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United States v. DeSivo

January 24, 2007


The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge


(Judge McClure)


On August 25, 2005, a jury in the Middle District of Pennsylvania found defendant Christopher P. DeSivo ("DeSivo") guilty of four counts related to a conspiracy to manufacture and distribute methamphetamine, possession of a firearm, witness tampering, and obstruction of justice. After the verdict, defendant has filed countless motions, including numerous motions to continue sentencing, a motion to dismiss counsel, a motion for new trial, and a motion to stay. On January 9, 2007, the court scheduled defendant's sentencing for January 24, 2007. Shortly thereafter, on January 19, 2007, defendant filed an ex parte motion to proceed pro se. The court scheduled an ex parte in camera hearing regarding this motion.

During the hearing, the defendant intimated to the court his intention to file his second new trial motion and brief based on newly discovered evidence, which he had drafted. Defense counsel noted that he reviewed defendant's papers and believed the motion had merit, but that he would need more time and that sentencing would have to be continued so that he could formally draft a brief supporting defendant's motion. The court noted that the case is three years old and that the court has granted defendant's numerous motions continuing sentencing. The court also noted that it generally does not consider motions filed pro se from defendants who have counsel. Nevertheless, the court decided to accept the defendant's pro se new trial motion and brief, and if after initial review the court determined the motion had potential merit, the court would set forth a briefing schedule that would allow defense counsel and the government to weigh in. This would require sentencing to be continued. Otherwise, sentencing would proceed, as scheduled, for January 24, 2007. Defendant and defense counsel had no objection to this procedure.

For the reasons set forth below, we find defendant's new trial motion totally lacks merit and will be denied. Therefore, we will not set forth a briefing schedule, and sentencing will proceed, as scheduled, for January 24, 2007.


II. Legal Standard

Federal Rule of Criminal Procedure 33 provides that "upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." In interpreting Rule 33 motions alleging newly discovered evidence, the Third Circuit permits a district court to grant such motions when the following five requirements are met: (1) the evidence must be in fact, newly discovered, i.e. discovered since trial; (2) facts must be alleged from which the court may infer diligence on the part of the movant; (3) the evidence relied on, must not be merely cumulative or impeaching; (4) it must be material to the issues involved; and (5) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006) (internal citations omitted). "[T]he movant has a 'heavy burden' of proving each of these requirements." Id. (internal citations omitted). Granting a new trial motion is within the discretion of the trial court. United States v. Console, 13 F.3d 641, 665 (3d Cir. 1993).

II. Defendant's New Trial Motion Lacks Merit

Defendant offers the following arguments in support of his motion for new trial: (1) apparent discrepancies in a drug lab report, which allegedly tested drugs entered into evidence during defendant's trial, show that such evidence was tainted; (2) discrepancies arising from subpoenaed documents from the New York State Police Crime Laboratory suggest evidence entered in defendant's case was tampered; (3) subpoenaed documents from Tioga County Sheriff's Office show a chain of custody discrepancy for certain evidence admitted against defendant; (4) documents recently received by defendant show that documents presented to defendant during discovery were altered; (5) a written statement from the cell mate of government witness Ricky Johnson suggests that Ricky Johnson lied on the stand; (6) newly found evidence suggests Anne Marie DeSivo - another government witness who was married to defendant - lied on the stand and has a criminal history which the prosecution failed to disclose to defendant; and (7) newly discovered evidence suggests government witness Danielle Worthington testified in exchange for a reduced sentence for her uncle, who was in jail at the time. We will consider each argument in turn.

A. Drug Lab Report

Defendant argues that a drug lab report he received from the Drug Enforcement Administration, which he attaches as exhibit A to his brief, demonstrates that certain evidence entered against him was tainted. Specifically, defendant argues the lab report, which he suggests tests evidence admitted against him during trial, contains a discrepancy on page two and page five of the report regarding two drugs tested and discussed in the report. On page two of the report, exhibit no. 1 is given lab no. 156253, and is listed as cocaine. On the same page, exhibit no. 2 is given lab no. 156254 and is listed as methamphetamine. On page five, however, the lab numbers become mixed up and exhibit no. 1 is referred to as lab no. 156254, not as lab no. 156253. Defendant argues that the prosecution kept this discrepancy from the defendant and that "this information would have been invaluable to the defense." (New Trial Brief, Rec. Doc. No. 249, p. 6).

We fail to see how this discrepancy is material at all to defendant's case. The lab report was not used by the prosecutor, nor did any witness testify regarding its content. Assuming that the report does relate to evidence admitted against defendant,*fn1 at best the discrepancy noted by the defendant represents a mere clerical error that has no material impact on the admissibility of any evidence admitted during trial. Because this discrepancy is not material to the issues involved in ...

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