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ORAL ARGUMENT SCHEDULED FOR MARCH 24, 2000
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA
ARCHIBALD R. SCHAFFER, III,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPLY BRIEF FOR APPELLANT,
UNITED STATES OF AMERICA
DONALD C. SMALTZ
CHARLES M. KAGAY
Chief Appellate Counsel
JOSEPH P. GUICHET
Senior Associate Independent Counsel
Associate Independent Counsel
Office of Independent Counsel
103 Oronoco Street, Suite 200
Alexandria, VA 22314
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
1. United States of America.
2. Archibald R. Schaffer, III
(B) Rulings Under Review
The government seeks review of the Order of the United States District Court for the District of Columbia (Robertson, J.), entered December 3, 1999, granting defendant Archibald R. Schaffer, IIIs motion for new trial.
(C) Related Cases
This appeal is related within the meaning of Circuit Rule 28(a)(1)(C) to United States of America v. Schaffer, Nos. 98-3123 and 98-3126, published at 183 F.3d 833 (D.C. Cir. 1999), in that both cases involve the same parties and arise out of the same criminal prosecution and trial. This appeal is also related to In re United States of America, No. 99-3146, (D.C. Cir. Nov. 10, 1999) (Silberman, Henderson, Tatel, JJ.) in which the United States sought a petition for writ of mandamus directing the district court to deny the new trial motion underlying this appeal.
GLOSSARY OF TERMS
GX -- Government Trial Exhibit
GXEH -- Government Hearing Exhibit
JWX -- Jack Williams Trial Exhibit
Tr. -- Transcript
R. -- District Court Record Entry
J.A. -- Joint Appendix
MIA -- Meat Inspection Act
USDA -- United States Department of Agriculture
APF -- Arkansas Poultry Federation
PERTINENT STATUTES AND RULES
All applicable statutes, etc., are contained in the opening Brief for Appellant, United States of America.
REPLY TO COUNTER-STATEMENT OF FACT
Schaffer criticizes the Government for taking its facts from this Courts earlier decision in United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999), instead of from direct record citations, and then proceeds to reargue those facts as if this Court had never analyzed them. The Governments basic record citations for the facts are at pages 8 to 20 of its opening brief on appeal Nos. 98-3123 and 98-3126, but have not been repeated because the issue is not the sufficiency of the evidence (which this Court already decided in favor of the jurys verdict), but on whether Espys testimony if it can properly be considered at all was sufficient to require a new trial.
In any event, this Court should view the evidence in the light most favorable to the Government. The better(although not unanimous) view is that on review of a new trial grant, the normal respect for jury verdicts requires drawing all possible inferences in favor of the verdict. United States v. Morgan, 562 F.2d 1001, 1003 (5th Cir. 1977) (on a motion for a new trial, this Court must examine the evidence in the light most favorable to the government.); United States v. Gorel, 622 F.2d 100, 106 (5th Cir. 1979) (In passing on such motions [for judgment of acquittal and for new trial], the reviewing court must view the evidence in the light most favorable to the Government and the jury verdict is entitled to the benefit of all reasonable inferences that might be drawn therefrom); United States v. Hughes, 191 F.3d 1317, 1321 (10th Cir. 1999) (same). But see, United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980) (When a motion for new trial is made on the ground that the verdict is contrary to the weight of the evidence . . . [t]he district court need not view the evidence in the light most favorable to the verdict . . . .); United States v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985) (same).
Regardless of the standard used, however, Schaffer is not entitled to view the evidence in the light most favorable to himself and to make numerous ultimately irrelevant evidentiary misstatements. For example, Schaffers contention that Secretary Espy unexpectedly announced safe handling labels is contrary to the evidence presented at trial, which demonstrated Schaffer was aware of this directly because he attended a meeting with Espy in February (GX150); because Espy made it clear in a press release that he had put industry on adequate notice (JW6); and because Espy testified that, by the time of the Russellville invitation, he had notified industry that safe handling labels were coming and they were coming fast. 19J.A.347.
Significantly, Schaffer does not comment at all on the fact that he made false statements about the events at issue to FBI agents investigating the matter. Govt.s Opening Brief at 9.
Oddly enough, Schaffer summarizes his own argument by asserting that the better rule is that the testimony of [a witness like Espy] should be considered under the five-part test in this Circuit governing motions based upon newly discovered evidence. Defs Br. at 20-21. The five-part test laid out in Thompson v. United States, 188 F.2d 652, 653 (D.C. Cir. 1951), of course, is the foundation of the Governments argument. The trial court blatantly violated every part of the five-part test.
