United States v. Jasin

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit

2-5-2002

USA v. Jasin
Precedential or Non-Precedential:

Docket 0-4185

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Filed February 5, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-4185

UNITED STATES OF AMERICA

v.

THOMAS P. JASIN,

Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 91-cr-00602-08)
District Judge: Honorable Jan E. Dubois

Submitted under Third Circuit LAR 34.1(a)
December 7, 2001

BEFORE: ALITO, AMBRO, and GREENBERG,
Circuit Judges

(Filed: February 5, 2002)

Michael L. Levy
United States Attorney
Robert A. Zauzmer
Assistant United States Attorney
Chief of Appeals
Robert E. Goldman
David L. Hall
Assistant United States Attorneys
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

Attorneys for Appellee
 Mark E. Haddad
Frank Menetrez
Sidley Austin Brown & Wood
555 West Fifth Street
Suite 4000
Los Angeles, CA 90013

Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge:

This matter comes on before this court on defendant
Thomas P. Jasin's appeal from the district court's order
entered on November 22, 2000, denying his motion for a
new trial based on newly discovered evidence pursuant to
Fed. R. Crim. P. 33. For the reasons we state herein, we will
affirm.

I. BACKGROUND

During the mid- to late-1980s, Thomas P. Jasin served as
a high-ranking officer of ISC Technologies ("ISCT"), a
subdivision of International Signal and Control ("ISC"),
based in Lancaster, Pennsylvania. ISC designed,
manufactured, sold and brokered sales of "medium to high
technology electronic military equipment and systems for
domestic and international customers." United States v.
Jasin, No. CRIM. A. 91-00602-08, 1993 WL 259436, at *2
(E.D. Pa. July 7, 1993). James H. Guerin, its majority
shareholder, founded ISC in 1971 and served as an officer
and director of its several successor corporations after ISC
went public in 1982.

From July 1984 until March 1986, Jasin was Vice
President of International Marketing at ISCT, and from
March 1986 until March 1987, he was its president. Jasin
was demoted in March 1987, but he remained an employee
at ISCT until March 1990. Throughout his tenure at ISCT,
Jasin managed the Striker missile project involving the sale
of South African anti-tank/anti-armor missiles, partially

2
manufactured with United States parts and technology, to
China. In exchange for brokering the deal, ISC was to
realize a 35% commission on the sale, which was valued at
$300-$500 million.

A grand jury indicted Jasin on October 30, 1991, on
three counts relating to a massive, 11-year conspiracy to
evade the international arms embargo against South Africa.
The 67-count indictment against 19 codefendants,
including as significant here, Robert Clyde Ivy, alleged that
ISC, certain of its high-level officers and employees, and
numerous South African nationals and corporations
conspired to transfer millions of dollars worth of military
weapons and components to and from South Africa through
various front companies in violation of the Arms Export
Control Act, 22 U.S.C. S 2778, the Comprehensive Anti-
Apartheid Act, 22 U.S.C. SS 5001 et seq. , and various
provisions of the federal money laundering statutes, 18
U.S.C. SS 1956, 1957. According to the government, ISC
conspired with the Armaments Corporation of South Africa
Ltd. ("Armscor") -- a state-owned corporation developed to
meet South Africa's armaments needs -- to export
American-made arms, munitions, and weapons technology
to Armscor to enhance its inventory and enable it to market
weapons systems to other countries. See App. 28. The
government also alleged that ISC and Armscor conspired to
import South African missile components into the United
States for testing and evaluation to facilitate the sale of
Striker missiles to China. See App. 31.

Count One charged Jasin with participating in the broad
conspiracy to circumvent the arms embargo against South
Africa. See App. 27-28. Count twenty-three charged him
with violating the Arms Export Control Act by falsely stating
to United States government agencies that the country of
origin of certain pieces of military hardware was Italy when
it was, in fact, South Africa. See App. 59. Finally, count
twenty-four charged him with violating the Arms Export
Control Act by exporting missile flight data and technology
from the United States to South Africa without a license or
written authorization from the United States Department of
State. See App. 60. The government dismissed count
twenty-three before trial because the statute of limitations
had expired on that count.

