UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

No.  99-3153

 

UNITED STATES OF AMERICA,     

Appellant      

v.

 ARCHIBALD R. SCHAFFER, III,

Defendant-Appellee

 

 

UNITED STATES’ OPPOSITION TO

DEFENDANT’S PETITION FOR PANEL REHEARING

AND SUGGESTION FOR REHEARING EN BANC

 

 

                                                                                                Donald C. Smaltz

                                                                                                Independent Counsel

                                                                                                Joseph P. Guichet

                                                                                                Senior Associate Independent Counsel

                                                                                                Charles M. Kagay

                                                                                                Chief Appellate Counsel

 

                                                                                                103 Oronoco Street, Suite 200

                                                                                                Alexandria, Virginia  22314

                                                                                                Tel:  (703) 706-0010

                                                                                                Fax:  (703) 706-0076

TABLE OF CONTENTS

 

Page

I.              INTRODUCTION 1

 

II.            THE PANEL CORRECTLY APPLIED EXISTING LAW TO FIND THAT

                DEFENDANT FAILED TO EXERCISE DILIGENCE       2

 

III.           THE PANEL CORRECTLY HELD THAT ESPY’S TESTIMONY WOULD

                NOT UNDERMINE THE GOVERNMENT’S CASE AGAINST

                DEFENDANT       7

 

IV.           EVEN IF THE POINTS MADE IN DEFENDANT’S PETITION WERE

                CORRECT, HE STILL WOULD NOT BE ENTITLED TO A NEW TRIAL    10

 

V.            CONCLUSION      11

 

TABLE OF AUTHORITIES

 

Cases       Page

 

Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550 (D.C. Cir. 1985), aff’d sub nom., Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987)              5

 

Amos v. United States, 218 F.2d 44 (D.C. Cir. 1954)            6, 7

 

Bouie v. City of Columbia, 378 U.S. 347 (1964)    5

 

Charino v. NTSB, 849 F.2d 1525 (D.C. Cir. 1988)                11

 

Conway v. Chemical Tank Lines, Inc., 610 F.2d 360 (5^th Cir. 1980)     9

 

Di Giovanni v. Di Giovannantonio, 233 F.2d 26 (D.C. Cir. 1956)       6, 7

 

INS v. Abudu, 485 U.S. 94 (1988)          8

 

Jones v. United States, 393 F.2d 491 (10^th Cir. 1968)            6

 

Thompson v. United States, 188 F.2d 652 (D.C. Cir. 1951)  2

 

United States v. Andrade, 94 F.3d 9 (1^st Cir. 1996)                8

 

United States v. Bryson, 434 F.Supp. 986 (W.D. Okla. 1977)               6

 

United States v. Castano, 756 F.Supp. 820 (S.D.N.Y. 1991)                6

 

United States v. Cox, 995 F.2d 1041 (11^th Cir. 1993)             9

 

United States v. Dale, 991 F.2d 819 (D.C. Cir. 1993)            11

 

United States v. Foster, 783 F.2d 1082 (D.C. Cir. 1986) (en banc)       4, 6

 

United States v. Gloster, 185 F.3d 910 (D.C. Cir. 1999)       2, 11

 

United States v. Gordils, 982 F.2d 64 (2d Cir. 1992)             8

 

United States v. Kamel, 965 F.2d 484 (7^th Cir. 1992)             5

United States v. Kulczyk, 931 F.2d 542 (9^th Cir. 1991)          5

 

United States v. Linwood, 142 F.3d 418 (7^th Cir. 1995)         8

 

United States v. Oliver, 683 F.2d 224 (7^th Cir. 1982)             5

 

United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998)           11

 

United States v. O’Keefe, 128 F.3d 885 (5^th Cir. 1997)          8

 

United States v. Quintanilla, 193 F.3d 1139 (10^th Cir. 1999), cert. denied, 120 S.Ct. 1442 (2000)       6

 

United States v. Rocco, 587 F.2d 144 (3^rd Cir. 1978)             6

 

United States v. Ross, 655 F.2d 1159 (D.C. Cir. 1981), rev’d, 456 U.S. 798 (1982).           4

 

United States v. Smith, 331 U.S. 469 (1947)          11

 

United States v. Theodosopolous, 48 F.3d 1438 (7^th Cir. 1995)             5

 

United States v. Torres, 115 F.3d 1033 (D.C. Cir. 1997)      11

 

United States v. Troutman, 814 F.2d 1428 (10^th Cir. 1987)   8

 

United States v. Turner, 995 F.2d 1357 (6^th Cir. 1993)          8

 

United States v. Willis, 89 F.3d 1371 (8^th Cir. 1996)              5

 

United States v. Wright, 625 F.2d 1017 (1^st Cir. 1980)          6

 

 

Miscellaneous

 

D.C. Circuit Handbook of Practice and Internal Procedures § XIII.B.   2, 8

 

D.C. Circuit Handbook of Practice and Internal Procedures § XIII.B.2 2

 

Federal Rule of Criminal Procedure 33   10, 11

 

 

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

No.  99-3153

UNITED STATES OF AMERICA,

Appellant 

v.

