IN THE UNITED STATES DISTRICT COURT

 FOR THE MIDDLE DISTRICT OF ALABAMA

UNITED STATES OF AMERICA )

)

vs. ) CASE NUMBER: 2:06-CR-00202-WKW

)

EUGENE L. CLECKLER )

MOTION FOR NEW TRIAL

Eugene L. Clecker, after being convicted by jury trial on January 12, 2007,

hereby moves this honorable Court to vacate said judgment of conviction and

pursuant to Fed. R. Crim. P. 33, in the interests of justice, order a new trial. In

support of this motion, the following is shown to the Court: 

1. The Court failed to declare a mistrial based on the government’s failure to

disclose critical impeachment information regarding the two key government

witnesses, Cleveland Brown and Tanya Morris. 

The government violated the Court’s standing discovery order by failing to

disclose explicit immunity agreements with both witnesses/coconspirators, Brown

and Morris. Even after the defense asked specifically about the understanding, the

prosecutor denied any agreement discussions whatsoever. Tanya Morris testified at

trial that she asked the agents about her exposure at the very onset of her

discussions and was told by the agents that she would not be prosecuted. Brown

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stated he was told that he would be only a “witness.” The prosecutor denied all

promises of immunity. 

The question of coconspirator immunity was obvious to the prosecution of

this case. The witness motivation to testify was a critical factor in examining the

credibility of both Brown and Morris. The prosecutor had a duty to ask the agents

and both had a duty to disclose all understandings, especially involving such key

witnesses. United States v. Auten, 632 F2d 478 (5 Cir. 1980). th

 The information was not provided in time for effective use at trial. United

States v. O’Keefe, 128 F3d 885, 898 (5 Cir. 1997), cert. denied, 118 S.Ct. 1528 th

(1998). The disclosure was required before trial for effective use in opening

statements and cross-examination. However, the information was developed at trial

as a surprise element stumbled upon at the end of the Morris cross-examination. 

Moreover, the agents withheld critical interview information from the Morris

witness interview memorandum, as if to attempt to mislead the defendants. 

The government withheld critical impeachment information that impacted the

overall outcome of the trial. 

2. Protected privileged attorney-client communications and attorney work

product were ordered revealed outside the scope of the crime-fraud exception.

The Court ordered Ed Selfe, Eugene Cleckler’s attorney, to reveal attorney

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work product that pre-dated and did not pertain to the false document crime. The

Court ordered Selfe to testify about all facets of the IRS audit even though none of

his representation prior to 2000 was not in furtherance of the fraud allegations. See

In re Grand jury Investigation, 842 F2d 1223 (11 Cir. 1987). For at least one year

th

prior to the commencement of any alleged crime, Selfe provided legal tax advice

and strategy that should have been protected from public disclosure. In re

Subpoena Duces Tecum, 7312 F2d 1032, 1037 (11 Cir. 1984). th

3. The Court improperly admitted into evidence over the defendant’s objections,

certain audit reports containing repetitive prejudicial hearsay observations and

conclusions of the IRS auditor.

The Court admitted the IRS auditor’s reports that contained hearsay

statements of the accountants and others that otherwise, would not have been

allowed. Such reports had the effect of bolstering the otherwise questionable

collective memory of the hearsay witnesses without the potential of confrontation. 

Particularly, Government Exhibit 24 was the auditor’s memorandum that relied

completely on facts that Janice Hull provided him. Even if the testimony had been

admitted under some other hearsay exception theory, there was no basis whatsoever

to admit the report itself into evidence and allow it to go to the jury.

 

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Wherefore, premises considered, Defendant Eugene Cleckler respectfully

moves this Court to order a new trial of this cause. 

Respectfully submitted, this the 17 day of January, 2007. th

s/ Ronald R. Brunson 

RONALD R. BRUNSON 1696

2126 Morris Avenue

Birmingham, Alabama 35203

(205) 252-2100

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CERTIFICATE OF SERVICE

I hereby certify that on December 17th, 2007, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system, which will send

notification of such filing to the following:

Andrew O. Schiff, Esq., Assistant U.S. Attorney

201 One Court Square

Post Office Box 197

Montgomery, AL 36101-0197

Andrew.schiff@usdoj.gov, Debbie.shaw@usdoj.gov

s/ Ronald R. Brunson 

 RONALD R. BRUNSON

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