The opinion of the court was delivered by: Donetta W. Ambrose Chief U.S. District Judge
AMBROSE, Chief District Judge
Defendant was convicted of Conspiracy to Distribute and Possess with Intent to Distribute 1 kilogram or more of heroin, 5 kilograms or more of cocaine, and 50 grams or more of cocaine base and Possession with Intent to Distribute 5 kilograms or more of cocaine. Defendant filed a direct appeal to the Court of Appeals which was pending there until January 15, 2009. The case having been remanded, Defendant's Motion for New Trial Based on Newly Discovered Evidence and Prosecutorial Misconduct (Doc. No. 771) is ripe for disposition.
To prevail on his motion, as it relates to newly discovered evidence, Defendant must establish the following:
1) that the evidence, in fact, is newly discovered;
2) the alleged facts establish diligence on Defendant's part;
3) that the evidence is not merely cumulative or impeaching;
4) that the evidence is material; and
5) that it is of such a nature that it would probably produce an acquittal in a new trial. U.S. v. Adams, 759 F.2d 1099 (3d Cir. 1985).
Defendant's alleged newly discovered evidence is the cross-examination of a Government witness, Edward Myrick, in a separate case which is unrelated to the charges of which Defendant was convicted. Defendant contends that this evidence should have been provided to him prior to trial pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963) and Giglio v. U.S., 405 U.S. 150, 154 (1972).
Myrick was cross-examined by defense counsel in the separate case about his guilty plea in the instant case. In the instant case, Defendant and Myrick were co-Defendants, both charged with conspiracies involving the distribution of heroin, cocaine, and cocaine base. Also in the instant case, Myrick plead guilty to only the cocaine conspiracy. Defense counsel in the separate case questioned Myrick about the heroin conspiracy and the eleven deaths associated with that conspiracy and suggested that Myrick had avoided a life sentence by entering into a deal with the government to plead guilty only to the cocaine conspiracy.
However, Count One of the instant case, as well as the indictment in the separate case make absolutely no mention of a heroin conspiracy causing death. Myrick pled guilty to the same conspiracy for which Defendant was on trial. There was no evidence either during Defendant's trial or during Myrick's change of plea hearing relating to deaths resulting from the heroin conspiracy. Defendant was actually tried for conspiracy relating to both heroin and cocaine and no evidence alleging that heroin involved in the conspiracy caused any death was introduced.
Therefore, there was no evidence of which Defendant was unaware. Defendant knew what the charges against Myrick were and the mistaken characterization of the conspiracy charge by Defendant's attorney in the separate case is not newly discovered evidence.
Defendant also claims that the Government's failure to file a motion for an enhancement of Myrick's sentence from 10 to 20 years, based on Myrick's prior drug conviction, was newly discovered evidence during the separate trial. The trial transcript of Defendant's trial (which occurred before the separate trial) does not support Defendant's contention. The transcript, at pages 103-104, demonstrates that Defendant and his attorney were aware of Myrick's prior drug ...