Federal Rule of Criminal Procedure 33 does not permit motions for new trial filed more than 7 days after verdict except on the basis of newly discovered evidence. Because the plain language of newly discovered evidence does not extend to newly available evidence, the trial court did not have jurisdiction to grant Schaffers motion for new trial filed 15 months after the jury found him guilty, on the basis of evidence known to Schaffer at the time of trial. Every federal court of appeals except the First Circuit has strictly held that Rule 33 requires that a newly discovered evidence new trial motion must demonstrate evidence discovered after trial. Furthermore, no court including the First Circuit has established, as the trial court did here, separate rules for newly available evidence depending upon whether the source of the evidence is a co-conspirator or a non-party witness. Even assuming, arguendo, such a distinction, Espys testimony was inherently suspect because it came from a co-conspirator and an interested party free from potential liability.
Additionally, the new trial order must be reversed because the trial court made clearly erroneous factual and legal findings. First, although Schaffer took no actions whatsoever to procure the proffered evidence at trial, the trial court found that Schaffer acted diligently. Second, the trial court made unsupported factual findings and misstated both the governments argument to the jury and this Courts prior opinion. As a result, it found that testimony cumulative to evidence given at trial or irrelevant to the elements of the offense of conviction would probably have produced an acquittal.
I. SCHAFFERS FAILURE TO ACT IN A TIMELY MANNER PRECLUDES RELIEF
A. Because Schaffers Newly Discovered Evidence Was Known at Trial, the District Court Lacked Jurisdiction to Grant His Untimely Motion for New Trial
1. The Plain Language of Rule 33 Does Not Permit a Three Year Window for Motions Based on Evidence That Was Newly Available but not Newly Discovered
The trial court began by ignoring the first part of the governing five-part test: The evidence must have been discovered since the trial. United States v. Bryant, 117 F.3d 1464, 1469 (D.C. Cir. 1997); United States v. Thompson, 188 F.2d at 653 (emphasis added).
Schaffers fundamental problem is that Rule 33 does not say what the district court read it to say. Rule 33 allows new trial motions more than seven days after the verdict only if they are based on newly discovered evidence, not if they are based on newly available evidence. Schaffer therefore begins with a frontal attack on the language itself, to force the words to take on a meaning that cannot be found in the rule itself.
Schaffer first attacks the word discovered, arguing that the word is so elastic that he can claim to have discovered something that he already had reason to know. Def.s Brief at 24. We need not debate the point, however, because Schaffer did not simply have reason to know the substance of Espys testimony at the time of trial; by his own admission, he did know it. 13J.A.200. The trial courts decision openly acknowledges what is by law the determinative fact here -- that [d]efense counsel knew the substance . . . of Espys testimony at the time of trial. 2J.A.48. He therefore could not have newly discovered this evidence after trial, under any rational meaning of the term.
Recognizing that the term newly discovered cannot plausibly be tortured into meaning newly available, Schaffer instead principally focuses his assault on the word evidence. Espys testimony was not evidence at the time of the Schaffer trial, he says, because at the time it was not producible in court. Def.s Brief at 24. Schaffer thus stakes his claim to a new trial not on newly discovered evidence but instead on facts that he knew about at trial that only became evidence when the witness became willing to testify.
Not surprisingly, Schaffer offers no authority suggesting that evidence shielded by a privilege is not evidence within the meaning of Rule 33. Schaffer offers only Wigmores definition of evidence as any matter of fact that is furnished to a legal tribunal. By Schaffers logic, he excused himself from Rule 33's time limits by not furnishing the substance of Espys testimony to the trial court until 15 months after the trial, because it did not become evidence until he did so. Schaffer by his own admission knew the substance of Espys testimony and could have brought it to the trial court at least in the form of inadmissible hearsay. In fact, when he at long last first brought his new trial motion following the appeal, this is what he did. 13J.A.196. Evidence inadmissible at trial is, nonetheless, still evidence. Schaffer cannot therefore quibble that the evidence on which he now relies was not evidence at the time of trial, and magically became evidence only at some later date.
Nor is Schaffer able to identify any decisions outside the First Circuit that support him in rewriting newly discovered evidence to mean newly available evidence. In particular, Amos v. United States, 218 F.2d 44 (D.C. Cir. 1954), is factually and analytically inapposite. Amos had unsuccessfully attempted to procure a witness for trial by sending a subpoena to the workhouse. Only after trial did he discover that the witness was in the workhouse, and that the correctional authorities had improperly failed to produce him. In other words, assuming (because the decision does not say) that Amos brought his motion more than seven days after the verdict, he was entitled to do so because he, unlike Schaffer, had discovered previously unknown facts. The opinion does not discuss whether Amos was aware of the substance of the proposed witnesss testimony at the time of trial.
