United States Court of Appeals,
District of Columbia Circuit.
UNITED STATES of America, Appellant
Archibald R. SCHAFFER III, Appellee
Argued March 24, 2000.
Decided June 27, 2000.
Rehearing En Banc Granted Nov. 22, 2000.
Appeal from the United States District
Court for the District of Columbia (No. 96cr00314-02)
Charles M. Kagay, Chief Appellate Counsel, Office of Independent Counsel, with whom Donald
C. Smaltz, Independent Counsel, Joseph P. Guichet, Senior Associate Independent Counsel,
and Wil Frentzen, Associate Independent
Counsel, were on the briefs, argued the cause for appellant.
William H. Jeffress, Jr., with whom Joe R. Caldwell, Jr., Scott L. Nelson, Grant R. Vinik,
and Woody Bassett were on the brief, argued the cause for appellee.
Before EDWARDS, Chief Judge,
HENDERSON, Circuit Judge, and BUCKLEY, Senior Circuit Judge.
Opinion for the court filed by Senior Judge BUCKLEY.
BUCKLEY, Senior Judge:
In 1998, Archibald R. Schaffer III was convicted of attempting to influence the Secretary
of Agriculture in violation of the Meat Inspection Act. The United States appeals the
district court's decision to grant Schaffer a new trial based on "newly discovered
evidence." Because we find that Schaffer was not diligent in his efforts to procure
the evidence before his trial and that the evidence would not be likely to result in an
acquittal upon retrial, we reverse.
The facts of this case are set forth in detail in our opinion reviewing the district court's grant of Archibald
Schaffer's earlier post-trial motion for a judgment of acquittal. See United States
v. Schaffer, 183 F.3d 833, 836- 39, 847-50 (D.C.Cir.1999). We present
here only those facts that are relevant to this appeal.
In 1993, when Alphonso Michael Espy was serving as its Secretary, the Department of
Agriculture ("USDA") was developing and implementing certain food safety
initiatives related to meat and poultry that would have an impact on Tyson Foods
International. See id. at 837, 849. On
April 21, 1993, Don Tyson, Chairman of the Board of Directors of Tyson Foods, sent
Secretary Espy both a printed invitation to a lavish birthday party he was hosting in
Russellville, Arkansas over the weekend of May 14-16 and a handwritten note. The note
advised the Secretary that he would also be invited to attend an Arkansas Poultry
Federation ("APF") event during that same weekend and confirmed that a
private plane would be available to fly him to and from Arkansas. See id.
at 847. Five days later, the Senior Vice President of the APF
signed a letter inviting Secretary Espy to address the APF on May 15 in Russellville. He
sent the letter to Schaffer, who was Tyson Foods' Director of Media, Public and
Governmental Affairs. Schaffer in turn mailed and faxed the letter to the Secretary.
Schaffer also helped Secretary Espy's office coordinate some of the Secretary's weekend
travel and accommodations. The Government presented evidence that, in making those
arrangements, Schaffer mentioned only
the APF meeting, ostensibly to conceal the fact that the Secretary and a woman companion
planned to attend the Tyson birthday party.
On May 15, Secretary Espy flew to Russellville and spoke to a group of APF invitees. He
attended the Tyson birthday party that evening, stayed with his companion at the Tyson
Foods Management Training Complex, and returned with her to Washington the next day on a
Tyson Foods corporate airplane. Schaffer subsequently caused the APF and not Tyson Foods
to be reimbursed by the USDA for the cost of Secretary Espy's travel and lodging.
In January 1998, an independent counsel who had been appointed to investigate charges that
had been made against Espy indicted Schaffer on several counts alleging violations of
federal criminal statutes in connection with these and other events. Espy, who was by then
facing charges under a separate indictment, did not testify at Schaffer's trial. In June
1998, the jury found Schaffer guilty under two counts: the first, for violating the Meat
Inspection Act ("MIA"), 21 U.S.C. § 622 (1994), by working to secure Espy's attendance at the Tyson birthday party; and the
second (which is not before us), for having provided Espy with unlawful gratuities in
violation of 18 U.S.C. § 201(c) (1994). Schaffer, 183
F.3d at 850.
After the jury's verdict, Schaffer moved for a judgment of acquittal under Rule
29 of the Federal Rules of Criminal Procedure, challenging the
sufficiency of the evidence to sustain the convictions. The district court granted judgment of acquittal on both counts. The independent counsel
appealed, and this court affirmed the judgment of acquittal on the gratuities count but
reinstated the jury's verdict on the MIA count, holding that a reasonable juror could have
found that Schaffer participated in securing Espy's attendance at the party with the
intent to influence him with respect to specific policies of concern to Tyson Foods. Id.
