U.S. v. BLOCKER

ANNA J. BROWN, United States District Judge

This matter comes before the Court on Defendant Tyrone Blocker's Motion for New Trial on Grounds of Newly Discovered Evidence; Request for Evidentiary Hearing (#139). For the reasons that follow, the Court DENIES Defendant's Motion.

On December 22, 1999, a federal grand jury returned a one-count Indictment charging Defendant with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Before trial, Defendant filed a motion to suppress evidence of a rifle found during a warrantless search of his home. On July 6, 2000, the Court held an evidentiary hearing on Defendant's Motion to Suppress and the parties thereafter submitted supplemental briefing. After considering the evidence and the parties' arguments, the Court concluded the rifle was found in plain view while officers were engaged in activities authorized by the emergency doctrine and by the protective sweep exception to the warrant requirement. On October 16, 2000, the Court denied Defendant's Motion.

After a two-day trial on November 7 and 8, 2000, the jury found Defendant guilty as charged in the Indictment. On January 9, 2001, this Court sentenced Defendant to a 63-month term of imprisonment.

Defendant appealed his conviction to the Ninth Circuit Court of Appeals. On appeal, Defendant challenged the Court's denial of his Motion to Suppress, alleged a Brady violation, and made facial and as-applied constitutional challenges to § 922(g)(1). The Ninth Circuit affirmed this Court's rulings by Memorandum Opinion issued on April 22, 2002.

On August 9, 2001, Defendant filed a Motion for New Trial, which the Court denied by Opinion and Order issued September 19, 2001. On September 17, 2002, Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 in which Defendant argued he was denied his constitutional right to effective assistance of counsel at various stages of the proceedings. The Court denied Defendant's § 2255 Motion by Opinion and Order issued January 21, 2003.

Fed.R.Crim.P. 33 provides in pertinent part:

On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require. . . . A motion for new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty.

A defendant seeking a new trial on the basis of newly-discovered evidence must satisfy five requirements: 1) the evidence relied on must, in fact, be newly discovered (i.e., discovered after trial); 2) defendant's failure to learn of this evidence must not be due to defendant's lack of reasonable diligence; 3) the evidence relied on must not be merely cumulative or impeaching; 4) the evidence relied on must be material to the issues involved at trial; and 5) the evidence relied on must be such that a new trial would probably result in acquittal. United States v. Jackson, 209 F.3d 1103, 1106 (9th Cir. 2000). See also United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir. 1991). Each element must be satisfied. A defendant's failure to establish any single element of the five-part test necessitates denial of the motion. See, e.g., Jackson, 209 F.3d at 1106; United States v. McKinney, 952 F.2d 333, 335 (9th Cir. 1991); Endicott, 869 F.2d at 456.

Defendant asserts he is entitled to a new trial based on his discovery of alleged misconduct on the part of his trial counsel. Defendant contends his trial counsel violated the Privacy Act, 5 U.S.C. § 552a, when she obtained records of telephone calls made by Defendant while in custody. Defendant maintains his trial counsel's acquisition of these records was illegal and, therefore, created a conflict of interest that prevented her from giving Defendant unbiased advice. Defendant obtained new counsel after trial. Defendant asserts he did not discover his trial counsel's alleged conflict of interest until July 20, 2002, when his new attorney received trial counsel's records and provided them to Defendant.

Defendant further asserts his trial counsel altered her trial strategy, refused to explore possible plea bargains, refused to allow Defendant to testify, and failed to move the Court to reopen the suppression hearing to introduce evidence in the jail records to impeach the testimony of the police officers.

To qualify for a new trial under Rule 33, the newly-discovered evidence must relate to the elements of the crime charged and indicate a new trial probably would produce an acquittal. United States v. Hanoum, 33 F.3d 1128, 1130 (9th Cir. 1994). Newly-discovered evidence of ineffective assistance of counsel does not satisfy this requirement. Id. Moreover, "evidence of ineffectiveness will seldom if ever indicate that a new trial would probably produce an acquittal." Id. (emphasis in original). The Court finds Defendant has not identified any evidence that probably would have produced an acquittal. The Court, therefore, concludes Defendant is not entitled to a new trial under Fed.R.Crim.P. 33.

For these reasons, the Court finds Defendant has failed to establish "newly discovered" evidence that reasonably could have produced an acquittal. The Court finds Defendant is not entitled to an evidentiary hearing because a new trial would not be warranted even if Defendant's allegations concerning his trial counsel's conduct were true. Accordingly, the Court DENIES Defendant's Motion for New Trial (#139).

IT IS SO ORDERED.