1 Ogle was subsequently sentenced to 120 months of imprisonment with five years of supervised release to follow and fined

$750.00. Suggs was also convicted of being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1) and given sentences

of 300 months and 120 months to run concurrently with 10 years

(continued...)

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1035

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOYCE KAY OGLE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 00 CR 30176 WDS—William D. Stiehl, Judge.

____________

SUBMITTED APRIL 11, 2005—DECIDED OCTOBER 5, 2005

____________

Before COFFEY, EASTERBROOK, and KANNE, Circuit

Judges.

COFFEY, Circuit Judge. On March 22, 2002, Joyce Kay

Ogle and Alonzo Suggs were each convicted of conspiracy to

possess, with the intent to distribute, at least five kilograms

of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18

U.S.C. § 2.1

 Ogle and Suggs appealed. We affirmed both
2 No. 05-1035

1 (...continued)

of supervised release to follow and fined $2,000.00.

In addition, prior to trial, co-conspirator John Ellebracht pled

guilty to one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18

U.S.C. § 2. In conjunction with his plea agreement, Ellebracht

agreed to cooperate fully with the government in their prosecution

of Suggs and Ogle. In return, the government granted Ellebracht

immunity from prosecution for any other crimes arising out of the

drug conspiracy known by the government at that time or that

might become known as a result of his cooperation. In addition,

the government also agreed to recommend a sentence at the low

end of the sentencing guidelines range determined by the trial

judge at sentencing. Ellebracht was eventually sentenced to 70

months to be followed by three years of supervised release and

fined $500.00.

convictions in an Order dated February 14, 2003. In doing

so we held that Ogle and Suggs were not entitled to a jury

instruction on multiple conspiracies because only one,

uninterrupted conspiracy existed and had been presented

at trial—the one charged. See United States v. Suggs, 59

Fed. Appx. 818, 818-20 (7th Cir. 2003). In addition, we

concluded that even if evidence of an uncharged conspiracy

was admitted in error, that error would have been harmless

due to the wealth of evidence supporting a conviction on the

conspiracy set forth in the indictment. See id. at 820.

Shortly thereafter, Ogle filed a motion pro se with the

district court requesting a new trial based on what she

alleged was “newly discovered evidence” pursuant to FED.

R. CRIM. P. 33(b)(2). The district court denied her motion,

finding that Ogle had failed to establish the requisite

grounds for a new trial as set forth in United States v.

Mitrione, 357 F.3d 712, 718 (7th Cir. 2004). We affirm.
No. 05-1035 3

2 The Sergeant believed the suspicious luggage was being used to

transport drugs based on the following observations: (1) the

luggage appeared to be brand new; (2) it had an unusual odor

of perfume; (3) it lacked identification tags displaying the

owner’s name; (4) it was marked as heavier than normal weight;

(5) it contained a lock of substantial durability that was most

(continued...)

I. BACKGROUND

Between March 24, 2000 and July 18, 2000, federal

authorities arrested three individuals, Marico Bratcher,

Stacy Wilkins and Kevin Wren for possession of varying

amounts of cocaine. With their cooperation, the Federal

Bureau of Investigation (“FBI”), in conjunction with the

Federal Drug Enforcement Administration (“DEA”),

unraveled what was believed to be a drug trafficking

conspiracy with Alonzo Suggs acting as ringleader. Suggs’

role in the conspiracy was discovered primarily due to the

fact that each of the individuals arrested, independent of

each other, named him as their primary source for illegal

drug purchases.

After interrogating Bratcher, Wilkins, and Wren, authorities also learned that Suggs received shipments of drugs via

commercial airline flights. This information proved reliable,

for on June 27, 2000, the authorities were informed of a

suspicious suitcase inbound from Phoenix, which was later

discovered to be a shipment of cocaine being delivered to

Suggs. The discovery was made primarily as a result of a

routine bag inspection performed at the Sky Harbor Airport

in Phoenix, Arizona by Sergeant Robert Hunsich of the

Phoenix Police Department. Sergeant Hunsich observed

what his training led him to believe was a suspicious

suitcase bound for Lambert Field in St. Louis, Missouri.

