The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Antoine Norman's Motion for a New Trial Pursuant to Rule 33 (ECF No. 409), and the Government's Response in Opposition (ECF No. 410). For the following reasons, Defendant's Motion will be denied.
On July 26, 2006, a grand jury returned an indictment charging Defendant Antoine Norman with conspiracy in violation of 18 U.S.C. § 371 (Count 1); bank fraud in violation of 18 U.S.C. § 1344 (Counts 2-5); and aggravated identity theft in violation of 18 U.S.C. § 1028A (Counts 6-8, 11, 13, 16-22). On September 7, 2007, following a jury trial, Defendant was found guilty on all counts. Defendant now seeks relief pursuant to Federal Rule of Criminal Procedure 33, asserting that newly discovered evidence entitles him to a new trial.
Federal Rule of Criminal Procedure 33(a) provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." The Rule provides that a motion for a new trial "grounded on newly discovered evidence" must be filed within three years of the jury's verdict.
The decision whether to grant a new trial under Rule 33 "lies within the discretion of the district court." United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006). The Third Circuit has established the following five-factor test for determining whether newly discovered evidence warrants a new trial under Rule 33:
(a) the evidence must be in fact, newly discovered, i.e., discovered since the trial;
(b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) 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. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976) (citation omitted). A defendant moving for a new trial bears a "heavy burden" in proving each of these five factors. Cimera, 459 F.3d at 458. Indeed, if the movant cannot satisfy one of the five factors, a district court has "sufficient basis to deny the motion for a new trial." United States v. Jasin, 280 F.3d 355, 365 (3d Cir. 2002).
A district court is limited in its ability to grant a new trial if the defendant's direct appeal is pending before an appellate court. "If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case." Fed. R. Crim. P. 33(b)(1). In such a situation, this Court has jurisdiction to "entertain the motion and either deny [it] on its merits, or certify [our] intention to grant the motion to the Court of Appeals, which could then entertain a motion to remand the case." United States v. Cronic, 466 U.S. 648, 667 n.42 (1984); see also Venen v. Sweet, 758 F.2d 117, 123 n.7 (3d Cir. 1985). Even though we are empowered to deny the motion, we cannot grant the motion if a movant's appeal is pending in the Court of Appeals.
A district court does not need to hold an evidentiary hearing prior to disposing of a Rule 33 motion. See United States v. Herman, 614 F.2d 369, 372 (3d Cir. 1980); see also Iannelli, 528 F.2d at 1294.
Initially, we note that Defendant presently has an appeal pending in the Third Circuit Court of Appeals (No. 08-3876), docketed on September 22, 2008. (See USCA Notice of Docketing of Appeal, ECF No. 342.) Therefore, we cannot grant the Defendant's motion for a new trial unless we first ask the ...