United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 24, 2000 Decided June 27, 2000
No. 99-3153
United States of America,
Appellant
v.
Archibald R. Schaffer III,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00314-02)
Charles M. Kagay, Chief Appellate Counsel, Office of Inde-
pendent Counsel, with whom Donald C. Smaltz, Independent
Counsel, Joseph P. Guichet, Senior Associate Independent
Counsel, and Wil Frentzen, Associate Independent Counsel,
were on the briefs, argued the cause for appellant.
William H. Jeffress, Jr., with whom Joe R. Caldwell, Jr.,
Scott L. Nelson, Grant R. Vinik, and Woody Bassett were on
the brief, argued the cause for appellee.
Before Edwards, Chief Judge, Henderson, Circuit Judge,
and Buckley, Senior Circuit Judge.
Opinion for the court filed by Senior Judge Buckley.
Buckley, Senior Judge: In 1998, Archibald R. Schaffer III
was convicted of attempting to influence the Secretary of
Agriculture in violation of the Meat Inspection Act. The
United States appeals the district court's decision to grant
Schaffer a new trial based on "newly discovered evidence."
Because we find that Schaffer was not diligent in his efforts
to procure the evidence before his trial and that the evidence
would not be likely to result in an acquittal upon retrial, we
reverse.
I. Background
The facts of this case are set forth in detail in our opinion
reviewing the district court's grant of Archibald Schaffer's
earlier post-trial motion for a judgment of acquittal. See
United States v. Schaffer, 183 F.3d 833, 836-39, 847-50 (D.C.
Cir. 1999). We present here only those facts that are rele-
vant to this appeal.
In 1993, when Alphonso Michael Espy was serving as its
Secretary, the Department of Agriculture ("USDA") was
developing and implementing certain food safety initiatives
related to meat and poultry that would have an impact on
Tyson Foods International. See id. at 837, 849. On April 21,
1993, Don Tyson, Chairman of the Board of Directors of
Tyson Foods, sent Secretary Espy both a printed invitation to
a lavish birthday party he was hosting in Russellville, Arkan-
sas over the weekend of May 14-16 and a handwritten note.
The note advised the Secretary that he would also be invited
to attend an Arkansas Poultry Federation ("APF") event
during that same weekend and confirmed that a private plane
would be available to fly him to and from Arkansas. See id.
at 847. Five days later, the Senior Vice President of the APF
signed a letter inviting Secretary Espy to address the APF
on May 15 in Russellville. He sent the letter to Schaffer, who
was Tyson Foods' Director of Media, Public and Governmen-
tal Affairs. Schaffer in turn mailed and faxed the letter to
the Secretary. Schaffer also helped Secretary Espy's office
coordinate some of the Secretary's weekend travel and ac-
commodations. The Government presented evidence that, in
making those arrangements, Schaffer mentioned only the
APF meeting, ostensibly to conceal the fact that the Secre-
tary and a woman companion planned to attend the Tyson
birthday party.
On May 15, Secretary Espy flew to Russellville and spoke
to a group of APF invitees. He attended the Tyson birthday
party that evening, stayed with his companion at the Tyson
Foods Management Training Complex, and returned with her
to Washington the next day on a Tyson Foods corporate
airplane. Schaffer subsequently caused the APF and not
Tyson Foods to be reimbursed by the USDA for the cost of
Secretary Espy's travel and lodging.
In January 1998, an independent counsel who had been
appointed to investigate charges that had been made against
Espy indicted Schaffer on several counts alleging violations of
federal criminal statutes in connection with these and other
events. Espy, who was by then facing charges under a
separate indictment, did not testify at Schaffer's trial. In
June 1998, the jury found Schaffer guilty under two counts:
the first, for violating the Meat Inspection Act ("MIA"), 21
U.S.C. s 622 (1994), by working to secure Espy's attendance
at the Tyson birthday party; and the second (which is not
before us), for having provided Espy with unlawful gratuities
in violation of 18 U.S.C. s 201(c) (1994). Schaffer, 183 F.3d
at 850.
After the jury's verdict, Schaffer moved for a judgment of
acquittal under Rule 29 of the Federal Rules of Criminal
Procedure, challenging the sufficiency of the evidence to
sustain the convictions. The district court granted judgment
of acquittal on both counts. The independent counsel appeal-
ed, and this court affirmed the judgment of acquittal on the
gratuities count but reinstated the jury's verdict on the MIA
count, holding that a reasonable juror could have found that
Schaffer participated in securing Espy's attendance at the
party with the intent to influence him with respect to specific
policies of concern to Tyson Foods. Id. at 847-50.
