The opinion of the court was delivered by: Yohn, J.
On June 14, 2000, a jury found defendant David Figueroa guilty of possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1), carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c), and possessing a firearm having previously been convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Defendant has filed a motion for a new trial under Federal Rule of Criminal Procedure 33 in light of newly discovered evidence supporting his innocence. The newly discovered evidence is the testimony of Frank Justiniano confessing that he framed defendant by planting the heroin and revolver in defendant's car that resulted in defendant's conviction. After a review of all the testimony at the hearing on this motion, the complete transcript of the trial and the briefs of counsel, I concluded that Justiniano's testimony met the requirements of Rule 33. Therefore, I granted defendant's motion for a new trial on July 30, 2008.
On August 14, 2008, the Third Circuit filed its opinion in United States v. Kelly, 539 F.3d 172 (3d Cir. 2008) clarifying the analysis to be applied to a motion for a new trial. In particular, it set forth the analysis for the fifth factor to be considered, i.e., whether the new evidence is "such and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal." Previously district courts had to rely primarily on authority from other circuits or district courts of this circuit and their methodology in analyzing this factor. As a result of the Kelly decision, I suggested to the parties that a motion for reconsideration be filed to enable reconsideration of the facts and law under the clarified method of analysis. The government filed its motion for reconsideration and brief on August 28, 2008 and the defendant filed a reply on September 15, 2008. After further review of the trial transcript, an evidentiary hearing on November 1, 2007 and the briefs of counsel, and no further evidence being proffered, I will grant the motion for reconsideration due to the intervening change in the law, vacate the memorandum and order dated July 30, 2008, but, on reconsideration, grant the defendant's motion for a new trial.
I. FACTUAL BACKGROUND*fn1
On October 30, 1999, Police Officer Ronald Dove heard gunshots and drove toward the noise. En route, Officer Dove received a radio report stating that a man with a gun was seen driving a blue, two-door 1984 Mercury Cougar with a Pennsylvania license plate number of 4201415. Shortly thereafter, Officer Dove drove by a parked Mercury Cougar fitting the description of the radio report. He observed defendant standing outside the parked car, but defendant subsequently entered the car and began driving. Officer Dove followed defendant and observed him make a left turn without signaling. Officer Dove then pulled defendant over. As Officer Dove approached the car, he saw defendant bend forward in the driver's seat. Officer Dove asked defendant to step out of the car. As defendant stepped out of the car, Officer Dove noticed the butt of a gun sticking out from underneath the driver's seat in plain view. He handcuffed defendant, and backup police officers moved defendant into a patrol car.
After recovering the gun, Officer Dove determined that it was a pellet gun. During direct examination at trial, Officer Dove testified that he then looked farther underneath the driver's seat and saw a newspaper-wrapped package (later determined to contain 2.4 grams of heroin in six bundles with twelve to thirteen packets bundle for a total of seventy-eight packets) and a .22-caliber revolver. (Trial Tr. 36:21-37:6, June 12, 2000 (hereinafter June 12 Tr.).) On cross-examination, Officer Dove admitted that he could not see anything when he looked under the front of the driver's seat, so he instead "went to the rear of it to look underneath it." (Id. at 63:8-21, 64:14-65:5.) He had to retract the driver's seat to access the rear of the two-door vehicle, after which he recovered the revolver and package of heroin by pulling them from under the rear of the driver's seat. (Id. at 65:6-24.) The police did not fingerprint the .22 caliber revolver or the heroin package, so there was no physical evidence that defendant handled them. (E.g., Trial Tr. 20:17-21:21, June 13, 2000 (hereinafter June 13 Tr.); id. at 172:2:-173:8.)
