USA v. Modisett et al

36
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
Brett M. Shasky and Jennifer Klemetsrud Puhl, Assistant United States
Attorneys, 	UNITED 	STATES 	ATTORNEY’S 	OFFICE, 	655 	First
Avenue North, Suite 250, Fargo, ND 58102, for plaintiff.
Reid W. Brandborg, BRANDBORG LAW OFFICE, 315 South Mill
Street, Fergus Falls, MN 56537, for defendant.
A grand jury indicted Michael Antwain Modisett (“Modisett”) with conspiracy to
possess with intent to distribute and distribute in excess of 1,000 grams a mixture or
substance 	containing 	a 	detectable 	amount 	of 	heroin 	in 	violation 	of 	21 	U.S.C.
§§ 841(a)(1), 846, and 18 U.S.C. § 2. 	After the Court granted Modisett’s motion to
withdraw his guilty plea, the case proceeded to trial where a jury convicted Modisett of
the superseding indictment. 	Modisett submitted a motion for a new trial pursuant to
Rule 33 of the Federal Rules of Criminal Procedure. 	Because overwhelming evidence
supports Modisett’s conviction, he cannot demonstrate ineffective assistance of counsel.
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL ANTWAIN MODISETT,
Defendant.
3:14-CR18-1 (JRT)
MEMORANDUM OPINION
AND ORDER DENYING MOTION
FOR NEW TRIAL
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In addition, the record does not reflect government misconduct. 	As a result, the Court
will deny Modisett’s motion for a new trial.
DISCUSSION
I. 	STANDARD OF REVIEW
“Upon the defendant’s motion, the court may vacate any judgment and grant a
new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “The district court
has broad, but limited, discretion to grant or deny a motion for a new trial based on the
sufficiency of the evidence, and it can weigh the evidence, disbelieve witnesses, and
grant a new trial even where there is substantial evidence to sustain the verdict.” 	United
States v. Vega, 676 F.3d 708, 722 (8 th Cir. 2012) (quoting United States v. Aguilera, 623
F.3d 482, 486 (8 th Cir. 2010)). But a motion for a new trial should be granted “sparingly
and with caution” and “only if the evidence weighs so heavily against the verdict that a
miscarriage of justice may have occurred.” 	United States v. McClellon, 578 F.3d 846,
857 (8 th Cir. 2009).
II. 	INEFFECTIVE ASSISTANCE OF COUNSEL
Modisett argues the record requires a new trial because Modisett’s trial attorney
failed to provide effective assistance of counsel. 	In particular, Modisett asserts his trial
attorney failed to subpoena a defense witness and introduce evidence that probationary
restrictions prevented Modisett from committing the crime to the extent alleged. 	But to
prove ineffective assistance of counsel, Modisett must show more than that his trial
attorney’s representation fell below the standards guaranteed by the Sixth Amendment.
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Strickland v. Washington, 466 U.S. 668, 687-92 (1984). 	Modisett must also show trial
counsel’s errors prejudiced Modisett. 	Id. 	Prejudice exists only where there “is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
The Court finds it unnecessary to discuss the reasonableness of Modisett’s trial
counsel’s conduct because, given the overwhelming evidence of Modisett’s guilt, it
would 	be 	impossible 	for 	Modisett 	to 	demonstrate 	prejudice 	under 	Strickland.
Christenson v. Ault, 598 F.3d 990, 997 (8 th Cir. 2010) (“When there is overwhelming
evidence of guilt presented, it may be impossible to demonstrate prejudice.”); Reed v.
Norris, 195 F.3d 1004, 1006 (8th Cir. 1999) (“We find it unnecessary to discuss the
reasonableness of counsel’s conduct because, given the overwhelming evidence of
Reed’s guilt presented at trial, we find that it would be impossible for him to demonstrate
prejudice under Strickland.”). 	At trial, the government presented numerous witnesses
and other evidence tying Modisett to the conspiracy to distribute heroin. 	Thus, even in
the absence of the alleged attorney errors, the jury would have reached the same result.
The Court will, therefore, deny Modisett’s motion for a new trial on this ground.
III. 	GOVERNMENT MISCONDUCT
Modisett also argues the record requires a new trial because of government
misconduct. Citing Webb v. Texas, 409 U.S. 95 (1972) (per curiam), Modisett argues the
prosecutor’s warning to a potential witness that “you’re going to get in trouble . . . [if]
you get on that stand and . . . lie . . . I can contradict it, I can provide it and then I can
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charge you” constituted a personal threat against the potential witness that deprived
Modisett of a fair trial. (See Def.’s Mem. in Supp. of Mot. for New Trial at 21, Nov. 10,
2016, Docket No. 351-1.)
“It is not improper per se for a . . . prosecuting attorney to advise prospective
witnesses of the penalties for testifying falsely.” United States v. Risken, 788 F.2d 1361,
1370 (8 th Cir. 1986) (quoting United States v. Blackwell, 694 F.2d 1325, 1334 (D.C. Cir.
1982)). 	Instead, “warnings concerning the dangers of perjury” only rise to the level of
depriving a defendant of a fair trial “where they threaten and intimidate the witness into
refusing to testify.” Id. (quoting Blackwell, 694 F.2d at 1334). Here, in contrast to Webb,
the prosecutor’s comments constituted a “constitutionally permissible ‘mere warning’
about the dangers of committing perjury” and did not rise to the level of threatening or
intimidating a witness into refusing to testify. 	See id. 	The Court will, therefore, also
deny Modisett’s motion for a new trial on this ground.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Modisett’s Motion for a New Trial [Docket No. 351] is
DENIED.
DATED: January 5, 2017 	___________ 	__________
at Minneapolis, Minnesota. 	JOHN R. TUNHEIM
Chief Judge
United States District Court
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