In cases since Amos, this court has spoken clearly on what Rule 33's plain language means. In United States v. Torres, 115 F.3d 1033, 1037 (D.C. Cir. 1997), the Court upheld denial of the new trial motion where the facts alleged in support of the motion were known to defendant at the time of trial, since to hold otherwise would defy [Rule 33]s plain language. Additionally, upholding denial of a new trial motion predicated on previously unavailable evidence, this Court stated that [t]o obtain a new trial based on newly discovered evidence, a convicted defendant must offer evidence that ha[s] been discovered since the trial. United States v. Dale, 991 F.2d 819, 838 (D.C. Cir. 1993) (quoting United States v. Sensi, 879 F.2d 888, 901 (D.C. Cir. 1989) (citing with approval United States v. Metz, 652 F.2d 478, 480 (5th Cir. Unit A 1981) (rejecting contention that newly available evidence is synonymous with newly discovered evidence)). This Court has also twice recognized that application of the general rule that newly discovered evidence is evidence discovered since the trial focuses on whether the substance of the [proffered newly available] testimony was known to defendant at the time of trial. United States v. Gloster, 185 F.3d 910, 915 (D.C. Cir. 1999) (citing United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998)).
Schaffers out-of-circuit authorities are equally unavailing. Schaffers reliance on United States v. Ouimette, 798 F.2d 47 (2d Cir. 1986) is puzzling because there the Second Circuit squarely rejected a defense argument identical to Schaffers. Ouimette based his new trial motion on the exculpatory testimony of a non-party witness who, he learned only after trial, had been pressured by the police not to testify on Ouimettes behalf, and on the witness testimony that the police had pressured him. Just as Espys testimony is not newly discovered evidence because Schaffer knew its substance at trial, in Ouimette [the witnesss] proposed testimony [exculpating defendant] . . . is not new, since [the witness] told [defendants] counsel a similar story three weeks before the trial. Id. at 51. However, the court remanded for reconsideration because Ouimettes defense had been that the police were trying to frame him because of personal animus, and the new revelation of police concealment was newly discovered evidence going to this defense: [The witnesss] assertion concerning the pressure put on him by the . . . police to dissuade him from testifying for the defense is certainly new in the sense that it was discovered after trial. Since Ouimette, unlike Schaffer, discovered new evidence after trial, Ouimette, unlike Schaffer, satisfied Rule 33.
Likewise, in United States v. Garland, 991 F.2d 328 (6th Cir. 1993), the primary issue was whether evidence discovered after the trial provides sufficient support for Garlands defense to qualify as newly discovered evidence under Fed.R.Crim.P. 33. Id. at 330 (emphasis added). Garland had unsuccessfully defended against fraud charges by claiming that he himself had been defrauded by foreign sellers. After he was convicted, a foreign court convicted the sellers of defrauding Garland. Also after trial, Garland discovered the whereabouts of his business associate, who had been missing. Applying the rule that [t]o obtain a new trial based on newly discovered evidence, a defendant normally must show that the evidence . . . was discovered only after trial, id. at 335, the Sixth Circuit found that Rule 33 was satisfied. The foreign judgment was not entered until after Garlands conviction and thus could not have been discovered earlier. Id. (emphasis added). The associates testimony was newly discovered evidence because it assume[d] new importance in light of the [newly-discovered foreign] conviction, and because the associates whereabouts were not discovered until after trial, notwithstanding defense counsels due diligence. Id. Thus Garland did discover new evidence after trial; Schaffer, in contrast, knew where Espy was, what he would say, and the significance of his testimony.
In reality, the Sixth Circuit unambiguously rejects Schaffers position. In United States v. Glover, 21 F.3d 133 (6th Cir. 1994), the defendant did what Schaffer did here produced a post-trial declaration from a non-party whose testimony was known to defendant at trial but who had refused to testify because of Fifth Amendment privilege. The Sixth Circuit affirmed the denial of the new trial motion, because [w]hile [the witness]s testimony may have been newly available, it was not in fact newly discovered evidence within the meaning of Rule 33. Id. at 138.
More recently, the Sixth Circuit reversed new trial grant based on evidence to be given by a non-party known defendant at trial who at the time had refused to testify truthfully, because [t]he key to deciding whether evidence is newly discovered or only newly available is to ascertain when the defendant found out about the information at issue. United States v. Turns, 198 F.3d 584, 587 (6th Cir. 2000). The Sixth Circuit recognized a line of cases holding that newly available evidence is not newly discovered evidence under Rule 33 where, as here, co-defendants or other witnesses threatened to plead or did plead the Fifth Amendment in order to avoid testifying, and then changed their minds after the defendant was convicted. Id. (emphasis added).
