United States v. Lewis (850 F. Supp. 2d 709, 2012)

MEMORANDUM OF OPINION AND ORDER

SOLOMON OLIVER, JR., Chief Judge.

On May 21, 2005, eight children and one adult died in a fire that consumed a house at 1220 East 87th Street (“1220 House”) in the City of Cleveland. One individual was severely burned, but survived. Another resident escaped unscathed. On February 14, 2011, a jury found Antun Lewis (“Lewis” or “Defendant”) guilty of maliciously damaging and destroying by fire the 1220 House in violation of 18 U.S.C. § 844(i). On March 31, 2011, Lewis filed a Motion for a New Trial Pursuant to Fed.R.Crim.P. 33 (ECF No. 324), contending that this court should grant Lewis a new trial in the interest of justice because the verdict is against the manifest weight of the evidence. On June 10, 2011, Lewis filed a second Rule 33 Motion, this one based on newly discovered evidence suggesting that key Government witnesses colluded in fabricating testimony. (ECF No. 332.) The court held a hearing on the latter Motion on August 30, 2011 and September 2, 2011. For the following reasons, which are summarized at pages 87-95, the court grants Lewis’s Motion based on the weight of the evidence. (ECF No. 324.) Because the Motion is granted, Lewis’s Motion based on newly discovered evidence of perjury is dismissed as moot.

I. FACTUAL AND PROCEDURAL HISTORY

On October 1, 2008, a grand jury indicted Lewis for one count of arson in violation of 18 U.S.C. § 844(i). This statute provides that “[wjhoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building ... or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be” guilty of a violation of the laws of the United States. 18 U.S.C. § 844(f).

At trial, the Government had the burden to prove the following elements beyond a reasonable doubt: (1) Lewis set a fire to damage or to destroy, or in an attempt to damage or destroy, the 1220 House; (2) that the 1220 House was used in interstate commerce or was used in an activity affecting interstate commerce; and (3) that Lewis acted maliciously. (See Jury Instructions, p. 19, ECF No. 297.) The jury trial commenced on January 24, 2011. (See Transcript of Jury Trial Proceedings, Vols. 1-13, pp. 1-3100.) The jury was instructed that proof of motive was not a necessary element to establish Lewis’s guilt or innocence, and therefore, the Government did not have to prove beyond a reasonable doubt why Lewis committed the arson. (Jury Instructions, p. 25.) The jury, however, was instructed that “the presence or absence of motive is a circumstance which you may consider as bearing on the intent of the Defendant.” (Id.)

For its case-in-chief, the Government called 38 witnesses, including:

• Jennings Dawson, owner of 1220 House (Tr. 154), and Roberta Witt, a Housing Authority officer (Tr. 168), who testified that Medeia Carter, the renter of the house, received Department of Housing and Urban Development (“HUD”) Section 8 funding to pay her rent.

• Various family members and friends of the victims of the fire who testified about the lives of the victims. (See, e.g., • Evelyn Martin’s testimony, Medeia Carter’s mother (Tr. 174); Moses Marshall’s testimony, Medeia Carter’s boyfriend (Tr. 539).) The night of the fire, the eight child-victims were having a sleepover at Carter’s home.

• The firefighters who responded to the fire. (See Patrick Mangan’s testimony (Tr. 215); Terry Piazza’s testimony (Tr. 236); Angel Marrero’s testimony (Tr. 244).)

• Surviving victim of the fire and resident of the 1220 House, Capritta Nicole Bell. (Tr. 460.)

• Carmella Smith (Tr. 697) and Charise Frazier (Tr. 736), two cousins who bought marijuana from Lewis and spoke with him about the fire a week after it occurred.

• George H. Hightower III (Tr. 786), a friend of Lewis’s, who allowed Lewis to stay with him the week leading up to the fire. Lewis went to Hightower’s house shortly after the fire occurred.

• Special Agent Don Illig, a Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Agent, who assisted in the investigation of the fire at the 1220 House. (Tr. 933.)

• Sharese Williams, mother of one of the child-victims in the fire, a close friend of victim Medeia Carter, and an acquaintance/friend of Lewis’s. (Tr. 1125.) Her daughter Shauntavia, considered by Lewis to be a sister, was at the sleepover..

• Sharay Williams, daughter of Sharese Williams, who - allegedly spoke with Lewis the morning after the fire. (Tr. 1211.)

• Stephanie Charlene Mitchell, Moses Marshall’s mother. (Tr. 1250.)

• Douglas Smith, a Revol Wireless Radio Frequency Engineer, who testified regarding Lewis’s cell phone records from the night of the fire. (Tr. 1283.)

• Paul McKeever, a jailhouse infoxmant who worked closely with the ATF during the investigation. (Tr. 1405.)

• Jailhouse informants who testified that they heard Lewis state he committed the arson. (See Daniel Id’Deen’s testimony (Tr. 1695); Richard Wheeland’s testimony (Tr. 1804); Anthony Collier’s testimony (Tr. 1904); Cyle Watson’s testimony (Tr. 1974); Christopher Myers’s testimony (2022).)

• Samantha Collins-Taylor, a prostitute and drug user from the west side of Cleveland, who allegedly allowed Lewis to use her house for drugs and sexual purposes several months leading up to the fire. (Tr. 2195.)

• Marion Jackson, Lewis’s alleged lookout and accomplice for the arson. (Tr. 2258.) He is an acquaintance of informant McKeever and prostitute Collins.

For his case-in-chief, Lewis called 7 witnesses, including:

• Teon Marcel Smith, a former resident of 1220 House, who escaped the fire unscathed. (Tr. 2552.)

• Bruce Shannon Thomas, who was present on 87th Street at the time of fire and witnessed the fire. (Tr. 2583.)

• Ricky Chapman, Manager of Security Quality for the Greater Cleveland Regional Transit Authority (“RTA”). (Tr. 2652.)

On February 14, 2011, the jury returned a guilty verdict. Lewis now moves for an order vacating the jury verdict and granting a new trial pursuant to Federal Rule of Criminal Procedure 33. In its Opposition, the Government contends that the following evidence at trial conclusively shows that it met its burden of proof:

Medeia Carter received HUD Section 8 funding to pay her rent for the 1220 House. According to the lease agreement, Medeia Carter owed $741 per month, all of which was subsidized by HUD. (Tr. 156.) The lease agreement was still in effect at the time of the fire. (Tr. 158.)

Evidence of irregular burn patterns in the house and arson expert testimony indicate that the fire was intentionally set with gasoline. (Tr. 309-14, 328-29.) Testimony of Douglas Smith, a Revol Wireless engineer, that Lewis’s cell phone records show Lewis was in the same cell phone sector as the 1220 House at the time of the fire. (Tr. 1283.) Samantha Collins-Taylor’s testimony that Lewis planned to “burn out” the residents of a house, possibly due to a drug debt owed to Lewis by one or more of the residents. (Tr. 2204-05.)