Consistent with protocol, Sergeant Hunsich immediately

alerted authorities in St. Louis to the bag’s presence and

informed them of his belief that it may contain contraband.2
4 No. 05-1035

2 (...continued)

unusual for suitcase security; and (6) he could feel bundles of

what, based on his experience, he believed to be compressed

drugs, particularly marijuana.

When the flight arrived in St. Louis, Detective Gary

Sodoma of the St. Louis Police Department, Bureau of Drug

Enforcement, inspected the luggage with the aid of a drug

detection canine. As suspected, the dog alerted the officers

to the presence of narcotics. Instead of confiscating the bag

immediately, the agents allowed the suitcase to proceed routinely to the baggage claim area where officers

observed a man, later identified as John Ellebracht, take

possession of the suitcase and attempt to depart the airport.

As Ellebracht proceeded through a security checkpoint

with the suitcase, DEA Agent Ed Remspecher confronted

him and inquired as to whether he could ask him some

questions. Ellebracht, after speaking with the agents,

consented to a search of the luggage. While being questioned by Agent Remspecher prior to the suitcase being

opened, Ellebracht made it known that he was unaware

of the contents of the suitcase and stated that he did not

possess the key to open it. Agent Remspecher, after forcing

open (manually separating the zipper) the bag, detected a

strong odor of marijuana and observed several clear

cellophane bundles coated with a “pinkish-red . . . grease.”

Concluding that the suitcase contained contraband, agents

read Ellebracht his Fifth Amendment rights and placed him

under arrest for possession of a controlled substance. When

the contents of the suitcase were subsequently examined,

DEA officers discovered that it contained more than ten

kilograms of cocaine and more than seven kilograms of

marijuana.

Ellebracht proclaimed to the agents that he was completely unaware that the suitcase contained any drugs

and explained that he was merely transporting the bag and
No. 05-1035 5

3 In early December of 2000, Ogle fled the state of Illinois and, as

a result, the court considered her bond forfeited. On December 5,

(continued...)

its contents on behalf of an individual known to him only as

“Lo.” In return for his services, “Lo” had allegedly agreed to

pay Ellebracht $500. Ellebracht was scheduled to meet “Lo”

that evening at a fast food restaurant in St. Louis. When

asked to identify the man he knew as “Lo” in a photographic

lineup, Ellebracht selected a photograph of Suggs.

Ellebracht agreed to cooperate with the agents and attempted, in the presence of the law enforcement officers, to

contact Suggs with the telephone number that he (Suggs)

had provided.

Ellebracht left numerous messages on Suggs’ voice mail.

The calls were later returned by Joyce Kay Ogle rather than

Suggs. During the conversations that followed, Ellebracht

attempted to dissuade Ogle from getting involved telling

her “you don’t know what’s going on” and added, “stay out

of this.” Yet, Ogle responded, “Oh, I know what’s going on.”

She then told Ellebracht that he would not be able to meet

with Suggs until she, meaning Ogle, met with him first. She

told him, “something is up John. Until you come talk to me,

he’s not going to do anything. You might sit there all night.”

Ogle then notified Ellebracht that she would wait for him at

the 1860’s Hard Shell Café, a local restaurant in the city of

St. Louis.

