ENTRY ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL (Doc. 58)
CHRISTINA REISS, Chief District Judge.
This case comes to the court on Defendant George Allen's motion for a new trial. (Doc. 58.) On July 24, 2013, a jury found Defendant guilty of one count of knowingly and willfully conspiring to set fire upon the public domain and upon lands under the jurisdiction of the United States in violation of 18 U.S.C. §§ 371 and 1855. At the time of the arsons, Defendant was a captain of the Wallingford Volunteer Fire Department ("WFD") and his father was the WFD's chief.
Defendant asks the court to vacate his conviction and order a new trial in the interests of justice for two reasons: first, because the jury considered an unsworn transcript of Defendant's confession in conjunction with hearing the audiotape of that confession. And second, because the court permitted the government to introduce evidence regarding the general atmosphere at the WFD during the time period in question. Neither of the cited grounds warrants a new trial.
Fed. R. Crim. P. 33(a) provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." With regard to a "Rule 33 motion to vacate, [t]he ultimate test is whether letting a guilty verdict stand would be a manifest injustice.'" United States v. Snype, 441 F.3d 119, 140 (2d Cir. 2006) (quoting United States v. Canova, 412 F.3d 331, 349 (2d Cir. 2005) (internal quotation marks omitted)). A new trial is not warranted if the court is "satisfied that competent, satisfactory and sufficient evidence in th[e] record supports the jury's finding that this defendant is guilty beyond a reasonable doubt[.]" United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). "In making this assessment, the judge must examine the totality of the case. All the facts and circumstances must be taken into account, " and there "must be a real concern that an innocent person may have been convicted" before the "interest of justice" requires a new trial. Id. The Second Circuit has observed that the granting of a Rule 33 motion "[is] disfavored in this Circuit." United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995).
I. The Transcript of Defendant's Confession.
The government asserts that it first provided a transcript of Defendant's audiotaped confession to Defendant on October 26, 2012 as part of the government's initial discovery. In ruling on Defendant's motion to suppress (Doc. 15), the court considered the transcript which was admitted, without objection, as government's Exhibit 2. It also relied on the transcript in its Opinion and Order Denying Defendant's Motion to Suppress dated June 10, 2013 (Doc. 27). At the time, Defendant did not object to the court's use of the transcript and did not identify any errors in it. To the contrary, Defendant provided the transcript to his expert witness, Eric Y. Drogin, J.D., Ph.D, ABPP, for his use in an evaluation of Defendant. See Doc. 24 at 5 (noting that on the second day of his testing of Defendant "Mr. Allen's interview was conducted with the benefit of a transcript of his May 2008 statement.").
Pretrial, Defendant informed the court and the government that he may use the transcript as substantive evidence at trial. In his Supplemental Exhibit List (Doc. 41) filed on July 17, 2013, Defendant advised "that the defense may use as evidence at trial, and in appropriate circumstances, may attempt to introduce into evidence the following:... Transcript of interrogation of George Allen on May 20, 2008." Again, Defendant identified no errors in the transcript. He also did not seek a hearing before the court regarding its accuracy or propose that an alternative version of the transcript be used.
Prior to trial, the government provided to Defendant a "final, synched transcript of the GA interview, with time codes on it." (Doc. 59 at 5.) Defendant did not identify any errors in it or move in limine for its exclusion.
During the trial, when the government sought to present Defendant's audiotaped confession and the transcript of it simultaneously to the jury, Defendant objected to the use and admission of the transcript, claiming there were errors in its transcription of the words "yes" and "yup." Tr. at 182-83 ("I do object to the introduction of the transcript, Judge. There are, what we believe are transcription errors. And in particular some, some important answers to questions which we think when you hear it on the audio are, at best, ambiguous what the answer is that have been transcribed as a "yes" or a "yup." And I think we should leave it for the jury to discern for itself what those answers are. And I think having a transcript where it says "yup"... is unduly likely to persuade the jury."). The court initially permitted the jury to hear the audiotape of Defendant's confession without the benefit of the transcript. When five of the twelve jurors indicated that they could not adequately follow the audiotape, the court permitted the government to scroll the transcript as the audiotape played. The transcript was not admitted into evidence. The court sua sponte gave the jury a cautionary instruction: "I'm going to give the jury strict instructions that you need to obey. And that is focus on what you are hearing as opposed to what you're seeing. It is not at all uncommon for a transcript to be incorrect. And that's why my question to the [the government] was, is this [transcript] certified [?] It is not. So this is an aid to you, but when you have a discrepancy between what you hear and what you see you must go with what you hear." Tr. at 189.
Defendant's confession included numerous admissions that were audible without the benefit of the transcript, including that he had participated in sixteen fires set by the WFD. With regard to one of the fires set on federal lands, Defendant's counsel argued in closing that Defendant did not actually admit to participating in the fire and had answered "nyup" instead of "yup." During deliberations, the jury asked to re-hear that portion of the audiotape and did so without the benefit of the transcript. The jury returned a guilty verdict shortly thereafter.
Although Defendant now claims "the transcript which was published to the jury was inadmissible, inaccurate and unduly prejudicial, " (Doc. 58 at 2), it was never admitted, he identifies no actual errors in it, and he does not establish how it was prejudicial. In United States v. Chiarizio, 525 F.2d 289 (2d Cir. 1975), the Second Circuit held that provided the transcript is disclosed pretrial to the defendant, he cannot claim errors in it in the midst of trial and thereby preclude its admission. As the court noted, "[i]f the defense can withhold its objections to the transcripts until the trial is well underway, it would be necessary to suspend the district court proceedings while the judge conducts a lengthy in camera comparison of the tapes and transcripts. Rather than condone such extensive disruptions, the law requires that objections be made when they first arise." Id. at 294. Here, Defendant had approximately nine months and numerous opportunities to identify any errors in the transcript. He failed to raise any objection pretrial and under Chiarizio he thereby waived any right to do so in the midst of trial.
In any event, in this case, the transcript was not admitted and the court followed "the general, and preferred, practice in dealing with tape recorded evidence [which] is to play the tapes and allow transcripts only as an aid." United States v. Bahadar, 954 F.2d 821, 830 (2d Cir. 1992); see also United States v. Robinson, 956 F.2d 1388, 1395 (7th Cir. 1992) ("It is well settled that the district court has broad discretion in deciding whether to allow the jury to use written transcripts as aids in listening to tape recordings."); United States v. Carbone, 798 F.2d 21, 26 (1st Cir. 1986) ("We have approved, as have most circuits, the use of transcripts as a jury aid in following tape recording playbacks.").
Finally, two other witnesses, Charlie Woods and Matt Burnham, provided detailed testimony regarding Defendant's participation in the fires, including the fires set on federal lands. Accordingly, even in the absence of a transcript of Defendant's confession, there was ample evidence of Defendant's participation in a conspiracy to set the federal fires which established Defendant's guilt beyond a reasonable doubt. A new trial is therefore not warranted. See Canova, 412 F.3d at 349 ("The ultimate test' is whether letting a guilty verdict ...