Marion Jackson’s testimony that Lewis asked him to be a “lookout” for the arson, and that he accompanied Lewis the night of the arson to obtain gas. Jackson further testified that he believed Lewis wanted to burn the house due to a drug debt owed to him. {See Tr. 2244, 2272-87.)

Testimony of Carmella Smith and Charise Fraizer that Lewis told them details about the deaths of the victims a week after the arson. {See Tr. 701-19.) Lewis’s May 21, 2005 statements to investigators that he was in a dispute with one of the child-victim’s mother, Sharese Williams, and that he bought $5.00 worth of gas either the day before or the day of the arson. (Agent Illig’s testimony, Tr. 943, 949.)

The testimonies of six inmates who heard Lewis make incriminating statements about his involvement in the fire. (Paul McKeever’s testimony, Tr. 1444-46,1459-60; Rick Wheeland’s testimony, Tr. 1837-40; Daniel Id’Deen’s testimony, Tr. 1720, 1724; Anthony Collier’s testimony, Tr. 1920-21; Chris Myers’s testimony, Tr. 2031, 34, 75; Cyle Watson’s testimony, Tr. 1983, 85-86.)

On August 30 and September 2, 2011, the court held a hearing regarding Lewis’s Motion based on newly discovered evidence. Lewis called as witnesses:

• Sergeant Russell Jaenke, (ECF No. 354, Tr. 11), who testified that inmate Michael Miller was in the Protective Custody pod of the Cuhayoga County Jail from February 16th until April 2, 2010, (Tr. 15), and that Miller’s stay in this pod coincided with jailhouse informant Paul McKeever’s detention in this pod between February 8, 2010 and April 1,2010. (Tr. 16.)

• Sergeant Phillip Christopher, (Tr. 20), who testified regarding Miller’s commissary purchases, specifically phone card purchases. (Tr. 22.) Further, he testified regarding calls made from Miller’s phone cards. (Tr. 24-28.)

• Inmate Michael Miller, who testified regarding the contents of his Declaration, {See Decl. of Michael D. Miller, ECF No. 332-1), the “newly discovered evidence,” in which he averred, among other things, that McKeever worked with Lewis’s alleged accomplice Marion Jackson, prostitute Sam Collins, and several jailhouse informants in fabricating testimony. {See Testimony of Michael D. Miller, ECF No. 353.)

• Miller’s defense attorney, Jeffrey S. Richardson, (ECF No. 354, Tr. 31), who testified regarding his discussions with Miller concerning Miller’s belief that McKeever had colluded with others to fabricate testimony in the Lewis trial.

• Phillip Reed, (Tr. 48), who shared a residence with Paul McKeever during 2009, and who testified regarding a prior statement he made to defense investigators in which he claimed that a woman by the name of “Sam” visited Paul McKeever. (Tr. 53.) Reed had previously identified a photograph of prostitute Samantha Collins as the relevant “Sam,” but on the stand he testified that it was a “50-50 decision.” (Tr. 56.)

• Herman Ramos, investigator for the Federal Defenders, (Tr. 93), who testified concerning the defense’s investigation into Phillip Reed and methods for photo and photo array identifications.

The Government called one witness:

• Melissa Cantoni (Tr. 115), institutional investigator at the Lorain Correctional Institute, who testified that she did not receive any requests for a meeting from Michael Miller despite Miller’s claim that he reached out to a facility investigator regarding his information about possible perjury in the Lewis trial.

Both sides filed post-hearing briefs on September 12, 2011. (ECF Nos. 356, 357.)

II. STANDARD OF REVIEW

Rule 33 of the Federal Rules of Criminal Procedure provides that “the court may grant a new trial if the interest of justice so requires.” Fed.R.Crim.P. 33(a). Though the rule does not define “interest of justice,” a “paradigmatic use of a Rule 33 motion is to seek a new trial on the ground that ‘the [jury’s] verdict was against the manifest weight of the evidence.” United States v. Munoz, 605 F.3d 359, 373 (6th Cir.2010) (quoting United States v. Crumb, 187 Fed.Appx. 532, 536 (6th Cir.2006)). Under the “manifest weight of the evidence” standard, the court has broad discretion to consider both the credibility of the witnesses and the weight of the evidence to ensure that there was no miscarriage of justice. United States v. Ashworth, 836 F.2d 260, 266 (6th Cir.1988). In exercising this discretion, the court sits as a “thirteenth juror” to weigh the evidence and consider the credibility of the witnesses. Id. at 266. Unlike the stricter test for reviewing a motion for acquittal, in deciding a Rule 33 motion based on the weight of the evidence, “the court need not view the evidence in the light most favorable to the verdict.” United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). However, a jury verdict should be vacated “only in the extraordinary circumstancef ] where the evidence preponderates heavily against the verdict.” Ash-worth, 836 F.2d at 266 (quoting United States v. Turner, 490 F.Supp. 583, 593 (E.D.Mich.1979)); see also United States v. Morales, 910 F.2d 467, 468 (7th Cir. 1990) (“If the complete record, testimonial and physical, leaves a strong doubt as to the defendant’s guilt, even though not so strong a doubt as to require a judgment of acquittal, the district judge may be obliged to grant a new trial.”); United States v. Arroyo, 301 F.Supp.2d 217, 225 (D.Conn. 2004) (grant of new trial should be reserved for instances where there is real concern that an innocent person may have been convicted).

Under Rule 33, a defendant may also move for a new trial based on newly discovered evidence. In general, “Motions for a new trial based on newly discovered evidence are disfavored.” United States v. O’Dell, 805 F.2d 637, 640 (6th Cir.1986). Thus, before a new trial will be granted, the defendant must establish that the new evidence: “(1) was discovered only after trial, (2) could not have been discovered earlier with due diligence, (3) is material and not merely cumulative or impeaching, and (4) would likely produce an acquittal if the case were retried.” United States v. Barlow, 693 F.2d 954, 966 (6th Cir.1982).

III. ANALYSIS

In his Motion, based on the manifest weight of the evidence, Lewis argues that the following issues warrant the granting of a new trial: (1) the dubious credibility of the Government’s key witnesses and inconsistencies in their testimony; (2) the Government’s presentation of contradictory motives for the crime; (3) the nature of the Government’s investigation of the crime; and (4) “other issues,” namely evidence that the court ruled was either inadmissible or admissible for a specific purpose only. The court will address each of these four issues, beginning with a discussion of the fourth point — the significance of evidence not presented at trial, which Lewis argues bears on the issue of innocence. Second, the court will turn its discussion to the Government’s presentation of possible motives. Although the Government did not have to prove a motive in this case, the Government’s attempts to establish a motive provide crucial context. Third, the court will assess the credibility of the Government’s main witnesses. Fourth, the court will address Lewis’s argument concerning the nature of the investigation of the arson and the remaining evidence in the case. Finally, the court will conclude its analysis with a discussion of whether Lewis has met his heavy burden under Rule 33.