In the end, only the First Circuit supports Schaffers proposition that Rule 33 should be read to mean something other than what its plain language says. United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir. 1997). Even that support seems less than enthusiastic; the Montilla-Rivera court ruled solely on the basis of circuit precedent which this panel is not free, on its own, to alter . . . . Id.
Schaffers civil cases do not support his position, either. Federal Rule of Civil Procedure 60(b)(2) allows a new trial for newly discovered evidence. As Carr v. District of Columbia, 543 F.2d 917, 927 (D.C. Cir. 1976), recognizes, Fed.R.Civ.Proc. 60(b) allows the court to grant relief from judgment if two conditions are satisfied: the evidence was not . . . discovered in time to produce it at trial, and the evidence . . . could not have been discovered in time to produce it at trial. Thus the civil rule, like Fed.R.Crim.Proc. 33, requires both that the evidence be discovered after trial, and that the party be diligent in procuring the evidence. See, e.g., UMWA 1974 Pension v. Pittston Co., 984 F.2d 469, 476-477 (D.C. Cir. 1993) (no relief available on basis of evidence that litigant did not obtain due to discovery freeze, where litigant admitted it could have obtained the evidence before summary judgment); American Cetacean Soc. v. Smart, 673 F.Supp. 1102, 1106 (D.D.C. 1987) (to obtain relief under Rule 60(b)(2), moving party must show that evidence was not and could not have been discovered at time of trial with due diligence, but if it was in the possession of the party before the judgment was rendered it is not newly discovered evidence that affords relief.).
Among the civil cases, Schaffer appears to rely principally upon Di Giovanni v. Di Giovannantonio, 233 F.2d 26 (D.C. Cir. 1956), in which the Court allowed a new trial under Fed.R.Civ.Proc. 59. Rule 59, unlike Fed.R.Crim.Proc. 33 and Fed.R.Civ.Proc. 60(b), does not enumerate specific grounds upon which relief may be granted. Even so, if a Rule 59 motion is based on newly discovered evidence, [t]he moving party must have been excusably ignorant of the facts . . . . Wright, Miller, & Kane, Federal Practice and Procedure, Civil § 2808. In Di Giovanni, there is no indication whether the moving party was aware at trial of the content of the document it offered as newly discovered evidence (a marriage certificate earlier requested from an embassy), and this Court did not discuss the issue of ignorance. The case does not stand for the proposition that a civil litigant (much less a criminal defendant) can obtain a new trial on the basis of newly discovered evidence that was not discovered after trial.
Although he quibbles about how clearly this Court enunciated the rule in Dale, Schaffer ultimately poses the question to be decided as whether the per se rule described in Dale should be extended to preclude a new trial under any circumstances when the new evidence comes from a witness who was known but unavailable to be called at trial, and was not a codefendant or coconspirator. Def.s Brief at 31-32. The real question, though, is whether this Court should limit an already enunciated general rule so that it applies to some, but not all, types of cases. In Gloster, 185 F.3d at 915, and Ortiz, 136 F.3d 161, this Court strongly suggested that it would not so limit the rule.
Thus, Schaffers ultimate assault on the plain language of Rule 33 is to insist that this Court should do what no other court, including the First Circuit, has ever done create a bifurcated Rule 33, under which one time limit (7 days) applies to new trial motions based on previously known but unavailable evidence when the evidence comes from a codefendant or coconspirator, and a different time limit (3 years) applies to the same motion when the evidence comes from any other source. There is nothing in Rule 33 to suggest that its plain language means one thing in one case, and something entirely different in another.
Adherence to the plain language of Rule 33 does not, as Schaffer would have it, create an odd and unacceptable result. Def.s Brief at 35. Schaffer tries to suggest that it would be intolerable to require a defendant who is aware of additional evidence at trial to bring his new trial motion within 7 days of the verdict. To the contrary, that is precisely what the Rule does and should demand of a defendant.
As the Rule contemplates, a diligent defendant will bring the matter to the trial courts attention before trial, allowing it to assess the merits of postponing the trial or finding a way to procure the evidence. After the verdict, there is nothing to keep defendant from bringing a new trial motion within 7 days, as the rule requires. At that point, the trial court could: 1) deny the motion as lacking merit; 2) grant the motion, and set a new trial date keyed to the availability of the evidence (e.g., after the Espy trial); or 3) grant defendant an extension of the time in which to bring the new trial motion. (A motion for new trial on any ground can be brought within such further time limit as the court may fix during the 7-day period. Fed.R.Crim.Proc. 33.)
