The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Shahkwon Davis's Motion for a New Trial pursuant to Federal Rule of Criminal Procedure 33. Davis seeks a new trial based on two alleged pieces of newly discovered evidence: (1) a voluntary statement authored by Davis's cousin stating that the cousin also lived in Davis's apartment where contraband was found; and (2) a newspaper report indicating that a detective who worked on Davis's case was recently fired for lacking credibility. The Court finds that these two revelations do not meet the standard for a new trial, namely because the voluntary statement contains information that would have been known to Davis at the time of trial and the recent firing of the detective is not sufficiently likely to result in Davis's acquittal. Therefore, the Court will deny Davis's Motion.
On January 17, 2006, a federal grand jury in this District returned an eight-count indictment against Davis. (Doc. 1.) Specifically, Davis was charged with three counts of distribution of cocaine, one count of distribution of cocaine and cocaine base, and one count of possession with the intent to distribute cocaine, all in violation of 21 U.S.C. § 841(a)(1); one count of possession with the intent to distribute five (5) grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); one count of possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and one count of criminal forfeiture of proceeds from drug distribution activities, pursuant to 21 U.S.C. § 853. (Id.)
Davis filed a Motion to Suppress Evidence Seized as the Result of Illegal Search on on July 14, 2006 (Doc. 37), and an evidentiary hearing was held on May 3, 2007. In pertinent part, Detective Thomas Davis, a narcotics detective with the Lackawanna County District Attorney's Office, had secured a warrant authorizing a search of Shahkwon Davis's apartment for "cocaine and other controlled substances as well as monies, records and paraphernalia used in the illegal use of controlled substances." United States v. Davis, 3 CR-06-020, 2007 WL 2065834 at *5 (M.D. Pa. July 16, 2007) (internal quotations omitted) aff'd, 383 F. App'x 172 (3d Cir. 2010). Although the warrant was never executed, when Davis was eventually arrested, the apartment was subjected to a protective sweep to determine whether anyone else was present inside and to prevent the destruction of evidence. Id. Nobody was found inside the apartment, and Detective Davis reapplied for a warrant--omitting any reference to the protective sweep and any information derived from the sweep--which was subsequently approved and executed. Id. at *5-6. While Davis argued that the protective sweep was unlawful and tainted the subsequent warrant, Judge Vanaskie held that the independent source doctrine applied, that "the evidence was seized pursuant to an independent source-a valid search warrant-which was not tainted by the initial illegality." Id. at *7. The Motion to Suppress was denied.
Davis was found guilty, inter alia, of possession with intent to distribute at least five grams of cocaine base (crack) under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), which carries a mandatory minimum of 120 months imprisonment. He was sentenced to120 months of imprisonment, five years of supervised release, a $700.00 special assessment, and forfeiture to the United States of $14,840.00. (Doc. 111.) Davis appealed his sentence and the Third Circuit affirmed the judgment and sentence. United States v. Davis, 383 F. App'x 172, 173 (3d Cir. 2010) cert. denied, 131 S. Ct. 1471 (2011).
Through a Freedom of Information Act request, Davis uncovered a
voluntary statement made by his cousin to the Lackawanna District
Attorney's Office stating that his cousin and his cousin's girlfriend
shared with Davis the apartment where the contraband was found. Davis
also discovered a newspaper article from the Scranton Times-Tribune
reporting that the District Attorney's Office had fired Detective
Robert Mazzoni for a lack of credibility. Davis believes these two
pieces of information each warrant him a new trial, and he filed this
Motion seeking such a new trial on September 1, 2011.*fn1
On January 6, 2012, Davis moved to find the United States in
default for not responding to his Motion. On March 8, 2012, the Court
directed the United States to respond, which they did on March 15,
2012. The Motion is now fully briefed and ripe for the Court's review.
Federal Rule of Criminal Procedure 33 authorizes a district court to grant a new trial "if the interests of justice so require." Fed. R. Crim. P. 33. "Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion it does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government's case." United States v. Johnson, 302 F.3d 139, 150 (3d Cir.2002). However, even if a district court believes that the jury verdict is contrary to the weight of the evidence, it can order a new trial "only if it believes that there is a serious danger that a miscarriage of justice has occurred-that is, that an innocent person has been convicted." Id. (citation and quotation marks omitted). Rule 33 motions are generally not favored and should be "granted sparingly and only in exceptional cases." Gov't of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir.1987) (citations omitted). The determination of whether a new trial is warranted is left to the discretion of the district court. United States v. Quiles, 618 F.3d 383, 390 (3d Cir. 2010).
"Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty." Fed. R. Crim. P. 33. Davis's guilty verdict was entered on August 30, 2007, rendering his Rule 33 Motion untimely as it was filed over 4 years after his verdict. Such untimeliness, however, may be overlooked "because of excusable neglect." Fed. R. Crim. P. 45(b)(1)(B); United States v. Reyes, CRIM.A. 06-654-1, 2008 WL 4950006 at *1 (E.D. Pa. Nov. 18, 2008) aff'd, 363 F. App'x 192 (3d Cir. 2010). "Excusable neglect is an equitable determination that should take account of relevant circumstances, including danger of prejudice, the length of the delay, the delay's impact on judicial proceedings, the reason for the delay, whether the movant had control over the delay, and whether the movant acted in good faith." United States v. Kennedy, 354 F. App'x 632, 636 (3d Cir. 2009) (citing In re Cendant Corp. PRIDES Litig., 234 F.3d 166, 171 (3d Cir.2000)). Yet, even a timely motion for a new trial on the basis of new evidence must meet five factors as set out in United States v. Iannelli:
(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.