ORDER DENYING DEFENDANT'S MOTION FOR A NEW TRIAL
After a two day jury trial, Jeffrey Barnard, the Defendant, wasconvicted on November 13, 2003 of possession of a firearm by a prohibitedperson under 18 U.S.C. § 922(g). The Government charged that theDefendant possessed three firearms: one Pietta Model Bantam .22 LR boltaction rifle; one Remington Model 870 .12 gauge pump-action shotgun; andone SKS 7.62 × 39 caliber semi-automatic rifle. The partiesstipulated that Mr. Barnard had previously been convicted of a felony.
The Defendant now moves for a new trial under Federal Rule of CriminalProcedure 33(a), claiming newly discovered evidence indicates aGovernment witness was incorrect when he testified to the origin of theshotgun. For the reasons set forth below, the Defendant's Motion for aNew Trial is DENIED.
Facts and Procedural History
In the early morning hours of December 3, 2000, Mr. Barnard wasawakened by the police. Pursuant to a search warrant, a Maine StatePolice Tactical Team arrived at his house, burst into his bedroom, andfound three firearms — an SKS 7.62 × 39 calibersemi-automatic rifle and a Remington Model 870 .12 gauge pump-actionshotgun in a gun cabinet in his bedroom and a loaded Pietta Model Bantam.22 LR bolt action rifle standing beside his bed.Page 2
Mr. Barnard's Motion for a New Trial focuses on the testimony of WalterCote, III, the Government's first witness on November 12th. Mr. Coteidentified the shotgun seized at Mr. Barnard's home as being the sameshotgun Mr. Cote himself had sold to Mr. Barnard sometime in July 2000.Mr. Cote testified a man named Ralph Bragdon had given him the shotgun inlieu of wages and he had sold it to Mr. Barnard a day later. MarvinGlazier, Esq., counsel for Mr. Barnard, cross-examined Mr. Cote about hisrecollection of specific dates and facts surrounding Mr. Barnard'sacquisition and possession of all of the firearms, specifically includingthe shotgun.
Mr. Glazier had listed Jason Hartley, Mr. Cote's first cousin, as awitness for the defense. According to Mr. Hartley, while he was waitingto testify, but after Mr. Cote had testified, he and Mr. Cote had aconversation about Mr. Cote's testimony. In an Affidavit submitted withthe Motion for New Trial, Mr. Hartley claimed that Mr. Cote described theshotgun that he had testified he had sold to Mr. Barnard for $100.00 inJuly 2000. (Def.'s Mot. New Trial at Ex. 1 (Docket #78)). Mr. Hartley'sAffidavit states that Mr. Cote told him the shotgun he had sold to Mr.Barnard had a crack in the pump action and a muzzle break at the end ofthe barrel. The shotgun in the courtroom, however, had neither. When Mr.Cote described the shotgun he had testified he had sold to Mr. Barnard,Mr. Hartley recognized that he was in fact describing a shotgun Mr. Cotehad sold to him in July 2000 for $100.00. Mr. Hartley still owns theshotgun and he submitted copies of photographs of the shotgun with hisAffidavit. In support of his Motion, the Defendant also submitted anAffidavit from Ralph Bragdon, stating that in July 2000, he gave Mr. Cotethe shotgun depicted in Mr. Hartley's photographs, in lieu of wages. Heidentified the shotgun from the crack in the pump action and the muzzlebreak.Page 3
The Defendant called Mr. Hartley to testify after the Government restedduring the first day of trial. Mr. Hartley made no mention of this issue.Apparently, after the first day of trial, Mr. Hartley told Mr. Glazierabout his conversation with Mr. Cote. Mr. Glazier or Mr. Hartley thenphotographed the shotgun and Mr. Glazier reported the allegedconversation to Gail Fisk Malone, the Assistant United States Attorney,and gave her the photographs. Ms. Malone apparently showed thephotographs of the shotgun to Mr. Cote and reported back to Mr. Glazierthat Mr. Cote said he did not recognize the shotgun in the photographs.
