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Leniart v. Bundy

United States District Court, D. Connecticut

March 30, 2017

GEORGE M. LENIART
v.
WILLIAM BUNDY, et al.

          RULING ON PLAINTIFF'S MOTION FOR A NEW TRIAL PURSUANT TO FRCP 59 AND 60(b)(2) [DOC. #267]

          HOLLY B. FITZSIMMONS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff George M. Leniart (“plaintiff”) brought this civil rights action under 42 U.S.C. section 1983, alleging that defendants[1] violated his constitutional rights by conducting warrantless searches of his residence and unlawfully arresting him on two separate occasions. See Doc. #35, Amended Complaint.[2] A jury trial was held on February 10 through 13, 2015, on the following claims: (1) unreasonable search on October 5, 2006, against defendants Bransford, Hoagland, Blanchette and Bundy; and (2) unreasonable search and seizure on September 25, 2007, against defendant Ellison. On February 13, 2015, the jury rendered a verdict in favor of all defendants and against plaintiff. [Doc. #256]. On March 19, 2015, plaintiff filed a Motion for New Trial Pursuant to Federal Rules of Civil Procedure 59 and 60(b)(2), along with a Memorandum in Support. [Doc. ## 267, 268]. On April 4, 2016, defendants filed a Memorandum in Opposition to plaintiff's motion [Doc. #288], to which plaintiff filed a Reply on May 2, 2016 [Doc. #291]. For the reasons articulated below, the Court DENIES plaintiff's Motion for New Trial. [Doc. #267].[3]

         I. STANDARD OF REVIEW

         “Because motions for a new trial are disfavored in this Circuit the standard for granting such a motion is strict; that is, newly discovered evidence must be of a sort that could, if believed, change the verdict.” United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995); see also Chang v. City of Albany, 150 F.R.D. 456, 460 (N.D.N.Y. 1993) (“Motions for a new trial based upon the post-trial discovery of new evidence are generally disfavored.” (citation omitted)). “Absent a showing of prejudice [resulting from the missing evidence], the jury's verdict should not be disturbed.” Mazzei v. Money Store, 656 F. App'x 558, 560 (2d Cir. 2016) (citations omitted) (alterations in original); see also Ladenburg Thalmann & Co. v. Modern Cont'l Const. Holding Co., 408 F. App'x 401, 405 (2d Cir. 2010) (“A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” (citation omitted)).

         “The decision whether to grant a new trial under Rule 59 is committed to the sound discretion of the trial court.” Alston v. Pafumi, No. 3:09CV01978(VAB), 2016 WL 7191550, at *1 (D. Conn. Dec. 12, 2016) (quoting Claudio v. Mattituck-Cutchogue Union Free Sch. Dist., 955 F.Supp.2d 118, 142 (E.D.N.Y. 2013)). This discretion, however, is “limited by a number of well-established prerequisites.” Chang, 150 F.R.D. at 460 (citation omitted). Indeed, “the party seeking relief from judgment has an onerous standard to meet, being required to show that: (1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding; (2) the movant was justifiably ignorant of them despite due diligence; (3) the evidence is admissible and of such importance that it probably would have changed the outcome; and (4) the evidence is not merely cumulative or impeaching.” Lorusso v. Borer, No. 3:03CV504(MRK), 2006 WL 473729, at *12 (D. Conn. Feb. 28, 2006) (emphasis in original) (alterations omitted), aff'd, 260 F. App'x 355 (2d Cir. 2008); see also Chang, 150 F.R.D. at 460 (“A party must show that (1) the evidence was discovered since the trial; (2) the movant used due diligence in attempting to find the evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching; and (5) the evidence is such that it will probably produce a different result upon a new trial.” (collecting cases)).[4]

         II. BACKGROUND

         The Court presumes familiarity with the factual background of this matter, particularly that relating to the 2007 search and seizure of the micro-cassette tape, which is set forth at length in the Court's Ruling denying plaintiff's Renewed Motion for Judgment as a Matter of Law. See Doc. #293 at 4-15. Nevertheless, the Court briefly addresses the relevant background leading to the current motion for new trial.

         On September 25, 2007, parole officer Ellison seized a micro-cassette tape and recorder in connection with the investigation of parole violations allegedly committed by plaintiff. Following that seizure, Ellison directed that the micro-cassette tape be delivered to the Connecticut State Lab for a forensic examination. Plaintiff testified about the alleged significance of this micro-cassette tape and its seizure. Specifically, plaintiff testified that the micro- cassette contained recorded conversations between him and Connecticut State Police Detectives Blanchette and Hoagland, in which the detectives threatened to frame plaintiff with the murder of April Pennington, of which plaintiff was ultimately convicted. See Doc. #266-2, Trial Transcript (hereinafter “Tr.”), at 73:2-16[5]; see also Id. at 75:13-77:7. Plaintiff also testified that just prior to the September 2007 search, he informed parole officer Bransford, then supervising plaintiff's supervised release, that plaintiff was in possession of this surreptitious recording, that plaintiff played a portion of the recording for parole officer Bransford, and that he denied parole officer Bransford's request to take possession of the tape. See Id. Plaintiff therefore contends that the 2007 search of his residence was not to investigate plaintiff's alleged parole violations, but rather to confiscate evidence of plaintiff's conversations with Detectives Blanchette and Hoagland.