ARCHIBALD R. SCHAFFER, III,

Defendant-Appellee

 

 

 

UNITED STATES’ OPPOSITION TO

DEFENDANT’S PETITION FOR PANEL REHEARING

I.                     AND SUGGESTION FOR REHEARING EN BANCINTRODUCTION

                Defendant presents no reason why this case should be heard again.  The first basis for the Court’s decision on this appeal was that one cannot be diligent by doing nothing.  Defendant does not disagree, but claims that he somehow did not have adequate warning of this principle and should be excused from its application.  The second basis for the decision was that a donee’s testimony about his state of mind in receiving a gift would not likely produce an acquittal in a trial in which the question before the jury is the donor’s, not the donee’s, intent.  On this point, defendant rehashes his earlier argument that the jury might have speculated in his favor about his intent if it had heard the testimony he belatedly asked to present.  Either of the two bases for the Court’s decision, standing alone, was sufficient to reverse the district court decision, and neither requires further reexamination by this Court.

                Nor does this decision merit rehearing en banc.  The panel opinion in no way threatens “uniformity of decisions among the panels of the Court” or raises “questions of exceptional importance.”  See D.C. Circuit Handbook of Practice and Internal Procedures § XIII.B.2. (stating that unless these matters are present, the Court will ordinarily not grant en banc review).  Indeed, nothing in the Court’s decision warrants the “rarely granted” right of further Circuit review.  Id. at § XIII.B.

I.                     THE PANEL CORRECTLY APPLIED EXISTING LAW TO FIND THAT DEFENDANT FAILED TO EXERCISE DILIGENCE

 

                On the issue of defendant’s lack of diligence, defendant argues that this Court “created and announced” a per se rule that should not be applied to him.  Def.’s Pet. for Rhg. and Sugg. for Rhg. En Banc (“Def.’s Pet.”) at 4.  The fundamental flaw in this argument is that the Court did not apply a “per se rule” to determine whether defendant acted diligently.  Instead, the Court commenced its analysis by expressly noting that “[w]hat constitutes diligence in the pursuit of evidence depends entirely on the circumstances of the particular case.”  Opinion at 6.^[1]

                The task of resolving this question was of course simplified in this case by the defendant’s abject failure to take any step before the trial court to procure Espy’s testimony.  Defendant did not subpoena Espy, he did not request a continuance until the conclusion of Espy’s own trial, he did not ask the government to confer limited immunity upon Espy, he did not request the court to limit the scope of the government’s cross-examination of Espy so as to avoid Espy’s invocation of his Fifth Amendment privilege, he did not ask the court to test Espy’s invocation of the Fifth Amendment, he did not even advise the court or the government that he wanted but could not obtain Espy’s testimony.  In short, neither the court nor the government had any knowledge of defendant’s purported desire to call Espy until 15 months after the guilty verdict, almost three months after this Court decided defendant’s first appeal, and less than one month before sentencing. J.A. at 195-214.

                Applying a lengthy line of precedent to these facts, the panel reasonably concluded that defendant had failed to exercised diligence.  Opinion at 6.  Nevertheless, defendant begs to be excused from the consequences of this failure, claiming that the imposition of the diligence requirement in this case somehow surprised him.

                To make his argument, defendant grasps at the panel’s statement that a defendant in his situation “has the obligation to seek a continuance of his trial” or otherwise “inform the court of his predicament,” and asserts that the panel created and applied some brand-new per se procedural requirement to find that he failed to exercise diligence.  Def.’s Pet. at 1, 4-5.  But this so-called “per se rule” did not change established law and, therefore, raised no retroactivity concerns.  See, e.g., United States v. Foster, 783 F.2d 1082, 1086 (D.C. Cir. 1986) (en banc) (holding that court’s decision creating new procedural rule would be applied prospectively where that law overruled prior Circuit precedent).