3
During a five-week trial in November and December
1992, the government presented evidence that Jasin
participated in the unlawful conspiracy through his
management of the Striker missile project. In particular,
the government established that Jasin was involved in the
illegal export of American-made components, such as UVP
lamp bulbs and Eagle Pitcher batteries, to South Africa for
integration into the Striker missile. The government also
offered proof that Jasin arranged to have South African
missile components -- including missile bodies, launch
canisters, a cut-away model, and rocket motors -- imported
unlawfully into the United States by routing them through
Italy. Finally, the prosecution presented evidence that Jasin
illegally transferred certain technical data relating to wind
tunnel testing of Striker missile components to and from
South Africa.1

Because of what he characterizes as poor trial
preparation by his defense attorney, Jasin called only four
witnesses at trial and was left with no alternative but to
present nearly his entire case through his own testimony.
See Br. of Appellant at 17. At trial he did not challenge the
government's ample evidence proving the existence of a
conspiracy to evade the arms embargo against South
Africa, but argued that this mountain of evidence did not
establish his involvement in or knowledge of the
conspiracy.

For instance, Jasin admitted that he was aware of
American-made lamp bulbs and batteries being sent to
South Africa, but he testified that he had been advised that
ISC had received authorization from Washington to export
the components to South Africa. See App. 2218. He also
conceded that he arranged to have the Striker missile
components imported into the United States via Italy, but
he insisted that he was under the honest but mistaken
belief that such an arrangement was lawful as long as
sufficient value had been added in Italy to make Italy the
_________________________________________________________________

1. For a comprehensive review of the evidence presented by the
government against Jasin and a thorough analysis of its sufficiency, see
the district court's opinion in Jasin, 1993 WL 259436, at *4-10, denying
Jasin's post-conviction motion for a judgment of acquittal.

4
appropriate country of origin for purposes of complying
with United States customs regulations. See App. 2203-04,
2211. Finally, he testified that he never intended the South
Africans to receive any technical data from the wind tunnel
testing of the Striker missile. See App. 2283-84, 2318.
Although he acknowledged that the South Africans
eventually obtained the test results, he maintained that the
transfer of data occurred after he had been demoted, and,
therefore, he was not responsible for or involved with the
transfer. See App. 2328.

On December 10, 1992, the jury returned a verdict of
guilty on count one relating to the conspiracy and not
guilty on count twenty-four relating to the transfer of
technical data. On July 16, 1998, the court sentenced
Jasin to 24 months in prison, which represented a
downward departure from his guideline range. Jasin
appealed, but we affirmed his conviction and sentence in
an unreported memorandum opinion dated August 12,
1999. See United States v. Jasin, 191 F.3d 446 (3d Cir.
1999) (table). Jasin filed a petition for certiorari to the
Supreme Court, but the Court denied his petition on
January 24, 2000. See United States v. Jasin, 528 U.S.
1139, 120 S.Ct. 986 (2000).2

Jasin's current appeal relates strictly to proposed
testimony of Robert Clyde Ivy, his former supervisor and a
codefendant. Jasin urges that we should grant him a new
trial at which he may present this testimony. From 1980
until 1989, Ivy served in various capacities as an officer
and director of ISC, including Director and Chairman of the
_________________________________________________________________

2. On January 23, 2001, Jasin filed a petition seeking relief pursuant to
28 U.S.C. S 2255 on the grounds that his prior attorney provided
ineffective assistance of counsel. Jasin contends that his attorney, who
previously had not tried a criminal case, completely failed to investigate
Jasin's case or interview any witnesses who Jasin claimed could provide
exculpatory evidence or useful expert testimony. Jasin also claims that
his attorney neglected to object to the government's violations of Jasin's
rights under Fed. R. Crim. P. 11(e)(6), the Speedy Trial Act, and the Due
Process Clause. Although Jasin dedicates several pages of his brief to his
attorney's alleged failures, his section 2255 motion still was pending in
the district court when he took this appeal and is not implicated directly
on this appeal.