A. Evidence Not Presented at Trial

In his Motion, Lewis argues that there are four pieces of evidence not presented to the jury that the court should nevertheless consider in its resolution of his Rule 33 Motion. Specifically, Lewis argues that the court should consider the following evidence:

1. The December 27, 2005 recorded conversation between Jackson and Lewis

On December 27, 2005, alleged accomplice Marion Jackson visited Lewis, who was detained in county jail on unrelated charges, to discuss the fire. Jackson, who had been cooperating with the ATF, wore a recording device. At issue are the statements made by both Lewis and Jackson during the recorded conversation. Lewis argues that the court should consider the December 27th conversation because the conversation is “exculpatory in nature,” “possesses impeachment value,” goes towards Lewis’s innocence, and contradicts Jackson’s testimony that Lewis solicited Jackson to set the fire and act as a lookout for the fire. (Mem. in Supp. of Mot., pp. 83-84, ECF No. 324.) Prior to his trial, Lewis moved to admit this evidence in its entirety. (ECF Nos. 174, 195.) On February 1, 2011, this court denied Lewis’s Motion. (ECF No. 279.) The court determined that Lewis could use a portion of the December 27th conversation for the limited purpose of impeaching a witness on cross-examination, but that Lewis could not admit the entire conversation into evidence due to hearsay considerations. (Id.)

2. The August 21, 2006 recorded conversation between Orlando Stanley and Lewis

On August 24, 2006, the ATF secured a recording device on Orlando Stanley, one of Lewis’s fellow inmates at Belmont Correctional Institution. Lewis contends that Stanley spent 75 minutes attempting to elicit incriminating statements from Lewis. (Mem., p. 85.) Lewis claims that he made no incriminating statements during their conversation. (Id.) Lewis argues that the August 24th conversation should be considered by this court because it is further proof of Lewis’s innocence, and it undermines the credibility of the Government’s six jailhouse informants, all of whom testified that Lewis confessed to them, but were not secured with recording devices during Lewis’s alleged confessions. (Mem., p. 85.) During trial, the court was asked to address the admissibility of the August 24th conversation twice at sidebar. The first time was during the cross-examination of Agent Illig. The court ruled that, based on hearsay considerations, it was not appropriate to admit into evidence the August 24 conversation to show Agent Ulig did not obtain any incriminating statements. (Tr. 1044.) The second time was during the redirect examination of jailhouse informant Paul McKeever. McKeever testified that the ATF did not place a recording device on him for his conversations with Lewis. (Tr. 1652.) McKeever stated that an inmate wearing a recording device would need “six to 12” law enforcement officers to oversee the wired inmate in prison and that no inmate would talk to another inmate with law enforcement around. (Tr. 1652.) Defense counsel motioned for a mistrial in light of the court’s prior exclusion of the Orlando Stanley recording, and argued that McKeever’s testimony that he could not be wired is contradicted by the ATF’s actions of placing recording devices on other inmates, specifically Orlando Stanley. (Tr. 1660-61.) The court questioned defense counsel regarding the relevancy of the August 24th conversation for McKeever’s examination. (Tr. 1661.) Defense counsel admitted that McKeever did not know Orlando Stanley, and reserved its right to address the Motion regarding the August 24th conversation at a later date. (Tr. 1663.) Thus, on the second sidebar, the court did not determine whether the August 24th conversation was inadmissible in its entirety. At the conclusion of trial for that day, the court denied defense counsel’s motion for a mistrial and requested that both parties work to see if they could come to an agreement regarding the extent to which the August 24th conversation might be admissible. (Tr. 1680.) The parties did not proffer to the court any agreement on the issue.

3. The ATF polygraph examinations

On May 31, 2005, ten days after the fire, Lewis voluntarily took an ATF polygraph examination. Lewis argues that this court should consider the results of the polygraph examinations because it shows the “uncertainties, inconsistencies, and contradiction” in the Government’s case. (Mem., p. 87.) Before trial, Lewis moved for an Order allowing him to reference the polygraph examination, not for the truth of the matter asserted within the results, but for the effect of the results upon law enforcement’s conduct. (ECF No. 52.) The Government argued that the results from Lewis’s polygraph examination are contested and would mislead the jury. (ECF No. 91.) On July 12, 2010, the court denied Lewis’s motion because the results of Lewis’s polygraph were in dispute and thus, were likely to confuse the jurors who might place undue weight on the results. (ECF No. 160.) Four days later, on July 16, Lewis filed a Motion to reconsider this court’s previous denial of the motion. (ECF No. 165.) On January 31, 2011, the court denied Lewis’s Motion to Reconsider and concluded that, pursuant to Federal Rule of Evidence 403, the probative value of admitting the polygraph examination is relatively low in comparison with the unfair prejudice that may result. (ECF No. 273.)

A The October 23, 2007 three and one half hour recorded interrogation of Lewis

On October 23, 2007, Cleveland homicide detectives interrogated Lewis for three and one-half hours regarding the fire. The officers video recorded the interrogation. Lewis asserts that his answers to the officers’ questions are further evidence of his innocence. (Mem., p. 88.) Before trial, on May 15, 2009, defense counsel filed a motion to suppress Lewis’s statements within the recorded interrogation because the interrogating officers violated Lewis’s constitutional rights. (ECF No. 22.) In its opposition to the motion, the Government agreed that it would not introduce the recorded interrogation in its case-in-chief, but reserved its right to use the evidence for impeachment purposes if Lewis testified. (ECF No. 30.) On February 11, 2010, this court granted Lewis’s motion to suppress statements made on October 23, 2007, agreeing that they could not be used as evidence by the Government in its case-in-chief. (Court Order, non-document, February 11, 2010.) In fact, the statements were not introduced at trial.

5. Analysis

In his Brief, Lewis acknowledges that prior to or during trial, the court determined that the above-referenced evidence was either inadmissible or admissible for a limited purpose only. Lewis does not challenge the legality of this court’s determinations to exclude such evidence, but asserts that this court should consider this evidence as further support of the “uncertainties, inconsistencies, and contradictions” in the Government’s case. (Mem., p. 87.) To support his contention, Lewis cites to several cases that set forth the district judge’s obligations when deciding a Rule 33 motion.