The Defendant called three witnesses who contradicted Mr. Cote'sversion of the sale of the shotgun. Wade Batchelder, Mr. Barnard'sstep-son, and Harold Edwards, Mr. Barnard's second step-son, testifiedthat Mr. Cote was incorrect about the ownership of the shotgun. Mr.Batchelder testified the shotgun was his. He said that he had purchasedthe shotgun from a man named Corey Austin in July or August 2000 and hadleft the gun in Barnard's gun closet in November 2000 after going huntingwith Jason Hartley and Harold Edwards. Mr. Batchelder's testimony wascorroborated by Harold Edwards, who confirmed that the shotgun was WadeBatchelder's and that they had placed all three guns in the gun closetafter hunting in November. Finally, Mr. Barnard himself testified andflatly denied purchasing the shotgun from Mr. Cote.
Mr. Glazier made two vague references to the Court about theCote-Hartley conversation. First, at a conference in chambers beforetrial on November 13th, Mr. Glazier suggested that an issue might bebrought to the Court's attention at a later point in time: THE COURT: First, is there anything I need to attend to at this time? MR. GLAZIER: Maybe. An issue came up after the close of evidence yesterday that I discussed with Gail yesterday, but I need a little more information before I can bring it to the court. It involves a discussion between the — Mr. Cote and Mr. Hartley. They were witnesses yesterday —
THE COURT: Right.Page 4
MR. GLAZIER: — and the court may also remember they were cousins. THE COURT: Right. MR. GLAZIER: And evidently they were chatting sometime yesterday — I don't know how else to put it — and there was a discussion about a piece of evidence that Mr. Hartley called me about last night — not last night — yesterday afternoon when they came back from court, and I told them to come in early this morning so I could talk with him, and I immediately called Gail to tell her what transpired, but it's too vague right now to bring to the court's attention. We may have to deal with it before the close of — final close of evidence. THE COURT: All right.(Transcript of Nov. 13, 2003 conference).
Second, at side bar prior to the close of Mr. Barnard's case onNovember 13th, Mr. Glazier informed the Court that he was not going topursue the issue of the alleged conversation: MR. GLAZIER: Judge, I had mentioned to you in chambers this morning about the situation that happened yesterday afternoon. THE COURT: Correct. MR. GLAZIER: And I have pictures of that weapon that Mr. Cote says, in fact, he sold to my client, which is not the weapon that he testified to yesterday, and I have asked — I've given the pictures to — to Gail, and I don't know if she's had a chance to show those to Mr. Cote. MS. MALONE: I haven't. MR. GLAZIER: So I'm wondering, before I end with my case, since it's kind of surprise, I wondered if we mind taking a short break now, and we perhaps can figure out the way we can handle this most expeditiously. MS. MALONE: That's fine. THE COURT: That's fine with me. Why don't I just tell [the jury] we'll take our mid-morning recess at this point — MR. GLAZIER: Okay. THE COURT: — for about 15 or 20 minutes. Will that be enough time or do you need more? MS. MALONE: That should be fine. MR. GLAZIER: I think so, Judge, yes. THE COURT: So let's tell [the jury] we'll take our recess for 20 minutes at this point. MR. GLAZIER: Okay.
THE COURT: And then we'll find out whether or not there'll be any further evidence.Page 5
MR. GLAZIER: That's fine, Judge. Very good.
THE COURT: Very good. Thank you.
[Brief recess]
THE COURT: Are we ready to bring the jury back in? MR. GLAZIER: May I address the court, please? THE COURT: Yes, sir. MR. GLAZIER: Just two things, and then I think we'll be ready. Judge, this morning I mentioned to you about what happened after court yesterday. I told you that I was going to have pictures taken, and Ms. Fisk Malone has kindly showed them to Mr. Cote, but I guess it's a different story from what he's telling her than what he told — allegedly told Jason Hartley. So there's nothing I can do with that today. I mean, it'd be just way too confusing to try to muck through it. There are other ways of doing it at other times, perhaps. So I'm not going to get into that issue.(Transcript of Nov. 13, 2003, trial).
Mr. Glazier did not mention the issue again. Instead, he proceeded tohis closing argument, where he reminded the jury of Mr. Cote's inabilityto recall specific dates and said that he was such an unreliable witnessthat even the Government had abandoned him as credible. After trial, Mr.Glazier tracked down Mr. Bragdon, who confirmed that he believed theHartley shotgun was not the gun he had given to Mr. Cote and signed anAffidavit to this effect.
