ARGUMENT

I.                     SCHAFFER’S FAILURE TO ACT IN A TIMELY MANNER PRECLUDES RELIEF

A.                                                          Because Schaffer’s “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).

                Schaffer’s 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.^[3]

                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 Espy’s testimony at the time of trial; by his own admission, he did know it.  13J.A.200.  The trial court’s decision openly acknowledges what is by law the determinative fact here -- that “[d]efense counsel knew the substance . . . of Espy’s 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.”  Espy’s 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 Wigmore’s definition of evidence as “any matter of fact that is furnished to a legal tribunal.”^[4]  By Schaffer’s logic, he excused himself from Rule 33's time limits by not furnishing the substance of Espy’s 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 Espy’s 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^[5] 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 witness’s 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 (5^th 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)).

                Schaffer’s out-of-circuit authorities are equally unavailing.  Schaffer’s 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 Schaffer’s.  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 Ouimette’s behalf, and on the witness’ testimony that the police had pressured him.  Just as Espy’s testimony is not newly discovered evidence because Schaffer knew its substance at trial, in Ouimette “[the witness’s] proposed testimony [exculpating defendant] . . . is not new, since [the witness] told [defendant’s] counsel a similar story three weeks before the trial.”   Id. at 51.  However, the court remanded for reconsideration because Ouimette’s 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 witness’s] 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 (6^th Cir. 1993), the “primary issue” was “whether evidence discovered after the trial provides sufficient support for Garland’s 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 Garland’s conviction and thus could not have been ‘discovered’ earlier.”  Id. (emphasis added).  The associate’s testimony was newly discovered evidence because it “assume[d] new importance in light of the [newly-discovered foreign] conviction,” and because the associate’s whereabouts were not discovered until after trial, notwithstanding defense counsel’s 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 Schaffer’s position.   In United States v. Glover, 21 F.3d 133 (6^th 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 (6^th 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 Schaffer’s 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.

                Schaffer’s 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.^[6]

                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, Schaffer’s 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 court’s 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 Rule’s 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).