United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
CBERGER UNITED STATES DISTRICT JUDGE.
Defendant, Mark Radcliffe, filed a Motion for a New
Trial (Document 180), based in part on his assertion
that newly discovered evidence revealed that the United
States' key witness, Jimmie Harper, had given false
testimony. The Court has reviewed all related briefing, and
held a hearing on May 3, 2017, to permit witness testimony.
The Court previously issued a Memorandum Opinion and
Order (Document 221) finding that the Defendant was not
entitled to a new trial on any other ground, but held the
motion in abeyance with respect to Jimmie Harper's
testimony. The Court incorporates herein the factual
background contained in the Memorandum Opinion and
Order. The Court now finds that the motion for a new
trial should be denied in its entirety.
Harper, Jr., was the United States' key witness at trial,
and offered testimony that he and the Defendant conspired and
collaborated to convince the victim of a kidnapping
perpetrated by the Defendant's son to lie to
investigators and to a grand jury to get the charges
dismissed. A jury convicted the Defendant of witness
tampering. The Defendant claims that Jimmie
Harper's sister, Kimberly Morgan, informed him that
Jimmie Harper had told her he intended to lie during his
testimony. The Court permitted the Defendant to review
recordings of Jimmie Harper's jail telephone calls. The
Defendant stated, “[a]fter reviewing hundreds of hours
of jail telephone calls, the exculpatory calls were not
found.” (Def.'s Resp. at 2, Document 215.) The
Defendant indicated the conversations might have taken place
during jail visits, but that Kimberly Morgan and her husband,
Billy Morgan, declined to provide affidavits. The Defendant
therefore requested that the Court hold “a hearing
where these witnesses could be subpoenaed and required to
testify under oath.” (Id. at 3.)
Court held a hearing on May 3, 2017. Kimberly
Morgan testified that she had spoken to Angela
Radcliffe, the Defendant's wife, during a break in trial.
She said she was hurt that Jimmie Harper admitted to lying to
her about prior crimes he had committed and was surprised by
how aggressive he was being in his testimony. Kimberly Morgan
also testified that Jimmie Harper had talked to her about not
wanting to testify, but was forced to do so by the United
States due to the terms of his plea agreement. She testified
that she told Jimmie Harper to “just tell the
truth” when he asked her advice, and he said he would
do so. Kimberly Morgan was adamant that she had never told
anyone that Jimmie Harper had admitted to lying during trial.
Billy Morgan offered similar testimony. He did not visit
Jimmie Harper in jail, but did overhear some telephone
conversations between Kimberly Morgan and Jimmie Harper.
Billy Morgan suggested to Mark and Angela Radcliffe that they
obtain Jimmie Harper's jail calls. However, he testified
that this suggestion was based on Jimmie Harper's
statements that he did not want to testify against Mark
Radcliffe, but was being forced to testify. A meeting took
place between the Radcliffes and the Morgans, during which
they discussed Jimmie Harper's credibility and the truth
of his trial testimony. Both Kimberly Morgan and Billy Morgan
testified that they did not recall any statement that Jimmie
Harper had admitted to lying at trial.
Radcliffe testified that Kimberly Morgan discussed Jimmie
Harper's trial testimony with her, and Kimberly Morgan
had been surprised by how aggressive he was being. Angela
Radcliffe further testified that Kimberly Morgan called her
during trial and recounted a telephone conversation with
Jimmie Harper, in which she asked him why he was being so
aggressive, again advised him to tell the truth, and he
responded that he couldn't or he would lose his plea
deal. Angela Radcliffe also indicated that the
meeting between the Radcliffes and the Morgans was recorded
on a cell phone that was in the possession of the Drug
Enforcement Agency pursuant to a separate investigation.
Fourth Circuit has established five factors for determining
whether newly discovered evidence requires a new trial:
(a) the evidence must be, in fact, newly discovered, i.e.,
discovered since the trial; (b) facts must be alleged from
which the court may infer diligence on the part of the
movant; (c) the evidence relied on must not be merely
cumulative or impeaching; (d) it must be material to the
issues involved; and (e) it must be such, and of such nature,
as that, on a new trial, the newly discovered evidence would
probably produce an acquittal.
United States v. Wilson, 624 F.3d 640, 663 (4th Cir.
2010). To the extent new evidence involves new or altered
testimony, the district court generally must make a
credibility determination to evaluate the likelihood that a
jury “would reach a different result upon hearing the
new evidence.” Id. Further, new evidence going
only to the credibility of a witness does not generally
warrant the granting of a new trial. United States v.
Custis, 988 F.2d 1355, 1359 (4th Cir. 1993), as
amended (Apr. 30, 1993), aff'd, 511
U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994).
“Newly discovered evidence, however, may go so directly
to the interest of the prosecution witness that, if his
testimony was essential to the prosecution, a new trial
should be awarded in which the interest of the witness may be
shown.” United States v. McCoy, 478 F.2d 846,
847 (4th Cir. 1973). When a witness recants trial testimony,
a motion for a new trial
should be granted only if the court is ‘reasonably well
satisfied' that (1) the testimony given by a material
witness was false; (2) the jury might have reached a
different conclusion without the false evidence; and (3) the
party seeking the new trial was surprised by the false
testimony and was unable to meet it or did not know of its
falsity until after trial.
United States v. Wilson, 624 F.3d 640, 663-64 (4th
stated on the record during the hearing, the Court finds that
the Defendant is not entitled to a new trial. Based on the
testimony offered during the hearing, the Court finds there
is no new, relevant and admissible evidence. Angela
Radcliffe's recollection of something Kimberly Morgan
told her Jimmie Harper said would be inadmissible as hearsay,
and certainly would not be likely to produce an acquittal.
Neither Kimberly Morgan nor Billy Morgan testified to any
conversation in which Jimmie Harper indicated he would offer
untruthful testimony or in which he admitted he had done so.
Credible testimony or a recorded call demonstrating that
Jimmie Harper had lied during trial could potentially have
met the factors relevant to a new trial. Jimmie Harper's
testimony was integral to the United States' case, and
evidence that he lied during trial would have been of greater
weight than impeachment evidence as to his general
credibility. No such evidence appears to exist, however.
Jimmie Harper was subject to extensive cross-examination
regarding his credibility. He admitted at trial to being
untruthful in the past and engaging in fraudulent behavior,
and he admitted that he hoped to receive a sentence reduction
as a result of his testimony. The jury apparently found his
testimony, in combination with potentially corroborating
phone records and recorded conversations, to be credible. No
new admissible evidence likely to alter that finding has been
proffered. Thus, after thorough review and careful
consideration, the Court ORDERS that the Motion for a New
Trial (Document 180) on the basis of Jimmie Harper's
testimony be DENIED.
Court DIRECTS the Clerk to send a copy of this Order to the
Defendant and counsel, to the United States Attorney, to the
United States Probation Office, and to the Office of the
United States Marshal.