Mr. Barnard now moves for a new trial, arguing that Mr. Hartley and Mr.Bragdon should be allowed to testify that Mr. Cote was incorrectregarding the origin of the shotgun seized from Mr. Barnard's home. Mr.Barnard contends a new trial is appropriate because: (1) Mr. Glaziercould neither have known about nor confirmed the information beforetrial; (2) the information is material to the crime charged because itrefers to one of the guns listed by the Government as possessed by Mr.Barnard and Mr. Cote's testimony could have "set the tone for the jury inregards to its decision"; (4) the information is authentic, not merelycumulative or impeaching; and, (5) the information would probably producea different result upon retrial. (See Def.'s Mot. New Trial at2-4 (Docket #78)).Page 6
Discussion
Federal Rule of Criminal Procedure 33(a) provides, in part, "Upon thedefendant's motion, the court may vacate any judgment and grant a newtrial if the interest of justice so requires." The remedy of a new trialis not favored and should be granted only where a miscarriage of justicewould otherwise result. United States v. Johnson, 327 U.S. 106(1946); United States v. Rothrock 806 F.2d 318, 322 (1st Cir.1986) ("a trial judge is not a thirteenth juror who may set aside averdict merely because he would have reached different result").
A defendant seeking a new trial on this basis must prove the following:(1) the evidence must have been unknown or unavailable to the defendantat the time of trial; (2) the defendant must have been duly diligent inattempting to unearth it; (3) the newly discovered evidence must bematerial; and, (4) the newly discovered evidence must be such that itsemergence probably will result in an acquittal upon retrial." UnitedStates v. Conley, 249 F.3d 38, 45 (1st Cir. 2001); UnitedStates v. Wright 625 F.2d 1017, 1019 (1st Cir. 1980). If thedefendant fails to carry his burden with respect to any one of thesefactors, the motion for a new trial must be denied. United States v.Falu-Gonzalez, 205 F.3d 436, 442 (1st 2000). Here, the profferedevidence falls short of the standard for a new trial under Rule 33(a).
A. The Evidence is not Newly Discovered
The evidence was neither unknown nor unavailable to the defendant atthe time of trial. To the contrary, the crux of the Hartley testimony wasknown to defense counsel during the trial itself. The Motion togetherwith the transcript of the trial establish that by the beginning of thesecond day of trial, Mr. Glazier knew of the conversation between Mr.Cote and Mr. Hartley, including the following: (1) that Hartley wascontending Mr. Cote had admitted he had given inaccurate trial testimonyabout the shotgun; (2) that Mr. Hartley was willing and able to testifyPage 7that he owned the shotgun Cote had described as being the one hehad sold to Mr. Barnard; (3) that Hartley had photographs of the shotgunand presumably had access to the shotgun itself; and (4) that he couldtestify that the shotgun in the courtroom was not the shotgun Mr. Cotehad obtained from Mr. Bragdon. The only corroborating piece of evidenceMr. Glazier did not have during the trial itself was Mr. Bragdon'sseparate confirmation that Mr. Hartley, not Mr. Cote, was correct.
B. The Court Cannot Draw an Inference of Due Diligence
There has been no showing Mr. Bragdon's testimony could not have beendiscovered during the trial with due diligence. The Motion is silent asto what efforts, if any, Mr. Glazier made during the course of trial tocontact Mr. Bragdon. The Motion simply asserts that "there was no wayCounsel for Defendant could have learned all the particulars of thisissue until he had a chance to speak to Mr. Bragdon independently of Mr.Hartley's statements." (See Def.'s Mot. New Trial at 3 (Docket# 78)) By the end of the first day of trial, Mr. Glazier knew that Mr.Hartley was saying that he had purchased the shotgun from Mr. Bragdon.
Yet, there is nothing in the record to establish that Mr. Glazier evenattempted to contact Mr. Bragdon at any time during the course of trial.The Court is left to speculate whether Mr. Glazier's other trialpreparation responsibilities prevented him from pursuing the issue in atimely manner or whether Mr. Bragdon was unreachable on short notice.Moreover, Mr. Glazier did not request court intervention. Mr. Glazier hada number of options, none of which he pursued. He could have requested adelay in the start of trial on November 13, 2003, alerting the Court tothe problem he was having tracking down Mr. Bragdon. He could have askedfor a brief continuance after he met with Mr. Hartley on the morning ofNovember 13th. He could have recalled Mr. Cote to cross-examine him onthe statements he allegedly made to Mr. Hartley.Page 8He could have recalled Mr. Hartley and asked him about the Cotestatements and about his identification of the shotgun.
