New Trial / Newly Discovered Evidence

Eberhart v. United States, 126 S.Ct. 403 (2005)

The seven-day deadline for filing a motion for new trial pursuant to Rule 33 is not jurisdictional. If the defendant is tardy (or files a timely initial motion with some claims, but adds more claims after the seven-day period) and the government does not object, focusing instead on the merits, the motion may be considered by the court.

United States v. Moore, 709 F.3d 287 (4th Cir. 2013)

After trial, the defense learned that a photograph of the person that the defendant claimed was the actual perpetrator was taken at a different time than what was described by the government. The actual date that the photograph of the other person was taken showed that he did, in fact, look like the person who the victim described as his assailant. A new trial, based on newly discovered evidence, should have been granted by the trial court.

United States v. Piazza¸ 647 F.3d 559 (5th Cir. 2011)

The trial court acted within its discretion in granting the defendant’s motion for new trial based on the discovery of newly discovered evidence. The evidence was unknown to the defense; the failure to discovery the evidence earlier was not due to a lack of diligence; the evidence was not merely cumulative or impeaching; and the evidence was material and would probably produce an acquittal.

United States v. Banks, 546 F.3d 507 (7th Cir. 2008)

A crime lab expert testified at trial about the nature of the substance tested, as well as its weight. Unbeknownst to the prosecutor and the defendant (but known to the DEA), the expert was under investigation by the DEA for misuse of a government credit card. At the point she testified, she did not know the outcome of this investigation. Shortly thereafter, she received an informal reprimand. When the defendant learned about this after trial, he moved for a new trial and the trial court granted the motion. The Seventh Circuit affirmed, holding that the district judge was within the bounds of his discretion in granting the new trial based on this Brady violation.

United States v. Velarde, 485 F.3d 553 (10th Cir. 2007)

Post-trial, in preparation for a new trial motion, the trial court should have empowered the defendant to subpoena records relating to the government’s chief witness, whose prior inconsistent statements (or prior false accusations directed at others) were not disclosed to the defense prior to trial.

United States v. Hernandez-Rodriguez, 443 F.3d 138 (1st Cir. 2006)

The trial court abused its discretion in denying the defendant a new trial. The defendant’s co-defendant provided an affidavit that exculpated the defendant with evidence that was not available to the defendant at trial. The affidavit was more than a simple denial of the defendant’s participation. Even viewed, as the court requires, with “great skepticism” this affidavit meaningfully demonstrated that the defendant was wrongfully convicted.

United States v. Robinson, 430 F.3d 537 (2d Cir. 2005)

The trial court granted a new trial motion, concerned about the reliability of the evidence that linked the defendant to the murder. The court concluded that judicial intervention was necessary to prevent a manifest injustice.

United States v. Hernandez, 433 F.3d 1328 (11th Cir. 2005)

The difference between granting a post-trial judgment of acquittal (Rule 29) and a posttrial new trial (Rule 33) is this: On a motion for new trial based on the weight of the evidence, the court need not view the evidence in a light most favorable to the verdict and may weigh the evidence and consider the credibility of the witnesses. If the court determines (despite the abstract sufficiency of the evidence to sustain the verdict) that the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial and submit the issues for determination by a new jury.

United States v. Tarango, 396 F.3d 666 (5th Cir. 2005)

The defendant’s co-defendant was a fugitive and was tried in absentia, but the defendant had to endure a joint trial with the fugitive. The vast majority of the evidence focused on the absent co-defendant. The defendant was prejudiced by this joinder and the trial court correctly granted a Rule 33 Motion for New Trial.

United States v. Scroggins, 379 F.3d 233 (5th Cir. 2004)

A trial court may order a new trial pursuant to Rule 33, even if there had been no specific trial error. In order to avoid a miscarriage of justice a new trial may be ordered if, for example, critical defense witnesses did not appear in response to a subpoena.

United States v. Wilkins, 139 F.3d 603 (8th Cir. 1998)

After the government rested its case-in-chief, the trial court granted a judgment of acquittal on several counts. Thereafter, the jury acquitted the defendant on some counts and convicted him on one count. The trial court granted defendant's Motion for New Trial, on the grounds that the spillover effect of the evidence heard on the counts that the judge threw out prejudiced the defendant on the remaining count. The Court of Appeals concluded that this was not an abuse of discretion.

United States v. Montilla-Rivera, 115 F.3d 1060 (1st Cir. 1997)

The defendant was charged with two others in connection with a drug transaction. The other two pled guilty and were awaiting sentencing. At defendant’s trial, he contended that he was just an innocent bystander, but when he called the other two defendants to testify on his behalf, they indicated their intention of pleading the Fifth. After the defendant was convicted, he obtained an affidavit from both of the co-defendants who averred that the defendant had nothing to do with the drug transaction. This evidence justified conducting a full hearing on the new trial motion. This evidence was unavailable at the first trial, so it satisfied the requirements of Rule 33 that was newly discovered. The court notes, however, that this is a minority view not accepted by most other Circuits.

United States v. Graciani, 61 F.3d 70 (1st Cir. 1995)

Even if a case is on direct appeal, the defendant should file his motion for new trial based on newly discovered evidence in the district court. The district court may deny the motion, or may indicate to the appellate court its intention to grant the motion, in which case the appellate court should remand the case to the district court.

