United States v. Healey

860 F. Supp. 2d 262, 2012 WL 213611
CourtDistrict Court, S.D. New York
DecidedJanuary 24, 2012
DocketNo. 11 Cr. 132 (SAS)
StatusPublished

This text of 860 F. Supp. 2d 262 (United States v. Healey) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Healey, 860 F. Supp. 2d 262, 2012 WL 213611 (S.D.N.Y. 2012).

Opinion

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

I. INTRODUCTION

On September 22, 2011, a jury found Mark Healey guilty of transporting, distributing, and possessing child pornography in violation of 18 U.S.C. § 2252A. On November 4, 2011 he moved for a new trial pursuant to Federal Rule of Criminal Procedure 33, arguing that “the cumulative impact of the Government’s multiple discovery violations was so serious a detriment to the defense’s preparation for trial and the construction of a defense strategy as to deny Mr. Healey due process and a fundamentally fair trial.”1 Healey also argues that the Government failed to correct the false and contrived testimony of a key witness and that the prosecutor then personally and vociferously vouched for that witness’s credibility. As a preliminary alternative to a new trial, Healey seeks an evidentiary hearing in order to determine whether the witness perjured himself.2 For the reasons explained below, Healey’s motion is denied.

II. BACKGROUND

A. Defense Counsel’s Access to Computer Evidence

The Government seized three computers that had belonged to Healey. The parties refer to them as “the Dell Laptop;” the “Encrypted Hard Drive,” which had been removed from defendant’s desktop Macintosh computer; and the “Imaged Hard Drive,” which was seized from the apartment of Healey’s boyfriend and was a backup copy of the Dell Laptop.

In late June of 2011, defense counsel asked the Government to provide it “with mirror images of the hard drives from which child pornography would be redacted.” 3 The Government refused to create copies of the hard drives. Instead, the Government said that it would make arrangements for defense counsel “to inspect any of this evidence,” and “to make copies of any materials, other than child pornography itself, to which the defendant is entitled under Federal Rule of Criminal Procedure 16.”4

After entering the FBI’s offices and being relieved of all electronic devices, de[266]*266fense counsel was “permitted to examine copies of the hard drives while [FBI] Agent Spivack sat in the same small room.”5 However, at defense counsel’s request, the Government sent a mirror image of the hard drives to its offices in Portland, Oregon, so as to facilitate extensive examination by the defense’s Portland-based computer expert, Robert Young.6 Young was permitted to examine the hard drives outside the presence of any FBI agents, to obtain material (other than child pornography) from the computers, and to use his own programs to analyze the computers.7

B. Third Parties’ Access to Healey’s Computers in 2010

Because there was no dispute that the computers at issue belonged to Healey and contained child pornography, both parties understood that “the central issue at trial would be whether any child pornography recovered from these devices was placed on them by Mr. Healey or by a third party.”8 Two of the computers — the Encrypted Hard Drive and the Dell Laptop — ■ were removed from Healey’s apartment on June 2, 2010 by Neal Cotton, Healey’s roommate, and were seized by the FBI on June 8, 2010.9 Whether child pornography was added to the computers over those six days was therefore a crucial issue.

The Government initially believed that nobody had attempted to access the Encrypted Hard Drive or the Dell Laptop during that time. In the days just before and during the beginning of trial, it learned otherwise and informed defense counsel of this information.10 On the basis of this last-minute development, Healey moved for a mistrial or, in the alternative, a continuance.11 He was granted a continuance.12

C. Testimony of Cotton

Cotton testified that he had no interest in pornography.13 Defense counsel subsequently found sexually explicit photos on Cotton’s Google profile. When he was recalled to the stand, at defendant’s request, Cotton explained that the photos were personal pictures of ex-lovers and that he did not consider them to be the same as pornography.14 In his summation, the prosecutor told the jury that Cotton is a “man who, whatever his flaws, came here because he had to come here, and he told you the truth.”15 After defense counsel argued to the jury that Cotton had lied under oath,16 the prosecutor repeated his argument that Cotton “wasn’t lying to you.”17

III. APPLICABLE LAW

A. Federal Rule of Criminal Procedure 33

Federal Rule of Criminal Procedure 33 (“Rule 33”) states that “[u]pon the [267]*267defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.”18 A conviction should be reversed “only with great caution and in the most extraordinary circumstances.” 19 When based upon the Government’s alleged use of perjured testimony, a Rule 33 motion

must establish the following: (i) the witness actually committed perjury; (ii) the alleged perjury was material; (iii) the government knew or should have known of the alleged perjury at time of trial; and (iv) the perjured testimony remained undisclosed during trial. When the perjury was disclosed during the trial, a new trial should not be granted. As long as the jury is alerted to a witness’ lies, the jury — the appropriate arbiter of the truth — can sift falsehood from fact and make its own credibility determinations.20

“A witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory.”21 “Whether the introduction of perjured testimony requires a new trial depends on the materiality of the perjury to the jury’s verdict and the extent to which the prosecution was aware of the perjury.”22

Prosecutors may not vouch for their witnesses’ credibility.

In other words, a prosecutor is prohibited from expressing his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.... An improper remark by a prosecutor will justify a reversal by the Court only if it causes the defendant substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process.23

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Bluebook (online)
860 F. Supp. 2d 262, 2012 WL 213611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-healey-nysd-2012.