Instead, Mr. Glazier elected to make an oblique reference to thesituation during the conference, saying it was "too vague . . . to bringto the Court's attention," and then waived the issue before closingarguments as part of his trial strategy: [T]here's nothing I can do with that today. I mean, it'd be just way too confusing to try to muck through it. There are other ways of doing it at other times, perhaps. So I'm not going to get into that issue.(Transcript of Nov. 13, 2003, trial).
Defense counsel knew the kernel of the evidence and could havediscovered the entire substance if he explored the issue at that time.Such information is not "newly discovered" for the purposes ofRule 33(a). E.g., Nardone v. United States, 308 U.S. 338(1939) (stating defendant must satisfy district court that evidence couldnot have been discovered before or at trial); United States v.Mello, 469 F.2d 356 (1st Cir. 1972) (testimony readily available attime of trial is not "newly discovered"). This is particularly true whendefense counsel decides not to pursue the evidence as part of his trialstrategy.1 E.g., id.; United States v.Kampas, 189 F. Supp. 720 (D.C. Pa. 1960) (finding no sufficient basisfor new trial when defendant deliberately chose to foregocross-examination of witness regarding certain issue as part of trialstrategy).
Decisions of defense counsel, such as whether to pursue evidence orwaive arguments, are binding on their defendants. E.g., Faretta v.California, 422 U.S. 806 (1975); Blanco v. Singletary,943 F.2d 1477 (11th 1991); Coco v. United States, 369 F.2d 367 (5thCir. 1978); seePage 9also Watkins, 90 F.3d at 143 (holding defense counsel'sstrategic decision to consent to mistrial binds defendant and removes barto reprosecution regardless of whether defendant participates indecision). Therefore, defense counsel's decision not to pursue theinformation as part of his trial strategy, even though it was availableto him through due diligence, precludes the Defendant from offering theinformation as newly discovered evidence at this time. Id.
C. The Evidence Is Not Material
The evidence is not material because (1) it is merely impeaching andcumulative; and (2) it is not reasonably probable to have changed theresult. Mr. Cote's testimony on the purchase and sale of the shotgun wascontradicted by three witnesses: Jeffrey Barnard, Wade Batchelder, andHarold Edwards. The reason for calling Mr. Bragdon, if he had beenavailable, would have been to confirm that Mr. Cote's testimony wasuntrue. Assuming the jury had believed Mr. Bragdon, he would not haveoffered any direct testimony on the ownership of the shotgun found in theDefendant's bedroom other than corroborating that it was not the gun hehad given to Mr. Cote. Mr. Bragdon's testimony would, therefore, beimpeaching and cumulative and would not constitute grounds for a newtrial. See United States v. Cruz-Kuilan, 75 F.3d 59, 63 (1stCir. 1996) (no abuse of discretion where lack of additionalcross-examination on "well-developed" theme of witness' criminal past didnot undermine confidence in jury verdict of guilty); United Statesv. Sepulveda, 15 F.3d 1216, 1219 (1st Cir. 1993) (no abuse ofdiscretion where newly disclosed information would have at most impeachedfurther a witness of already dubious credibility); see alsoSaada, 212 F.3d at 216-17 ("Given the abundance of impeachmentevidence presented at trial detailing [the witness'] propensity fordeceitful acts and his incentive for testifying as a government witness,we conclude that the District Court did not abuse its discretion inruling that the new evidence was merely cumulative").Page 10
Additionally, the evidence is not "material" for the purposes ofRule 33(a). New evidence is "material" "only if there is a reasonableprobability that the evidence would have changed the result, and areasonable probability is a probability sufficient to undermine theconfidence in the outcome." United States v. Bagley,473 U.S. 667, 682 (1985). Here, the Defendant does notcontest that Mr. Hartley's shotgun was seized from the Defendant'sbedroom. Whether Mr. Cote sold the shotgun to the Defendant bears only aminimal relation to the crime charged; namely, whether the Defendantpossessed the guns seized from his home. The information would merelyreinforce the "well-developed theme" of Mr. Cote'sincredibility.2 See Cruz-Kuilan, 75 F.3d at63; Sepulveda, 15 F.3d at 1219; see also Saada, 210F.3d at 216-17.
