Opinion
Crim. No. 99-373 (WGB).
March 30, 2001
Lee H. Vilker, First Assistant U.S. Attorney, United States Attorney's Office, Newark, N.J., Attorney for United States.
Ronald S. Sampson, Esq., Pope, Bergrin and Verdesco, P.A., Newark, N.J., Attorney for Defendant.
OPINION and ORDER
Defendant James Brown ("Brown" or "Defendant") moves for a new trial pursuant to Fed.R.Crim.P. 33. For the reasons set forth below, the Court denies Defendant's motion.
I. INTRODUCTION
Defendant was charged with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and (2). He was convicted of that charge on July 6, 2000 and sentenced on February 21, 2001. Defendant moves for a new trial based on his professed innocence. Specifically, Defendant contends that the firearm he was convicted of possessing did not belong to him. To support that assertion, he submits the affidavits of Isaac Gash ("Gash") and Leroy Bethea, Jr. ("Bethea"). Both affidavits essentially state that Gash possessed the gun. Defendant also relies on the results of a polygraph test taken by Defendant after he was convicted.
II. MOTION FOR NEW TRIAL
Fed.R.Crim.P. Rule 33 provides in pertinent part:
On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require. . . . A motion for new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty. . . . A motion for a new trial based on any other grounds may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period.
The burden of justifying a new trial rests with the defendant. See United States v. Geders, 625 F.2d 31, 33 (5th Cir. 1980). Ultimately, the decision whether or not to grant a motion for a new trial rests within the sound discretion of the trial court. United States v. Console, 13 F.3d 641, 665 (3d Cir. 1993).
A. Defendant's Motion is Untimely
Rule 33 clearly states that a motion for a new trial based on any ground other than newly discovered evidence must be made within 7 days of the verdict. Defendant does not claim that this motion is based on newly discovered evidence. In fact, he acknowledges that Bethea was in the courtroom during Defendant's trial ready to testify that Gash actually possessed the weapon, but was never called. Defendant maintains that Bethea also expected to testify on Defendant's behalf. Moreover, if Gash actually possessed the gun, then Defendant must have known that Gash could exculpate him. Therefore, because Defendant knew the purported truth and who could testify as to such truth, he cannot now claim that Gash and Bethea's testimonies, or the results of a polygraph test, constitute "newly discovered" evidence.See United States v. Matos, 781 F. Supp. 273, 279 (S.D.N.Y. 1991) (holding that affidavits submitted after trial, which stated that the defendant did not possess any drugs and was not involved in the drug deal, was at best "newly available," but not newly discovered evidence). In any event, at trial, the defense already presented to the jury, through the testimony of three other witnesses, that the gun belonged to Gash and not to Defendant.
Therefore, Defendant's motion for a new trial is untimely and must be denied. See United States v. Gaydos, 108 F.3d 505, 512 (3d Cir. 1997) ("A district court is powerless to entertain untimely motions under Rule 33 unless it grants an appropriate extension within seven days after the verdict.")
B. Even If Timely, Defendant's Motion Must Be Denied
Alternatively, even if Defendant's motion were timely, a new trial would not be warranted. Before the Court can exercise its discretion to order a new trial based on newly discovered evidence, Defendant must establish the following five requirements:
(a) the evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching;
(d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.United States v. DiSalvo, 34 F.3d 1204, 1215 (3d Cir. 1994) (quotingUnited States v. Adams, 759 F.2d 1099, 1108 (3d Cir.), cert. denied, 474 U.S. 971 (1985)). A court's authority to grant a new trial should only be exercised "in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2nd Cir. 1993), cert. denied 511 U.S. 1070 (1994).
Defendant cannot satisfy four of the five requirements. First, as discussed above, the affidavits of Gash and Bethea, as well as the polygraph test results, do not constitute newly discovered evidence. Second, the Court cannot conclude that despite Defendant's exercise of diligence, such evidence only now became available. In fact, it is undisputed that both witnesses were available to testify at trial. Third, Defendant relies on evidence that is cumulative. As mentioned earlier, the defense called three witnesses who each testified that the gun had been in the possession of Gash on the night in question. See United States v. Matthews, 424 F. Supp. 339, 343 (E.D.Pa. 1976) (finding that new evidence was cumulative because it merely corroborated the defendant's testimony). Fourth, there is no reason to believe that the affidavits and the polygraph test results would probably produce an acquittal. The jury already considered and rejected the defense's theory that the gun was in Gash's possession rather than Defendant's. Moreover, it is unlikely that the jury would have changed their verdict based on the testimony of two individuals who have extensive criminal histories and motives to lie. Bethea is Defendant's first cousin and "lifelong friend." Bethea Aff., at ¶ 1. Gash, who is a "friend and associate" of Defendant, Gash Aff., at ¶ 1, is believed to be part of Defendant's drug distribution network.
Because Defendant cannot meet his burden of proof, a new trial in the "interest of justice" is not warranted.
III. CONCLUSION
For the foregoing reasons, the Court denies Defendant's motion for a new trial.
SO ORDERED.