United States District Court, W.D. Pennsylvania
GIBSON DISTRICT JUDGE.
case arises from charges that Defendant forged the signature
of a Judge of the United States District Court and committed
two counts of mail fraud in an attempt to stop monthly
payments of part of his State Police pension to his ex-wife.
Trial in this matter was held from February 21, 2017, through
February 24, 2017. After deliberations, the jury returned a
guilty verdict as to all three counts. Presently before the
Court are Defendant's motion for a new trial and
supplemental motion for a new trial based upon the
Government's posing of guilt-assuming hypotheticals to
several character witnesses, an alleged violation of
Brady v. Maryland, 373 U.S. 83 (1963), as well as
the additional argument that the verdict was against the
weight of the evidence. (ECF Nos. 49, 51.) For the reasons
explained below, the Court will deny Defendant's motions.
March 22, 2016, the grand jury issued a three-count
Indictment, charging Defendant with two counts of mail fraud,
in violation of 18 U.S.C. § 1341, and one count of
forging the signature of a Judge of the United States
District Court, in violation of 18 U.S.C. §505. (ECF No.
Government alleged that the Defendant, a former Pennsylvania
State Trooper, devised a scheme to defraud the organization
which manages state pensions, the State Employees Retirement
System (SERS), and his ex-wife. (ECF No. 1.) Specifically, it
was alleged that he composed a fraudulent opinion and order
and forged the signature of the former Chief Judge of the
Western District of Pennsylvania, the Honorable Gary L.
Lancaster. Judge Lancaster had presided over a civil lawsuit
the Defendant previously filed alleging a conspiracy to
deprive him of his rights during the divorce proceedings. The
fraudulent opinion and order, which the Defendant allegedly
mailed to SERS in February of 2014, purports to order SERS to
stop paying a portion of his pension to his ex-wife, which
had been ordered by an Illinois judge following divorce
proceedings between the two. After SERS did not cease payment
to his ex-wife, the Defendant sent another copy of the
fraudulent opinion and order in May of 2014, along with a
handwritten note, which he signed, asking SERS to cease
payment pursuant to the order. (Government Exhibit 7.1.)
trial, the Government called a total of 11 witnesses,
including FBI agents, a hand-writing expert, the
Defendant's first ex-wife, Karen, her divorce attorney
from Illinois, Judge Lancaster's former courtroom deputy
and one of his former law clerks. (ECF No. 45.) The
Government's most important witness was the
Defendant's second wife, with whom he is now estranged,
Carlese Grados. Carlese Grados, who received an informal
promise of immunity from the Government, testified that she
helped the Defendant type the opinion and order while he
dictated it to her over the course of several months. She
then testified that once he was satisfied, he had her print
it out, held it up against the window to trace Judge
Lancaster's signature, and then, wearing gloves, put it in an
envelope. Carlese Grados testified that she and the Defendant
then drove to two post offices before the Defendant had her
mail the opinion and order to SERS.
defense theory at trial was that Carlese Grados acted alone
and that the Defendant had been set up. As part of his case,
the Defendant testified, as did four relatively brief
character witnesses. (ECF No. 45.) Defendant testified that
he never received a copy of Judge Lancaster's genuine
order dismissing the case, and that several years later he
received a copy of the fraudulent order in the mail.
Defendant denied mailing the first copy of the fraudulent
order to SERS in February 2014, but admitted he sent the
order to SERS the second time in May 2014, thinking it was
genuine and thus that he was entitled to have payments from
his pension to his ex-wife stopped.
February 24, 2017, after a four-day trial, a jury found
Defendant guilty of all three counts. (ECF No. 43.) Defendant
now moves for a new trial pursuant to Federal Rule of
Criminal Procedure 33. (ECF Nos. 49, 51.) Defendant's
motion and supplemental motion make three principle
arguments. (1) That the prosecution committed misconduct by
asking several defense witnesses guilt-assuming hypotheticals
which Defendant avers resulted in substantial prejudice. (2)
That the jury's verdict was against the weight of the
evidence based on purported inconsistencies between Carlese
Grados's testimony and other evidence in the case. (3)
That the prosecution committed a Brady violation in
failing to turn over the original order sent to SERS. The
motions have been fully briefed and are now ripe for
disposition. (ECF Nos. 50, 51, 54, 55, 56.)