Certainly the mere fact that Schaffer did not know precisely when Espy would become available did not preclude him from taking the minimal step of informing the trial court of the potential problem, and putting the court and the Government on notice of his claim to a right to another trial. Any rational standard of diligence demands no less.
Adherence to the Rules plain language will, on the other hand, avoid the truly intolerable result on display here a defendant taking a criminal case back to square one, after two unsuccessful new trial motions and an unsuccessful (and now seemingly unnecessary) appeal, on grounds that could have been raised before the trial even began. Allowing defendants belatedly to pull out reserve witnesses of whose testimony they were aware at trial would constitute a sandbagging of the judicial process. Turns, 198 F.3d at 588. The Supreme Court, analyzing Rule 33's predecessor, highlighted the limits of the Rule and the danger of relaxing those limits:
The extraordinary length of time within which this type of motion can be made [then 60 days] is designed to afford relief where, despite the fair conduct of the trial, it later appears to the trial judge that because of facts unknown at the time of trial, substantial justice was not done. It is obvious, however, that this might lend itself for use as a method for delaying enforcement of just sentences.
United States v. Johnson, 327 U.S. 106, 112 (1946) (emphasis added).
1. Espy Was Schaffers Co-conspirator, and His Evidence Must Be Viewed in that Light
Given the meaning of the words newly discovered evidence as accepted by every circuit other than the First, this Court need not consider whether Espy was Schaffers co-conspirator. Four circuits the Second, Sixth, Tenth, and Eleventh have expressly rejected the trial courts illogical view that it should make a difference whether the potential witness is a co-conspirator or a non-party witness in determining whether evidence is newly discovered or not, and this Court has twice strongly suggested that the status of the witness is irrelevant. No court, including the First Circuit, has adopted the trial courts view that the status of the witness should make a difference in determining whether evidence is newly discovered or just newly available.
However, the trial court additionally erred because Espy was Schaffers co-conspirator, as alleged by the government and found by the grand jury on a probable cause determination. Schaffers indictment indicated that there were unindicted co-conspirators; the bill of particulars notified Schaffer that Espy was one of the co-conspirators. 4J.A.113.
Schaffer argues that Espy could not be considered his co-conspirator because the trial court dismissed the conspiracy count in the indictment at the close of the governments case. That unreviewable decision does not control for the purpose of this Courts analysis under Chirino v. NTSB, 849 F.2d 1525, 1532-33 (D.C. Cir. 1988), and Dale. In Chirino, this Court found it sufficient that the government had in effect . . . alleged a conspiracy between the bribe giver seeking a new hearing and the bribe recipient who had initially pleaded the Fifth Amendment and then, later, offered his testimony. Id. A fortiori, that rule should apply where, as here, a grand jury actually charges a conspiracy and indicts the alleged co-conspirator for precisely the same conduct in a separate indictment, and the Government expressly notifies the defendant in documents filed prior to trial that both individuals participated in the conspiracy.
Furthermore, Espy fits precisely within the concern inherent in newly available evidence from co-conspirators that such witnesses are particularly unreliable because they no longer have exposure to liability related to the events in question. Espy was acquitted of charges related to his conduct related to the Russellville weekend. As a result, Double Jeopardy bars any further prosecution for that conduct. Espy was an interested party who refused to testify at Schaffers trial, but who came forward later when he no longer had any potential liability for his conduct. Therefore, his testimony fits precisely the concern spelled out in Chirino and Dale, regardless of whether the trial court found him to be a co-conspirator. The trial court erroneously tried to distinguish Espy, finding he was less likely to lie than others in this position, because bar rules and the law of perjury legally obligate him to tell the truth, 2J.A.50 n.2. This is, of course, no distinction at all every other witness in every other trial, including co-defendant witnesses as in Dale, is legally obligated to tell the truth.
The trial courts orders on Schaffers new trial motions were also inconsistent. The court allowed Schaffer a new trial to present Espys testimony, but earlier denied him a new trial to present the testimony of his codefendant Jack Williams. 16J.A.249. However, although Williams, Schaffers subordinate at Tyson Foods, stood trial with Schaffer and was, therefore, his co-defendant, he was not charged with any substantive crimes related to the Russellville weekend. Espy, by contrast, was tried separately because of non-overlapping offenses against Espy and Schaffer, but was charged with violating precisely the same statute as Schaffer (the Meat Inspection Act bribery provision) for precisely the same conduct (the Russellville weekend). Yet under the trial courts orders, Williams proffered testimony about the Russellville weekend was deemed inherently suspect, because of his co-defendant status, 16J.A.249, while Espys was not.
