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United States v. McIntosh

August 16, 2006

UNITED STATES OF AMERICA
v.
ANTONIO MCINTOSH, A/K/A "DON" AND DOMONIQUE HAYNES, A/K/A "BLACK," DEFENDANTS.



The opinion of the court was delivered by: Judge McClure

BACKGROUND

ORDER

Defendants Domonique Haynes and Antonio McIntosh, among others, were charged with various drug offenses by way of superceding indictment dated March 25, 2004. Haynes and McIntosh stood trial for the charges. A jury was selected on May 2, 2005, and the trial concluded on May 12, 2005. On May 12, 2005, both defendants were found guilty of all charges by the jury. We denied Haynes's and McIntosh's first joint motion for a new trial in a memorandum and order dated February 7, 2006. On June 19, 2006, Haynes and McIntosh filed a Joint Second Supplemental Motion For A New Trial And To Convene An Evidentiary Hearing If Necessary. (Rec. Doc. No. 523.)

For the following reasons, we will deny the motion.

DISCUSSION

The defendants' motion sets forth two possible grounds for a new trial. First, defendants allege that the government improperly substituted "prop" exhibits for drugs confiscated during a series of controlled buys, because the actual drugs were destroyed by the Commonwealth of Pennsylvania pursuant to an order issued by the Lycoming County Court of Common Pleas after the state case against Haynes was nolle prossed in favor of the federal prosecution. Second, defendants allege a Brady violation with respect to witness Tamirra Smith.

The defendants' motion was filed pursuant to Federal Rule of Criminal Procedure 33, which provides:

(a) Defendant's Motion

Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.

(b) Time to File (1) Newly Discovered Evidence

Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.

(2) Other Grounds

Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after ...


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