D. It is Not Probable That the Evidence Will Result in anAcquittal
Further, it is highly improbable that the newly discovered evidencewould lead to a different result upon retrial. The Government charged theDefendant with possession of the shotgun, not purchase of the shotgun.The evidence established that the shotgun was located in a gun closet inthe Defendant's bedroom. Regardless of whether the jury credited Mr.Cote's testimony, the main issue was whether the Defendant possessed thefirearms seized from his bedroom A jury could have accepted that theshotgun was owned by Wade Batchelder, not the Defendant, and still haveconvicted the Defendant of possessing the shotgun. Indeed, Mr. Hartley'snew testimony would not be sufficient to support a reasonable jury'sfinding that thePage 11Defendant did not possess those firearms because Mr. Hartley wouldbe testifying about a fourth firearm, a weapon not at issue in this case.
It is true that Mr. Cote's testimony, if believed, could have led thejury to conclude that the Defendant knowingly possessed the shotgun,since he had bought it. But the fact remains the police found the shotgunlocated in a gun closet in the Defendant's bedroom Based on thisevidence, the jury was virtually compelled to find that he possessed theshotgun, regardless of whether he purchased it from Mr. Cote. TheDefendant never satisfactorily explained why he did not possess gunslocated in a gun closet in his bedroom. He testified that the gun closethad been moved from the living room into his bedroom to prevent histwenty-year old stepson from gaining access to the guns. However, hisstepson testified that he had his own .22, which he kept locked in hisdoset away from the Defendant because he knew his stepfather could notpossess firearms. Moreover, the Defendant's explanation is difficult toreconcile with the police testimony that when they entered the room, theyfound a loaded .22 standing beside his bed.
Finally, even if the testimony led a jury to conclude that theDefendant did not possess the shotgun, it cannot be said that the newevidence would lead to a different result because the jury was notrequired to find that the Defendant possessed each weapon charged by theGovernment. As the jury instructions made clear, simultaneous possessionof multiple firearms in one place at one time is a single violation of§ 922(g)(1). United States v. Verrecchia, 196 F.3d 294, 298(1st Cir. 1999). Therefore, even if a jury determined that the Defendantdid not possess one of the three firearms charged, this Court cannot saythat it would likely acquit him of possessing the other weapons.Page 12
Conclusion
Because the Defendant has not proven the elements necessary for a newtrial under Rule 33(a), the Motion for a New Trial is DENIED.
SO ORDERED.
1. Defense counsel's decision not to pursue the issue because hefeared it would be too confusing was clearly a matter of trial strategy.See Watkins v. Kassulke, 90 F.3d 138, 143 (6th Cir. 1996)(holding that when decision to waive right depends on time-sensitiveassessment of defendant's litigation position, decision is matter oftrial strategy); see generally Phoenix v. Matesanz,233 F.3d 77, 84 (1st Cir. 2000) ("Defense counsel is allowed to makestrategic decisions, within the wide bounds of professional competence,as to which leads to follow up, and on which areas to focus hisenergies").
2. Indeed, the Government concedes defense counsel "rigorously"cross-examined Mr. Cote and "every defense witness directly contradicted"his testimony. (See Gov't Mem. Opp. Def.'s Mot. New Trial at 6(Docket #81)). In light of his cross-examination of Mr. Cote, Mr.Glazier's decision not to pursue the issue was eminently reasonable. Hehad, as the Government concedes, made inroads on Mr. Cote's credibility.He had also presented the testimony of two witnesses who had flatlycontradicted Mr. Cote's testimony as to the ownership of the gun. To callMr. Hartley and offer testimony that Mr. Cote had told him he wasmistaken about the identity of the shotgun would undoubtedly have been,as Mr. Glazier concluded at trial, "too confusing to try to muckthrough." Mr. Glazier knew that Mr. Cote was going to deny that theHartley shotgun was the one he had sold to Mr. Barnard and the jury wouldhave been presented with yet another contradiction among individuals allof whom were associated with his client. Mr. Glazier's decision not topursue the issue seemed wise at the time and despite the verdict, stillseems so.