Later that evening, DEA Agent Sam Zouglas approached

Ogle at the Café bar and placed her under arrest. Ogle told

Agent Zouglas and Agent Mike Williams that “Lo” had

called her and told her to meet Ellebracht at the 1860’s

Hard Shell Café. Ogle claimed she was instructed by “Lo” to

page him when Ellebracht appeared. Ogle agreed to cooperate with the authorities and tried to contact Alonzo Suggs,

but was unsuccessful. Ogle was later released on bond.3
6 No. 05-1035

3 (...continued)

2000, Texas State Trooper Mark Lancaster observed a car in his

rear-view mirror that appeared to be following him. Lancaster

pulled into an adjacent rest stop, looked into the vehicle, and

noticed a woman covering her face. The trooper ran the tags on

the vehicle and received a “wanted” message. He pulled the

woman over and explained to her the reason for doing so. The

woman responded saying that she did not know of any “wanted”

person and handed the trooper an Illinois driver’s license and

birth certificate identifying herself as Melody G. Cummings.

Although the identification card came back clear with no warrants, the driver’s appearance matched a physical description of

the “wanted” person, Joyce Kay Ogle. The officer detained the

woman and while en route to a fingerprint specialist, she feigned

sickness, claiming to be suffering from flu-like symptoms,

including fever and nausea. After the officers obtained her

fingerprints, a comparison was then made with Ogle’s fingerprints, which lead to a positive identification of the woman as

Joyce Kay Ogle.

4 A number of other individuals, including Marico Bratcher, Stacy

Wilkins and Kevin Wren were also charged with the possession of

cocaine with intent to distribute. 

In October 2000, a grand jury indicted Suggs, Ogle and

Ellebracht each on one count of conspiracy to possess

cocaine with intent to distribute from March of 1999 “to

on or about July 27, 2000.”4

 Prior to trial, Ellebracht entered a plea of guilty to the charges in return for a favorable

sentencing recommendation from the government and

agreed to aid in the prosecution of Suggs and Ogle as well

as testify against them at trial.

At trial, Ellebracht testified that Ogle had introduced him

to crack cocaine and had recruited him as a courier for

Alonzo Suggs. He further stated that Ogle and he had, on

several occasions used crack cocaine—some of which he

recalled having obtained directly from Suggs. Ellebracht

stated that he had smoked crack on an average of twice a
No. 05-1035 7

week for the last two-and-a-half years. Ellebracht also

testified that it was Ogle that had introduced him to

Suggs and recruited him to act as a drug courier, contradicting a pre-trial statement he had made earlier denying that

Ogle had recruited him. On cross-examination, Ellebracht

was thoroughly questioned about the inconsistencies

between his pre-trial statement (where he denied Ogle’s

involvement) and his testimony at trial implicating Ogle.

On redirect, however, he insisted that he was now telling

the truth and stated that in his previous statements he had

attempted to shield Ogle from trouble because he “cared for

her” and “didn’t want to involve her in what [he] was

doing.”

A jury subsequently found both Suggs and Ogle guilty

of conspiracy to possess with intent to distribute at least

five kilograms of cocaine, in violation of 21 U.S.C. §§ 846,

841(a)(1). Both defendants appealed and, in an Order dated

February 14, 2003, we affirmed both convictions. In our

decision, we held that Ogle and Suggs were not entitled to

a jury instruction on multiple conspiracies as they contested

because, according to the testimony presented, only one,

uninterrupted conspiracy existed—the one that was

charged. See Suggs, 59 Fed. Appx. at 818-20. In addition, we

concluded that even if evidence of an uncharged conspiracy

were admitted in error, any error would have been harmless

due to the overwhelming amount of evidence introduced in

support of a conviction on the charged conspiracy. See id. at

820.

Shortly thereafter, Ogle filed a pro se motion for a new

trial with the district court based on what she alleged to be

“newly discovered evidence” pursuant to FED. R. CRIM. P.