                The requirement that a defendant must take some step on the record to exercise diligence breaks no new ground; this conclusion, at most, “elaborate[s], not . . . alter[s], existing doctrine.”  United States v. Ross, 655 F.2d 1159, 1162-63 (D.C. Cir. 1981) (holding that Supreme Court decision that did not expand exclusionary rule, but merely restated and applied doctrine already in place, is applied retroactively), rev’d on other grounds, 456 U.S. 798 (1982).  Indeed, the panel found the application of the rule in this case amply supported by existing precedent.  See Opinion at 6-7.

                But even more importantly, the so-called “per se rule” of which defendant complains was not the basis for the Court’s diligence holding.  As the panel made clear after noting the rule of law established by other cases, “[w]hatever 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.”  Opinion at 7 (emphasis added).  The panel simply recognized that doing absolutely nothing did not constitute diligence, especially when there were specific actions that defendant could have taken to try to ameliorate his situation.  Id. at 7.

                Even assuming arguendo that the panel had resolved this case through application of this purported per se rule, and that this rule was a change in the law, defendant has no viable retroactivity claim if he had warning that the Court might reach this conclusion.^[2]Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964) (emphasis added, quotations omitted).   It is certainly one of the most basic principles of advocacy that a party who does not bring his position to the Court’s attention, and instead keeps it a secret, has not been sufficiently diligent to preserve that position.  In any event, numerous court decisions addressing new trial motions provided defendant with ample notice that such basic measures were required to satisfy his obligation to exercise diligence.^[3]

                United States v. Foster, 783 F.2d 1082, cited by defendant, is inapposite.  In that case, unlike this one, this Court expressly changed the law by overruling its own precedent.  Id. at 1086.  Moreover, although it recognized that numerous opinions from other courts created “reason to suspect that we (or the Supreme Court) might change the circuit law,” this Court reasoned that Foster had reasonably relied upon the D.C. Circuit’s then-controlling, on-point decisions.  Id.

                Defendant makes no claim that he relied upon some inconsistent precedent; nor can he, for none exists.  The closest he comes is to cite Amos v. United States, 218 F.2d 44 (D.C. Cir. 1954) and Di Giovanni v. Di Giovannantonio, 233 F.2d 26 (D.C. Cir. 1956).  Def.’s Pet. at 4.  Neither of these cases, however, even suggests, much less stands for, the proposition that a criminal defendant exercises diligence in procuring evidence when he does absolutely nothing.

                The sparse, three-paragraph opinion in Amos does not even contain a substantive discussion of diligence.  218 F.2d 44.  Moreover, that opinion expressly notes that Amos subpoenaed the missing witness – a measure defendant did not take here, as the panel noted in making its diligence determination.  Opinion at 7.

                Di Giovanni provides no greater support for defendant, as that case did not even involve a request for new trial under Rule 33, much less address the Thompson requirements.  Moreover, the moving party in that case also took greater measures than defendant did here – he filed a formal request with the Italian embassy two months before trial in an effort to obtain the evidence he sought.  233 F.2d at 28.  Thus, neither Amos nor Di Giovanni justify defendant’s failure to take any action to procure Espy’s testimony at trial.

I.                     THE PANEL CORRECTLY HELD THAT ESPY’S TESTIMONY WOULD NOT UNDERMINE THE GOVERNMENT’S CASE AGAINST DEFENDANT

 

                The second, wholly independent basis upon which the Court held that defendant was not entitled to a new trial was that Espy’s testimony would not likely produce an acquittal.  Opinion at 7-8.  Defendant does not try to argue that this conclusion creates a intra-circuit split or raises an issue of exceptional importance and instead simply advances his own belief that it is wrong.  But a defendant’s simple disagreement with this Court’s conclusions do not merit rehearing or full court review.  D.C. Circuit Handbook § XIII.B.

                Defendant places great emphasis upon the deference typically given to a district court’s ruling on a motion for new trial.  Def.’s Pet. at 11-12.  However, the granting of a motion for new trial implicates special concerns and is disfavored.  INS v. Abudu, 485 U.S. 94, 107 (1988) (noting that motions for new trials on the basis of newly discovered evidence are disfavored because of the “strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases”).^[4]  For much the same reason, when the trial court reaches the disfavored result of granting a new trial, the trial court’s discretion is narrower and the scope of review is broader:

A district court ruling on a motion for new trial is generally reviewed under an abuse of discretion standard.  When the trial court grants a new trial our review is broader and requires a stringent application of the same standard.  This is because when the jury verdict is set aside usual deference to the trial judge conflicts with deference to the jury on questions of fact.