United States v. Reyes, 49 F.3d 63 (2d Cir. 1995)

The two-year time limit for filing a motion for new trial on the basis of newly discovered evidence commences the date the appellate court issues its mandate affirming the conviction

Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988)

The Second Circuit concludes that if a material witness recants his testimony, the due process clause requires a new trial if the recantation is credible and the perjured testimony is highly material. It is not necessary to show that the prosecutor was aware of the witness’s perjury. The Second Circuit revisited this decision at 900 F.2d 601 (2d Cir. 1990) and again offered relief to the defendant.

United States v. Ouimette, 798 F.2d 47 (2d Cir. 1986)

A favorable witness in this prosecution was dissuaded from testifying by the police. Although the defendant had interviewed this witness prior to trial, the police conduct in dissuading the witness occurred after that interview. Consequently, the newly discovered evidence could not have been discovered prior to trial and the defendant was entitled to a hearing on his motion for new trial based on newly discovered evidence.

United States v. Biberfeld, 957 F.2d 98 (3rd Cir. 1992)

If the prosecutor has access to information which would reveal that a prosecution witness has committed perjury, a §2255 hearing is necessary to determine what relief is appropriate. The fact that the defendant knew that the witness was lying at trial does not amount to a waiver of this collateral attack. The key to the waiver issue is whether the defendant is aware that the prosecutor has the information in his possession which establishes that the witness is committing perjury.

United States v. Robertson, 110 F.3d 1113 (5th Cir. 1997)

In deciding whether to grant a new trial pursuant to Rule 33, the trial judge may weigh the evidence and may assess the credibility of the witnesses. In this case, the trial judge acted within his discretion in deciding to grant a new trial in light of the ambiguous evidence establishing his guilt of being a member of a drug conspiracy.

United States v. Garland, 991 F.2d 328 (6th Cir. 1993)

The defendant borrowed $75,000 for the claimed purpose of investing in a 5,000-ton cocoa bean purchase from Ghana. When the beans did not materialize, the defendant was prosecuted for transporting the $75,000 which was fraudulently obtained. The defendant testified at trial that he had been defrauded by the Ghana coca bean dealers and that he, too, was a victim and he did not knowingly obtain the money by fraud. After the defendant was convicted, the two cocoa bean dealers in Ghana were found by the Ghana court to have defrauded the defendant. This was grounds for a new trial based on newly discovered evidence. The Ghana judgment would have been admissible in court and surely may have altered the outcome of the defendant’s case. Also, a witness who had been out of the country at the time of the trial and who had had no contact with the defendant or his attorney at trial, had been found and he would testify that heplayed an instrumental role in setting up the coca purchase in Ghana. His testimony, too, was newly discovered evidence warranting a new trial.

United States v. Young, 17 F.3d 1201 (9th Cir. 1994)

The defendant was arrested at a house where a methamphetamine lab was located. Other than his presence at the scene, the strongest evidence linking him to the crime was the discovery of notebooks in his truck with directions how to set up a lab. At trial, he explained that a resident of the house had thrown the books into the back of the truck. A law enforcement officer, however, testified that the notebooks were found by another officer taped underneath the dashboard. After the defendant was convicted, the officer who discovered the notebooks heard about this testimony and revealed that the notebooks were actually found in the back of the pickup and claimed that she told the AUSA this during the trial, before the other officer testified. Regardless of whether the AUSA purposefully introduced perjured testimony, or did so in good faith, a new trial was required. If the use of the perjured testimony was knowing, then the conviction must be set aside if there is any reasonable likelihood that the false testimony could have effected the judgment of the jury. If the government unwittingly presents false evidence, a defendant is entitled to a new trial if there is a reasonable probability that without the evidence the result of the proceeding would have been different.

United States v. Culliver, 17 F.3d 349 (11th Cir. 1994)

After the defendant was convicted of possessing a firearm as a convicted felon, a key government witness recanted his trial testimony, indicating that the gun belonged to him. The trial court properly set the matter down for an evidentiary hearing to inquire into the basis of the recanting witness’s testimony.

United States v. Vicaria, 12 F.3d 195 (11th Cir. 1994)

The defendant requested a theory of the defense instruction at trial, which the trial court refused to give. After the defendant was convicted, the trial court granted a new trial under Rule 33, holding that it would have been better to give the defendant’s theory of the defense instruction. Though the trial court did not err in refusing to give the instruction, it was within the trial court’s discretion to give the instruction and it was thus within the trial court’s discretion to grant a new trial.

United States v. Gates, 10 F.3d 765 (11th Cir. 1993)

Six months after the defendant was convicted of armed bank robbery, a co-defendant offered an affidavit that the defendant was not guilty. This affidavit was sufficient to require a hearing to determine whether there was any merit to the motion.

United States v. Dayton, 981 F.2d 1200 (11th Cir. 1993)

In order to move for a new trial on the basis of newly discovered evidence, the motion must be filed within two years of the final judgment. The two year period is measured from the date the court of appeals issues the mandate, not the date the trial court enters judgment.

Alvarez v. United States, 808 F.Supp. 1066 (S.D.N.Y. 1992)

The defendant was entitled to a new trial based on the newly discovered evidence of prior instances of perjury committed by the informant, as well as conflicting evidence offered by the government agent. Pursuant to Rule 33, this evidence of the witness’ perjury was more than “merely impeaching” and called into question the integrity of the verdict. The court cited UnitedStates v. Stofsky, 527 F.2d 237 (2d Cir. 1975) and United States v. Taglia, 922 F.2d 413 (7th Cir. 1991).