By: dmc-admin//February 18, 2002//
“Curtis, the government, the court, and the jury knew of the tape and knew that it was completely blank during the trial. Moreover, even had it been newly discovered, it would not have been material to his defense. Curtis claims that it would show that the government, in explaining to the jury why it was not presenting a tape recording of the controlled purchase, was lying when it said that there was no recording because the transaction took place in another room – the completely blank tape (with no preamble) shows that no recording exists because of machine malfunction or erasure. If anything, this evidence is merely impeaching – not material to Curtis’s defense. Whether the machine malfunctioned or not, the activity in the bathroom would not have been recorded. Curtis also contends that if the tape were not completely blank, it should have corroborated the government’s version of events: that Hale and Boyle paged Curtis, and that Curtis arrived at their home. Just because the tape does not make the government’s winning case even stronger does not mean that it helps Curtis’s defense. It is not material at all. Because the tape is immaterial, and because the jury knew that it was blank – the defense attorney used the fact that the government did not present any recorded corroboration of its version of events during his argument – it likely would not lead to Curtis’s acquittal if a new trial were granted. The district court did not abuse its discretion in denying Curtis’s motion for a new trial.”
Affirmed.
Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Flaum, J.