33(b)(2). The district court denied her motion finding that

Ogle had failed to establish the grounds for a new trial as

set forth in Mitrione, 357 F.3d at 718.
8 No. 05-1035

II. ISSUES

Ogle’s motion for a new trial was drafted pro se and, as

such, we construe the claims contained therein liberally. See

Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001),

accord Haines v. Kerner, 404 U.S. 519, 520 (1972). After

much thought, and taking into consideration the principles

enunciated in Haines v. Kerner, we are able to discern two

alternative arguments proffered by Ogle as to why she

believes that the district judge erred in refusing to grant

her a new trial: (a) that the trial court erroneously applied

the standard set forth in United States v. Mitrione, 357 F.3d

712 (7th Cir. 2004) to her claim that she should be granted

a new trial based on her allegation that the government

prosecutor knowingly presented false testimony at trial; and

(b) that what she characterizes as “newly discovered evidence” entitles her to a new trial pursuant to Fed. R. Crim.

P. 33(b)(1). We review a district court’s decision denying a

motion for a new trial for abuse of discretion only. See

United States v. Westmoreland, 240 F.3d 618, 636 (7th Cir.

2001) (citing United States v. Fruth, 36 F.3d 649, 652 (7th

Cir. 1994)).

III. ANALYSIS

A. Knowing Presentation of False Testimony

Ogle’s first assignment of error is that the district court

applied an incorrect analysis to her claim that she was

entitled to a new trial based on her allegation that the

government knowingly presented false testimony at trial.

Specifically, she argues that, during the trial proceedings,

the government prosecutor proffered testimony known to be

false and, therefore, she is entitled to a new trial without

regard to the temporal constraints of FED. R. CRIM. P. 33(b)

(7 day time limit to file a motion for a new trial, unless the

motion is based on “newly discovered evidence”).
No. 05-1035 9

For over 75 years, the test which we applied in determining whether a criminal defendant was entitled to a new

trial based on the prosecution’s introduction of false

testimony was predicated on this circuit’s decision in

Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928).

In United States v. Mitrione, 357 F.3d 712 (7th Cir. 2004),

we overruled the Larrison test in favor of a more restrictive

“reasonable probability test.” See id. at 718. In doing so, we

announced that, henceforth: “In order to win a new trial

based on a claim that a government witness committed

perjury, assuming as in this case that the government did

not knowingly present the false testimony, defendants will

have to prove the same things they are required to prove

when moving for a new trial for other reasons . . . [and]

show that the existence of the perjured testimony (1) came

to [the defendant’s] knowledge only after trial; (2) could not

have been discovered sooner with due diligence; (3) was

material; and (4) would probably have led to an acquittal

had it not been heard by the jury.” Id. at 718 (emphasis

added) (citing United States v. Gonzalez, 93 F.3d 311 (7th

Cir. 1996)).

As Mitrione suggests, the rule set forth in that case

applies only in the absence of the knowing presentation of

false testimony. In contrast, where a criminal defendant

does allege that the government knowingly presented false

testimony, however, we remain bound by the standard

enunciated by the Supreme Court in United States v. Agurs,

427 U.S. 97, 103 (1976). Under the Agurs standard, a new

trial is warranted when: “1) the State presented perjured

testimony; 2) the State knew or should have known of

the perjury; and 3) there is some likelihood that the testimony could have affected the verdict.” Martin v. Evans, 384

F.3d 848, 855 (7th Cir. 2004) (citing Agurs, 427 U.S. at 103).

In devising this rule, the Supreme Court reasoned that “a

conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if
10 No. 05-1035

there is any reasonable likelihood that the false testimony

could have affected the judgment of the jury.” Agurs, 427

U.S. at 103.

However, nothing in Mitrione, Agurs nor their progeny

abrogates the time limit for filing a motion for a new trial

pursuant to FED. R. CRIM. P. 33(b)(2), which proscribes that

“[a]ny motion for a new trial grounded on any reason other

than newly discovered evidence must be filed within 7 days

after the verdict or finding of guilty . . . .” Thus, a motion for

a new trial filed after the 7-day time limit set forth in Rule

33(b)(2) has elapsed is properly denied—even where a

defendant alleges the knowing presentation of false testimony by the government at trial—unless that claim is

based on “newly discovered evidence.” FED. R. CRIM. P.