 

United States v. Cox, 995 F.2d 1041, 1044 (11^th Cir. 1993).  Accord, Conway v. Chemical Tank Lines, Inc., 610 F.2d 360, 362-63 (5^th Cir. 1980) (“recent cases in our circuit apply a broader review . . . to orders that grant new trials . . . .”).

                Under any standard, the panel reached the correct decision.  Schaffer is the defendant in this case, not Espy.  In reaching its verdict, the jury had to determine whether “the defendant [acted] with the intent to influence Secretary Espy in the performance of any duty under the Meat Inspection Act.” 6/25/98 Tr. at 1778 (jury instructions).  Thus, the crux of the verdict was defendant’s subjective intent, not Espy’s state of mind.  Opinion at 8.

                Espy provided absolutely no testimony about defendant’s intent; indeed, Espy did not even have any knowledge of defendant’s involvement in providing him with a gratuity.  J.A. at 298.  Espy could only provide testimony as to what was in his own mind.  J.A. at 277, 282-86.  Indeed, much of what defendant sees as helpful in Espy’s testimony, such as his giving other speeches in Mississippi and Arkansas at approximately the same time and place as the party defendant provided to him (Def.’s Pet. at 13), could easily have been developed through other witnesses if defendant had thought they would help his case at trial.  That he did not pursue these matters at trial speaks eloquently of just how important they really were to his defense.  Consequently, the panel reasonably concluded that “[n]othing in that testimony bears on Schaffer’s intent in helping to arrange for Espy’s attendance at these functions.”  Opinion at 8.^[5]

I.                     EVEN IF THE POINTS MADE IN DEFENDANT’S PETITION WERE CORRECT, HE STILL WOULD NOT BE ENTITLED TO A NEW TRIAL

 

                Even if defendant were to be granted rehearing, and even if on rehearing he were to prevail on the two points he makes, he still would not be entitled to a new trial.  In concluding that defendant had not been diligent and that Espy’s testimony would not likely have led to an acquittal, the panel did not reach the question of whether Espy’s testimony, of which defendant concedes he was aware at the time of his trial (J.A. at 200), can constitute “newly discovered evidence” under Federal Rule of Criminal Procedure 33.  Opinion at 8.  A rehearing and a new decision in defendant’s favor on his two arguments would simply mean that the Court would have to address this question, which was not necessary to the earlier decision.  The plain language of the rule and the prior holdings of this Court make clear that evidence that has not been newly discovered is not “newly discovered evidence”:

[W]here a defendant knows the facts supporting his . . . claim at the time of trial, those facts are not “newly discovered” for the purposes of Rule 33.  A contrary interpretation would . . . defy the Rule’s plain language.

 

United States v. Torres, 115 F.3d 1033, 1037 (D.C. Cir. 1997).  See also Charino v. NTSB, 849 F.2d 1525 (D.C. Cir. 1988) (holding that “newly available” testimony of witness who previously asserted Fifth Amendment privilege not newly discovered under NTSB rule analogous to Rule 33); United States v. Dale, 991 F.2d 819, 838-39 (D.C. Cir. 1993) (holding that “newly available” testimony of co-conspirator who refused to testify at trial not newly discovered under Rule 33); United States v. Ortiz, 136 F.3d 161, 167-68 (D.C. Cir. 1998) (strongly suggesting that “newly available” testimony of nonparty witness who refused to testify at trial not newly discovered under Rule 33, but not reaching question); United States v. Gloster, 185 F.3d 910, 915 (D.C. Cir. 1999) (same).^[6]  Consequently, defendant’s motion for new trial was not based on “newly discovered” evidence and was therefore untimely; the district court consequently lacked jurisdiction to grant it.  United States v. Smith, 331 U.S. 469 (1947).

I.                     CONCLUSION

                The unanimous panel correctly found that defendant failed to meet two of the five requirements for a new trial based on newly discovered evidence.  This conclusion is unquestionably correct and does not create an intra-circuit split or raise questions of exceptional importance.  Defendant’s petition for rehearing and suggestion for rehearing en banc should be denied.

Dated:   August 10, 2000                                        Respectfully submitted,

 

 

 

                                                                                                ___________________________

                                                                                                Donald C. Smaltz

                                                                                                Independent Counsel

                                                                                                Joseph P. Guichet

                                                                                                Senior Associate Independent Counsel

                                                                                                Charles M. Kagay

                                                                                                Chief Appellate Counsel

                                                                                                103 Oronoco Street, Suite 200

                                                                                                Alexandria, Virginia  22314

                                                                                                Tel:  (703) 706-0010

                                                                                                Fax:  (703) 706-0076