simply could not be mistaken as to whether she altered the records or not. She could only be deliberately lying, and this appears, under all the circumstances, far less likely than the possibility that Linda Harris was mistaken.
Because Linda Harris' testimony is substantially less credible than Madelaine Harris', the Court is not "reasonably well satisfied" that Madelaine Harris' trial testimony was false, nor can it conclude that the new evidence would probably result in an acquittal on retrial. Even if this conclusion could not be drawn from a simple credibility contest between Linda and Madelaine Harris at the hearing on this motion, when viewed in the context of the entire trial, where extensive evidence was introduced against the defendant, including the testimony of several witnesses besides Harris, it becomes exceedingly unlikely that Madelaine Harris' trial testimony was false, or that the new evidence would produce a different verdict.
Peter A. Chaconas, a former lawyer and unindicted coconspirator,
testified in great detail concerning his participation with defendant and Madelaine Harris in the acquisition of BOEG grant money for numerous ineligible students. Tr. 457-528, passim. He also testified that defendant instructed Harris to falsify the student attendance records prior to an HEW audit, and that he knew that she had done so. Tr. at 532. Linda Veney, who worked for a few months at Monique's as a cashier and receptionist, testified that prior to the HEW review, Mr. Sutton asked her to forge a student's name on an affidavit. She refused. Tr. at 1093. She also testified that she knew that hours were recorded by Ms. Harris and sent in to the government for students who had never attended the school. Tr. at 1094. Mary Floyd, a former employee of Monique's, testified that she worked with Pat (Madelaine) Harris and others in the evenings prior to and during the HEW audit to "correct" the records. They wrote in hours to correspond with the number of hours that Pat Harris supplied. Defendant was present the entire time. She knew it was wrong to put in hours without knowing how many hours there really were, but she didn't know that the totals were false. Tr. 1049-1055. Barbara Chamberlain, who kept the records at Monique's Georgetown School, testified that despite the fact that the school was ineligible, most of the students there were on BOEG grants. Tr. at 997, 1003-1004. Joyce Thompson, who was a secretary to defendant at Monique's, testified that Mr. Sutton told her in January, 1979 that HEW was going to do an audit of the school's records, and she had to change the attendance records of all students at the Arlington, Virginia school who had less than 96 hours a month attendance to reflect 96 or more hours. Tr. 1205-1206. She falsified records in her spare time in addition to her other duties for a period of months at Mr. Sutton's direction. Tr. at 1208. After the grand jury subpoena for the attendance records at Monique's was issued, she was instructed by Mr. Sutton to change the records for the rest of the schools to reflect at least 96 hours a month for each student. She, Pat Harris, Mr. Sutton and another individual spent full days, and sometimes evenings, for about a week falsifying records. Tr. at 1211-1214.
In short, the evidence of defendant's guilt and in support of Madelaine Harris' testimony that she falsified the records that were introduced into evidence while they were in defendant's possession and at his direction is overwhelming. The newly discovered evidence offered here is merely impeaching and would not be likely to change the verdict.
Defendant's counsel emphasized in closing argument on this motion that Madelaine Harris was left alone with her daughter in the evidence room, with all the Monique documentary evidence, and had the opportunity to alter the records. Government counsel acknowledged that Ms. Harris' unsupervised presence in the evidence room was an "administrative error", but argued that it did not amount to cause for granting a new trial. While the United States Attorney's Office must be chastised for its lax procedures in this regard, the particular circumstances here do not justify the grant of a new trial.
Accordingly, for the reasons detailed herein, it is this 7th day of May, 1982, hereby
ORDERED, that defendant James L. Sutton's Amended Motion for a New Trial Based Upon Evidence Not Available at Previous Trial be, and it hereby is, denied, and it is
FURTHER ORDERED, that defendant present himself May 14, 1982, at 9:15 a.m. for the purpose of executing the sentence previously imposed by the Court on January 28, 1981 pursuant to the jury conviction on December 19, 1980.