On February 23, 2000, defendant was indicted for: (1) possessing a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (2) carrying a firearm during and in relation to the drug trafficking crime in violation of 18 U.S.C. § 924(c); and (3) possessing a firearm having previously been convicted of a felony in violation of 18 U.S.C. § 922(g)(1). The firearm alleged was the .22 caliber revolver. At trial, defendant admitted that he owned the pellet gun but claimed that neither the heroin nor the revolver belonged to him. (E.g., June 13 Tr. 119:14-123:5.) Defendant maintained that he was not aware that either the revolver or the heroin was in the car. (E.g., id. at 148:9-150:1.)
Defendant further stated that on the day in question, he had a stereo system installed in the car. (Id. at 110:13-111:19.) After returning home at about 7:00 p.m., he left the car unlocked, with the windows down, on a corner of the block on which he resides. (Id. at 115:6-119:4.) A number of people gathered around and sat inside the car to listen to the newly installed stereo system. (Id.) Defendant testified that in the evening, he was wrongly accused by a drug dealer named Jose*fn2 of "gagging," which defendant defined as taking money from drug customers without providing drugs to them. (Id. at 126:7-127:16, 128:20-130:10.) Jose demanded that defendant leave the area, and as a result of this accusation, defendant and Jose wrestled to the ground. (Id. at 130:12-133:9.) After Jose released defendant, defendant went for a walk to cool down, during which time his car was left unlocked and unattended. (Id. at 133:21-135:118.) Defendant testified that, when he returned to his car, an individual named Will was in his car, and Jose and others were nearby. (Id. at 138:7-140:18.) During closing argument, defendant's counsel argued that a drug dealer selling drugs on defendant's street likely used defendant's car to store the drugs without defendant's knowledge or that drug dealers framed defendant because they thought he was "gagging" their potential drug customers. (Id. at 211:9-214:3.) In response, the government urged the jury to infer constructive possession of the .22 caliber revolver and the heroin. (Id. at 189:7-9, 189:21-191:3, 198:3-13, 221:3-222:8.). The court instructed the jury on the elements of constructive possession. (E.g., Trial Tr. 24:15-25:22, June 14, 2000 (hereinafter June 14 Tr.).)
The jury found defendant guilty of all three counts on June 14, 2000. Thereafter, defendant filed a motion for a judgment of acquittal under Rule 29. Defendant argued that there was insufficient evidence to support an inference that he knew of the contraband's presence in the car. The court denied the motion. The court concluded that the evidence-including the contraband's proximity to defendant's position in the driver's seat, defendant's bending forward in the driver's seat prior to the search, and the discovery of the pellet gun partially concealed beneath the driver's seat-supported a reasonable juror's inference that defendant knew of the contraband's presence in the car. Figueroa, 2000 U.S. Dist. LEXIS 13344, at *8-14. The court sentenced defendant to 252 months of imprisonment and three years of supervised release. Defendant appealed, and the Third Circuit affirmed both his conviction and sentence on December 18, 2001. The Supreme Court denied defendant's petition for a writ of certiorari on April 22, 2002.
On August 7, 2006, defendant filed the instant motion for a new trial under Rule 33 in light of newly discovered evidence supporting his innocence. (Def.'s Mot. New Trial 1-5.) Defendant asserted that on March 8, 2006, Frank Justiniano, an inmate at the Federal Correctional Institution in Fairton, New Jersey, spoke with defendant's counsel over the phone and confessed that he had framed defendant by planting the revolver and heroin in defendant's car. (Id. at 4.) Defendant's counsel acquired Justiniano's affidavit on June 23, 2006 and submitted it with the motion. (Id.)
In the affidavit, Justiniano states he was a member of a drug gang led by Santos Mendez.*fn3
(Justiniano Aff. ¶ 1.) Justiniano states that he successfully persuaded Mendez, who was angered because he thought defendant was "gagging" in the gang's territory, not to kill defendant. (Id.) Instead, Mendez agreed to frame defendant by placing a gun and drugs in his car, and then by placing an anonymous call to the police. (Id.) Justiniano claims to have participated in carrying out Mendez's plan by placing "six bundles of heroin and a loaded .22 caliber revolver . . . under the rear seat behind the driver's side" between midnight and 1:00 a.m. on October 30, 1999. (Id.) In addition, he claims to have heard Mendez anonymously calling the police to report a man with a gun driving a Mercury Cougar fitting the description of defendant's car. (Id.) Justiniano states that he did not confess to framing defendant earlier because he feared that Mendez would have him killed and that he would be criminally punished for participating in the framing. (Id. ¶ 2.) Based on this affidavit, defendant filed his motion for a new trial under Rule 33.