Although courts have emphasized that a grant of a new trial should be reserved for cases where there is a “real concern that an innocent person may have been convicted,” United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992)), Lewis has not pointed to, and none of his cited cases state, that a court can consider facts that were not presented at trial in its Rule 33 determination. Indeed, one of the cited cases, United States v. Parelius, suggests the court cannot do so. 83 F.Supp. 617 (D.Haw.1949). In Parelius, the court granted the defendant’s Rule 33 motion for a new trial because it believed that the evidence did not support a verdict for first degree murder. Id. In making its determination, the district court “disregarded all grounds advanced other than the weight and sufficiency of the evidence as a whole.” Id. at 618. Specifically, the district court declined to consider the affidavits of two jurors that showed the jurors would have never joined in the verdict if they knew the verdict called for life imprisonment. Id. Instead, the district court considered evidence presented at trial — the testimony of witnesses, both lay and expert, testimony of the defendant, the indictment, and other “uncontradicted evidence.” Id. at 618-22. The Government contends that the court cannot consider Lewis’s additional issues because the court is limited to the evidence produced at trial. (Mem. in Opp’n, p. 6, ECF No. 327 (quoting Ashworth, 836 F.2d at 266 (holding appellate court “limited to examining the evidence produced at trial to determine whether the district court’s determination that the evidence does not ‘preponderate heavily against the verdict’ is a clear and manifest abuse of discretion”)).) This court agrees. Rule 33 affords trial judges broad discretion to determine whether or not a new trial is warranted in the “interest of justice,” yet such discretion is not untethered. The court must make its determination and weigh the evidence as if it is a “thirteenth juror.” See Ashworth, 836 F.2d at 266; United States v. Hughes, 505 F.3d 578, 592 (6th Cir.2007). The court would be exceeding its role by considering evidence not presented to the twelve jurors. For the reasons stated above, the court will not consider these additional issues and will only consider the evidence presented at trial.

B. The Government’s Presentation of Possible Motives

Lewis argues that the Government presented two contradictory and incoherent motives for the crime: (1) that Lewis was owed money for a drug debt; and (2) that Lewis was upset at Sharese Williams for taking his clothes in retaliation for his failure to comply with the conditions of bonds she posted on his behalf in separate criminal proceedings. As noted above, 18 U.S.C. § 844(i) requires the Government to show Lewis acted with malice, but does not require the Government to prove Lewis’s motive in committing the crime. The court recognizes that the Government had no obligation to put forward proof of motive. However, given the absence of physical evidence connecting Lewis to the crime, the Government did present testimony bearing on his motive, and the question of why Lewis would commit the crime therefore became a pervasive theme throughout trial. Further, the court did instruct the jury that motive could be considered “as bearing on the intent of the Defendant.” (See Jury Instruction No. 19.) Consequently, Lewis’s arguments concerning the Government’s presentation of possible motives warrants some discussion by the court.

1. The bond dispute with Sharese Williams

The first possible motive proffered by the Government was that Lewis was angry with Sharese Williams for confiscating his clothing in retaliation for his having failed to appear at a court hearing while he was out on bond, for which she was a signatory. Sharese Williams is a nursing assistant who lost her daughter Shauntavia Mitchell in the fire at the 1220 House. (Tr. 1061-1063.) Her daughter Shauntavia had been staying with Medeia Carter at the 1220 House since she moved out of Medeia’s neighborhood on or about Mother’s Day of 2005. (Tr. 1063.) She had been a good friend of Medeia Carter’s for many years — they grew up together — and often spent time with her children at Medeia’s house. (Tr. 1063-1064.) The night of the fire, her daughter Shauntavia was over at Medeia’s house for a sleepover; Lewis was supposed to drive her other children over to Medeia’s house but did not do so. (Tr. 1105-06.)

Sharese testified that she met Lewis when he was 15 years old — she had seen him hanging out on the street with other guys. (Tr. 1065.) Her boyfriend at the time knew Lewis, felt sorry for him, and convinced Sharese to let Lewis stay in her home with her family. (Tr. 1130.) On cross, she testified that over time, the family “loved him. My kids called him their brother, and that was my son. Nothing sexually.... We were a family.” (Tr. 1130.) She testified that she is still on friendly terms with Lewis. (Tr. 1084.)

In April of 2005, a month before the fire, Sharese signed off on two bonds for Lewis to ensure his appearance in criminal court proceedings. (1074-75) On the first, she made a payment of $785 to the bond company, and on the second she made a payment of $150. (Tr. 1075.) A couple of days after her move to her new house, Sharese took Lewis to scheduled court proceedings, dropping him off at the courthouse. (Tr. 1084-85.) Later in the day, she saw Lewis again, who told her that his sentencing had been continued; she subsequently discovered that this was a lie and that he had not shown up at court. (Tr. 1088, 1090-91.) Sharese was very upset “because he skipped bond on my name. When you skip bond, that mean the bounty hunters is coming to your house.... My kids was going to be terrified.” (Tr. 1091— 92.) She contacted him and told him how upset she was and that he needed to turn himself in. (Tr. 1092-1093.) She then testified that Lewis told her that he would turn himself in, and that she should come and pick him up near E. 84th Street. (Tr. 1093, 1094.) When she arrived, she saw him, called out to him, and told him to get in the car, but he ran away instead. (Tr. 1093. ) Sharese testified this incident, which took place perhaps one or two days before the fire, made her more upset. (Tr. 1094. ) She called Lewis repeatedly, but he would not answer, or he would place the call on hold and play music. (Tr. 1095-1097.)

When asked whether Lewis was angry with her, she answered, “I don’t know. Why would he be angry with me?” (Tr. 1099.) She added: “if you made an agreement — I mean, if you made an agreement, you had me come down there on 84th to get you, why would you be mad at me and you made this agreement to go to jail?” (Tr. 1099.) She then testified that in an effort to get in touch with him she went to Lewis’s mother’s house and “retained his clothes.” (Tr. 1100.) Her objective was to get Lewis to come to her home to change his clothes, at which point she or her kids would call 911 to have Lewis arrested. (Tr. 1101-02.) Regarding her having taken his clothing, she admitted that Lewis never called her to threaten her or to express anger. (Tr. 1140.) She testified that she saw Medeia the Wednesday before the fire and told her about her plans. (Tr. 1103.)

About half an hour after the fire had been reported, Sharese’s daughter Sharay called Sharese at work to let her know that Medeia Carter’s house was on fire. (Tr. 1109.) When she later learned that someone had died in the fire, she left work to go to the scene of the fire; on her way there, she got a phone call in which she learned that three other children could not be found, including her daughter Shauntavia. (Tr. 1111.) When she arrived at the scene, she was stopped by her brother, who told her that her daughter was dead. (Tr. 1111.) At some point in the early morning after the fire, Lewis came over to her house on 106th Street, where family members and friends of the victims had convened. (Tr. 1114,1129.)

At trial, only George Hightower testified in support of the theory that Lewis might have committed the arson because he was upset over the fact that Sharese had obtained Lewis’s clothing from Lewis’s mother’s house. (Tr. 804-05.) A week before the fire, Lewis lived with Hightower at Hightower’s residence. (Tr. 793.) High-tower overheard a phone conversation Lewis had with his mother regarding Sharese Williams taking his clothes. (Tr. 797.) Hightower described Lewis as upset by the incident. (Tr. 796.) Hightower suggested to Lewis that “if I was you, I’d burn the house down.” (Tr. 806.)