5
Board of ISCT, President of ISC, and CEO of ISC
International. Jasin subpoenaed Ivy to testify at trial, but
Ivy invoked his Fifth Amendment privilege against self-
incrimination and refused to testify. After years of delay, Ivy
eventually pleaded guilty and the court sentenced him to a
six-month term of imprisonment, which he served in 1997.

On November 23, 1999, nearly two and a half years after
Ivy began serving his sentence, an investigator Jasin hired
visited Ivy at his home. Over the strong objections of his
wife, Ivy agreed to answer the investigator's questions.
According to the investigator, Ivy stated that Jasin had no
knowledge of the illegal conspiracy and never attended any
meetings where the conspiracy had been discussed. The
investigator also reported that Ivy stated that he"want[ed]
the truth to come out" and that "[t]here was no need for an
innocent guy to go to jail like I did." App. 3933.

On December 7, 1999, Ivy signed an affidavit declaring:
"I informed Jasin of Guerin's statements to me that ISC's
exports of defense components to South Africa had
Washington's approval." Ivy. Aff. P 7 (App. 3939). He also
stated in the affidavit that Jasin told him "in 1987 that ISC
needed to be cautious that South Africans not obtain
windtunnel data from tests conducted by ISC." Id. P 8 (App.
3939). Based on Ivy's affidavit and his comments to the
investigator, Jasin maintains that Ivy would provide
exculpatory testimony if called as a witness at a new trial.
Contending that good faith is a complete defense to each of
the charges against him, Jasin argues that Ivy's testimony
confirms Jasin's innocence by proving that Jasin operated
under the good faith belief that Washington had approved
the export of Striker missile components.

On September 28, 1999, Jasin filed a pro se motion for
a new trial "pursuant to Fed. R. Crim. P. 33 based upon
newly discovered evidence." In his initial filing, Jasin did
not mention Ivy's testimony, for his investigator had not yet
interviewed Ivy. Even after learning of Ivy's statement and
obtaining an affidavit from Ivy, however, Jasin did not seek
leave to amend his Rule 33 motion to include the proposed
Ivy testimony as a basis for relief. Nevertheless, he did
mention Ivy's exculpatory statement in several of his
subsequent filings, the first one being his pro se reply filed

6
on November 30, 1999, one week after his investigator
interviewed Ivy.

On November 22, 2000, the district court denied Jasin's
motion for a new trial, ruling, inter alia, that testimony of
a codefendant who invoked his Fifth Amendment rights at
trial is not newly discovered evidence. See United States v.
Jasin, No. CRIM. 91-602-08, 2000 WL 1793397 (E.D. Pa.
Nov. 22, 2000). Jasin filed a Notice of Appeal on December
1, 2000.3

II. JURISDICTION AND STANDARD OF REVIEW

A. Jurisdiction

The district court had jurisdiction pursuant to 18 U.S.C.
S 3231, which provides district courts with original
jurisdiction over all offenses against the laws of the United
States. The district court denied Jasin's motion for a new
trial based on "newly discovered evidence" on November 22,
2000, and Jasin filed a timely notice of appeal on December
1, 2000. Therefore, we have jurisdiction pursuant to 28
U.S.C. S 1291.

