The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the "Joint Motion For A New Trial" filed by the defendants [Doc. 294]*fn1 . The government has responded in opposition [Doc. 299] and the matter is ripe for disposition by the Court.*fn2 For the reasons which follow, the motion will be denied.
The defendants, Newport, Tennessee police officers, were indicted by the federal grand jury in a three (3) count indictment charging them with conspiracy to violate the civil rights of Wilder Gomez Roblero ("Gomez") and Marcos Mejia Vasques ("Mejia"), a felony, and misdemeanor counts of violation of the civil rights of Gomez and Mejia. [Doc. 1] This case originally proceeded to trial from February 2, 2006 through February 9, 2006, which resulted in an acquittal of the defendants on the felony charge. The jury was unable to reach a verdict as to the two misdemeanor charges and a mistrial was declared.
After the conclusion of the first trial, a three count superseding indictment was returned by the grand jury charging the defendants in counts 1 and 2 with the same misdemeanor counts charged in counts 2 and 3 of the original indictment and charging, in Count 3, that the defendant, Patrick James Sheldon, "did receive, relieve, comfort and assist the offender, JAMES WENDELL ROACH, JR., in order to hinder and prevent the offenders' apprehension, trial and punishment, in violation, Title 18, U.S.C. § 3." (the comfort and assist" charge) [Doc. 64] The case proceeded to trial on the superseding indictment from April 5, 2006 through April 12, 2006 resulting in the acquittal of Roach and Sheldon as to Count 1 (violation of the civil rights of Gomez) and the acquittal of Sheldon of the misdemeanor charge of violating the civil rights of Mejia. Roach was found guilty as charged in Count 2 of the superseding indictment (violation of the civil rights of Mejia) and Sheldon was found guilty as to Count 3 of the indictment (the "comfort and assist" charge) See Verdict Form, Doc. 284.
II. Motions for New Trial
Fed. R. Crim. P. 33 provides that a court may grant a motion for new trial if it is necessary in the "interest of justice." The decision to grant or deny such a motion rests within the discretion of the district court and will be reversed only upon a showing of abuse of discretion. United States v. Seago, 930 F. 2d 482, 488 (6th Cir. 1991). The defendant bears the burden of proving the need for a new trial. Id.
III. Allegations of Prosecutorial Misconduct -- Closing Argument
The defendants first contend that they are entitled to a new trial based on prosecutorial misconduct in regard to the prosecutor's closing argument. The Sixth Circuit has summarized the requisite analysis and legal framework for the evaluation of a claim of prosecutorial misconduct in United States v. Abboud, 438 F.3d 554, 583-584 (6th Cir. 2006):
The claim of prosecutorial misconduct involves a two-step inquiry. First, the Court must determine if the government's statements were improper. United States v. Cobleigh, 75 F.3d 242, 247 (6th Cir.1996) (quoting United States v. Carroll, 26 F.3d 1380, 1384-90 (6th Cir.1994)). If the statements were improper, the Court must decide whether the statements were flagrant. Id. (quoting Carroll, 26 F.3d at 1385). The flagrancy inquiry requires examination of four factors:
(1) whether the remarks tended to mislead the jury or to prejudice the accused [including whether the trial judge gave an appropriate cautionary instruction to the jury];
(2) whether they were isolated or extensive;
(3) whether they were deliberately or accidentally placed before the jury; and
(4) the strength of the evidence against the accused.
Id. (alteration in the original) (quoting Carroll, 26F.3d at 1385). If the statements were not flagrant, the Court will reverse only if " '(1) the proof against the defendant was not overwhelming, (2) opposing counsel objected to the conduct, and (3) the district court failed to give a curative instruction.' " Id. (quoting United States v. Brown, 66 F.3d 124, 127 (6th Cir.1995)).
B. Prosecutor's Argument Related to Cell Phone
During the course of the trial on the superseding indictment, the defendants argued that the traffic stop of Gomez and Mejia never occurred and vigorously attacked the credibility of the victims. Through the testimony of Gomez, the government established that just prior to and contemporaneously with the traffic stop of the victims by the defendants, the victims engaged in conversations on a cell phone which had been loaned to Gomez by Sandra Boles, a co-worker at 411 Industries. Through Ms. Boles, the toll records for the cell phone were introduced into evidence by the government to corroborate the testimony ...