The opinion of the court was delivered by: Conti, District Judge.
Pending before the court is a motion for a new trial pursuant to Federal Rule Criminal Procedure 33(a) (Docket No. 258), filed by defendant Claudele*fn1 McMahill ("McMahill" or "defendant"). McMahill argues that the court erred in not granting a mistrial and that she was prejudiced due to the invalidity of her co-defendant's waiver of his right to counsel and his outbursts in court while representing himself. After reviewing the submissions of the parties, the court will deny defendant's motion because prejudice was not shown.
In June 2006, McMahill was indicted on nine counts of mail fraud. (Docket No. 1.) The first of two superseding indictments was filed in January 2007, charging defendant with nine counts of mail fraud and also with conspiracy to commit mail fraud between April 2004 and December 2004. (Docket No. 74.) The second superseding indictment was returned on September 16, 2008, charging defendant with nine counts of mail fraud and one count of conspiracy to commit mail fraud by fraudulently collecting unemployment compensation from the Pennsylvania Department of Labor & Industry during the time period spanning April 2004 to December 2004. (Docket No. 232.) This case was tried before a jury in October 2008.
On October 29, 2008, McMahill was convicted by a jury of nine counts of mail fraud, in violation of 18 U.S.C. § 1341(counts 23 through 31 of the second superseding indictment), and one count of conspiracy, in violation of 18 U.S.C. § 371 (count 32 of the second superseding indictment). (Docket No. 249.) McMahill timely filed the instant motion for a new trial pursuant to Federal Rule of Criminal Procedure 33(a), alleging that she was substantially prejudiced by the court's decision not to declare a mistrial resulting from the decision of her co-defendant Lacy Tilley ("Tilley") to represent himself. McMahill argued that during the trial McMahill was unaware of any mental condition afflicting Tilley, Tilley perjured himself regarding his psychiatric care, and Tilley was not properly determined competent to waive his right to counsel.
II. Standard for Deciding a Motion for a New Trial Pursuant to Rule 33
Rule 33 of the Federal Rules of Criminal Procedure provides:
(a) Defendant's Motion. Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. . . .
(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty.
FED. R. CRIM. P. 33. "On a motion for a new trial the defendant is attacking a verdict that is presumptively valid. For this reason the burden is on defendant to show that a new trial ought to be granted, although the extent of that burden may vary depending on the ground on which the new trial is being sought." 3 Charles Alan Wright, Nancy J. King & Susan R. Klein, FEDERAL PRACTICE AND PROCEDURE § 551 (3d ed. 2004). Any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial. Id.at § 556. "A court may grant a motion for new trial if it finds errors occurred during the trial, and it is reasonably possible such error, or combination of errors, substantially influenced the jury's decision." United States v. Isaac, No. 05-cr-576-1, 2008 WL 3919353, at *9 (E.D. Pa., Aug. 26, 2008) (citing United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir. 1994)). "The reviewing court must decide '"whether the error itself had substantial influence"[on the minds of the jury.]'" Gov't of V.I. v. Bedford, 671 F.2d 758, 762 (3d Cir. 1982) (quoting Gov't of V.I. v. Toto, 529 F.2d 278, 283 (3d Cir. 1976) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946))). "Unless 'there is a reasonable possibility that [the error] contributed to the conviction, reversal is not required.'" Id. (quoting Schneble v. Florida, 405 U.S. 427, 432 (1972)). "Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion it does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government's case." United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002) (citing United States v. Lacey, 219 F.3d 779, 783-84 (8th Cir. 2000)).
McMahill argues pursuant to Federal Rule of Criminal Procedure 33(a), that newly discovered evidence shows Tilley's failure to take prescription medication during trial adversely affected his ability to represent himself. McMahill claims that Tilley perjured himself by denying, while under oath, that he was receiving psychiatric care. McMahill asserts that Tilley's self-representation resulted in uncharacteristic outbursts that prejudiced McMahill. McMahill claims that Tilley's outbursts were the consequence of Tilley's incompetence to waive his right to representation. McMahill contends that Tilley's competency to waive his right to counsel was not adequately evaluated by this court.
Tilley's Testimony During Trial
A trial court can permit a defendant to waive counsel if a defendant understands information conveyed to him in a separate colloquy and thereafter makes a knowing and intelligent decision to represent himself. Gov't of V.I. v. Charles, 72 F.3d 401, 409 (3d Cir. 1995). The separate colloquy should provide the defendant with a "specific forewarning of the risks that foregoing counsel's trained representation entails." United States v. Peppers, 302 F.3d 120, 133 (3d Cir. 2002). The court must inform the defendant that he will need to comply with the Federal Rules of Evidence and Criminal Procedure. United States v. Jones, 452 F.3d 223, 229 (3d Cir. 2006). A "'perfunctory questioning'" of defendant's understanding of his rights is not sufficient. Id. at 228 (quoting United States v. Welty, 674 F.2d 185, 187 (3d Cir. 1982)). Instead, a court must engage in a "penetrating and comprehensive" inquiry until it satisfies itself that the defendant has made a knowing, understanding, and voluntary waiver of counsel. Peppers, 302 F.3d at 131.
This court engaged in an appropriate colloquy with Tilley during the trial after he requested that he conduct his own trial defense. (Trial Tr., Docket No. 299, 128-48, Oct. 16, 2008.) Among other things, the court asked:
The Court: Mr. Tilley, have you had any alcoholic beverages or any medications within the last 24 hours?
The Court: Have you been under psychiatric or medical care? Tilley: No, Your Honor. (Id. at 130.)
After a thorough explanation of his rights and obtaining confirmation of his understanding, this court warned Tilley that he was making an unwise decision. (Id. at 147-48.) Tilley rejected the advisory warning and the court found he knowingly and voluntarily waived his right to counsel. (Id. at 147, 149.) The court based its determination upon many factors, including: Tilley's understanding of his right to be represented by counsel, (Id. at 130); Tilley's understanding of the elements of the offenses of his crimes, (Id. at 131-34); Tilley's understanding of the penalties for the alleged crimes, (Id. at 135-38); Tilley's understanding of the hazards presented by his lack of a formal legal education, (Id. at 140); Tilley's partially successful self-representation in a previous criminal action, (Id. at 140-41); Tilley's testimony that he understood the Federal Sentencing Guidelines, (Id. at 141-44); and Tilley's testimony that he was familiar with the Federal Rules of Evidence and Federal Rules of Criminal Procedure. (Id. at 145-46.)
McMahill recognizes that Tilley had the right to waive counsel so long as the right was knowingly and intelligently waived. Faretta v. California, 422 U.S. 806, 835 (1975). McMahill contends that it is impossible to tell whether Tilley's varying consumptions of psychotropic medications, Zoloft and Sinequan, ...