Lewis contends that this motive makes no sense in light of the fact that Sharese Williams did not even reside at the 1220 House. Lewis had lived with Sharese pri- or to staying with Hightower, and he also assisted Sharese with her May 2005 move to a new house a few weeks before the fire. (Tr. 1079, 1083.) The Government responds that there is a reasonable connection between Sharese Williams and the 1220 House — Sharese’s daughter would usually stay with Medeia Carter at the 1220 House, while Sharese was at work. (Mem. in Opp’n, p. 52.) The testimony, however, revealed that Lewis considered Sharese’s children to be his siblings. Sharese’s daughter, Sharay Williams, 15 years old at the time of trial, testified that she cares for Lewis as a brother. (Tr. 1213.) The night of the fire, she was at her mother’s new home on 106th Street and Union Ave., but was hoping to join her sister Shauntavia at the 1220 House. (Tr. 1219.) After receiving a call at around 3:24 a.m. notifying her of the fire at Medeia Carter’s house, Sharay called her mother to let her know. (Tr. 1225.) She testified that Lewis cried when she subsequently informed him that Shauntavia, whom he considered a little sister, had died in the fire. (Tr. 1234.) Based on the phone records, she had a 24-minute conversation with Lewis at 6:04 a.m., three hours after the fire, and that is when she believes she told him about Shauntavia’s death. (Tr. 1236.) She was not aware of any threats Lewis made to her mother as a result of her mother having confiscated his clothing. (Tr. 1237.) She admitted on cross that Lewis used to walk Shauntavia to the bus, look out after her and all of the kids. (Tr. 1239.)

2. The drug debt motive

While only Hightower testified that the possible motive for the arson was the bond money, a number of the Government’s witnesses testified that a drug debt owed to Lewis was the motive for the crime. These witnesses were: the alleged accomplice Marion Jackson; the jailhouse informants Paul McKeever, Anthony Collier, Daniel Id’Deen, Richard Wheeland, Cyle Watson, and Christopher Myers; and former drug addict and prostitute Samantha Collins-Taylor. Lewis argues that these witnesses colluded to fabricate the drug-debt motive, and that the evidence ties all of these witnesses to jailhouse informant Paul McKeever, who had a reputation of working with law enforcement on cases pending against fellow prisoners. The court discusses the credibility of these witnesses later in its Opinion, but notes now that their testimony regarding a possible drug debt was greatly undermined by the testimony of the witnesses actually connected to the 1220 House and the victims of the fire. (See Evelyn Martin’s testimony, Tr. 202-03 (testifying that her daughter, Medeia Carter, did not use drugs); Capritta Nicole Bell’s testimony, Tr. 497-98 (testifying that neither she nor Medeia Carter used drugs); Sharese Williams’s testimony, Tr. 1133-34 (testifying that she never heard Lewis state that Medeia Carter or Capritta Nicole Bell owed him money for drugs, and further, that neither used drugs); Moses Marshall’s testimony, Tr. 594 (testifying that Medeia Carter did not use drugs).)

The testimony of Caprita Nicole Bell (“Bell” or “Nicole”) was particularly important in light of the fact that alleged accomplice Marion Jackson and several of the jailhouse informants testified that the fire was specifically meant for Nicole, and that Lewis made statements concerning a “bitch Nicole.” (See Marion Jackson’s testimony, Tr. 2284 (Lewis answered call shortly before setting fire with, “is the bitch Nicole in the house?”); Paul McKeever’s testimony, Tr. 1450 (Lewis “mentioned a girl named Nicole.”); Daniel Id’Deen’s testimony, Tr. 1716 (heard Lewis state fire was “meant for the bitch Nicole”); Richard Wheeland’s testimony, Tr. 1839 (Lewis stated “it wasn’t intended for the kids, it was meant for Nicole”); Anthony Collier’s testimony, Tr. 1919-20 (heard Lewis “talk about this girl named Nicole” and that Nicole “got burned but she still looked good”).)

Nicole is a nursing student who was living at the 1220 House at the time of the fire, which she survived despite incurring severe burns. (Tr. 461, 487.) At the time of the fire, she had known Lewis for a couple years — she knew him through Sharese and Sharay Williams, and generally from the neighborhood. (Tr. 468^169.) Medeia Carter had taken Nicole into her home after Nicole had conflicts with her mother; Nicole considered Medeia to be an aunt. (Tr. 496.) She testified that Lewis once tried to make a “move” on her by kissing her, but she “told him no, and that was it.” (Tr. 470.) She admitted that he was always nice to her in her presence, and that he never threatened her because she would not kiss him. (Tr. 499.) She testified that Lewis treated the children that were in the 1220 House as his cousins, and considered victim Shauntavia “Tay-Tay” Mitchell to be his little sister. (Tr. 503.)

Asleep when the fire started, she was awakened by the smell of smoke. Bell thought that Medeia Carter might have accidentally left the stove on. (Tr. 482-83.) She testified that she got out of bed, walked downstairs towards the kitchen to try to turn the stove off, but the smoke was too heavy, and ended up escaping the house through the basement, where she saw Teon Smith, who escaped the fire uninjured. (Tr. 484, 487-89.) Like Bell, Smith was a family friend whom Medeia had allowed to stay in the 1220 House because she “didn’t like the conditions [Smith] was living under.” (Tr. 2555.) Once out, and before fire trucks and rescue units appeared on the scene, Bell observed people from the neighborhood trying to get into the house in order to help. (Tr. 492.) When rescue units arrived, she was taken to a hospital, where she was treated for second degree burns to her feet, face, neck, and left arm, and third degree burns on her right arm. (Tr. 492-93.)

On cross, she testified that she is not a drug user, and was not a drug user at the time of the events of this case. (Tr. 497.) She also testified that she never saw Medeia Carter engage in any drug-related activity. (Tr. 498.) She described Medeia as a generous woman who would take care of people in the neighborhood, including an elderly neighbor. (Tr. 497-98.) Medeia Carter kept an immaculate household. (Tr. 505.)

Bell testified that around October 5th, 2007, she had a meeting with ATF Special Agent John Gregg and Special Agent Illig, which made her extremely upset. (Tr. 512.) She testified that the Agents thought she was involved in the arson, and that she owed Antun money for drugs. (Tr. 527-528.) She denied both accusations. (Tr. 528.)

