862 F.2d 1316, 1319 (8th Cir.1988); Vassar v. Solem, 763 F.2d 975, 979 (8th Cir.1985). That standard of review makes it difficult not to affirm a trial court’s decision, when, as is frequently the case, the motion for a new trial is based on the sufficiency of the evidence. In such cases, the trial judge has heard the evidence and is most obviously in the best position to assess its force and effect. But that is not this case: We have here a situation that does not call for deference to the trial court. The question is simply whether justice could require a new trial under the circumstances adumbrated above, and I conclude that it could not.

I would therefore reverse the district court and remand for reinstatement of the witness-tampering verdict and for sentencing.