The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court
Before the Court is the Defendant's Motion for a New Trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (Doc. No. 78.) The motion is ripe for disposition. For the reasons that follow, the motion will be denied.
The Defendant, Shawn Dillard ("Dillard") was charged in connection with activities relating to his duties as a member of the Pennsylvania State Police by indictment filed on July 2, 2008, which was amended by superseding indictment filed on March 11, 2009. (Doc. No. 30.) Specifically, the superseding indictment charged Dillard with conspiring to impede the due administration of justice and to promote interstate prostitution in violation of 18 U.S.C. § 371 (Count One); impeding the due administration of justice in violation of 18 U.S.C. § 1503 (Count Two); aiding and abetting interstate prostitution in violation of 18 U.S.C. § 1952(a)(3) and 2 (Count Three); Hobbs Act extortion in violation of 18 U.S.C. § 1951(a) (Counts Four through Seven); and making false statements to law enforcement officials in violation of 18 U.S.C. § 1001 (Counts Eight and Nine). (Id.) Dillard pleaded not guilty to the charges in the superseding indictment and trial commenced on May 11, 2009. After a three day trial, the jury rendered its verdict on May 14, 2009, finding the Defendant guilty on Counts Two, Three, Eight and Nine and acquitting him of Counts One, Six and Seven.*fn1 On May 28, 2009, the Court granted Dillard's motion to continue post-trial motion deadlines, and on June 18, 2009, Dillard timely filed the present motion for a new trial. The motion concerns an event that occurred during the Government's rebuttal closing argument. During argument, the prosecutor displayed a document on the courtroom monitors marked Government Exhibit 7.2 ("Document"), a facsimile of an FBI 302 report describing an interview with Dillard, for the purpose of highlighting to the jury inconsistent statements Dillard had made to the FBI agents in the process of the investigation. (Trial Tr. 506.) The Document included the following text:
On June 30, 2008, SHAWN C. DILLARD appeared at the PHILADELPHIA DIVISION of the FBI . . . . DILLARD arrived with his lawyer . . . to voluntarily participate in a polygraph examination conducted by Special Agent GERARD O'CALLAGHAN. Before and after the polygraph examination, DILLARD agreed to be interviewed by SA O'CALLAGHAN and SA William W. MAGEL. . . .
The entire proceedings were monitored, but not recorded, via audio/video surveillance from a camera inside the interview room that was plainly seen and not concealed. SA O'CALLAGHAN advised DILLARD that the proceedings would be monitored, but not recorded, and he acknowledged that he understood. [The investigating officers] watched DILLARD's pre-interview, polygraph examination, and post-interview via a television monitor in a separate room that provided both video and audio. . . . Below are SA LYNCH's observations of DILLARD's post interview . . . . During DILLARD's post interview, DILLARD stated that he had sexual intercourse with ANDREA RILEY. SA O'CALLAGHAN told DILLARD that he had previously claimed not to have had sex with RILEY. DILLARD stated that this was incorrect. SA O'CALLAGHAN told DILLARD that he had read SA LYNCH's interview with DILLARD and that, in it, DILLARD clearly stated that he did not have sex with RILEY because he could not achieve an erection. DILLARD stated that this was not correct, and that SA LYNCH had made a mistake or had misunderstood him. SA O'CALLAGHAN told DILLARD that SA LYNCH had written a very detailed, 15-page FD-302 interview report, that agents very rarely write such detailed reports, and that the report very clearly described DILLARD's statement on the matter. DILLARD stated that SA LYNCH's FD-302 was incorrect and that he had admitted to have sex with RILEY during his initial interview. (Doc. No. 80.) While it is not clear from the record, it appeared during the proceedings that the Government intended to use a split-screen display on the monitor to highlight inconsistent statements made by Dillard during two separate FBI interviews. The split-screen display did not work, however, so the Government was forced to pull up each document and then crop to the pertinent language to display the comparison to the jury. It was during this transition that the remaining contents of the Document were displayed to the jury, including the references to Dillard's polygraph examination. The Government represents that this "glitch" with the split-screen monitor did not occur in pre-trial testing and that the references to Dillard's polygraph examination were displayed inadvertently. (Doc. No. 85 at 9, 18.) It does not appear that Dillard contests the Government's explanation, and it is consistent with the Court's recollection of the proceedings. As such, the Court finds the references to Dillard's polygraph examination were displayed inadvertently by the Government.