The government initially opposed the motion by arguing that it was untimely under Rule 33. The government contended that Federal Rule of Criminal Procedure Rule 45(b)(1)(B), which allows a court to reach the merits of an untimely motion if excusable neglect caused the untimeliness, is inapplicable to Rule 33(b)(1). On August 15, 2007, I concluded that Rule 45(b)(1)(B) applies to Rule 33 and ordered an evidentiary hearing to determine whether defendant met the excusable neglect standard of Rule 45(b)(1)(B), and, if so, whether defendant was entitled to a new trial based on Justiniano's statement under the standards of Rule 33(a). See United States v. Figueroa, No. 00-94, 2007 WL 2345283, at *5-6 (E.D. Pa. Aug. 15, 2007). The evidentiary hearing was held on November 1, 2007, and the court heard oral argument on November 14, 2007.
During the November 1, 2007 hearing, the court heard testimony from Luciano Figueroa, Frank Justiniano, Jose Carrasquillo, Daniel Rivera, and David Kozlow.*fn4 Justiniano's testimony is most relevant to the present issue-whether his testimony would probably produce an acquittal in a new trial.*fn5 Justiniano testified that he was part of Santos Mendez's drug organization. Mendez and Justiniano suspected that Figueroa was "gagging" their drug customers. (Hr'g Tr. 61:16-62:9, Nov. 1, 2007 (hereinafter Nov. 1 Tr.).) Because of this, Mendez wanted to kill Figueroa, but Justiniano persuaded Mendez to frame Figueroa instead.*fn6 (Id. at 62:10-63:25.)
Justiniano believed this was a better alternative to killing Figueroa because Mendez was already being investigated for murder, and Justiniano "didn't want [Mendez] catching another body." (Id.) Mendez and Justiniano decided to plant drugs and a gun inside Figueroa's car. (Id.)
According to Justiniano, late on October 29, 1999, or early in the morning of October 30, 1999, Mendez gave Justiniano a loaded .22 revolver and heroin. (Id. at 64:10-65:4, 100:16-101:14.) The heroin was "wrapped up in newspaper, like, thirteen, fourteen bundles of it."*fn7 (Id. 64:16-4, 100:16-101:4.) Justiniano admitted that on the night of October 29, 1999 or early morning of October 30, 1999, he planted the revolver and heroin in Figueroa's "blue Cougar." (Id. at 65:5-66:19.) Mendez kept watch while Justiniano broke into defendant's car and hid the contraband.*fn8 (Id. at 66:8-14.) Justiniano used a filed-down key to unlock the car. (Id. at 154:5-15.) He planted the newspaper-wrapped heroin and revolver "[i]n back of the driver's seat in the bottom."*fn9 (Id. at 153:14-18.) He testified that they were not visible from outside of the car and that he hid them so that Figueroa would not discover them. (Id. at 154:2-4.) During the day on October 30, 1999, Mendez, and at least one other person, on Mendez's order, placed calls to the police to report Figueroa's possession of a weapon. (Id. at 66:20-67:3, 151:23-153:10, 156:5-157:12, 162:24-164:4.) Justiniano witnessed one of the calls in the early afternoon, between noon and 3:00 p.m. (Id. at 66:18-67:37, 98:10-99:10.) David Kozlow, defendant's counsel, testified that the CAD report of the Philadelphia Police Department shows a telephone call was received at 11:29 p.m. on October 30, 1999. Kozlow obtained the CAD report during the course of his original investigation. Unfortunately, the Philadelphia ...