A. Schaffer Did Not Act Diligently
With respect to the remaining prongs of the Thompson test, including diligence, Schaffer essentially hides behind the standard of review abuse of discretion. While that is indeed the standard, Schaffer fails to acknowledge that there necessarily is an asymmetry in the discretion available to a district court in ruling in favor of, or against, a motion that is itself disfavored. The authorities upon which Schaffer relies for the standard of review are ones in which this court defers to the trial court in reaching the favored result of denying the motion. When the trial court reaches the disfavored result of granting a new trial, the trial courts 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 (11th Cir. 1993), quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984). Accord, Conway v. Chemcial Tank Lines, Inc. 610 F.2d 360, 362-363 (5th Cir. 1980) (Recent cases in our circuit apply a broader review . . . to orders that grant new trials . . . .)
The very notion espoused by Schaffer that he had no obligation to make any effort to protect his interests at trial because he had privately come to the conclusion that the effort would be unsuccessful flies in the face of the very notion of diligence. The way to establish diligence in coping with a problem is to make an attempt to solve it on the record. There will be no bounds on the supposed trial problems this Court will be called upon to review if counsel are allowed to keep them secret on the assumption that the trial court will not afford relief.
Schaffer still has presented absolutely no evidence that he took any steps to try to procure Espys testimony during his trial. Schaffer cannot cite a single case, nor is the government aware of a single case, in which a defendant was aware of evidence during trial and took absolutely no steps to gain its admission at trial or to raise the evidence with the trial court, yet was found to have acted diligently. As the government demonstrated in its Opening Brief, at 32-34, and Schaffer concedes in his Response Brief, at 41, all the cases on the subject have held to the contrary. Where defendants have acted like Schaffer by not seeking continuances, not issuing subpoenas to the witness in question, and not attempting to obtain affidavits from the witness for admission at trial, the courts have found that they acted without due diligence.
Schaffer admits that he did none of these things, but claims that he still acted diligently. Schaffer at least concedes that diligence requires exhaustion of reasonable measures that might have been successful in procuring the evidence, and a genuine desire to obtain and present it. Def.s Brief at 41. But he identifies no evidence displaying any exhaustion of reasonable measures.
As the government demonstrated in its opening brief, had Schaffer moved for a continuance, the trial court could have, in its discretion, granted the motion if it found that proceeding without Espys testimony would have constituted an injustice requiring even an indefinite continuance. Govt.s Opening Brief at 35 (quoting United States v. Haldeman, 559 F.2d 31, 83 (D.C. Cir. 1976)). In light of Haldeman, Schaffer cannot assert that he knew to a certainty that a motion for continuance would have had no chance for success.
Most significantly, Schaffer cannot explain the glaring logical contradiction underlying his position: that Espys testimony was not important enough to warrant a continuance, or even a request for a continuance, but nevertheless is important enough to warrant a new trial, which places a far greater burden on the court, the prosecution, and the justice system as a whole. This illogical result flies in the face of the interests of judicial economy and finality of jury verdicts.
Additionally, Schaffer could have subpoenaed Espy and tested Espys assertion of his Fifth Amendment privilege outside of the presence of the jury. While this likely would not have produced Espys testimony, it would have clearly demonstrated an interest and a genuine desire for Espys testimony. Finally, Schaffer could have attempted to obtain an affidavit from Espy and moved for its admission during trial. Although Schaffer has stated that he assumed such an affidavit would not have been admissible, 20J.A.389, that was precisely the procedure adopted by the trial court in Gloster to admit the testimony of the unavailable witness. Gloster, 185 F.3d at 912. The current claims by Schaffers counsel that he assumed that these steps would have failed do not provide substantive evidence of due diligence, and cannot undo the simple fact that there is not a scrap of evidence that Schaffer made any reasonable efforts to procure this evidence at trial or even to notify the trial court and government of the injustice he now claims he believed took place.
I. ESPYS TESTIMONY WAS IMMATERIAL AND CUMULATIVE, AND DID NOT MERIT A NEW TRIAL
Effectively acknowledging that the trial court decision does not adequately support the grant of a new trial, Schaffer tries to bolster the district courts decision by focusing on segments of Espys testimony that did not serve as a basis for the trial court order. In reality, the trial court relied upon only two pieces of Espys testimony to find that the testimony would have probably produced an acquittal. 2J.A.47 (trial court found the proffered evidence about the nature of the APF meeting and Espys reasons for attending . . . of such nature that, in a new trial, it would probably produce an acquittal).