B. Standard of review

We review a district court's denial of a motion for a new
trial pursuant to Rule 33 for abuse of discretion. See United
States v. Pelullo, 14 F.3d 881, 886 (3d Cir. 1994).
Nevertheless, we determine de novo as a matter of law the
legal issue of whether the testimony of a codefendant who
invoked his Fifth Amendment privilege at trial constitutes
"newly discovered evidence" within the meaning of Rule 33.
See United States v. Johnson, 199 F.3d 123, 125 (3d Cir.
1999).
_________________________________________________________________

3. In its order entered on November 22, 2000, the district court directed
Jasin to report to the Bureau of Prisons on December 12, 2000, to begin
serving his 24-month term of imprisonment. On December 5, 2000,
Jasin filed a pro se Emergency Motion for Stay of Imprisonment to delay
his incarceration until after the court rendered a final decision on his
section 2255 motion. See supra note 2. On December 11, 2000, the
district court denied the motion, see United States v. Jasin, No. CR. 91-
602-08, 2000 WL 1886576 (E.D. Pa. Dec. 11, 2000), so Jasin currently
is serving his prison sentence.

7
III. DISCUSSION

A. Whether Jasin waived his Rule 33 claim with respect to
the Ivy evidence?

The government first argues that Jasin cannot appeal the
district court's denial of his Rule 33 motion with respect to
the Ivy testimony because he did not raise the issue in the
district court. In particular, the government points out that
Jasin's motion did not identify the Ivy evidence as"newly
discovered evidence" by reason of which the court should
grant a new trial, and Jasin never sought leave to amend
his motion to include the Ivy testimony as a basis for the
relief. Indeed, because Jasin did not raise the Ivy testimony
as a basis for relief in his motion, the government did not
address the testimony in its brief and the court did not
mention it in its ruling. Therefore, inasmuch as Jasin did
not properly present the Ivy testimony issue to the district
court, the government opines that Jasin has waived the
only issue that he has raised on appeal. Thus, it regards
Jasin's appeal as doomed.

Jasin responds that the Ivy testimony was, indeed, before
the district court for he and the government mentioned the
issue on five separate occasions. First, as the government
concedes, Jasin mentioned the Ivy testimony in his pro se
reply filed on November 30, 1999. See App. 3929-34.
Second, Jasin raised the issue in a letter to the court dated
December 9, 1999, in which he requested that Ivy's
affidavit be docketed as an attachment to his November 30
reply. See App. 3935-39. Third, Jasin addressed the Ivy
evidence in his answer to the government's reply on
January 12, 2000. See App. 3953-67A. Fourth, the
government squarely confronted the Ivy testimony in its
letter to the court dated January 19, 2000, in which the
government cited our unpublished decision in United States
v. Evans, No. 98-1706 (3d Cir. Dec. 3, 1999) (per curiam),
as dispositive of Jasin's motion for a new trial. See App.
3968-69. Fifth, Jasin again raised the Ivy evidence in his
third answer to the government's third reply on January
20, 2000. See App. 3981-83.

A review of Jasin's Rule 33 motion confirms that he did
not do the impossible by mentioning the Ivy testimony as

8
Jasin did not have Ivy's affidavit or his assurances that he
would testify on Jasin's behalf until after Jasin filed the
motion. As the parties agree, Jasin first referred to the Ivy
testimony in his initial reply filed on November 30, 1999.
Although Jasin did not move to amend his motion formally
to include the Ivy evidence as a basis for seeking a new
trial, Jasin filed the motion and the reply pro se, and,
therefore, we hold his documents to a less stringent
standard than those drafted by attorneys. See Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972); Zilich
v. Lucht, 981 F.2d 694 (3d Cir. 1992). We also point out
that even if Jasin explicitly had relied on the Ivy evidence
by amending his motion the result in the district court
would have been the same as that court held that the
testimony of another codefendent that became available
only after trial was not "newly discovered." See Jasin, 2000
WL 1793397, at *3-4. In all of the circumstances, we
conclude that Jasin properly raised the Ivy evidence before
the district court and did not waive the issue for appeal.4

B. Whether the District Court erred by failing to consider
the Ivy evidence?

Federal Rule Criminal Procedure 33 authorizes a district
court to grant a new trial "if the interests of justice so
require." If a defendant seeks a new trial based on "newly
discovered evidence," he must file the motion within three
years of the verdict.5 To determine whether a new trial
_________________________________________________________________

4. We hasten to add that we are not suggesting that a district court must
scrutinize every document that a party files in connection with a pending
motion to determine whether the court effectively should expand the
scope of the motion. Here, however, there is a special situation as Jasin
filed his papers pro se, he mentioned the Ivy testimony in several
documents he filed, and the government addressed the issue that this
testimony raised. Thus, our ruling is very narrow and is dependent on
the presence of the unusual circumstances of this case.

