IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA §

§

v. § CR. NO. 2:06cr202-WKW

§

EUGENE CLECKLER §

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL

Comes now the United States of America, by and through Leura G. Canary, United

States Attorney for the Middle District of Alabama, and hereby responds to Defendant’s

motion for new trial as follows.

I. IMPEACHMENT

Cleckler argues a new trial is necessary because the Government supposedly failed

to disclose “explicit immunity agreements” between the Government and Cleveland Brown

and Tanya Morris. This claim fails for two reasons: first, the information in the

Government’s possession was not required to be disclosed. Second, the information was

revealed during the trial, and Cleckler cannot demonstrate prejudice from the delay.

During the trial, Morris testified that before she went to be interviewed by Agent

Clark, Brown told her that she would not be prosecuted. She also said that when she met

with Agent Clark, he confirmed that she would not be prosecuted. Brown testified that he

had no immunity agreement, but he repeatedly referred to his status as “witness.” Agent

Clark testified that he told Morris after the interview that because he had not administered

the IRS “non-custodial” advice of rights, he would not be permitted to use her statement

against her. In addition, the Government proffered that Agent Clark told Morris something

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The Government does not recall Agent Clark being asked about any discussions with Brown 1

about this subject. The Government proffers that Agent Clark would testify that he did not discuss

with Brown any issues relating to whether or not Brown would be prosecuted.

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along the lines that lower level employees that do not personally benefit are not normally

prosecuted in these circumstances.1

A. The Information Was Not Giglio Material

In United States v. Giglio, 405 U.S. 150 (1971), the Court held that the Government

was obligated to disclose the fact that a prosecutor had promised a witness who was also a

co-conspirator that he would not be prosecuted if he testified before the grand jury and at

trial. The Court stated: “[E]vidence of any understanding or agreement as to a future

prosecution would be relevant to [the witness’s] credibility and the jurywas entitled to know

of it.” Id. at 154.

The Eleventh Circuit has addressed the issue of exactly what types of agreements

must be disclosed:

[A] promise in [the Giglio] context is not a word of art that must be

specifically employed. And, even mere “advice” by a prosecutor concerning

the future prosecution of a key government witness may fall into the category

of discoverable evidence.

But not everything said to a witness or to his lawyer must be disclosed. . . .

Some promises, agreements, or understanding do not need to be disclosed,

because they are too ambiguous, or too loose or of too marginal a benefit to

the witness to count.

Tarver v. Hopper, 169 F.3d 710, 717 (11 Cir. 1999) (quotations and citations omitted). In th

Tarver, the court held that the prosecutor’s statement to defense counsel that the witness’s

testimony would be “taken into consideration” was “too preliminary and ambiguous to

demand disclosure.” Id.; see also Depree v. Thomas, 946 F.2d 784, 797 (11 Cir. 1991) th

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(prosecutor and detective told witness that they would “take care of” him; disclosure not

required because statement was “ambiguous” and was not a “promise[] that the witness

would, in fact, receive more favorable treatment”); McCleskey v. Kemp, 753 F.2d 877, 884

(11 Cir. 1985) (state not required to disclose detective’s promise to witness that detective th

would “speak a word” on behalf of the witness), aff’d on other grounds, 481 U.S. 279

(1987); Bell v. Haley, 437 F. Supp. 2d 1278, 1309 (M.D. Ala. 2005) (agent’s statement to

witness that agent could discuss witness’s pending charges after defendant’s trial “was too

insubstantial to constitute a ‘promise’”).

In this case, Agent Clark told Morris in substance that the statement that she had

given could not be used against her and that under his agency’s standards, she would likely

not be prosecuted. This statement by a law enforcement officer to a witness has even less

impeachment value than the statements that a detective would “speak a word” for the witness

or that the prosecutor would take care of the witness. Therefore, because the investigating

agent did not make a promise that the Government was obliged to disclose, there was no

Giglio violation.

B. Cleckler Can Demonstrate No Prejudice from the Delayed Disclosure

Even assuming disclosure was required, because the information was revealed during

trial, to obtain a new trial, Cleckler would have to “show prejudice, e.g., the material came

so late that it could not be effectively used.” United States v. Bueno-Sierra, 99 F.3d 375,

379 (11 Cir. 1996) (per curiam) (citation and quotation omitted). Several cases illustrate th

this rule and show that a new trial is not warranted. Closest factually is United States v.

Nixon, 634 F.2d 306 (5 Cir. 1981), where the government failed to disclose the prosecutor’s

th

oral assurance to the witness that he would not be prosecuted if he testified against the

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defendant. However, the relevant facts were elicited on cross-examination. The court held

that there was no prejudice, because “the jury had the benefit of [the agreement] insofar as

it might have affected [the witness’s] credibility.” Id. at 313. Moreover, the defendant could

not establish that “prior knowledge of the . . . agreement would have aided the crossexamination.” Id. Accordingly, the court concluded that “the late disclosure in no way

prejudiced full impeachment of [the witness] in connection therewith and we may not

reverse for this failure.” Id.; accord United States v. Mejia, 82 F.3d 1032, 1036-37 (11 Cir. th

1996) (no prejudice where “the information alleged to have been withheld was brought out

in fact on cross examination”); see also Bueno-Sierra, 99 F.3d at 378 (disclosure made

during trial; no prejudice when district court granted a recess to allow for additional crossexamination, and impeaching material was “fully explored”); United States v. Knight,

867 F.2d 1285, 1289 (11 Cir. 1989) (disclosure made during trial; no prejudice where

th 

witness was recalled and subject to additional cross-examination); United States v. Darwin,

757 F.2d 1193, 1201 (11 Cir. 1985) (disclosure made after witness’s testimony; no th

prejudice where defense could have recalled witness but chose not to).

