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United States v. Thomas

United States District Court, N.D. Indiana, South Bend Division

August 14, 2019

UNITED STATES OF AMERICA
v.
MICHAEL THOMAS

          OPINION AND ORDER

          JON E. DEGUILIO JUDGE

         A jury convicted Defendant Michael Thomas of mail fraud following a four-day trial. Thomas now requests a new trial under Fed. R. Crim. P. 33. [DE 109] For all the reasons contained herein, the Court will deny the motion.

         BACKGROUND

         On September 28, 2018, a jury found Michael Thomas guilty on four counts of mail fraud, in violation of 18 U.S.C. § 1341. In a nutshell, Thomas's scheme to defraud comprised of setting fire to mobile homes in order to collect insurance policy proceeds. As part of its case, the government presented the expert opinion testimony of Fred Sumpter, an investigator with the Indiana State Fire Marshal's office, who surveyed some of the fire scenes and determined that, based on the burn patterns he observed, an ignitable liquid had been used to set the fires. Thomas did not offer an expert to rebut Sumpter.

         Months later, and after several extensions at his own request, Thomas filed the instant motion for a new trial on June 3, 2019. [DE 109] The motion includes a Brady claim as well as an allegation that one of the government's factual witnesses provided false testimony at trial. Also attached to his motion are the reports of five veteran fire investigators who reviewed his case alongside Sumpter's conclusions: John Lentini; John DeHaan; David M. Smith; Douglas J. Carpenter; and Dr. Candace Ashby. None of these investigators physically surveyed the fire scenes, as did Sumpter, yet each of them hotly criticizes Sumpter's reliance on burn patterns to determine that an ignitable liquid had been used.[1] In addition to his other arguments, Thomas now claims that he should receive a second trial based on these “new” expert opinions.

         DISCUSSION

         Rule 33(a) provides that, “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” “Courts have interpreted Rule 33 to require a new 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.” United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). “A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly.” United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994) (quoting United States v. Morales, 902 F.2d 604, 605 (7th Cir.), amended on other grounds, 910 F.2d 467 (7th Cir. 1990)). Rule 33(b) places time restrictions on a defendant's ability to file such a motion:

(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.
(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.

         Based on these restrictions, because Thomas filed his motion well over fourteen days after the guilty verdict in his case, his arguments can only advance on theories of newly discovered evidence.[2] See United States v. Ogle, 425 F.3d 471, 476 (7th Cir. 2005) (A motion for a new trial filed after Rule 33(b)(2)'s time limit has elapsed “is properly denied-even where a defendant alleges the knowing presentation of false testimony by the government at trial-unless that claim is based on ‘newly discovered evidence.'”); see also Eberhart v. United States, 546 U.S. 12, 13 (2005) (“This deadline is rigid.”).

         To that end, as mentioned above, Thomas presents three main arguments for a new trial. First, he maintains that the government violated Brady by failing to turn over information from an old case that could have been used to impeach Sumpter. Thomas claims he did not know about this evidence until alerted to it by John Lentini's post-trial affidavit. Second, Thomas argues that the opinions of his five experts entitle him to a second trial, as he did not learn about the “flaws” in Sumpter's methodology until after his conviction. Finally, Thomas argues that his accomplice provided false testimony against him at trial. None of these arguments persuade the Court.

         A. Brady/Giglio Claim

         Thomas claims right to a new trial because the government allegedly committed a Brady violation by failing to disclose Fred Sumpter's involvement in a twenty-year-old prosecution out of this District's Hammond division, United States v. Weber, Case No. 2:98-CR-195.[3] In that case, the government charged Michael Weber with arson relating to a fire that killed his wife and children. Sumpter participated in the State Fire Marshal's investigation into the cause of that fire, which concluded that someone intentionally set the fire based on burn patterns consistent with the use of a liquid accelerant. [DE 116-1 at 5][4] The Weber file, however, indicates that several individuals criticized the State Fire Marshal's conclusions, including John Lentini, a fire investigator who submitted an affidavit as part of Weber's defense, and two ATF agents who expressed their opinions in a pair of internal memoranda. These individuals uniformly criticized the methodologies employed by the state investigators and either questioned or disagreed with the conclusion that the fire was arson. Eventually, the government agreed to dismiss the case. Thomas now claims that the fact that the ATF agents disagreed with Sumpter in the Weber case should have been revealed pursuant to Brady and Giglio. He insists that, had that information been revealed, “the defense would have been alerted the [sic] falsity in Mr. Sumpter's methodology prior to trial and likely have had sought to exclude Mr. Sumpter's testimony entirely.” [DE 109 at 16]