5. In 1998, Rule 33 was amended in two significant ways. First, the time
period within which a motion for a new trial based on newly discovered
evidence must be filed was increased from two to three years. Second,
under the previous version of Rule 33, the time period for filing a motion
for a new trial ran from the "final judgment," which referred to the
action
of the court of appeals on a direct appeal from the conviction. The rule

9
based on "newly discovered evidence" should be granted,
courts apply the following five-part test:

(a) the evidence must be[,] in fact, newly discovered,
i.e., discovered since trial; (b) facts must be alleged
from which the court may infer diligence on the part of
the movant; (c) 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). See also United States v. DiSalvo, 34 F.3d 1205,
1215 (3d Cir. 1994).

As already noted, the district court's order of November
22, 2000, denying Jasin's motion for a new trial did not
specifically address the Ivy evidence. Nevertheless,
inasmuch as we have determined that Jasin raised the
issue presented by the Ivy evidence in the district court, we
agree with Jasin that the court erred in failing to consider
the evidence. Indeed, the government believes that,
assuming Jasin has not waived the issue, we should
remand the case so that the district court properly can
consider whether the Ivy testimony constitutes "newly
discovered evidence." See Br. of Appellee at 45. Jasin
requests, however, that we decide the issue instead of
remanding the case. He argues that remanding the case
will deny him effective relief for he likely would have served
his entire sentence by the time the district court finally
considers the matter. See Br. of Appellant at 32.

We will proceed as Jasin wishes. While ordinarily in
circumstances similar to those here we might remand the
_________________________________________________________________

was changed to establish the district court's verdict as the point at
which the period begins to run.

Because Jasin was convicted in 1992, the district court applied the
pre-1998 version of Rule 33 to his case. Inasmuch as we affirmed Jasin's
conviction on August 12, 1999, and Jasin filed his motion for a new trial
on September 26, 1999, Jasin filed his motion well within the applicable
time period.

10
matter for reconsideration by the district court, as we
stated in PAAC v. Rizzo, 502 F.2d 306, 308 n.1 (3d Cir.
1974), "[i]t is proper for an appellate court to affirm a
correct decision of a lower court even when that decision is
based on an inappropriate ground." Of course, if we uphold
the order denying the new trial, our opinion will come
comfortably within that principle. Moreover, inasmuch as
we make our determination as a matter of law that the Ivy
testimony is not newly discovered evidence, we see no
reason to remand.

C. Whether the unavailable testimony of a codefendant
who invokes his Fifth Amendment privilege at trial qualifies
as "newly discovered evidence" under Rule 33 ?

The pivotal issue on appeal is whether the previously
known, but only newly available, testimony of a
codefendant who invoked his Fifth Amendment privilege
against self-incrimination and did not testify at trial
qualifies as "newly discovered evidence" for the purpose of
considering a motion for a new trial under Rule 33. After
careful consideration of this matter, we join the majority of
courts of appeals in concluding that evidence known but
unavailable at trial does not constitute "newly discovered
evidence" within the meaning of Rule 33.6

The first prong of the Iannelli test addresses whether the
proffered evidence is "newly discovered" -- that is, whether
it was known to the defendant at trial. See United States v.
Bujese, 371 F.2d 120, 125 (3d Cir. 1967) ("It is equally well
settled that evidence is not `newly discovered' when it was
known or could have been known by the diligence of the
defendant or his counsel."). It is undisputed that Jasin was
aware of the substance of the Ivy testimony at the time of
trial, but that the testimony nevertheless was unavailable
because Ivy would not testify and could avoid doing so by
_________________________________________________________________

6. We are one of only a few courts of appeals who have yet to resolve this
issue in a published opinion. The "question of whether testimony which
was previously unavailable because of a witness' invocation of a fifth
amendment right, properly can be deemed `newly discovered' under Rule
33" surfaced in United States v. Herman, 614 F.2d 369, 372 (3d Cir.
1980), but we decided to let the district court address the "thorny" issue
in the first instance on remand.

