United States District Court, D. North Dakota, Southeastern Division
M. Shasky and Jennifer Klemetsrud Puhl, Assistant United
States Attorneys, UNITED STATES ATTORNEY'S OFFICE, for
W. Brandborg, BRANDBORG LAW OFFICE, for defendant.
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR NEW
R. TUNHEIM Chief Judge.
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.
addition, the record does not reflect government misconduct.
As a result, the Court will deny Modisett's motion for a
STANDARD OF REVIEW
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
(8th Cir. 2012) (quoting United States v.
Aguilera, 623 F.3d 482, 486 (8th 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 (8th
INEFFECTIVE ASSISTANCE OF COUNSEL
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.
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
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 (8th 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.
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 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.
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 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 ...