United States v. M. J. L'Donna , 179 F.3d 626 ( 1999 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 98-3979
    ___________
    United States of America,             *
    *
    Plaintiff-Appellee,       *
    * Appeal from the United States
    v.                                    * District Court for the
    * Western District of Missouri.
    M.J. L’Donna,                         *
    aka Marilyn J. Ashton,                *
    *
    Defendant-Appellant.      *
    ___________
    Submitted: May 11, 1999
    Filed: June 17, 1999
    ___________
    Before WOLLMAN, Chief Judge, BEAM and MURPHY, Circuit Judges.
    ___________
    MURPHY, Circuit Judge.
    M.J. L’Donna was convicted by a jury of use of interstate commerce facilities
    in the commission of murder for hire, in violation of 18 U.S.C. § 1958, and transferring
    a firearm to be used to commit a crime of violence, in violation of 18 U.S.C. § 924(h).
    L’Donna filed a motion for a new trial based on the false testimony of a prosecution
    -1-
    witness. The motion was denied, and on appeal she argues that the district court1 erred
    by denying the motion. We affirm.
    There was evidence at trial that L’Donna, the owner of a horse-carriage business
    in Kansas City, had approached an employee known as Shawn Butner and asked if he
    would be willing to kill someone for her. Butner contacted the Bureau of Alcohol,
    Tobacco and Firearms (ATF) and told agents about this conversation. They arranged
    for Butner to wear a digital micro-recorder during subsequent conversations with
    L’Donna. During tape-recorded meetings both in person and over the telephone,
    L’Donna talked about three potential targets. She discussed killing several people: her
    stepfather who was in the process of divorcing her mother, her primary competitor in
    the horse-carriage business, Mary Goodale, and her boyfriend, John Encell. She
    eventually asked Butner to kill Encell, who had named her as the beneficiary of his life
    insurance policy. In the course of these meetings, L’Donna gave Butner a handgun to
    use in the killing and a total of $300 in cash, promising an additional $5,000 when she
    received the proceeds of Encell’s life insurance.
    At trial L’Donna testified that these conversations were all part of a game that
    Butner had wanted her to play and that she had had no intention of actually having
    anyone killed, but she did not offer this explanation at the time of her arrest. She also
    testified that she had not known that she was Encell’s life insurance beneficiary, but she
    had referred to the policy in her taped conversations with Butner, and Encell testified
    that she knew about the provisions of his policy. The jury convicted L’Donna on both
    counts in the indictment, and she was sentenced to 121 months.
    During Butner’s direct examination at trial, the prosecutor asked about his
    activities in relation to a well-publicized arson case involving an explosion that killed
    several Kansas City firefighters. Butner responded that he had called the bomb and
    1
    The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
    Western District of Missouri.
    -2-
    arson squad during the investigation of that case and told it that his brother and sister,
    Thomas and Cindy Butner, had information about the case. He said that Thomas and
    Cindy had been paid for testimony they subsequently gave in that case, but he denied
    having had further involvement in the firefighters case or having told anyone that he
    had been a witness in it. He acknowledged that ATF had paid him for his assistance
    in the case against L’Donna, including paying for his apartment. The defense produced
    evidence to contradict Butner’s denial that he had testified in the firefighters case in
    exchange for fees, as well as several witnesses who testified that Butner had a poor
    reputation for truthfulness.
    The day Butner testified at trial L’Donna’s attorney received an anonymous call
    saying that Shawn Butner’s real name was Tommy. A local news broadcast on that day
    had included film footage of Butner, and additional photographs of him appeared in the
    media on the day the verdict was announced. A number of other anonymous callers
    then contacted defense counsel and said the man pictured in the report was Thomas
    Butner. L’Donna’s attorney learned after the trial that Butner had lied about his
    identity at trial, had falsely denied having testified in exchange for witness fees in the
    firefighters case, and had had a prior misdemeanor conviction that went undiscovered
    because he had used a false identity.2 Based on this information L’Donna moved for
    a new trial.
    The district court denied the motion for a new trial, stating that Butner had been
    “effectively cross-examined, impeached, and discredited by the defense,” that
    L’Donna’s trial testimony and tape-recorded exchanges with Butner presented ample
    evidence of her guilt beyond a reasonable doubt, and that the newly discovered
    2
    Butner was eventually charged with perjury and admitted he had lied about his
    identity. He told ATF agents that he had changed his identity after testifying in the
    firefighters case in order to avoid appearing on a probation violation warrant. He also
    told the agents that he had testified truthfully at L’Donna’s trial concerning matters
    other than about his identity and his testimony in the other case.
    -3-
    evidence was merely cumulative, immaterial, and not of a nature that would probably
    have produced an acquittal. The court concluded that although the government’s
    failure to discover Butner’s true identity “may be puzzling,” there was no evidence that
    the prosecution had known that Butner was lying at the time of trial.
    L’Donna appeals, arguing that the district court applied the incorrect legal
    standard in deciding whether to grant her post-trial motion and that she is entitled to a
    new trial. We review a district court’s decision to deny a motion for a new trial based
    on newly discovered evidence for clear abuse of discretion. See United States v.
    Warren, 
    140 F.3d 842
    , 743-44 (8th Cir. 1998); United States v. Ward, 
    544 F.2d 975
    ,
    977 (8th Cir. 1976).
    L’Donna correctly states that the standard for whether she should have received
    a new trial depends on the presence or absence of prosecutorial misconduct. Where
    the prosecution knowingly, recklessly or negligently uses perjured testimony, a
    conviction must be set aside if there is “any reasonable likelihood that the false
    testimony could have affected the judgment of the jury.” See United States v. Tierney,
    