While the entire Document was shown on the courtroom monitors, only the third paragraph, referencing Dillard's statements about his interactions with Andrea Riley, was highlighted in yellow and referenced by the prosecutor in his argument to the jury. (Trial Tr. at 506.) Upon noticing the polygraph references, counsel for Dillard requested a sidebar conference and the monitors were cleared. (Id..) After alerting the Court to the issue, Dillard's counsel moved for a mistrial based on the references in the Document to Dillard's polygraph examination, which the Government opposed.*fn2 The Court denied this motion, finding:
My own view of it is that the document was on the screen for seconds, at most. I was not able to read the document from where I sit, and I doubt that the jurors were, either. . . . The document filled the screen, and the agent was directed to zone in on part of the document. And the prosecutor then began to read from the bottom paragraph beginning "during Dillard's post-interview." I am doubtful that the jurors even read or saw the first two paragraphs where there is a reference to the words "polygraph examination." I don't think it would be very helpful or advisable to poll them on that matter at this point. I can't find, under all the circumstances, that there is a necessity for a mistrial . . . . (Id. at 511.) After trial, the Court requested that the court reporter supply a time-stamped portion of the trial transcript for the exchange at issue. From examination of the time-stamped transcript, included as an exhibit to this memorandum, it appears the Document was displayed at around 2:50:26 p.m. and removed at around 2:50:43 p.m., for a total display time of around 17 seconds. Though admittedly a precise measurement is not possible, it is reasonable to find, considering the Court's recollection of the proceedings and the time-stamped transcript, that the Document was displayed for no more than 20 to 25 seconds.
Dillard raises the same arguments in the present motion as he did at trial in favor of a mistrial, contending that displaying the Document deprived him of his right to a fair trial. (Doc. No. 79 at 5.) In support of this contention, he argues that publishing the exhibit was improper, the Government's case was not overpowering, and Dillard's credibility was the cornerstone of his defense because he elected to take the stand. (Id. at 4.) The Government disputes these contentions, arguing:
(a) the document was highlighted at the bottom of the page, (b) the word "polygraph" was not highlighted and was at the top of the page, (c) it was on the screen for a matter of seconds, (d) the document itself did not state the results of the polygraph not the questions asked, and (e) the agent testified only that he had met with Dillard and his attorney, had discussed the apparent inconsistency between the two statements with Dillard, after which Dillard and his attorney left. Moreover the evidence of guilt was overwhelming . . . . (Doc. No. 85 at 11.)
Rule 33 of the Federal Rules of Criminal Procedure 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." One ground on which a new trial may be granted under Rule 33 is that error at trial had a substantial influence on the verdict.*fn3 United States v. Thornton, 1 F.3d 149, 156 (3d Cir. 1993); see also United States v. Ortiz, 182 F. Supp.2d 443, 446 (E.D. Pa. 2000) (citing Government of the Virgin Islands v. Bedord, 671 F.2d 758, 762 (3d Cir. 1982)). The decision to grant or deny a motion for a new trial lies within the discretion of the district court. United States v. Vitillo, 490 F.3d 314, 325 (3d Cir. 2007) (citing United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006)).
Dillard relies on two cases from other circuits in support of his motion. In United States v. Murray, the Sixth Circuit reversed a conviction and ordered a new trial after a prosecution witness mentioned the words "polygraph examination" in connection with his investigation of the Defendant on the stand. 784 F.2d 188, 190 (6th Cir. 1986). The court determined that a new trial was warranted because the comment was introduced deliberately by the Government witness and because the evidence of guilt was not strong enough to say that the error was harmless. Id. at 188-89. The concurrence disagreed with this conclusion, id. at 192, and the majority also made clear that, to the extent they had doubt that the mention of the polygraph examination mandated a new trial, "we do not think we would be able to escape the conclusion that the errors in the charge (when added to the [mention of the polygraph examination]) were together sufficiently serious to represent reversible error" ...