The opinion of the court was delivered by: Juan R. Sanchez, J.
On August 20, 2012, Defendant Kenneth Schneider filed a motion for new trial based on newly discovered evidence. He claims he discovered the Government gave cash payments to Roman Zavarov for his testimony, Zavarov admitted to committing perjury, and other contradictions in Zavarov's testimony. For the following reasons, this Court will deny Schneider's motion for a new trial without an evidentiary hearing.
On October 1, 2010, Schneider was convicted by a jury of traveling in foreign commerce with the intent to engage in sex with a minor between the ages of 12 and 16, in violation of 18 U.S.C. § 2423(b) (Count I), and transporting a person in foreign commerce with the intent that such person engage in criminal sexual conduct, in violation of 18 U.S.C. § 2421 (Count II). The charges involved Schneider's travel from the United States to Russia with Roman Zavarov, who at the time was 15-years old. This Court granted judgment of acquittal on Count II and upheld the conviction on Count I. On December 1, 2011, the Court imposed a sentence of 15 years imprisonment. Schneider filed an appeal of his conviction and sentence to the Third Circuit Court of Appeals on January 17, 2012, which is still pending.
On August 12, 2008, Zavarov instituted a civil suit against Schneider and members of his family. John Doe v. Schneider, et al., No. 2:08-CV-3805 (E.D. Pa. Aug. 12, 2008). The case was stayed pending the resolution of the criminal trial and has since resumed. Schneider claims during discovery in that case he became aware of evidence which entitles him to a new criminal trial.
On August 20, 2012, Schneider filed a motion for new trial based on newly discovered evidence pursuant to Federal Rule of Criminal Procedure 33(b)(1) and the Due Process Clause of the Fifth Amendment, claiming he discovered the Government gave cash payments to Zavarov for his testimony, Zavarov admitted to committing perjury, and other contradictions in Zavarov's testimony at trial and at sentencing.
Federal Rule of Criminal Procedure 33(a) provides, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). A defendant may file a motion for a new trial grounded on newly discovered evidence "within 3 years after the verdict or finding of guilty. 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). It is within the discretion of the trial court to grant or deny a motion pursuant to Rule 33. United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006) (citing Gov't of V.I. v. Lima, 774 F.2d 1245, 1250 (3d Cir. 1985)).
A defendant requesting a new trial based on newly discovered evidence must satisfy the following requirements:
(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 [defendant]; (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. Kelly, 539 F.3d 172, 181-82 (3d Cir. 2008) (quoting United States v. Iannelli, 528 F.2d 1290, 1292 (3d. Cir. 1976)). This test is commonly referred to as the "Berry" test. See United States v. Leary, 378 F. Supp. 2d 482, 487 (D. Del. 2005) (noting the test originated in Berry v. State, 10 Ga. 511 (Ga. 1851)). "If just one of the requirements is not satisfied, a defendant's Rule 33 motion must fail." Kelly, 539 F.3d at 182 (citing United States v. Jasin, 280 F.3d 355, 365 (3d Cir. 2002)). "The movant has the 'heavy burden' in meeting these requirements." United States v. Saada, 212 F.3d 210, 216 (3d Cir. 2000) (citation omitted).
Preliminarily, the Court finds Schneider's motion is timely. Schneider also satisfies the first and second requirements of the Berry test. Schneider demonstrates he became aware of the newly discovered evidence during discovery in the civil trial, and this Court infers Schneider's diligence. The remaining Berry requirements are disputed.
Schneider's first alleged newly discovered evidence is the cash payments given to Zavarov by the Government. Zavarov testified during a civil deposition he was paid between $500 and $1,000 in cash by Assistant United States Attorney Morgan on more than one occasion for or on account of his testimony. Schneider claims this was not disclosed to defense counsel at or before trial, thus the payments violate Brady v. Maryland, 373 U.S. 83 (1963). Schneider argues if the jury had heard this evidence, it would have changed its verdict. The Government contends the payments ...