While Schaffer's appeal was pending, a jury acquitted Espy
on all charges. Following the final disposition of Schaffer's
appeal and the conclusion of Espy's case, Schaffer filed a
motion for a new trial pursuant to Rule 33 of the Federal
Rules of Criminal Procedure. He argued, among other
things, that Espy's testimony constituted "newly discovered"
evidence because it had only become available at the conclu-
sion of the Espy trial, which resulted in the expiration of
Espy's Fifth Amendment privilege against self-incrimination.
Because the district court agreed that Espy's testimony
might constitute newly discovered evidence likely to produce
an acquittal upon retrial, it held an evidentiary hearing to
evaluate Espy's testimony. See United States v. Schaffer,
Crim. Action No. 96-0314, Mem. at 4-5, reprinted in Joint
Appendix ("J.A.") at 252-53.
At the hearing, Espy testified that he considered the APF
appearance to be a legitimate event and that it was the
primary reason for his trip to Arkansas. He stated that he
attended the Tyson birthday party as a "courtesy" to Don
Tyson and his son John, whom he had met on a few occasions.
Espy asserted that he did not know Schaffer and that he had
no knowledge of Schaffer's involvement in his visit to Arkan-
sas that weekend. Finally, Espy testified that he did not
recall any discussion with anyone from Tyson Foods at either
the APF meeting or the birthday party that related to Tyson
Foods or USDA policies; nor did he recall any attempt to
influence him with respect to his duties as Secretary of
Agriculture.
During the course of the hearing, Schaffer's counsel ad-
vised the court that, prior to Schaffer's trial, he had been told
by Espy's counsel that Espy had declined Schaffer's request
for an interview. Espy's counsel revealed enough of Espy's
view of the relevant events, however, for Schaffer to know
that he "very much want[ed Espy] as a witness." Tr. of
Hearing on Motion for a New Trial at 24, reprinted in J.A. at
384. When Schaffer's counsel stated that he wanted Espy to
testify in Schaffer's trial, "the answer was no, that [Espy] was
not going to testify." Id. at 26, reprinted in J.A. at 386. In
light of this exchange, Schaffer's counsel saw no point in
subpoenaing Espy, "put[ting] him in here in a public court-
room ... and mak[ing] him take the Fifth." Id. Nor did his
counsel move for a continuance until after Espy's trial or
otherwise make the district court aware of his desire to have
Espy testify. He explained that he did not feel he had a good
faith basis for seeking a continuance in light of the certainty
that Espy would appeal any conviction and remain unavail-
able as a witness for an indefinite period. See id. at 26-30,
reprinted in J.A. at 386-90.
At the hearing's conclusion, the district court found Rule
33's requirements had been satisfied and granted Schaffer's
motion for a new trial. The independent counsel timely filed
this appeal, and we have jurisdiction pursuant to 18 U.S.C.
s 3731.
II. Analysis
Rule 33 authorizes a district court to grant a new trial "if
the interests of justice so require." It also provides:
A motion for new trial based on newly discovered evi-
dence may be made only within three years after the
verdict or finding of guilty.... A motion for a new trial
based on any other grounds may be made only within 7
days after the verdict or finding of guilty....
Fed. R. Crim. P. 33. Because Schaffer filed his motion
approximately fifteen months after his conviction, the parties
agree that the motion was timely only if Espy's testimony
constituted "newly discovered evidence."
To evaluate a motion for a new trial based on newly
discovered evidence, we apply the standards we first set out
in Thompson v. United States, 188 F.2d 652 (D.C. Cir. 1951).
Thompson holds that a court may grant a new trial on the
basis of newly discovered evidence only where each of the
following conditions has been met:
(1) the evidence must have been discovered since the
trial; (2) the party seeking the new trial must [have
shown] diligence in the attempt to procure the newly
discovered evidence; (3) the evidence relied on must not
be merely cumulative or impeaching; (4) [the evidence]
must be material to the issues involved; and (5) [be] of
such nature that in a new trial it would probably produce
an acquittal.
Id. at 653; see also United States v. Gloster, 185 F.3d 910,
914 (D.C. Cir. 1999) (same). A district court's grant of a new
trial will be reversed "only if the court abused its discretion
or misapplied the law." Gloster, 185 F.3d at 914 (internal
quotation marks and citation omitted). We find that the
district court abused its discretion in this case because Schaf-
fer failed to satisfy Thompson's second and fifth require-
ments, namely, that a party seeking a new trial demonstrate
diligence in procuring the evidence and that the evidence
would be likely to produce an acquittal upon retrial.
A. Diligence in procuring evidence
What constitutes diligence in the pursuit of evidence de-
pends entirely on the circumstances of the particular case.