         The government has an obligation to disclose evidence favorable to the defendant when such evidence is material to the defendant's guilt or innocence, see Brady v. Maryland, 373 U.S. 83, 87 (1963), and that obligation extends to both impeachment and exculpatory evidence, see United States v. Bagley, 473 U.S. 667, 676 (1985) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). To prove that the government violated its duty under Brady, Thomas must show that:

(1) the evidence at issue is favorable to [him] because it is either exculpatory or could be used for impeachment; (2) the evidence has been suppressed (i.e., the existence of the evidence was known, or reasonably should have been known, to the government, the evidence was not otherwise available to the defendant through the exercise of reasonable diligence, and the government either willfully or inadvertently withheld the evidence until it was too late for the defense to make use of it); and (3) the suppression of the evidence resulted in prejudice (i.e., there is a reasonable probability that had the evidence been disclosed, the outcome might have been different, such that confidence in the actual outcome is undermined).

United States v. Knight, 342 F.3d 697, 705 (7th Cir. 2003) (citing United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 2002)).

         To start, the Court seriously doubts whether Brady even mandates disclosure of the Weber information, as Thomas argues. But even assuming the Weber files fall within Brady's scope, Thomas nonetheless fails to demonstrate a Brady violation in several respects. First, he cannot show that the Weber case was suppressed by the government; he presents no authority requiring the government to turn over this sort of material under these circumstances, and regardless, he could have accessed this evidence prior to trial with reasonable diligence. Furthermore, these shortcomings aside, Thomas cannot show that anything contained in the Weber file creates a reasonable probability that the outcome of trial would have been different, given the significant amount of evidence against him.

         1. “False” Testimony and Applicability of Brady

         At the outset, the Court does not agree with Thomas's repeated contention that the Weber files demonstrate Sumpter provided “false” testimony in this case. Rather, if introduced at Thomas's trial, the Weber files would only have served to call the reliability of Sumpter's methodology into question. Simply because other fire experts disagreed with Sumpter in the past does not mean that his analysis in Thomas's case amounted to lies and falsehoods. For example, in Gimenez v. Ochoa, petitioner argued that the government's experts provided false testimony about the victim's cause of death by offering affidavits from his own new experts that purported to contradict the opinions presented at trial. 821 F.3d 1136, 1142-43 (9th Cir. 2016). In rejecting this claim, the Ninth Circuit noted that, “[t]o the extent that this new testimony contradicts the prosecution's expert testimony, it's simply a difference in opinion-not false testimony.” Id. at 1142. So too, here, Thomas merely “presents a battle between experts” who hold different opinions about fire investigation techniques. Id. at 1143. “Introducing expert testimony that is contradicted by other experts, whether at trial or at a later date, ” however, “doesn't amount to suborning perjury or falsifying documents[.]” Id.; see also Mickle v. Chappell, No. C 92-2951, 2014 WL 3866614, at *13-14 (N.D. Cal. Aug. 5, 2014) (rejecting habeas petitioner's argument that fire expert gave false testimony at arson trial when government expert offered opinion that the fire was slow-burning; “[a]lthough [the expert's] opinion conflict[ed] with the opinion of petitioner's current experts, a ‘disagreement in expert opinion' does not establish that expert testimony was false.”) (quoting Harris v. Vasquez, 949 F.2d 1497, 1524 (9th Cir. 1990)).

         Next, the Court cannot conclude that Brady's disclosure obligations extend to evidence of a mere disagreement between experts, such as that contained in the Weber files. See Sparks v. Davis, Civil Action No. 3:12-CV-469-N, 2018 U.S. Dist. LEXIS 50820, at *37 (N.D. Tex. Mar. 27, 2018) (rejecting petitioner's Brady theory that the government concealed the fact that its expert testified falsely as well as petitioner's effort to demonstrate falsity based on his own expert's testimony; “[a] mere disagreement between experts is not normally sufficient to show that the opinion testimony of one of them is false or misleading.”) (collecting cases). Indeed, despite the government's affirmative duty to disclose Brady material in its possession, “it is not obligated to disclose ‘every possible shred of evidence that could conceivably benefit the defendant.'” United States v. Bhutani, 175 F.3d 572, 577 (7th Cir. 1999) (quoting United States v. Hamilton, 107 F.3d 499, 509 (7th Cir. 1997), cert. denied, 521 U.S. 1127 (1997)); see also Higgs v. United States, 711 F.Supp.2d 479, 497 (D. Md. 2010) (“As Bhutani suggests, not every shred of general scientific information available to the prosecution constitutes Brady evidence. Indeed, the Court is mindful that a rule requiring the disclosure of all studies, reports, data, or communications in any way related, no matter how tangentially, to the reliability of forensic procedure would be overly burdensome, if not totally impractical.”).