S. Discussion

While the court is mindful of the fact that the Government did not have to prove a motive in this case, the foregoing reflects that over the course of the trial, the Government’s key witnesses presented two starkly different narratives. The first narrative was that of the witnesses who were connected to the victims of the fire, through friend or family relationships, experienced the fire themselves, knew the neighborhood, and knew the Defendant. Those connected to the fire related that no one at the 1220 House used drugs, let alone purchased drugs from Lewis. They further related that Lewis had no conflict with anyone in that home; indeed, several of the victims were like family to him. While he may have been in the middle of a dispute with Sharese Williams at the time of the fire, Sharese did not even reside at the 1220 House, and in fact, Lewis knew where she lived. The second narrative was that presented by the alleged accomplice in the arson, Marion Jackson, and Sam Collins, a former crack — addict and prostitute from the west side of Cleveland — with the corroboration of a group of jailhouse informants — who claimed to know Lewis through his drug-related activity. This group of witnesses related that Lewis planned to set the 1220 House on fire because of a drug debt.

However, as is explained more fully below, serious concerns were raised regarding the credibility of all of the witnesses who testified regarding this drug debt motive. These witnesses also happened to be the Government’s key witnesses, as they either placed Lewis at the scene of the crime or testified that Lewis made incriminating statements concerning the fire. No other evidence was presented to tie Lewis to the arson. In light of the fact that it was the Government’s key witnesses who testified to a possible drug debt motive, the court finds it difficult to fully divorce the question of Lewis’s motive from the necessary elements of the Government’s case-in-chief. With this in mind, the court turns to the credibility of the Government’s main witnesses.

C. The Credibility of the Government’s Witnesses

1. Marion Jackson

The Government’s case-in-chief centered around the testimony of Marion Jackson (“Jackson”). As Lewis’s alleged accomplice in the arson and the only person claiming to have seen him at the scene of the crime, he was the Government’s key witness. Lewis contends that Jackson’s testimony is “patently incredible, consisting of material contradictions, facts that defy physical realities, and facts that just do not make any sense.” (Mem. in Supp., p. 46, ECF No. 324.) Lewis points to eight specific contradictions or inconsistencies that he argues, renders the guilty verdict a “manifest injustice.” (Id. p. 47). The court will first summarize Jackson’s testimony. Second, the court will address each contradiction or inconsistency argued by Lewis. Third and finally, the court will assess the credibility of Jackson’s testimony.

a. Jackson’s testimony

i. Marion Jackson

At the time of the May 21, 2005 fire, Jackson was approximately 55 years old, and had an extensive thirty-year criminal record that includes multiple theft-related offenses (Tr. 2330-34); for half of his life, he had been “in some sort of a facility environment.” (Tr. 2262, 2264, 2379.) During the events of this case, Jackson suffered from various health conditions, including heart problems, diabetes, breathing problems, post-traumatic stress disorder, and bipolar disorder, for which he took medications. (Tr. 2337.) After having come forward to law enforcement concerning his role in the fire, Jackson stated that the Government helped him change his name, and that he chose the name “Michael Alexander Knight” after the fictional crime fighter, the “Knight Rider,” from the television series of the same name. (Tr. 2429.) Later at trial, it was revealed that he changed his name with the help of his court-appointed defender, Jaime Serrat. Regarding Jackson’s choice of name, Serrat testified that “Marion sometimes acts like a child ... and sometimes things he says, things he does, it would remind me of a child. I mean, somebody with a low-level intelligence and — that’s—that’s the best I can describe.” (Tr. 2509-10.)

ii. Jackson’s connection to Lewis

Jackson testified that he met Lewis through a prostitute named “Sam,” who was allegedly an acquaintance of Lewis. (Tr. 2268.) Specifically, Jackson testified that he met Lewis after accompanying Sam on a walk to the corner of West 25th and Lorain on the west side of Cleveland, where she “had to go see somebody,” namely Lewis. (Id) On direct, he could not remember a date or time for this first encounter with Lewis; on cross, when presented with his initial statement to law enforcement, he admitted that it was somewhere around August of 2004. (Tr. 2375.) Jackson failed to recall where he and Sam were prior to walking to that street corner to meet Lewis. (Tr. 2341.)

During that first meeting, Jackson claimed that Lewis was under the impression that Jackson was “turning a trick” with Sam, meaning he was having sex with her, and Lewis told Jackson that he could charge him money for time spent with Sam. (Tr. 2269.) Jackson testified that Lewis then wanted to know more about Jackson; Jackson disclosed some personal information to Lewis, including the fact that he had a criminal background and had “done time.” (Tr. 2270.) However, Jackson would not tell Lewis the crimes for which he had been incarcerated. (Tr. 2380.) Based on that first meeting, Jackson concluded that Lewis was Sam’s pimp on the west side. (Tr. 2341.) Despite testifying that he met Lewis through Sam, Jackson testified on direct that he had no idea who Sam was, knew only her first name and that she “hung around” on the west side, where he assumed that she was a crack addict and a prostitute. (Tr. 2298.) On cross, despite maintaining that he did not have a close relationship with Sam, he admitted to previously telling law enforcement that he would occasionally “stop and have ... a soda or a pop” with her and that Sam wanted him to be her “security blanket.” (Tr. 2340.)

Jackson testified that he had several conversations with Lewis after their first meeting, but could not recall specific dates or times. (Tr. 2271.) Jackson did, however, recall a specific incident where Lewis wanted him “to pick up an envelope and bring it to him.” (Tr. 2271.) Jackson “took it as a test,” delivered the envelope to Lewis and told him not to “test” him any more. (Tr. 2271.) Again, Jackson could not recall a date, time or location in relation to this incident, claiming that he could “only remember various things ... and that’s about all I can say.” (Tr. 2381.)

According to Jackson, in the months before the fire, Lewis came to trust him and “thought more highly of [him] than he did the average guys on the street.” (Tr. 2379.) Jackson noted that, during the time he knew Lewis, Lewis owned at least two cell phones — one cell phone to sell drugs and the other cell phone for girls. (Tr. 2203.) On cross-examination, Jackson admitted that, prior to his testimony, he had not revealed to law enforcement that he knew Lewis owned two cell phones. (Tr. 2381.) Further, he admitted that he did not provide ATF Agent Gregg with his own cell phone number when he took his statement in September of 2005, because “I didn’t remember my cell number because I lost my phone and I don’t — I’m not good with numbers.” (Tr. 2346.) Thus, his accounts of cell phone communications between himself and Lewis went uncorroborated.