While Schaffer's appeal was pending, a jury acquitted Espy on all charges. Following the
final disposition of Schaffer's appeal and the conclusion of Espy's case, Schaffer filed a
motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal
Procedure. He argued, among other things, that Espy's testimony
constituted "newly discovered" evidence because it had only become available
at the conclusion of the Espy trial, which resulted in the expiration of Espy's Fifth
Amendment privilege against self-incrimination. Because the district court agreed that
Espy's testimony might constitute newly discovered evidence likely to produce an acquittal
upon retrial, it held an evidentiary hearing to evaluate Espy's testimony. See United
States v. Schaffer, Crim. Action No. 96-0314, Mem. at 4-5, reprinted in
Joint Appendix ("J.A.") at 252-53.
At the hearing, Espy testified that he considered the APF appearance to be a legitimate
event and that it was the primary reason for his trip to Arkansas. He stated that he
attended the Tyson birthday party as a "courtesy" to Don Tyson and his son John, whom he had met on a few occasions. Espy asserted
that he did not know Schaffer and that he had no knowledge of Schaffer's involvement in
his visit to Arkansas that weekend. Finally, Espy testified that he did not recall any
discussion with anyone from Tyson Foods at either the APF meeting or the birthday party
that related to Tyson Foods or USDA policies; nor did he recall any attempt to influence
him with respect to his duties as Secretary of Agriculture.
During the course of the hearing, Schaffer's counsel advised the court that, prior to
Schaffer's trial, he had been told by Espy's counsel that Espy had declined Schaffer's
request for an interview. Espy's counsel revealed enough of Espy's view of the relevant
events, however, for Schaffer to know that he "very much want[ed Espy] as a
witness." Tr. of Hearing on Motion for a New Trial at 24, reprinted in J.A. at 384.
When Schaffer's counsel stated that he wanted Espy to testify in Schaffer's trial,
"the answer was no, that [Espy] was not going to testify." Id. at 26,
reprinted in J.A. at 386. In light of this exchange, Schaffer's counsel saw no point in
subpoenaing Espy, "put[ting] him in here in a public courtroom ... and mak[ing]
him take the Fifth." Id. Nor did his counsel move for a continuance until after
Espy's trial or otherwise make the district court aware of his desire to have Espy
testify. He explained that he did not feel he had a good faith basis for seeking a
continuance in light of the certainty that Espy would appeal any conviction and remain unavailable as a witness for an indefinite period. See id. at 26- 30,
reprinted in J.A. at 386-90.
At the hearing's conclusion, the district court found Rule 33's requirements had been satisfied and granted Schaffer's motion for a new
trial. The independent counsel timely filed this appeal, and we have jurisdiction pursuant
to 18 U.S.C. § 3731.
Rule 33 authorizes a district court to grant a new trial
"if the interests of justice so require." It also provides:
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....
Because Schaffer filed his motion approximately fifteen months after his conviction, the
parties agree that the motion was timely only if Espy's testimony constituted
"newly discovered evidence."
 To evaluate a motion for a new
trial based on newly discovered evidence, we apply the standards we first set out in Thompson
v. United States, 188 F.2d 652 (D.C.Cir.1951). Thompson holds that a court may grant a new trial on the basis of newly discovered
evidence only where each of the following conditions has been met:
(1) the evidence must have been
discovered since the trial; (2) the party seeking the new trial must [have shown]
diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied
on must not be merely cumulative or impeaching; (4) [the evidence] must be material to the
issues involved; and (5) [be] of such nature that in a new trial it would probably produce
Id. at 653; see
also United States v. Gloster, 185 F.3d 910, 914 (D.C.Cir.1999)
(same). A district court's grant of a new trial will be reversed "only if the
court abused its discretion or misapplied the law." Gloster, 185 F.3d at 914 (internal quotation marks and citation omitted). We find that the district
court abused its discretion in this case because Schaffer failed to satisfy Thompson's second and fifth requirements, namely, that a party seeking a new trial
demonstrate diligence in procuring the evidence and that the evidence would be likely to
produce an acquittal upon retrial.