33(b)(2); see also United States v. Wall, 389 F.3d 457, 468

(5th Cir. 2004).

Accordingly, whether Ogle claims the government knowingly or unknowingly presented perjurious testimony, she

must present sufficient “newly discovered evidence”

to establish her claim. Otherwise, her motion for a new

trial must fail, for it was lodged with the trial court well

after the 7-day time limit contained in FED. R. CRIM. P.

33(b)(2) had elapsed.

B. Alleged Newly Discovered Evidence of the Prosecution’s

Knowing Presentation of Perjured Testimony

Ogle claims that the existence of a pre-trial statement

signed by Ellebracht, in which he states that Suggs (instead

of Ogle herself) met him at a club and asked him to act as

a drug courier, establishes that the prosecutor knowingly

suborned perjury. It is true that portions of Ellebracht’s

pre-trial statement are inconsistent with his testimony at

trial. For example, at trial Ellebracht, instead of stating

that Suggs recruited him as he had done earlier, admitted

that Ogle was the one that had actually “recruited ” him.
No. 05-1035 11

5 Ogle makes much of Ellebracht’s post-trial statement that the

prosecutor “told me I could not say for a fact that you [Ogle] were

not involved” and that “[t]he prosacuter [sic] told me I had to

answer his questions a serten [sic] way or I would be held in

contemp [sic].” However, this is not surprising and certainly

does not rise to the level of establishing that the prosecutor

suborned perjury. “Witnesses who have had criminal careers often

must be forcefully reminded that trial is a time for scrupulous

accuracy.” United States v. Torres-Ramirez, 213 F.3d 978, 980 (7th

Cir. 2000). Ogle complains of “coaching,” but this is simply a red

herring. The record clearly establishes that, instead of attempting

“to replace truth with fabrication,” the prosecutor was actually

doing his best to elicit the truth from Ellebracht. Id. It was left to

the jury to determine whether to credit Ellebracht’s testimony at

trial or his prior statements to law enforcement, and from the

verdict we can tell the jury found his testimony at trial both

credible and incriminating. See Sarkes Tarzian, Inc. v. U.S. Trust

Co. of Fla. Sav. Bank, 397 F.3d 577, 585 (7th Cir. 2005) (stating

that where there are inconsistencies in the testimony and

evidence presented at trial “it [is] certainly within the province of

the jury to parse the facts, to weigh the credibility of each witness

and to disregard the testimony of witnesses it found to be less

credible or not worthy of credence.”) (quoting Carter v. Chicago

Police Officers, 165 F.3d 1071, 1081 (7th Cir. 1998)).

Ellebracht explained the inconsistency on redirect by

explaining that he had colored his previous statements to

prosecutors because he “cared for” Ogle and “didn’t want to

involve her” in the situation, i.e., did not want her to go to

jail.

Under the circumstances it appears quite clear that

instead of being acquiescent in a scheme to defraud the

court or suborn perjury at trial, the prosecutor was actually

conducting an honest search for the truth while dealing

with a less than veracious witness, Ellebracht.5

 What’s

more, Ogle’s attorney had ample opportunity to, and did,

vigorously cross-examine Ellebracht concerning the inconsistencies between his pre-trial statements (which did not
12 No. 05-1035

implicate Ogle) and his testimony at trial (which did

establish that she was involved in a drug conspiracy). In

any case, inconsistencies in a government witness’ testimony ipso facto “do not establish the government’s knowing

use of false testimony,” and certainly do not do so under

circumstances such as those set forth herein. See United

States v. Griffin, 194 F.3d 808, 818 (7th Cir. 1999) (quoting

United States v. Magana, 118 F.3d 1173, 1191 (7th Cir.

1997), cert. denied, 522 U.S. 1139 (1998)).

