United States v. Ogle, Joyce K. ( 2005 )

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
1
Ogle was subsequently sentenced to 120 months of imprison-
ment 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...)
2 No. 05-1035
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.
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 distrib-
ute 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.
No. 05-1035 3
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, authori-
ties 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
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...)
4 No. 05-1035
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 pro-
ceed 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 ques-
tioned 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 com-
pletely unaware that the suitcase contained any drugs
and explained that he was merely transporting the bag and
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.
No. 05-1035 5
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 at-
tempted, 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 cooper-
ate with the authorities and tried to contact Alonzo Suggs,
but was unsuccessful. Ogle was later released on bond.3
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...)
6 No. 05-1035
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 en-
tered 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
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 war-
rants, 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 finger-
prints, 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.
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, contradict-
ing 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 evi-
dence” 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 determin-
ing 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 testi-
mony 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 testi-
mony 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 testi-
mony 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 know-
ingly 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
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 incon-
sistencies between his pre-trial statements (which did not
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)).
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’ testi-
mony 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 Stan-
dard
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) (uphold-
ing 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 what-
ever 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 recom-
mendation 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 redun-
dant procedure of ordering such a hearing. See Torres-
Ramirez, 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