With respect to one of those pieces the nature of the APF meeting Schaffer does not even try to dispute that it was merely cumulative to the testimony of APF Senior Vice President Don Allen. 2J.A.47. That leaves only one piece of evidence which could have satisfied the stringent requirement that it would probably produce an acquittal Espys stated reasons for going to Russellville in May of 1993.
The trial courts finding that this subjective piece of testimony is relevant, let alone material or sufficient to produce an acquittal with respect to Schaffers intent, was a clear abuse of discretion. Schaffer can point to only one sentence in the entire course of the trial (and 1800 pages of transcript) during which the government argued or insinuated that Espys reason for going to Russellville was relevant to anything in the trial. While the government argued at the opening that Espys true reason for going was to attend the party, 23J.A.421, it was then attempting to prove a conspiracy in which Espy was a participant. Once the trial court dismissed the conspiracy count, the government no longer had any reason to advance that argument and focused solely on the remaining counts of gratuity and Meat Inspection Act violations.
To that end, the government made it crystal clear for the jury in closing argument that, with respect to the remaining counts, Espys state of mind was not relevant to the question of Schaffers intent. 23J.A.500 (this case is not . . . about whether or not Secretary Espy was bought or could be bought. This is about the giver and what was in the givers mind while the things given were given.) Espys reasons for going to Russellville simply were not relevant to Schaffers conduct or intent in violating the Meat Inspection Act, and the government did not argue otherwise. To put the matter simply, what reasonable doubt about Schaffers intent would Espys subjective reasons for going to Russellville create in the minds of rational jurors?
Finally, Schaffer simplistically argues that the nature of the APF event was critical to this Courts earlier determination that the government introduced sufficient evidence for the jury to find that Schaffer had the requisite intent, by counting the number of times the word APF appears in the earlier opinion. Def.s Brief at 47 n.26. In fact, while the APF is discussed in the earlier part of the decision, after the Court [t]urn[ed] to the more difficult question of intent . . . , it did not address the nature of the APF event at all. Id. at 848-50.
The trial courts determination that Espys testimony was relevant to the intent question had no rational basis. The finding that this evidence was material and would probably produce an acquittal was without support. Judicial findings without factual support are necessarily an abuse of discretion. Turns, 198 F.3d at 586 (a district court clearly abuses its discretion when it applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.)
Schaffers motion for new trial failed to meet any of the requirements of Rule 33. It was untimely and therefore beyond the trial courts jurisdiction. It reflected a total absence of diligence on Schaffers part. The evidence adduced was cumulative, immaterial, and devoid of any substance going to the issues the jury faced. This Court should reverse the trial courts order and remand for immediate sentencing.
Dated: February 11, 2000. Respectfully submitted,
Donald C. Smaltz
Charles M. Kagay
Chief Appellate Counsel
Joseph P. Guichet
Senior Associate Independent Counsel
Associate Independent Counsel
103 Oronoco Street, Suite 200
P.O. Box 26356
Alexandria, Virginia 22314
Tel: (703) 706-0010
Fax: (703) 706-0050
 The Governments Statement of Facts included only one factual inference drawn by this Court, and clearly identified it as such. Govt.s Opening Brief at 7-8.
 Citations are as follows: citations to the Joint Appendix are denoted by appendix tab number J.A. and appendix page number, citations to government exhibits are denoted by GX and the number, citations to Schaffers exhibits are denoted by AS and the number, citations to Williams exhibits are denoted by JW and number.
Schaffers purported definition also runs counter to the common usage of the phrase newly discovered evidence, which is defined as [e]vidence of a new and material fact, or new evidence in relation to a fact in issue, discovered by a party to a cause after the rendition of a verdict or judgment therein. Testimony discovered after trial, not discoverable before trial by exercise of due diligence. Blacks Law Dictionary, 723 (6th Ed. 1991) (emphasis added).
As the language quoted makes clear, Wigmore does not actually support Schaffers fanciful definition of evidence as information . . . in a form producible in court. Wigmores original definition of evidence includes [a]ny knowable fact or group of facts . . . considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law or logic, on which the determination of the tribunal is to be asked. 1 Wigmore, Evidence §1, p. 8 (Tillers rev. 1983). While a wide range of definitions for the term has been essayed, any definition that merely describes evidence as that evidence that is legally receivable is truly useless and uninformative . . . . Id. at n. 4.