11
asserting his Fifth Amendment right against self-
incrimination.7 It was only after Ivy had pleaded guilty and
served his sentence that his testimony became available. In
these circumstances, Jasin urges us to adopt the approach
of the Court of Appeals for the First Circuit in United States
v. Montilla-Rivera, 115 F.3d 1060 (1st Cir. 1997), by
establishing that "newly available evidence" constitutes
"newly discovered evidence" within the meaning of Rule 33.
The government, on the other hand, requests that we reject
the holding in Montilla-Rivera and follow the majority rule
that "newly available evidence" is not synonymous with
"newly discovered evidence."

In Montilla-Rivera, the three defendants sold two
kilograms of cocaine to a DEA confidential informant and
subsequently were indicted for distribution and conspiracy
to distribute cocaine. See id. at 1061-62. Two defendants
entered guilty pleas, but defendant Montilla went to trial,
maintaining that his mere presence did not constitute
participation in the drug sale. See id. He subpoenaed his
co-defendants as witnesses, but informed the court that
they would exercise their Fifth Amendment rights and
would not testify, as they both were awaiting sentencing.
See id. at 1063. After being convicted on the conspiracy
count, Montilla filed a motion for a new trial, attaching
thereto affidavits from his codefendants, who since had
been sentenced, to the effect that Montilla had not been
involved in the drug transaction. See id. The district court
denied Montilla's motion, ruling that his codefendants were
known and available at the time of trial, and therefore, their
testimony did not constitute "newly discovered evidence"
under Rule 33. See id.
_________________________________________________________________

7. Indeed, our holding is premised entirely on the conclusion that Jasin
was aware of the substance of Ivy's testimony at trial, for if Ivy
presented
evidence of which Jasin had no knowledge at trial, Ivy's testimony clearly
would be "newly discovered evidence" under the first prong of Iannelli
and would be a basis for granting a new trial if it satisfied the
remaining
prongs. Nevertheless, nowhere in his briefs or the record does Jasin
intimate that he was unaware of the substance of Ivy's statements at
trial. Instead, he argues that we should make an exception under the
Iannelli test for previously known but newly available evidence.

12
The Court of Appeals for the First Circuit reversed on the
grounds that "[t]his circuit has, for almost twenty years,
held that the `newly discovered' language of Rule 33
encompasses evidence that was `unavailable.' " Id. at 1066.
The court rejected the district court's conclusion that the
codefendants were available to testify, explaining that
Montilla "did not have the power to compel them to testify
at his trial in light of their Fifth Amendment privileges." Id.
at 1065. In reaching its result, the court reasoned that
"there seems little distinction between evidence which a
defendant could not present because he did not know of it
and evidence which he could not present because the
witness was unavailable despite exercising due diligence."
Id. at 1066.8

The government dismisses Montilla-Rivera as an anomaly
_________________________________________________________________

8. Jasin also cites two opinions of the Court of Appeals for the Fifth
Circuit that he believes by implication held that"newly discovered
evidence" includes testimony of codefendants who refused to testify at
trial by asserting their Fifth Amendment rights. In Newsom v. United
States, 311 F.2d 74, 75 (5th Cir. 1962), defendants Newsom and Linton
were indicted jointly for selling 276 grams of marijuana to an undercover
federal agent. Newsom went to trial and was convicted. See id. Only days
later, Linton entered a guilty plea and stated in open court that he was
sorry for getting his friend Newsom in trouble because Newsom had no
knowledge of the drug sale. See id. at 78. Shortly thereafter, Newsom
filed a motion for a new trial accompanied by an affidavit from Linton
attesting to Newsom's innocence. See id. at 78-79. The court of appeals
reversed the district court's denial of the motion on the grounds that the
evidence against Newsom was "weak," that Newsom was unable to avail
himself of Linton's testimony at trial, and that another jury could "find
Linton's testimony sufficiently credible to raise a reasonable doubt as to
the truth and the meaning of the special employee, and hence of the
defendant's guilt." Id. at 79.