Here, the defense elicited Morris’s understanding of her situation on crossexamination, neither defendant sought a recess or an opportunity to further cross-examine

Morris, and Agent Clark testified concerning his conversations with Morris. In addition,

there was extensive cross-examination of Brown about the subject of immunity. Moreover,

Cleckler never points to any prejudice from the delayed notification. Accordingly, he is not

entitled to a new trial.

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See Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) (“The party invoking the 2

attorney-client privilege has the burden of proving that an attorney-client relationship existed and that

the particular communications were confidential.”); In re Grand Jury Investigation (Schroeder), 842

F.2d 1223, 1226 (11th Cir. 1987); United States v. Moore, 485 F.2d 1165, 1167 (5 Cir. 1973). th

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II. PRIVILEGE

In his motion, Cleckler claims that privileged communications were admitted, stating

that “[t]he Court ordered Selfe to testify about all facets of the IRS audit even though none

of his representation prior to 2000 was not [sic] in furtherance of the fraud allegations.” The

Government does not believe the factual premise of this argument is correct. The only

information that the Government recalls eliciting on direct examination regarding Selfe’s

communications with his client related directly to the question of (1) whether Ezy-Ryder (as

opposed to Gene’s Marine) had sold the boats that resulted in the deposits into the EzyRyder bank account, and (2) the need for documentation of those sales. There may have

been some general background information about what Selfe was retained to do, but nothing

that would have been privileged. Cleckler has the burden of establishing a violation of either

the attorney-client privilege or work-product protection, and he provides the court with no 2

basis for finding that such a violation occurred.

III. HEARSAY

A. The Court May Only Consider the Challenge to the Admission of the

Particular Document Cleckler Refers to in His Motion

Cleckler complains of the court’s admission of various documents that allegedly

contained hearsay. Cleckler specifies only one statement to which this objection applies, and

the court should limit its review to this statement.

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Nor should the court consider any belated attempt by Cleckler to expand the grounds of his 3

motion. A motion for new trial must be filed within seven days after the verdict, unless an extension

is granted within the seven-day period. See Fed. R. Crim. P. 33(b)(2); see also Eberhart v. United

States, 126 S. Ct. 403, 407 (2005). (Rule 33’s time limits “assure relief to a party properly raising

them . . . .”). A party who files a timely Rule 33 motion cannot raise additional grounds after the

time to file has elapsed. See United States v. Angulo, 132 Fed. Appx. 240, 241 (11 Cir. 2005) (per th

curiam) (unpublished) (motion to supplement new trial motion was untimely); United States v.

Bramlett, 116 F.3d 1403, 1405-06 (11 Cir. 1997) (‘renewed’ motion was untimely); United States

th

v. Hall, 854 F.2d 1269, 1271-72 (11 Cir. 1988) (district court erred in considering untimely th

“supplement” to original motion).

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“[A] motion must state the grounds on which it is based.” Fed. R. Crim. P. 47(b).

The statement of grounds must “be specific enough to preserve the issue for appeal.”

28 MOORE’S FEDERAL PRACTICE § 647.02[3] (3d ed 2003). To preserve an evidentiary

objection for appeal, the objection must, “at a bare minimum . . . tell the trial judge both

what is objected to and why.” 21 C. Wright and K. Graham, FEDERAL PRACTICE AND

PROCEDURE: EVIDENCE 2D, § 5036.1, at 641 (2005) (citation and quotation omitted)

[A]n objection must . . . specify the evidence to which the objection is

directed. Placing the burden on the objector to identify the target of her

objection furthers the policy of efficiency; she is the person most likely to

know what needs to be excluded. Forcing the objector to specify the target

also furthers the policy of party autonomy via separation of functions; . . . it

is not the job of the judge to sort out admissible from inadmissible evidence.

Id. at 646 (citation and quotation omitted); see United States v. David, 96 F.3d 1477, 1480

(D.C. Cir. 1996) (hearsay objection not preserved when defendant failed to “point to the

specific documentary evidence with which he took issue”).

Here, the only document specified by Cleckler is Exhibit 24, and the only allegedly

hearsay statement complained of is a statement by Janice Hull, the accountant. This is the

only ground for new trial that the court should consider.

3

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B. The Objection is Without Merit

The document Cleckler cites, Exhibit 24, does not refer to any statement by Janice

Hull, and the Government assumes that Cleckler intended to refer to some other document.

Although it is difficult to address this issue in a vacuum, assuming the statement in question

was being offered for its truth, then the document would be admissible as a record of the

agency, and Ms. Hull’s statement within the document would be a “non-hearsay” statement

authorized by the party or by the party’s agent. See Fed. R. Evid. 801(d)(2)©, 801(d)(2)(D),

803(8). Therefore, the Court should deny the motion.

CONCLUSION

For the reasons set forth above, the Government requests that the Court deny

Cleckler’s motion for new trial.

LEURA G. CANARY

UNITED STATES ATTORNEY

s/Andrew O. Schiff

ANDREW O. SCHIFF

Assistant United States Attorney

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov

Bar ID 43641

Case 2:06-cr-00202-WKW-CSC Document 91 Filed 02/06/2007 Page 7 of 8
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IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA §

§

v. § CR. NO. 2:06cr202-WKW

§

EUGENE CLECKLER §

CERTIFICATE OF SERVICE

I hereby certify that on February 6, 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: George Beck, Esq., and Ronald Brunson, Esq.

Respectfully submitted,

s/Andrew O. Schiff

ANDREW O. SCHIFF

Assistant United States Attorney 

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov

Bar ID 43641

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