United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
A NEW TRIAL 
STEPHEN J. MURPHY, III United States District Judge
a seven week trial, a unanimous jury convicted Defendant
David Hansberry of conspiracy to commit extortion (Count
One). On February 22, 2017, the Court sentenced him to 151
months in prison. A few days before his sentence hearing
(which had been adjourned several times at his request),
Hansberry filed the present motion for a new trial. Defendant
Bryan Watson later joined the motion, but did not submit
Government's theory on Count One, among other things, was
that the Defendants agreed with Gary Jackson and others to
steal money and drugs during legitimate law-enforcement
operations and put the proceeds of the thefts to their own
use. One of the law-enforcement operations involved the
seizure of more than $2, 000, 000 from a truck parked in
Detroit, Michigan in 2010. The seizure occurred as a result
of information that Jackson had provided to Hansberry about
the truck, the amount of money that was likely to be found in
it, and the cause the police would have to conclude that the
money came from the sale of illegal drugs.
trial, Jackson testified as a Government witness. During his
cross examination, Hansberry attempted to discredit
Jackson's testimony and impeach him by introducing and
confronting him with a prior recorded statement that
Hansberry asserts was made on May 6, 2014. Hansberry failed
to lay a proper foundation for the recorded statement, the
Government objected to its introduction, and the Court
sustained the objection. Hansberry now argues that the
Court's exclusion of the statement constitutes an error
of constitutional magnitude because, during trial, the
prosecutor failed to provide information to Hansberry's
defense attorney to help authenticate the statement being
offered. But because Hansberry's motion is untimely, his
argument is unmeritorious, and the Court properly excluded
the statement, the Court will deny the motion.
filed his motion for relief approximately seven months after
the jury returned its verdict. The motion should probably be
denied as untimely to the extent that it seeks relief under
Federal Rule of Criminal Procedure 33. Pursuant to that rule,
a motion for new trial based on grounds other than newly
discovered evidence must be filed within 14 days after
verdict. Fed. R. Crim. P. 33(b)(2). There are several reasons
to conclude, contrary to the Defendant's suggestion, that
Agent Fitzgerald's January 12, 2017 302 Report, which the
Defendant asserts was produced on February 15, 2017, was not
newly discovered evidence. See United States v.
Carson, 560 F.3d 566, 585 (6th Cir. 2009) (denying
defendant's Rule 33 motion because "the evidence is
merely . . . impeaching"). And there is no reason that a
motion attacking the Court's decision to exclude the
recording at issue could not have been filed long before it
But on any basis, the motion is without merit.
provides that "[u]pon the defendant's motion, the
court may vacate any judgment and grant a new trial if the
interest of justices so requires." Fed. R. Crim. P.
33(a). The Court has broad discretion to determine the merits
of a motion filed under Rule 33. United States v.
Barlow, 693 F.2d 954, 966 (6th Cir. 1982) (citations
omitted). "The permissible reasons for granting new
trial . . . are not limited by" the rule. United
States v. Bost, 144 F.Supp.2d 892, 901 (W.D. Mich.
2001). At most, Rule 33 requires a trial court to "weigh
the errors against the record as a whole to determine whether
those errors in the conduct of the trial justify a new
trial." United States v. Rapanos, 115 F.3d 367,
372 (6th Cir. 1997) (internal quotations omitted). And the
defendant bears the burden of proving that a new trial should
be granted. United States v. Seago, 930 F.2d 482,
488 (6th Cir. 1991).
Rule 29 motion for judgment of acquittal and a Rule 33 motion
for a new trial are governed by far different standards: a
motion for a new trial involves a broader scope of review
than a motion for acquittal. On a Rule 33 motion for a new
trial, therefore, a district court may consider the
credibility of the witnesses and the weight of the evidence
to insure that there is no miscarriage of justice. United
States v. Turner, 490 F.Supp. 583, 593 (E.D. Mich.
