United States District Court, D. Delaware
GREGORY M. SLEET, District Judge.
On December 8, 2014, a jury convicted Dashunda L. Harmon ("Harmon") and Vanessa Singletary ("Singletary") (collectiv.ely, "the Defendants") of Conspiracy to Commit Armed Bank Robbery, in violation of Title 18, United States Code, Section 371; and Armed Bank Robbery and Aiding and Abetting, in violation of Title 18 United States Code, Sections 2113(a), 2113(d) and 2. (D.I. 15.) The Defendants have moved for a new trial, arguing that testimony elicited during trial by co-defendant Phillip Yates ("Yates") constituted perjury and that the Government violated their rights to due process and a fair trial. (See D.I. 156; D.I. 157.) Harmon has also moved for an Order of Acquittal pursuant to Rule 29. (D.I. 157.) Presently before the court are the Defendants' Motions for a New Trial and Harmon's Motion for an Order of Acquittal. (D.I. 156; D.I. 157.)
II. FACTUAL AND PROCEDURAL BACKGROUND
On December 1, 2014, Singletary and Hannon went to trial on two Counts: Conspiracy to Commit Armed Bank Robbery, in violation of Title 18, United States Code, Section 371; and Armed Bank Robbery and Aiding and Abetting, in violation of Title 18, United States Code, Sections 2113(a), 2113(d) and 2. (D.I. 15.) Following a six-day trial the jury returned a verdict of guilty on both counts against both Singletary and Hannon. (Trial Transcript ("Tr.") 1203:7-23.)
The case against Singletary and Hannon arose out of an armed bank robbery committed by co-defendants Yates and Larry Pierce ("Pierce") at the M&T Bank branch on East Lebanon Road in Dover, Delaware on May 6, 2013. Testimony adduced at trial established that Singletary and Hannon met the men and joined them in a rented silver Chevrolet sedan prior to the robbery. Singletary and Hannon did not dispute driving Yates and Pierce to a location near the M&T Bank. As a defense to criminal involvement, the women testified that they had no knowledge of Yates and Pierce's plan to rob the bank. Immediately following the robbery, Singletary and Harmon were arrested fleeing from police by members of the Delaware State Police ("DSP"). (See Tr. 564: 13-16.) Yates and Pierce both pied guilty to the charges filed against them in connection with the armed bank robbery. (See D.I. 78; D.I. 87.)
On the second day of trial, the United States called Yates to testify pursuant to a cooperation plea agreement. The Defendants' motions pertain to testimony elicited from Yates on cross-examination. As such, the court will briefly summarize the relevant portions ofYates' direct examination testimony relevant to this Order.
Yates testified that he heard Pierce call Singletary on the Monday morning of the robbery, May 6, 2013, and asked her to drive for him. (Tr. at 327.) After the four met at the Walgreens in Harrington, Delaware later that morning, Pierce told Yates that he had "put them [Singletary and Harmon] down with the situation." (Id. at 333.) The four eventually combined into one car. (Id. at 336.) They later switched seats with Harmon in the driver seat and Singletary in the passenger seat while the men sat in the rear of the vehicle. Pierce retrieved guns from the compartment behind the car radio while seated in the back seat. (Id. at 339.) Harmon and Singletary agreed to remain with the parked car on Richardson Circle and to wait for Pierce and Yates to return on foot. (Id. at 342.)
At the beginning of Yates' testimony, the United States authenticated and entered into evidence, without objection, a post-Miranda video recording that took place between Yates and the Delaware State Police ("DSP") after his arrest on the afternoon of May 6, 2013. (Id. at 281:20-283:22.)B During the DSP interview, Yates was asked about his prior criminal conduct and what, if anything, he would be willing to do with respect to cooperation. (Id. at 287:8-20.) Yates mentioned that he would be able to cooperate against heroin dealers, but was initially reluctant to cooperate against his co-defendants in this case. (Id.) Yates denied being a drug dealer. (Id.) On cross-examination, Yates was confronted with text messages that suggested he was involved in selling drugs. The Defendants rely exclusively on this cross-examination testimony to support their motions. A number of questions were posed by defense counsel to Yates related to text messages on his phone which, the Defendants assert, clearly establish Yates to be in the business of selling drugs at the time of the May 2013 bank robbery.
Prior to the fourth day of trial the court held an in-chambers conference to discuss certain evidentiary issues that developed through the first three days of testimony. The defense presented their objections as to Yates' "layered perjury" during cross-examination. (Id. at 715:6-14.) Counsel for Harmon argued that "the government should be put on notice" because, in his view, the United States was "deciding to somehow continue to give some degree of credibility" to a witness who in his opinion "lied during the very trial." (Id. at 714:22-25.) Neither defense attorney made a motion to strike the testimony of Yates at that time.
The court re-raised the issue in order to address what it perceived as an accusation made. against the United States. (Id. at 1047:9-13.) Later, the court addressed the issue again in open court. Defense counsel articulated for the court their belief that if perjury had occurred any continued prosecution was impermissible. (Id. at 1057:11-20.) The court reconvened the. discussion in chambers. At that time, the court sought clarification from the defense as to precisely · what testimony they felt constituted perjury. (Id. at 1064:2-4.) Defense counsel directed the court's attention specifically to Yates' answers on cross-examination. (Id. at 1064:5.) The court ruled that there was no due process violation with respect to Yates' testimony. Specifically, the court found that what transpired during Yates' cross-examination was "entirely in the normal course of an adversary process." (Id. at 1065:3-4.) The court concluded that Yates' answers elicited during cross-examination, while probative as to credibility, did not fit the actual definition of perjury. (Id. at 1071:8-13.)
III. STANDARDS OF REVIEW
A. Motion for New Trial
Upon a defendant's motion, "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). Motions for new trial in the interests of justice are committed to the sound discretion of the district court. United States v. Brennan, 326 F.3d 176, 189 (3d Cir. 2003). Under Rule 33(a), "[a] district court can order a new trial on the ground that the jury's verdict is contrary to the weight of the evidence only if it believes that there is serious danger that a miscarriage of justice has occurred-that ...