         The issue of the whereabouts of the micro-cassette was first raised on January 11, 2011, when plaintiff, then proceeding pro se, filed a motion to compel production of, inter alia, “the CD or CDs that were produced from the micro-cassettes taken on 9/25/07[.]” Doc. #75 at 1.[6] In opposition to this motion, defendants' counsel responded, in pertinent part, that the micro-cassettes had “already been returned to plaintiff or his prior counsel[.]” Doc. #77 at 2; see also Doc. #77-1 at ¶5 (January 19, 2011, Affidavit of Defendants' Counsel re: Discovery: “[O]n December 13, 2010, I sent a copy of the CD made from the one micro-cassette sent to the CSP [abbreviation for Connecticut State Police] lab, to plaintiff's warden, so plaintiff could listen to the recording.”); Id. at ¶6 (“The CSP defendants have no other micro-cassette tapes, other than the one transcribed to CD and given to plaintiff's warden for plaintiff to listen.”); Id. at ¶9 (“I have also checked with the state police, and they have no other micro-cassettes.”); Id. at ¶10 (“I am advised by parole officers that if there were other micro-cassette tapes, they were returned to plaintiff's prior counsel of record, Attorney Koch. The parole division does not have any such tapes as described by plaintiff and there are no reports concerning what was on the tapes.”). The chain of custody documents for the micro-cassette and recorder, however, reflect that on January 13, 2011, the Connecticut State Police provided the recorder and tape to parole officer Bransford, who then delivered these items to the Attorney General's Office on January 26, 2011 See Doc. #268-7.

         Plaintiff filed a reply brief on February 24, 2011, contending: “The September 25, 2007, illegal warrantless search and unlawful entry by CSP and parole agents was independent of the remand, as it did not form the basis for the initial remand order, and plaintiff in no way challenges the remand just imply's that the remand was based on fabricated and misleading information used as subterfuge to recover the micro-cassette recordings.” Doc. #81 at 2 (sic).[7] On February 28, 2011, Judge Thomas P. Smith denied plaintiff's motion to compel on the grounds that plaintiff failed to present any argument as to how the micro-cassette was relevant to this action, and that defendants had returned the micro-cassette to plaintiff's attorney and had provided plaintiff with a copy of the recording in their possession. See Doc. #82 at 9.

         On August 10, 2012, plaintiff was appointed counsel. [Doc. #123]. Thereafter, on April 26, 2013, plaintiff, through counsel, filed a Motion to Reopen Discovery, along with a memorandum in support. [Doc. ##183, 184]. In pertinent part, plaintiff sought “disclosure of all items seized in the September 25, 2007 search of [plaintiff's] home, including the microcassette recorder and tape, and all home surveillance tapes, that were seized on that date, but have never been returned to plaintiff.” Doc. #184 at 4. Plaintiff made this request to clarify and protect the record regarding the whereabouts of certain items seized on September 25, 2007, from plaintiff's home. Defendants filed a response in opposition to this motion, in which defendants represented that they “do not have” the items sought, and again reiterated that the items were returned to plaintiff's prior counsel of record. See Doc. #190 at 9.

         While the motion to reopen discovery was pending, on June 3, 2013, plaintiff filed a motion for clarification of the record, stating that plaintiff had since “learned additional information highlighting a significant ambiguity concerning the whereabouts of ... a microcassette recorder and tape.” Doc. #196 at 1-2. Accordingly, plaintiff requested a hearing to “clarify and establish the chain of custody and location of these important items.” Id. at 2. Plaintiff made the motion after learning that on February 8, 2011, the Attorney General's Office offered to produce the recorder and tape to state appellate counsel for plaintiff. See Id. at 4. Plaintiff's motion concluded that it was “inconceivable ... that defendants have not maintained either (1) the microcassette recorder and tape in the condition in which they were seized on September 25, 2007, or (2) chain-of-custody or evidence-flow sheets tracking their exact whereabouts.” Id. at 5. On July 16, 2013, the Court issued a ruling denying plaintiff's motion for clarification and granting in part plaintiff's motion to reopen discovery. [Doc. #201]. As to plaintiff's request seeking the production of items seized during the September 25, 2007, search of plaintiff's home, including the subject micro-cassette recorder and tape, the Court denied plaintiff's motion as to this request because “this exact request was denied by Judge Smith in 2001[, ]” and “[p]laintiff ha[d] pointed to no changed circumstances to compel a different conclusion.” Doc. #201 at 3. The Court denied the motion for clarification in light of the “defendants' representation that the tape is no longer in the State's possession[.]” Id. at 4. Instead, the Court ordered that defendants “provide plaintiff with an affidavit from [Parole] Officer Bransford, attesting that all items seized in the September 25, 2007 search of plaintiff's home, including the microcassette recorder and tapes were returned to Leniart's lawyer.” Id. In compliance with this order, on July 17, 2013, defendants filed the affidavit of parole officer Bransford, which stated, in pertinent part, that all of items seized were returned to plaintiff's then-attorney, there was no evidence flow sheet or chain of custody forms, and that none of the items seized was then in the State's possession. See Doc. #202 at ¶¶5-7.

         In February 2015, during the jury trial of this case, the existence and whereabouts of the micro-cassette were raised during the cross examination of parole officer Bransford.[8] See Tr. 324:14-18; 343:8-23; 345:8-22. On February 13, 2015, the jury rendered a verdict in favor of all defendants and against plaintiff. [Doc. #256]. On March 2, 2015, in connection with plaintiff's then-pending state court habeas proceedings, an Assistant Attorney General delivered the micro-cassette tape and recorder to the state court, along with a chain of custody report reflecting that the Attorney General's Office had been in possession of these items since January 26, 2011. See Doc. #268-1, Doc. #268-2.

         On March 19, 2015, plaintiff filed the motion for new trial based on the discovery of the micro-cassette recorder and tape, and chain of custody report. Thereafter, the Court held a series of telephonic conferences while the tape was undergoing forensic examination in connection with the state habeas proceeding. The Court held plaintiff's motion in abeyance during this time. Pursuant to the Court's order, and following a granted extension of time, on April 4, 2016, defendants ...


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