 And even the First Circuit does not premise its rule on an interpretation of the meaning of the word evidence. See United States v. Montilla-Rivera, 115F.3d 1060 (1st Cir. 1997).
Schaffers other civil authority, Maylie v. National Passenger RR Corp., 1990 U.S. Dist. LEXIS 351 (E.D. Pa. 1990), an unreported district court decision, may not be cited as precedent. D.C. Cir. L.R. 28(c).
 Ouimette, 798 F.2d at 51 (Second Circuit); Glover, 21 F.3d at 138 (Sixth Circuit); Turns, 198 F.3d at 587 (Sixth Circuit); United States v. Cotner, 657 F.2d 1171 (10th Cir. 1981); United States v. Quintanilla, 193 F.3d 1139 (10th Cir. 1999); United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989) ([h]ere, both [defendants] were well aware of [the witness]s proposed testimony prior to trial. Therefore, the testimony cannot be deemed newly discovered evidence within the meaning of Rule 33).
 Ortiz, 136 F.3d at 167-68; Gloster, 185 F.3d at 915.
 Schaffer refers to the governments contention as ipse dixit, Def.s Brief at 32, as if the government proclaimed, out of thin air, that Espy was a coconspirator. The notification, issued well before trial began, 4J.A.113, demonstrates that the government and grand jury made probable cause determinations that Espy was a conspirator long before the government knew Schaffer would move for a new trial on the basis of Espys testimony. Furthermore, by indicting Espy, a grand jury made a probable cause determination that he had violated the Meat Inspection Act by accepting the Russellville trip from Schaffer and Tyson Foods.
Schaffer argues that motions for new trial should not be disfavored, and only grudgingly admits that [o]pinions by a few courts do indeed use that term. Defs Br. at 38-39, n. 20. However, since one of the courts applying the term disfavored to Rule 33 motions is the Supreme Court, INS v. Abudu, 485 U.S. 94, 107 (1988), this Court does not appear to be at liberty to adopt Schaffers contrary view.
 Schaffer asserts that, at the time of his trial, he was not sure when Espys trial would begin, but gives no record citation for this misstatement, Def.s Brief at 42, since, in fact, Espys case was no longer on appeal and his trial date of October 1, 1998, was set almost two weeks prior to commencement of Schaffers trial. United States v. Espy, CR No. 97-0335 (RMU) (D.D.C., Order entered June 4, 1998).
 Schaffer insinuates that the government suggested that Schaffer should have contacted Espy directly, in violation of the D.C. Rules of Professional Conduct. Def.s Brief at 39. The government, of course, has never argued that Schaffer or his counsel should have contacted Espy directly by going around Espys counsel. Instead, the government pointed out that no one including Espys counsel ever informed Espy that Schaffer was interested in his testimony. That Espy was totally unaware that Schaffer purportedly requested his testimony during trial and that his counsel never even mentioned such a request to him is curious to say the least. If Schaffer is contending that Rule 4.2 of the D.C. Rules of Professional Conduct prevented him from issuing a trial subpoena to a represented individual, he is obviously mistaken.
 Notably, neither the trial court nor Schaffer has any explanation for the inconsistency between Espys post hoc testimony that his primary interest in going to Russellville was for the APF speech rather than for the party and his contemporaneous notes all of which focused on Schedul[ing] bday party - Ark. and Tyson. 25J.A.543, 550. Of course, this omission is unsurprising, given that Espy himself could not explain the inconsistency when questioned about it. 19J.A.305. Additionally, Schaffer does not address the trial courts obviously erroneous finding that the government made certain arguments to the jury, and its citation to inapposite argument outside the presence of the jury. 2J.A.45-46. This failure was inevitable, because there is absolutely no basis for that finding.
Regarding Schaffers intent, the evidence as to Schaffers knowledge that the APF event was arranged to provide official reason for Espy and others to travel to Russellville was conclusive. Schaffer received a blind copy of the note from Don Tyson to Espy promising a forthcoming APF invitation, transportation, and attached to the party invitation. 24J.A.507-10. Then, on the same day, Schaffer received another note from Don Tyson, asking Schaffer to notify a different executive branch public official based in Washington, D.C., about airplane to transport him to Ark. for party, and concluding with the question Ark. Poultry Federation? 24J.A.511. Following these two notes, Schaffer then arranged with Don Allen to issue the invitations to Espy, to make the arrangements to bring Espy and Dempsey to Russellville, and to conceal and lie about his activities. There was no question for the jury, therefore, that, regardless of why Espy came, Schaffer knew that the APF meeting was arranged to bring Espy to Russellville.