C. Newly Discovered Evidence Under the Mitrione Standard

In the alternative, Ogle argues that she is entitled to

a new trial—or at least an evidentiary hearing—based on

what she characterizes as “newly discovered evidence”

suggesting that Ellebracht perjured himself at trial under

the “reasonable probability test” announced in Mitrione. To

support her contention she cites a number of letters

and statements by Ellebracht which she claims establish

that he testified falsely, as well as an affidavit from Suggs

in which he states that Ogle is “as innocent as a babe in the

woods.” Suggs Affidavit, February 4, 2004 at 1.

In contrast to her claim that the government knowingly

used false testimony in securing a conviction, which is

analyzed under the Agurs test described above, this portion

of Ogle’s claim is governed by the four-part test we recently

adopted in Mitrione. See Mitrione, 357 F.3d at 718. The first

element of that test, is that the existence of the perjurious

testimony came to the criminal defendant’s knowledge only

after trial. Id. The problem is that all of the evidence Ogle

points to, i.e., statements suggesting that Ellebracht was

lying, was squarely at issue prior to and at her trial; for

Ellebracht was the government’s “star” witness and his

testimony was subject to exhaustive cross-examination. See

id.; Buie v. McAdory, 341 F.3d 623, 625 (7th Cir. 2003)
No. 05-1035 13

(stating that “[t]he tools of the adversary process supply the

means to expose [many] testimonial shortcomings” such as

a witness who may be lying). In addition, it is apparent

that, due to Ellebracht’s pre-trial statements and Ogle’s

knowledge of the charges against her, Ogle was well aware

that Ellebracht was going to testify against her at trial as

the government’s “star” witness. See, e.g., Appellant’s Brief

at 7 (characterizing Ellebracht as the government’s “key

witness” based on his pre-trial statements); see also United

States v. Canova, 412 F.3d 331, 349 (2d Cir. 2005) (upholding the denial of a new hearing on a Rule 33 motion and

using as support the fact that “[t]he evidence in question all

pertained to matters that Canova knew would be in issue at

trial, even if he did not know the government’s exact

position on these matters”).

Also, as the trial judge correctly noted, nothing in

Ellebracht’s statements conclusively establishes that he

perjured himself. He repeatedly states that he does not

“remember” stating certain things at trial and offers that

the “prosacuter [sic] told me I had to answer his questions

a serten [sic] way or I would be held in contemp [sic].” In

addition, as mentioned above, Ellebracht’s statements prior

to trial were obviously based, in some part, on his feelings

for Ogle. This is evidenced by statements made

by Ellebracht to Ogle prior to trial, such as: “I’ll do whatever it take’s [sic] to help you.” Letter from Ellebracht to

Ogle, June 18, 2001. The courts generally view recantations

very skeptically and with suspicion. See United States v.

Griffin, 84 F.3d 912, 929 (7th Cir. 1996); United States v.

Badger, 983 F.2d 1443, 1456 (7th Cir. 1993); United States

v. Kamel, 965 F.2d 484, 494 n.25 (7th Cir. 1992). This is

especially true, as in cases such as this, where the witness

who is recanting has already received a benefit—in the form

of immunity from prosecution or the government’s recommendation of a reduced sentence to the trial court in return

for testimony given at trial—and in addition has an ongoing
14 No. 05-1035

personal relationship with the defendant. For all these

reasons, we are convinced that the district court did not

commit an error, much less abuse its discretion, in denying

Ogle’s motion for a new trial pursuant to FED. R. CRIM. P.

33.

Finally, after considering the record and concluding that

the district court did not err in denying Ogle’s motion for a

new trial we are not convinced this is a situation in which

an evidentiary hearing would have produced any details

adding verisimilitude to the issue and conclude that the

district court was likewise justified in foregoing the redundant procedure of ordering such a hearing. See TorresRamirez, 213 F.3d at 980.

IV. CONCLUSION

The decision of the district court is

AFFIRMED.
No. 05-1035 15

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-5-05