When, as here, a defendant believes that a particular person's
testimony would be vital to his defense but either cannot
locate the witness or believes it would be futile to subpoena
him, the defendant has the obligation to seek a continuance of
his trial or to explain to the trial court why the desired
witness will not be produced. A defendant who fails to
inform the court of his predicament will not satisfy Thomp-
son's second prerequisite. See, e.g., United States v. Gar-
land, 991 F.2d 328, 335 (6th Cir. 1993) (defendant who sought
continuance after unsuccessful attempt to locate witness satis-
fied diligence requirement); United States v. Kamel, 965 F.2d
484, 493 (7th Cir. 1992) ("If there is possible evidence which
would exonerate a defendant, he may not simply ignore
it...."); United States v. Kulczyk, 931 F.2d 542, 549 (9th
Cir. 1991) (counsel's failure to inform court before or during
trial that he could not locate two witnesses "indicates a lack of
due diligence"); United States v. Wright, 625 F.2d 1017, 1019
(1st Cir. 1980) (defendant who failed to seek continuance to
locate witness was not diligent).
Schaffer repeats the argument made at the motion hearing
that it would have been futile to subpoena Espy or seek a
continuance. As suggested by the cases cited in the preced-
ing paragraph, however, a belief in the futility of any such
action will not satisfy the need for a concrete attempt either
to compel the production of relevant evidence or to seek some
accommodation from the trial court that would preserve the
defendant's right to present evidence that was critical to his
case. Whatever the minimum requirement of diligence, it
cannot be a purely private evaluation of the availability of the
testimony or the likelihood of relief from the court. Such a
standard would seriously impair the important goal of finality
that the diligence requirement serves. See United States v.
Ugalde, 861 F.2d 802, 808 (5th Cir. 1988) (motion for new trial
is subject to "an unusually stringent [five requirement] test
... [that] gives great weight to society's interest in the
finality of criminal convictions").
B. Likelihood of an acquittal
Schaffer has failed to establish that Espy's testimony would
be likely to result in an acquittal because his testimony is not
relevant to the crime for which Schaffer was convicted.
Schaffer was found guilty of violating the MIA, which pro-
vides in relevant part:
Any ... agent or employee of any person, firm, or
corporation, who shall give, pay, or offer, directly or
indirectly, to any ... officer or employee of the United
States authorized to perform any of the duties prescribed
by this chapter ... any money or other thing of value,
with intent to influence said ... officer or employee of
the United States in the discharge of any duty provided
for in this chapter, shall be deemed guilty of a felony....
21 U.S.C. s 622. The prior appeal of Schaffer's MIA convic-
tion centered on "whether the prosecution presented suffi-
cient evidence for a reasonable jury to conclude that Schaffer
acted with the requisite intent to influence any of the Secre-
tary's duties under the Meat Inspection Act." Schaffer, 183
F.3d at 845 (emphasis added). As the prosecuting attorney
emphasized in his closing argument to the jury, "this case is
not ... about whether ... Secretary Espy was bought or
could be bought. This is about the giver and what was in the
giver's mind when the things given were given." Trial Tr. at
1702, reprinted in J.A. at 500.
As is evident from Espy's testimony during the evidentiary
hearing on the motion for a new trial, his testimony at a new
trial would do little to undermine the independent counsel's
case. Espy testified that he believed that the APF function
was a legitimate event, that his primary reason for traveling
to Arkansas the weekend of the Tyson birthday party was to
attend the APF function, and that he was aware of no
attempt to influence his exercise of his official duties during
the course of the weekend. Nothing in that testimony bears
on Schaffer's intent in helping to arrange for Espy's attend-
ance at these functions. The jury, for example, could fully
accept Espy's statement that he believed the meeting was a
legitimate event and still "reasonably infer that the [APF]
meeting, while legitimate, had nevertheless been set up to
provide Espy with official cover." Schaffer, 183 F.3d at 847.
Because we conclude that the district court erred in finding
that Schaffer had satisfied Thompson's second and fifth re-
quirements, we do not reach the question of whether Espy's
newly available testimony may be considered to be "newly
discovered" within the meaning of Rule 33. Although we
have previously noted this circuit's "strong[ ] suggest[ion]"
that "a non-party witness' post-trial offer to testify would fail
to qualify as newly discovered evidence where the substance
of the testimony was known to defendant at the time of trial,"
Gloster, 185 F.3d at 915, we leave for another day the
question of the vitality of this court's earlier opinions in Di
Giovanni v. Di Giovannantonio, 233 F.2d 26, 28-29 (D.C.
Cir. 1956), and Amos v. United States, 218 F.2d 44, 44 (D.C.
Cir. 1954), in which we granted new trials on the basis of
"newly discovered" evidence that was known to exist but was
unavailable to the defendant at the time of trial.
III. Conclusion
For the reasons given above, former Secretary Espy's
newly available testimony is not a sufficient basis for granting
Schaffer a new trial. Accordingly, we reverse the order
granting a new trial, reinstate the jury's verdict on the Meat
Inspection Act count, and remand the case to the district
court for sentencing.
So ordered.