    947 F.2d 854
    , 860-61 (8th Cir. 1991). Appellant claims that the district court should
    have used this Tierney standard rather than the Ward standard, which applies if the
    government’s use of perjured testimony was unwitting and which requires a greater
    showing for the defendant to prevail. 
    See 544 F.2d at 977
    . Under Ward, the defendant
    must show that the evidence had not been discovered until after the trial, that the
    defendant had used due diligence before the trial, that the evidence was not merely
    cumulative or impeaching, that the evidence was material to the issues involved, and
    that the newly discovered evidence would probably produce an acquittal at a new trial.
    See 
    id. at 977;
    see also 
    Warren, 140 F.3d at 744
    .
    L’Donna claims that the prosecutor was at least negligent in allowing Butner to
    testify as he did and that she therefore only has to meet the Tierney standard to win a
    new trial. L’Donna claims that the prosecution had reason to suspect that Butner was
    not who he claimed to be before he testified at trial. According to L’Donna, an
    -4-
    investigator working with defense counsel had remarked to the prosecutor during a
    meeting that it seemed as if Butner had no past before he went to work with the City
    Lights Limousine Service and met an associate of L’Donna’s. She also claims that the
    investigator asked the prosecutor if he was sure that Shawn Butner was the real name
    of the witness. The prosecutor does not recall either of these statements but recalls
    telling the investigator that Butner was a “clean” witness. Defense counsel asked the
    prosecutor if Butner had testified in the firefighters case, and L’Donna claims that this
    inquiry should have triggered additional investigation by the government. L’Donna
    contends that the government should have discovered that Shawn Butner was actually
    the Thomas Butner who had testified in the firefighters case because the United States
    Attorney’s office handled both cases and the same special agent worked on both
    investigations.
    L’Donna has not shown that the district court erred in refusing to apply the
    Tierney standard. The special agent whom Butner first contacted had taken steps to
    verify his identity, including running his name and license tag number through the
    Kansas City police department records and through the Missouri Department of
    Revenue and confirming his name, address, date of birth, social security number and
    driver’s license number. This investigation did not turn up anything suspicious. There
    is also no indication in the record that defense counsel brought information about
    Thomas Butner’s testimony in the other case to the attention of the prosecutors
    handling L’Donna’s case. L’Donna has not shown that the prosecutor was negligent
    or that the motion should have been decided under the Tierney standard.
    Moreover, L’Donna has failed to demonstrate that she is entitled to a new trial
    under either the Tierney or Ward standards. She has not shown a reasonable likelihood
    that the false testimony could have affected the judgment of the jury, see 
    Tierney, 947 F.2d at 861
    , much less that it would probably have produced an acquittal, see Ward,
    
    -5- 544 F.2d at 977
    .3 The evidence of her guilt was great, and the most damaging portions
    came from L’Donna herself in the form of the self-incriminating statements in the taped
    conversations and her unconvincing testimony during trial. Butner was cross-examined
    at trial regarding his participation in the firefighters case and his credibility was
    impeached. Given these circumstances, the additional evidence would have been
    cumulative and there was no foreseeable likelihood that any possible further
    impeachment value from it would have affected the final judgment of the jury.
    Accordingly, the judgment is affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    3
    Appellant argues that the district court erred by failing to hold an evidentiary
    hearing to develop what the prosecution knew or should have known about Butner’s
    false identity and which standard was appropriate to apply. Because L’Donna was not
    entitled to a new trial under either standard, such a hearing would not have impacted
    the outcome.
    -6-
    

Document Info

Docket Number: 98-3979

Citation Numbers: 179 F.3d 626

Filed Date: 6/17/1999

Precedential Status: Precedential

Modified Date: 1/12/2023