         Thomas presents no authority (and the Court has found none) suggesting, even by analogy, that Brady requires the government to disclose documents from its past, closed cases whenever those files indicate a mere disagreement among experts and/or investigators who are serving as witnesses in a current prosecution. In fact, caselaw suggests otherwise. For example, in Brim v. United States, the defendant alleged that the government committed a Brady violation by failing to disclose an affidavit from his co-defendant's expert witness that discussed the need to assess purity precursor in a drug prosecution, an issue that impacted defendant's sentence calculation. No. SA CR 93-00098, 2015 WL 1646411 (C.D. Cal. Apr. 14, 2015). The court rejected the notion that Brady required the government to turn over such evidence, reasoning that “[t]he government is not obliged to point out the existence of every piece of exculpatory information that exists somewhere in the world-let alone the existence of an expert opinion with which other experts could disagree and did disagree.” Id. at *5. As in Brim, Thomas seeks to hold the government accountable for failing to disclose, essentially, a twenty-year-old difference of opinion among cause and origin experts. The Court cannot conclude that this constitutes suppression under Brady, “especially when the defendant has had a fair opportunity to call his own experts, ” as had Thomas. Id.

         2. Suppression and Reasonable Diligence

         In addition, it cannot be said that the government suppressed the Weber files in this case because the relevant information contained therein was already in the public domain and could have been accessed by Thomas with reasonable diligence. Bhutani, 175 F.3d at 577 (“[T]he government cannot be found to have suppressed evidence if the same information was available to the defendant through the use of reasonable diligence.”) (citing United States v. Morris, 80 F.3d 1151, 1170 (7th Cir. 1996), cert. denied, 519 U.S. 868 (1996)); Hamilton, 107 F.3d at 510 (same).

         Thomas claims he did not become aware of the Weber case “until Mr. Lentini brought it to the defense's attention” in his affidavit. [DE 109 at 15][5] Maybe so, but that does not mean that Thomas could not have discovered the Weber case or subsequently accessed related information prior to his conviction, including that pertaining to the ATF agents' disagreements with and criticisms of the state fire investigators' methods and conclusions. Indeed, included as a separate exhibit to Thomas's motion is an excerpt from the 2016 edition[6] of Lentini's own textbook, Scientific Protocols in Fire Investigation. [DE 109-10] The excerpt is dedicated to the Weber case, listing it by name and identifying it as a federal prosecution in Indiana (although, the excerpt does not provide a case number or mention this specific federal District), and describes how ATF fire examiners reviewed and questioned the state investigators' methods and conclusions, and informed the prosecutor “that there was no credible way that [the government] could prove this was a set fire.” Id. The excerpt also offered Lentini's opinion that the state investigators' theory of arson based on ignitable liquids was unsound. Id.

         Granted, Lentini's textbook excerpt does not list Sumpter by name, and so if reading it in a vacuum, one would not know that Sumpter was one of the state fire investigators assigned to the Weber case. But as the government points out, a simple online search for Sumpter reveals at least one local February 1999 article discussing his involvement in the Weber case and the case's dismissal in light of conflicting views as to the fire's origin.[7] See United States v. Fuller, 421 Fed.Appx. 642, 645 (7th Cir. 2011) (holding no Brady violation where government did not inform bank robbery defendant that the same banks had been robbed again by unrelated suspects; the defendant's claim was “frivolous because [he] would have known that information by reading the local newspaper.”). Regardless, the textbook was clearly in the public domain at the time of trial-as was the Weber casefile-and Thomas, knowing that the government planned to use Sumpter's burn pattern analysis against him, had a full opportunity to consult the writing and to ask Lentini about the Weber case and its implications for determining fire origins via burn patterns, at which point, in all likelihood, Lentini would have revealed Sumpter's role in Weber.

         In light of these facts, Thomas cannot argue that the Weber information relating to Sumpter, including the ATF agents' memoranda, “was not otherwise available to [him] through the exercise of reasonable diligence, ” as is required to show that the government suppressed the Weber documents. Knight, 342 F.3d at 705. Thomas's argument resembles that presented in United States v. Hansen, where defendant raised a Brady challenge to his conviction for conspiring to commit environmental crimes, claiming that the government suppressed exculpatory or impeachment evidence by failing to disclose its expert's “‘checkered' past.” 262 F.3d 1217, 1234-35 (11th Cir. 2001). In particular, defendant maintained that the government failed to disclose evidence “consist[ing] of court opinions either disregarding or discrediting [the expert's] testimony, ” and that the government knew about this evidence because the expert had testified for the government in the past. Id ...


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