Motion for a New Trial, Rule 33
to Rule 33 of the Federal Rules of Criminal Procedure,
"the court may vacate any judgment and grant a new trial
if the interest of justice so requires." FED. R. Crim.
P. 33(a). Pursuant to this rule, a District Court can order a
new trial if the jury's verdict is contrary to the weight
of evidence. United States v. Salahuddin, 765 F.3d
329, 346 (3d Cir. 2014). A court evaluating a Rule 33 motion
"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). Rule 33
motions "are not favored and should be 'granted
sparingly and only in exceptional cases.'"
United States v. Silveus, 542 F.3d 993, 1005 (3d
Cir. 2008) (quoting Gov't of V.I. v. Derricks,
810 F.2d 50, 55 (3d Cir. 1987)). A new trial should be
granted on the grounds that the jury's verdict was
against the weight of the evidence only where the court
"believes that there is a serious danger that a
miscarriage of justice has occurred - that is, that an
innocent person has been convicted."
Salahuddin, 765 F.3d at 346 (quotations and
Motion for a New Trial, Brady v. Maryland, 373 U.S.
to Brady v. Maryland, 373 U.S. 83 (1963), the
Government must provide a defendant with exculpatory
material, including impeachment material, that it either
possesses or could obtain through due diligence. See
Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v.
United States, 405 U.S. 150, 155 (1972). To establish a
Brady violation sufficient to warrant a new trial,
"a defendant must show: (1) evidence was suppressed; (2)
the suppressed evidence was favorable to the defense; and (3)
the suppressed evidence was material either to guilt or to
punishment." United States v. Pelullo, 399 F.3d
197, 209 (3d Cir. 2005). The failure to provide such evidence
is a violation of due process, "irrespective of the good
faith or bad faith of the prosecution." Brady,
373 U.S. at 87.
is not suppressed if the defendant could have obtained it
"from other sources by exercising reasonable
diligence" or "either knew or should have known of
the essential facts permitting him to take advantage of any
exculpatory evidence." United States v.
Perdomo, 929 F.2d 967, 973 (3d Cir. 1991); see also
Wilson v. Beard, 589 F.3d 651, 659 (3d Cir. 2009)
("The purpose of Brady is not to require the
prosecution to disclose all possibly favorable evidence to
the defense but to make certain that the defendant will not
be denied access to evidence which would ensure him a fair
Government suppressed evidence favorable to the defendant,
the defendant must also demonstrate that the evidence is
material. Pelullo, 399 F.3d at 209. Evidence is
material when "there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of
the proceeding would have been different." Kyles v.
Whitley, 514 U.S. 419, 434-35 (1995). Reasonable
probability is "a probability sufficient to undermine
confidence in the outcome." United States v.
Bagley, 473 U.S. 667, 682 (1985). "A defendant need
not demonstrate that after discounting the inculpatory
evidence in light of the undisclosed evidence, there would
not have been enough left to convict." Kyles,
514 U.S. at 434-35. A showing of materiality therefore
"does not require demonstration by a preponderance that
disclosure . . . would have resulted ultimately in the
defendant's acquittal." Id. at 435. Rather,
the defendant must show that "the favorable evidence
could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the
verdict." Id. In determining whether the
defendant has established materiality, a court must evaluate
the cumulative effect of the undisclosed evidence.
Id. at 436-37.
"reliability of a given witness may well be
determinative of guilt or innocence, " the nondisclosure
of evidence affecting credibility, or impeachment evidence,
falls within the scope of Brady. See Giglio, 405
U.S. at 154 (internal quotations omitted). Accordingly,
"[m]aterials that must be disclosed are those . . . that
might affect the jury's judgment of the credibility of a
crucial prosecution witness." United States v.
Hill, 976 F.2d 132, 134-135 (3d Cir. 1992).
Defendant's Motion for a New Trial ...