United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed October 27, 2000
No. 99-3153
United States of America,
Appellant
v.
Archibald R. Schaffer, III,
Appellee
On Appellee's Petition for Rehearing
Before: Edwards, Chief Judge, Henderson, Circuit Judge,
and Buckley, Senior Circuit Judge.*
__________
* Senior Judge Buckley was a member of the panel which decided
United States v. Schaffer, 214 F.3d 1359 (D.C. Cir. 2000), at issue in
the instant petition for rehearing. Having retired on October 1,
2000, however, Senior Judge Buckley did not participate in the
consideration of the petition for rehearing.
O R D E R
Upon consideration of appellee's petition for rehearing,
filed on July 19, 2000, and the response thereto, it is
ORDERED that the petition for rehearing be denied.
Per Curiam
For the Court:
Mark J. Langer, Clerk
Opinion filed by Chief Judge Edwards, concurring in the
denial of the petition for rehearing.
Opinion filed by Circuit Judge Henderson, concurring sep-
arately.
Edwards, Chief Judge, concurring in the denial of the
petition for rehearing: In United States v. Schaffer, 214 F.3d
1359 (D.C. Cir. 2000) (Schaffer II), this court reversed a
judgment of the District Court granting a new trial for
defendant Schaffer. The trial judge had ruled that a new
trial was warranted under Rule 33 of the Federal Rules of
Criminal Procedure because the testimony of Michael Espy,
which was unavailable to the defendant during his first trial,
was newly available and likely to result in an acquittal if
introduced in a new trial. See id. at 1361. We rejected this
conclusion because the record revealed that Schaffer had
failed to satisfy the requirements of Thompson v. United
States, 188 F.2d 652 (D.C. Cir. 1951). See id. at 1363.
In his petition for rehearing, Schaffer complains that, in
applying the Thompson test of "diligence," the court in
Schaffer II unjustly adopted a new per se rule with retroac-
tive application. It is true that, in rejecting Schaffer's claim
that he showed diligence in an attempt to procure Espy's
testimony, the Schaffer II opinion states that,
[w]hen, 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.
Schaffer II, 214 F.3d at 1362. In retrospect, this could be
viewed as a new per se rule, as Schaffer suggests. This was
not the intention of the court in Schaffer II, however.
The dispositive holding in Schaffer II on the issue of
diligence is as follows:
a [mere] belief in the futility of ... action will not satisfy
the need for a concrete attempt either to compel the
production of relevant evidence or to seek some accom-
modation 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 dili-
gence, 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 require-
ment serves.
Schaffer II, 214 F.3d at 1362 (emphasis added). This is not a
new per se rule retroactively applied to Schaffer. It flows
directly from Thompson and other cases construing Rule 33.
See id.
In order to invoke Rule 33, a "party seeking [a] new trial
must [have shown] diligence in the attempt to procure the
newly discovered evidence." Thompson, 188 F.2d at 653.
The District Court in the instant case opined that the record
facts on diligence "are not in dispute." United States v.
Schaffer, 83 F. Supp. 2d 52, 55 (D.D.C. 1999). The trial judge
went on to find "no basis on which to conclude that counsel's
wish to have Espy testify was not genuine." Id. at 57
(emphasis added). No one could suppose, however, that this
was a finding of "diligence" as required by Thompson. The
District Court then concluded that "diligent efforts were
made to adduce Espy's testimony" when Schaffer's counsel
conferred with Espy's counsel and then made forthright
representations to the District Court about the unavailability
of Espy's testimony. Id. at 58. The problem, however, as
the District Court seemed to recognize, is that Schaffer's
decision not to take concrete action to procure Espy's testi-
mony was based on his personal surmise that any such action
would be futile. We have no reason to doubt that Schaffer's
counsel intended to be responsible and act professionally.
Nonetheless, there is no evidence of "diligence in the attempt
to procure" Espy's testimony as Thompson requires. The
District Court was simply wrong to conclude otherwise.
Schaffer suggests that he failed to take concrete action
because he subscribed to an untested belief that it would have
been futile to subpoena Espy and an unverified view that a
continuance would not have been granted. That is all that he
offered to show diligence, and Schaffer II says that it is far
short of what is required by Thompson. There is no mistake
in this conclusion. The suggestion in the petition for rehear-
ing that the court erred in adopting a new per se rule in
Schaffer II is a red herring. In any event, lest there be any
confusion on this point, we make it clear now that the
judgment in this case does not rest on any per se rule.
Schaffer also complains that, in reversing the District
Court, the decision in Schaffer II fails to give due deference
to the trial judge's view that Espy's testimony would likely
result in an acquittal. There is merit to this contention, for it
has long been said that
findings on conflicting evidence by trial courts on motions
for new trial based on newly discovered evidence remain
undisturbed except for most extraordinary circum-
stances.
United States v. Johnson, 327 U.S. 106, 111 (1946). "If there
is an issue of credibility of the newly discovered evidence, the
role of the judge is that of fact finder, and his resolution of
the fact issues is ordinarily not reviewable on appeal." 3
Charles Alan Wright, Federal Practice and Procedure
s 557, at 336 (2d ed. 1982). Thus, we review the District
Court's grant or denial of a new trial for abuse of discretion.