A. Diligence in procuring evidence
 What constitutes
diligence in the pursuit of evidence depends entirely on the circumstances of the
particular case. When, as here, a defendant believes that a particular person's testimony
would be vital to his defense but either cannot locate the witness or believes it would be
futile to subpoena him, the defendant has the obligation toseek a continuance of his trial or to explain to the trial court why the desired witness will not be
produced. A defendant who fails to inform the court of his predicament will not satisfy Thompson's second prerequisite. See, e.g., United States v. Garland, 991 F.2d
328, 335 (6th Cir.1993) (defendant who sought continuance after
unsuccessful attempt to locate witness satisfied diligence requirement); United
States v. Kamel, 965 F.2d 484, 493 (7th Cir.1992) ("If there is
possible evidence which would exonerate a defendant, he may not simply ignore
it...."); United States v. Kulczyk, 931 F.2d 542, 549 (9th Cir.1991) (counsel's failure to inform court before or during trial that he could not
locate two witnesses "indicates a lack of due diligence"); United
States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980) (defendant who
failed to seek continuance to locate witness was not diligent).
 Schaffer repeats
the argument made at the motion hearing that it would have been futile to subpoena Espy or
seek a continuance. As suggested by the cases cited in the preceding paragraph, however, a
belief in the futility of any such action will not satisfy the need for a concrete attempt
either to compel the production of relevant evidence or to seek some accommodation from
the trial court that would preserve the defendant's right to present evidence that was
critical to his case. Whatever the minimum requirement of diligence, it cannot be a purely
private evaluation of the availability of the testimony or the likelihood of relief from
the court. Such a standard would seriously impair the important
goal of finality that the diligence requirement serves. See United States v.
Ugalde, 861 F.2d 802, 808 (5th Cir.1988) (motion for new trial is
subject to "an unusually stringent [five requirement] test ... [that] gives great
weight to society's interest in the finality of criminal convictions").
B. Likelihood of an acquittal
 Schaffer has
failed to establish that Espy's testimony would be likely to result in an acquittal
because his testimony is not relevant to the crime for which Schaffer was convicted.
Schaffer was found guilty of violating the MIA, which provides in relevant part:
Any ... agent or employee of any
person, firm, or corporation, who shall give, pay, or offer, directly or indirectly, to
any ... officer or employee of the United States authorized to perform any of the duties
prescribed by this chapter ... any money or other thing of value, with intent to influence
said ... officer or employee of the United States in the discharge of any duty provided
for in this chapter, shall be deemed guilty of a felony....
21 U.S.C. § 622.
The prior appeal of Schaffer's MIA conviction centered on "whether the prosecution
presented sufficient evidence for a reasonable jury to conclude that Schaffer acted with
the requisite intent to influence any of the Secretary's duties under the Meat Inspection
Act." Schaffer, 183 F.3d at 845 (emphasis added). As the
prosecuting attorney emphasized in his closing argument to the
jury, "this case is not ... about whether ... Secretary Espy was bought or could
be bought. This is about the giver and what was in the giver's mind when the things given
were given." Trial Tr. at 1702, reprinted in J.A. at 500.
As is evident from Espy's testimony during the evidentiary hearing on the motion for a new
trial, his testimony at a new trial would do little to undermine the independent counsel's
case. Espy testified that he believed that the APF function was a legitimate event, that
his primary reason for traveling to Arkansas the weekend of the Tyson birthday party was
to attend the APF function, and that he was aware of no attempt to influence his exercise
of his official duties during the course of the weekend. Nothing in that testimony bears
on Schaffer's intent in helping to arrange for Espy's attendance at these functions. The
jury, for example, could fully accept Espy's statement that he believed the meeting was a
legitimate event and still "reasonably infer that the [APF] meeting, while
legitimate, had nevertheless been set up to provide Espy with official cover."
Schaffer, 183 F.3d at 847.
Because we conclude that the district court erred in finding that Schaffer had satisfied Thompson's second and fifth requirements, we do not reach the question of whether
Espy's newly available testimony may be considered to be "newly discovered"
within the meaning of Rule 33. Although we have previously noted this circuit's "strong[ ] suggest[ion]" that
"a non-party witness' post-trial offer to testify would fail to qualify as newly
discovered evidence where the substance of the testimony was known to defendant at the
time of trial," Gloster, 185 F.3d at 915, we leave for
another day the question of the vitality of this court's earlier opinions in Di
Giovanni v. Di Giovannantonio, 233 F.2d 26, 28-29 (D.C.Cir.1956), and Amos
v. United States, 218 F.2d 44, 44 (D.C.Cir.1954), in which we granted
new trials on the basis of "newly discovered" evidence that was known to
exist but was unavailable to the defendant at the time of trial.
For the reasons given above, former Secretary Espy's newly available testimony is not a
sufficient basis for granting Schaffer a new trial. Accordingly, we reverse the order
granting a new trial, reinstate the jury's verdict on the Meat Inspection Act count, and
remand the case to the district court for sentencing.