United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
PAUL W. GRIMM, District Judge.
Defendant seeks a new trial, pursuant to Federal Rule of Criminal Procedure 33(a), following a September 4, 2014 jury verdict finding him guilty of wire fraud and aggravated identity theft. Defendant argues that the Court should grant a new trial based on the allegedly improper admission of: (1) Defendant's July 6, 2013 statements to law enforcement; (2) an outof-court photo array and witness's identification of the Defendant; (3) Defendant's prior conviction, which was admitted pursuant to Federal Rule of Evidence 404(b); and (4) a summary testimony and summary exhibit, admitted pursuant to Federal Rule of Evidence 611(a). I find that the evidence Defendant identifies properly was admitted following my careful review of the same issues prior to and during trial, and there exists no basis to grant a new trial. Accordingly, I deny the motion.
On September 4, 2014, Defendant Alimamy Barrie was convicted of two counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A, following a seven-day jury trial. Jury Verdict, ECF No. 99; Third Superseding Indictment, ECF No. 77. On September 18, 2014, within the time provided by Fed. R. Crim. P. 33(b)(2), Barrie filed the pending Motion for New Trial Pursuant to Federal Rule of Criminal Procedure 33 ("Def.'s Mot. for New Trial"), ECF No. 103. In his motion, Barrie raises four grounds for granting him a new trial:
(1) Mr. Barrie's statements should not have been admitted at trial due to the involuntariness of those statements; (2) the admission of the overly suggestive photo identification and identification testimony connecting Mr. Barrie to 5711 Landover Road denied him a fair trial; (3) the admission of Mr. Barrie's prior conviction pursuant to Federal Rule [of] Evidence 404(b) was extremely prejudicial and inconsistent with the Government's pretrial proffer about why and hwo the evidence would be used; and (4) the Court erred in permitted Special Agent Guest to testify as [a] summary witness and allowing the summary chart into evidence (Government Exhibit 27).
Def.'s Mot. for New Trial ¶ 2.
Barrie initially sought to suppress his statements and the results of the photo array, respectively, in a Motion to Suppress Photo Identification and In-Court Identification ("Def.'s Mot. to Suppress Identification"), ECF No. 11, and a Motion to Suppress Statements and Evidence ("Def.'s Mot. to Suppress Evidence"), ECF No. 12, both of which were denied at the motions hearing held before me on August 15, 2014 (the "Motions Hearing"). See Hr'g Tr. 128:14-20, 175:5-10, Gov't's Opp'n to Def.'s Mot. for New Trial ("Gov't's New Trial Opp'n") Ex. 1, ECF No. 104-1. At the Motions Hearing, Special Agent Christopher Guest of the United States Secret Service and Barrie's former neighbor Laron Greenfield testified regarding Greenfield's out-of-court identification of Barrie from a photo array. Based on their testimony, I found that although there was "no question" that the photo array was impermissibly suggestive, id. at 119:15-19, Greenfield's testimony established the reliability of the identification so that its admission would not give rise to a substantial likelihood of irreparable misidentification, and therefore that Greenfield's identification would be admissible, id. at 127:20-128:3.
With respect to the admissibility of Barrie's statements to law enforcement officials on June 6, 2013, the Government introduced testimony from Special Agent James Conner of the Federal Bureau of Investigation. Following testimony and argument, I found that Barrie properly had been advised of his Miranda rights, id. at 166:13-167:3, and that he knowingly and voluntarily waived these rights, after considering all of the circumstances of his June 6, 2013 interview, id. at 175:5-10.
The admissibility of Barrie's prior conviction under Fed.R.Evid. 404(b) first was raised in the Government's Motion in Limine Regarding Defendant's Previous Conviction for Conspiracy to Commit Wire and Mail Fraud ("Gov't's Mot. in Limine"), ECF No. 30. At the Motions Hearing, I found that the Rule 404(b) issue adequately was presented in the Government's Motion in Limine, Defendant's Opposition ("Def.'s in Limine Opp'n"), ECF No. 35, and the Government's Reply ("Gov't's in Limine Reply"), ECF No. 40, and that further evidence was unnecessary. Hr'g Tr. 21:10-18. Relying on the multiple-prong test set forth in United States v. Queen, 132 F.3d 991 (4th Cir. 1997), I found that Barrie's prior conviction would be admissible because it was relevant to establish identity, was reliable, would not be offered for propensity as prohibited by Fed.R.Evid. 404(a)(i) and (b)(i), and was not unfairly prejudicial when balanced against its probative value. Hr'g Tr. 23:16-30:5. Barrie's plea agreement in his prior case thus was offered by the Government and admitted at trial.
Finally, during trial, the Government sought to call Special Agent Guest as a summary witness and to use him to lay the foundation for admission of a chart summarizing the Government's case, over Barrie's objection. Following briefing and argument by both parties, I overruled the objections and allowed both Special Agent Guest's testimony and the admission of the summary chart as Government's Exhibit 27 pursuant to Fed.R.Evid. 611(a) and United States v. Janati, 374 F.3d 263, 273 (4th Cir. 2004). See Letter Order, ECF No. 84.
The Government filed its Opposition to Defendant's Motion for New Trial ("Gov't Opp'n"), ECF No. 132, on September 24, 2014 and the time for a reply since has passed without a submission from Barrie's counsel, see Loc. R. 105.2(a), 207, although Barrie filed a letter with the Court pro se on October 31, 2014, ECF No. 105. The motion now is ripe and is before me. Having reviewed the filings, I find that a hearing is not necessary. Loc. R. 105.6, 207.
II. LEGAL STANDARD
Pursuant to Fed. R. Crim. P. 33, a court may grant a new trial on motion by a defendant "if the interest of justice so requires." Fed. R. Crim. P. 33(a). Unless grounded on newly discovered evidence, a motion for new trial "must be filed within 14 days after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(2). The decision to order a new trial is within the sound discretion of the trial court, see United States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 2006), but "a trial court should exercise its discretion to award a new trial sparingly, ' and a jury verdict is not to be overturned except in the rare circumstance when the evidence weighs ...