See Langevine v. District of Columbia, 106 F.3d 1018, 1023
(D.C. Cir. 1997).
In cases in which a motion for a new trial is granted, "the
degree of appellate scrutiny of new trial rulings should de-
pend on the reasons given for the awarding of a new trial."
Vander Zee v. Karabatsos, 589 F.2d 723, 728 (D.C. Cir. 1978).
When, for example, a motion is granted on the ground that
the verdict is against the weight of the evidence, a higher
degree of scrutiny will be applied by the appellate court,
because of "the concern that a judge's nullification of the
jury's verdict may encroach on the jury's important fact-
finding function." Tri County Indus. Inc. v. District of
Columbia, 200 F.3d 836, 840 (D.C. Cir. 2000) (quoting Lan-
gevine, 106 F.3d at 1023 (quoting Vander Zee, 589 F.2d at
729)), cert. granted, 69 U.S.L.W. 3191 (U.S. Sept. 26, 2000)
(No. 99-1953). However, when the District Court orders a
new trial "because confusing testimony and events created a
potential for injustice, not because the jury's verdict is
against the weight of the evidence[,] ... [o]nly the grossest
abuse of discretion could justify reinstating the jury's ver-
dict." Schneider v. Lockheed Aircraft Corp., 658 F.2d 835,
849 (D.C. Cir. 1981), cert. denied, 455 U.S. 994 (1982). In
light of this highly deferential standard of review, I cannot
say that the District Court erred in applying the "probably-
produce-an-acquittal" prong of the Thompson test.
The trial judge observed that,
[b]ecause the evidence of Schaffer's specific unlawful
intent was so thin--it was an entirely circumstantial case
on which the jury could have decided either way, Schaf-
fer, 183 F.3d at 850--the proffered evidence about the
nature of the [Arkansas Poultry Federation] meeting and
Espy's reasons for attending has an important bearing
on the "intent question." I find it indeed to be of such
nature that, in a new trial, it would probably produce an
acquittal.
United States v. Schaffer, 83 F. Supp. 2d at 54-55. The
Schaffer II opinion mistakenly doubts the relevance of the
Espy testimony and, therefore, concludes that its introduction
in a new trial "would do little to undermine the independent
counsel's case." Schaffer II, 214 F.3d at 1363. However,
because the Espy testimony cannot fairly be rejected as
irrelevant, and because the District Court was in the best
position to evaluate Espy's believability and the likely effect
of Espy's testimony on the rest of the evidence, it was a
mistake for this court to second-guess the trial judge on this
point.
This court's failure to give deference to the District Court
on the probably-produce-an-acquittal prong of Thompson
does not save the day for Schaffer, however. Even assuming,
arguendo, that Rule 33 may be applied in the absence of
"newly discovered" evidence, Schaffer's demand for a new
trial nonetheless fails for want of diligence. Furthermore,
although the decision in Schaffer II expresses skepticism
regarding the applicability of Rule 33 in cases involving
"newly available" (as opposed to "newly discovered") evi-
dence, see Schaffer II, 214 F.2d at 1363, Schaffer's petition
has not persuaded this court to perform a juridic tour de force
as regards the contours of Rule 33.
This result, admittedly, produces a curious disposition,
indeed, one that is somewhat troublesome. Traditionally, we
defer to the trial judge's exercise of discretion to grant a new
trial on grounds that there is a fair likelihood of acquittal. In
this case, however, we are obliged to ignore this powerful
consideration. Defendant simply failed to act with the dili-
gence required by Thompson, and such failure is fatal. My
concern over this curious application of the Thompson factors
is, in my view, noteworthy, though not peremptory. In the
end analysis, it is far from clear that this case involves newly
discovered evidence which Rule 33 absolutely requires, so
Schaffer's case fails in any event under the existing Federal
Rules of Criminal Procedure.
In short, I can find no basis upon which to set aside the
judgment of the court in Schaffer II. The petition for
rehearing must therefore be denied.
Karen LeCraft Henderson, Circuit Judge, concurring sepa-
rately:
While I agree that Schaffer's petition for rehearing should
be denied on the ground that the panel decision correctly held
defense counsel failed to exercise due diligence in attempting
to procure Espy's testimony, I do not believe we should
uphold the district court's finding that Espy's testimony, had
the jury heard it, would likely have led to Schaffer's acquittal.
This trial record reveals no "confusing testimony and events."
See Edwards Op. at 3-4 (quoting Schneider v. Lockheed
Aircraft Corp., 659 F.2d 835, 848 (D.C. Cir. 1981), cert.
denied, 455 U.S. 994 (1982)). Nor was the district court
called upon to assess the "believability" or "credibility" of
Espy's testimony. See id. at 3, 4. The district court's role
was simply to determine whether largely irrelevant evidence
would have persuaded the jury to render a different verdict.
And I continue to believe the district court got it wrong.