Although at various points in his testimony, Jackson could not recall times, dates, numbers, and locations, he recalled that “two days before” the fire, Antun came to see him to “say that he had a job that he wanted done.” (Tr. 2272.) Specifically, he “wanted a house set fire ... because somebody owed him some money.” (Tr. 2272.) Jackson believed that it was “either for drugs or something.” (Tr. 2272.) Lewis offered Jackson $1,500 to set the fire, but Jackson declined the offer. (Tr. 2273.) Lewis told Jackson that if he did not do it, Lewis would tell the police that Jackson did it, because he knew Jackson had a criminal history. (Tr. 2273.)

iii. Jackson’s alleged involvement in the arson

According to Jackson, Lewis called Jackson on the night of May 20, 2005, and told him to meet him on the east side because he wanted to see him; he instructed Jackson to wear dark clothing. (Tr. 2275.) Jackson did not think that Lewis’s invitation had anything to do with the fire. (Tr. 2275.) Jackson took two buses out to the east side, and got off on Superior Avenue near East 85th Street at around 9:30 p.m., but testified that he could be wrong about his arrival time because he did not have his watch and it was dark outside. (Tr. 2274-75.) Once he arrived at Superior, he met Lewis on that avenue, and the two shared a beer for a few minutes. (Tr. 2278-79.) Notably, Jackson did not recall seeing Lewis in a van or any other vehicle that night; Jackson testified that he “didn’t even know [Lewis] had a vehicle.” (Tr. 2449.)

The two then walked down East 87th Street toward Kosciuszko Avenue. Jackson recalled that, as he and Lewis stood on 87th Street near the 1220 House, he smelled food and saw about 20 people at a party on an open lot on East 87th Street. (Tr. 2285.) When they arrived at the 1220 House, Lewis pointed at the house and indicated it was the house he wanted set on fire. (Tr. 2280.) Jackson testified that he refused to set the fire, but that he agreed to be the “lookout” because he feared that he would be blamed for the fire or killed. (Tr. 2280.)

Jackson and Lewis then walked back toward Superior where Lewis went to pick up two cans — one made of plastic and the other of metal — near a building that was under construction. (Tr. 2281.) Both men then walked to a gas station, “Citgo,” on Superior, where, according to Jackson, Lewis paid $5.00 for gas and filled both gas cans. (Tr. 2283). Jackson claimed that he was standing on the sidewalk when the cans were being filled by Lewis. (Tr. 2282.) He knew that Lewis purchased $5.00 worth of gasoline because he “saw him with a $5 bill in his hand.” (Tr. 2283.) On cross-examination, Jackson admitted that, in September of 2005, he told Special Agent Gregg that Lewis obtained gas at a station located on East 79th Street and St. Clair, not East 76th and Superior, which is about a mile away. (Tr. 2388.) He did not correct this account when he testified before the Grand Jury in October 2008, raising the gas station on East 76th and Superior for the first time at trial. He admitted that, prior to trial, ATF agents took him to 79th and St. Clair, where he learned that there was no gas station at that location. (Tr. 2390.) Jackson testified that his “calculations was wrong” with respect to his prior statements concerning the location of the gas station. (Tr. 2457.)

Once Lewis filled both gas cans, Jackson stated that he and Lewis walked back up Superior and turned on East 86th Street, walking towards Kosciuzszko Avenue, where they turned the corner and walked to East 87th Street. (Tr. 2283.) Once on East 87th, Lewis’s cell phone rang, at which point he put the cans down and answered: “Is the bitch Nicole in the house?” (Tr. 2284.) According to Jackson, Lewis did not make any other statement to the person on the phone. (Tr. 2284. ) Lewis then picked up the cans and quickened his pace, heading toward the 1220 House. (Tr. 2284.) Jackson stated that, as they arrived at the house, he crossed to the other side of the street and walked one or two houses down, where he stood still and observed the scene because “Antwan would have said that I set the fire or else I would have been dead.” (Tr. 2285-86.) As Jackson stood as a lookout, Lewis disappeared between the 1220 House and a neighboring house. (Tr. 2285. ) Jackson then saw flames coming out of a window and from underneath the front door of the home. (Tr. 2287.) As the flames were coming out, Jackson walked back down East 87th Street toward Superior. As he walked away from the fire, Jackson stated that he turned around one last time to have a look at the scene, and he saw “Antwan ... standing right there.” (Tr. 2287, 2393-94.) Regarding the alleged party down the street, Jackson stated that the party was “going on for quite a while” and that once the house caught on fire, attendants from the party reacted and ran over to the house. (Tr. 2391-92.) Jackson testified that on Superior, he immediately got on a bus heading back to the west side. (Tr. 2288.) On cross-examination, Jackson testified that he vomited on the bus but that the bus driver did not stop the bus after he did so. (Tr. 2398-99.)

Jackson saw Lewis on the west side of Cleveland one time after the fire. (Tr. 2289.) Lewis asked Jackson if he had said anything regarding the fire and Jackson denied having done so; Jackson suggested that Lewis “not bother” him anymore. (Tr. 2289-90.) Shortly after the fire, Jackson learned that children had died in the fire, but he did not go to law enforcement because he had had “run-ins with law enforcement before” and didn’t have “too much faith in them.” (Tr. 2991.)

iv. Jackson’s subsequent incarceration on unrelated charges and connection to Paul McKeever

On August 3, 2005, just a couple of months after the tragic fire at the 1220 House, Jackson was arrested and ultimately charged with kidnapping, aggravated burglary, and attempted felonious assault. (Tr. 2348, 2360, 2361.) Based on the seriousness of the charged offenses and his extensive criminal record, bond was set at $100,000, which Jackson could not afford to post. (Tr. 2361-62.) The day before his arrest, Jackson had moved out of his old apartment building, which he said was in an area frequented by prostitutes, and into a new apartment building that was close to a hospital. (Tr. 2348.) Jackson admitted that his arrest the very next day was devastating. (Tr. 2348.)

Jackson testified that Lewis was also imprisoned in the same county jail on charges unrelated to the fire. (Tr. 2394.) During his cross-examination, Jackson admitted that he told law enforcement that Lewis told other inmates at the county jail that “he had beaten the girl before he set the fire,” and that Lewis in turn told Jackson that he claimed to have “beaten the girl” in order to throw off investigators. (Tr. 2394.) Yet, Jackson also admitted having told law enforcement that he did not have any conversations with Lewis for the period that they were both detained at the county jail. (Tr. 2395.) When asked whether he agreed that his statements are contradictory, Jackson replied: “My calculations was wrong.” (Tr. 2395.)

Jackson further testified that, for a period of six weeks during his detention, he shared a “jail pod” with Paul McKeever, an inmate whom Jackson knew from two prior imprisonments and described as an “acquaintance.” (Tr. 2363.) Jackson was in the same pod with McKeever on a daily basis from August 11, 2005 to September 30,2005. (Tr. 2363.)