1979), aff'd, 633 F.2d 219 (6th Cir. 1980). In
other words, "[i]n contrast to Rule 29-under which a
trial court must view the evidence in a fashion most
favorable to the Government-Rule 33 places no such
restriction." United States v. Haywood, No.
3:98CR789, 1999 WL 1489895, at *6 (N.D. Ohio Oct. 1, 1999).
parties spend a good deal of time in their briefs arguing
over the veracity of some trial testimony and whether the
Government properly disclosed evidence in discovery.
Defendant does not contest that the Government produced in
discovery audio recordings from a criminal investigation of
cooperator Gary Jackson. At trial, however, the Government
objected to admission of one of the audio recordings because
defense counsel had failed to lay a proper foundation for the
recording. According to Hansberry, the Government
“knew” the audio recording contained
Jackson's voice but nonetheless objected. Hansberry
argues that the Government violated Brady or
Giglio by failing to disclose that the voice on the
recording belonged to Jackson and by raising the objection.
As noted supra, that argument could have been lodged
with the Court within 14 days of the verdict.
centerpiece of Hansberry's argument now-the FBI 302
report acknowledging Jackson's voice on the audio
recording-actually demonstrates that the Government did not
review the recording until four months after the jury verdict
in the trial. At the time of the trial, the Government
lawyers had never even listened to the audio recording in
question, which was one of 3, 500 total phone calls made by
Jackson on three separate phones. The Government could not
have failed to disclose information during trial that it
obtained four months afterwards. Hansberry offers nothing to
importantly, debate over disclosure is not germane. The
simple issue is whether the Court properly excluded a
recorded conversation that Hansberry sought to introduce to
impeach a Government witness. A review of the trial testimony
reveals that the Court's evidentiary ruling was entirely
proper, and procedurally sound. There is absolutely no
interest of justice that would merit the time and expense of
a new trial under Rule 33. Nevertheless, interests of
fairness will lead the Court to construe Hansberry's
motion as one for reconsideration of the Court's
evidentiary ruling at trial.
is an exception to the norm for the Court to grant a motion
for reconsideration." Maiberger v. City of
Livonia, 724 F.Supp.2d 759, 780 (E.D. Mich. 2010). The
movant must show (1) a "palpable defect by which the
Court and the parties and other persons entitled to be heard
on the motion have been misled"; and (2) that
"correcting the defect will result in a different
disposition of the case." E.D. Mich. LR 7.1(h)(3). A
"palpable defect" is one that is "obvious,
clear, unmistakable, manifest or plain." United
States v. Cican, 156 F.Supp.2d 661, 668 (E.D. Mich.
reconsideration, the Court will deny the latest motion as
unmeritorious. Hansberry fails to show any error in the
Court's ruling that defense counsel failed to establish a
foundation to admit the voice recording as evidence.
"The Federal Rules of Evidence require evidence to be
authenticated or identified through a showing 'sufficient
to support a finding that the matter in question is what its
proponent claims.'" United States v. Simms,
351 F.App'x 64, 68 (6th Cir. 2009) (quoting Fed.R.Evid.
901(a)). "When the speaker's identity is at issue,
'[t]he standard for the admissibility of an opinion as to
the identity of the speaker is merely that the identifier has
heard the voice of the alleged speaker at any time."
Id. (quoting United States v. Cooke, 795
F.2d 527, 530 (6th Cir.1986)) (quotations omitted).
attorney failed in all respects to lay a foundation for the
recorded statement he wished to play to the jury. Along with
failing to provide a transcript of the conversation or to get
Jackson to identify the voice he heard on the recording, he
failed to establish (1) how the recording was made, or by
whom; (2) the time or place at which the conversation
occurred; (3) the equipment used to record the conversation
or the general reliability of the recording; (4) the
relevance of the conversation; (5) that the recording had
been shown to the Government so that its lawyers might
formulate a position on its admissibility; (6) a chain of
custody for the recording; (7) that the recording was in any