In jail, Jackson watched a TV news story concerning the children that passed away in the fire. (Tr. 2291, 2368-69.) He claimed that the story “immediately” bothered him and that he “couldn’t bear it anymore;” he “started crying and [] was really upset behind it and [ ] went to lay down.” (Tr. 2291-92.) McKeever came to him and asked him what was wrong; Jackson disclosed that he “knew of the fire” and that he met “Antwan ... through a prostitute.” (Tr. 2293.) McKeever told him that he knew somebody he could talk to and that he would call on Jackson’s behalf. (Tr. 2293.) McKeever connected Jackson to Fire Marshal Ray McCarthy and ATF Special Agent John Gregg. (Tr. 2293.) On September 30, 2005, during a three-to-four-hour meeting, Jackson told McCarthy and Gregg about the fire. (Tr. 2293, 2374.) Initially, Jackson discussed the details of the fire as if he had overheard these details from other inmates; however, after breaking down in tears because he “needed to get this off [his] conscience” he confessed that he was involved with the fire. (Tr. 2294-95.) Jackson gave McCarthy and Gregg a statement of the events that occurred on May 20 to 21, 2005, written by Gregg and signed by Jackson, a drawing of the cans allegedly used by Lewis on that date, and a drawing of the 87th Street location with an “X” marking the position where Jackson stood during the incident. (Tr. 2296-97).

Jackson claimed that he received no promises from Agent Gregg for his confession on that day. (Tr. 2295.) Later on in the investigation, Jackson did receive immunity for his testimony, but stated he understood that he could still be prosecuted for his involvement in the arson. (Tr. 2300, 2401.) He further testified that he received money from the ATF. (Tr. 2301-03.) On direct examination, Jackson admitted that the ATF gave him $5,800 from August 15, 2006 to January 12, 2011. (Tr. 2301. ) He further agreed that he received housing funds of $14,000 to move him to a new location for his safety, $236 for storage of his belongings, $62.90 for a U-Haul rental, and $72.94 for electrical services and lodging expenses. (Tr. 2302-03.)

On cross-examination, Jackson agreed that his case for kidnapping, aggravated burglary, and attempted felonious assault was dismissed for want of prosecution because no prosecutor or witnesses came to his November 29, 2005 trial. (Tr. 2402.) Jackson was released from jail. (Tr. 2404.) In December of 2005, ATF agents wired Jackson and sent him to visit Lewis in jail in an attempt to elicit incriminating statements; Jackson met with Lewis at a visiting booth where they were separated by a glass window and could communicate through phones only. (Tr. 2406-12.) Jackson asked Lewis if he had any idea who committed the arson, why they did it, and whether Lewis was there when it happened. (Tr. 2410-11.) Lewis was not charged for the arson after this failed attempt to elicit statements. (Tr. 2421.) In March of 2006, however, Jackson was recharged for the offenses that had previously been dismissed. (Tr. 2421.) At this point in time, Jackson was out on personal bond. (Tr. 2422.) At a bench trial, he was found guilty of misdemeanor assault. (Tr. 2421-22.) At his July 26th, 2006, sentencing, he was placed on intense supervised probation for the crime. (Tr. 2422.) On cross-examination, Jackson admitted that just two days later, he violated his probation by assaulting another woman. (Tr. 2424.) Jackson pled guilty to assaulting this woman. (Tr. 2424.) He further testified that Agent Gregg was present at his probation violation hearing and that he was placed back on probation, but warned by the sentencing judge that he would he be sent to jail if he got into trouble again, regardless of whom he brought from the ATF on his behalf. (Tr. 2423-25.)

b. Analysis

Under a Rule 33 Motion inquiry, this court has discretion to consider the credibility of a witness. Ashworth, 836 F.2d at 266. Jackson is the only witness who testified to firsthand knowledge of how Lewis committed the arson on 1220 East 87th Street. Thus, Jackson’s testimony is critical evidence regarding the issue of whether Lewis maliciously set the fire. The court does not overlook the fact that Jackson, in addition to being the only witness to the crime, was also Lewis’s alleged accomplice. While uncorroborated accomplice testimony alone can support a conviction, United States v. King, 288 Fed.Appx. 253, 256 (6th Cir.2008), the Sixth Circuit warns that this type of testimony should be given more caution than other testimony when weighing its credibility. See 6th Cir. Pattern Jury Instruction 7.08.

The court finds several aspects of Jackson’s testimony deeply troubling. Jackson often failed to recall critical information and admitted to a number of “miscalculations” concerning key facts. Certain aspects of his testimony were in conflict with other competent evidence presented by the Government or were uncorroborated. Certain portions of his testimony even raised questions about whether he knew Lewis and was at the scene of the crime. It is clear that Jackson’s testimony presented a salient credibility question for the jury.

In his Motion, Lewis points to eight specific contradictions or inconsistencies in Jackson’s testimony that, collectively, warrant a new trial: (i) other evidence and Jackson’s own statements contradict Jackson’s testimony that Lewis had a conversation with him in county jail after the May 20, 2005 fire; (ii) there is no evidence other than Jackson’s testimony to show that Jackson vomited on the RTA bus after his involvement with the fire; (iii) there is no evidence other than Jackson’s testimony to show that a party occurred in an open lot on the same street as the 1220 House; (iv) the testimony of Bruce Thomas, a neighborhood resident that was standing outside on 87th Street right before the fire, contradicted Jackson’s testimony; (v) there is no evidence to corroborate Jackson’s testimony that Lewis wanted to set the house on fire because a resident of the house owed him money for drugs; (vi) Lewis’s cell phone records contradict Jackson’s testimony; (vii) Jackson’s testimony regarding the trip to the gas station is inconsistent with other evidence and Jackson’s own prior statements; and (viii) Jackson’s testimony regarding the sequence of events the night of the fire was contradictory and not supported by the evidence. Some of the alleged contradictions or inconsistencies referenced above are more damaging to Jackson’s credibility than others. The court finds that collectively, however, these inconsistencies and contradictions render Jackson’s credibility dubious. Further, Lewis points to the timing of Jackson’s cooperation with law enforcement and benefits received thereafter, and argues that Jackson had a motivation to lie.

i. Contradictory statements concerning conversations with Lewis in Cuyahoga County Jail after the fire

Lewis argues that Jackson offered contradictory statements to law enforcement officers concerning his interactions with Lewis in Cuyahoga County Jail (“county jail”) a few months after the fire. (Mem., pp. 29-30.) On cross, he admitted telling ATF Agent Gregg on September 30, 2005, that when Lewis arrived at the county jail, Lewis told other inmates that he had beaten “the girl” before he set the fire, and that he told Jackson that the only reason he was claiming to have beaten the girl was to throw off investigators. (Tr. 2394.) In the same statement to ATF Agent Gregg, however, Jackson also stated that he did not have any conversation with Lewis when he was brought to the county jail. (Tr. 2395.) Lewis further notes that during the period in which both Jackson and Lewis were detained at the county jail, they were housed on completely separate floors of the jail. (Mem. in Supp., p. 29.) When he was confronted with his contradictory statements, Jackson responded that his “calculations was wrong.” (Tr. 2395.)

The Government contends that Jackson’s prior inconsistent statements to law enforcement d