In Ledet v. United States, 297 F.2d 737, 738 (5th Cir. 1962), customs
agents found 41 grams of heroin under the passenger seat occupied by
defendant Ledet in a car owned and driven by defendant Bourg. At trial,
Bourg opted not to testify, but Ledet took the stand and testified that he
knew nothing about the heroin. See id. After both defendants were
convicted and sentenced, Bourg offered an affidavit completely
exculpating Ledet. See id. at 739. The court of appeals reversed the
district court largely based on the "ambiguous facts" concerning
possession of the heroin. The court explained that:
the fact that total and complete possession by Bourg, the owner and
driver of the automobile would be entirely consistent with Ledet's

13
and argues that we should follow the majority rule that
testimony known to the defendant at the time of trial is not
"newly discovered evidence," even if it was unavailable at
trial by reason of the witness's Fifth Amendment privilege
against self-incrimination. See United States v. Freeman, 77
F.3d 812, 817 (5th Cir. 1996) ("When a defendant is aware
of a co-defendant's proposed testimony prior to trial, it
cannot be deemed newly discovered under Rule 33 even if
the co-defendant was unavailable because she invoked the
Fifth Amendment."); United States v. Theodosopoulos, 48
F.3d 1438, 1448-50 (7th Cir. 1995) (concluding that post-
trial testimony of person who exercised his Fifth
Amendment right against self-incrimination does not
qualify as "newly discovered evidence" because defendant
knew substance of testimony during trial); United States v.
Glover, 21 F.3d 133, 138 (6th Cir. 1994) (concluding that
newly available testimony of individual who asserted his
Fifth Amendment privilege against self-incrimination was
not "newly discovered evidence" within the meaning of Rule
33); United States v. Muldrow, 19 F.3d 1332, 1339 (10th
Cir. 1994) ("If a former codefendant who originally chose
not to testify subsequently comes forward and offers
testimony exculpating a defendant, the evidence is not
_________________________________________________________________

complete innocence or knowledge of, or dominion over, the
narcotics, requires that a new trial be granted in order that the
previously silent witness who knows most about the transaction
may be given an opportunity to testify to facts that he has now
asserted in the form of an affidavit.

Id.

Jasin's reliance on Newsom and Ledet, while understandable, is
misplaced for the court based both opinions on the"peculiar
circumstances" of the respective cases. Newsom, 311 F.2d at 79; Ledet,
297 F.2d at 739. Indeed, the court later explicitly limited these cases to
their facts and rejected the contention that Jasin makes here that "newly
available evidence" constitutes "newly discovered evidence" within the
meaning of Rule 33. See United States v. Metz , 652 F.2d 478, 480 (5th
Cir. 1981). See also United States v. Perez-Paredes, 678 F. Supp. 259,
261 (S.D. Fla. 1988) (stating that "Metz narrowly restricts both Ledet and
Newsom to their facts and . . . rejects the notion that newly available
evidence is synonymous with newly discovered evidence for the purposes
of a motion for a new trial").

14
newly discovered if the defendant was aware of the
proposed testimony prior to trial."); United States v. Dale,
991 F.2d 819, 838-39 (D.C. Cir. 1993) ("The unanimous
view of circuits who have considered the question is that
this [newly discovered evidence] requirement is not met
simply by offering the post-trial testimony of a co-
conspirator who refused to testify at trial."); United States v.
Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993) (stating that
"when a defendant who has chosen not to testify
subsequently comes forward to offer testimony exculpating
a co-defendant, the evidence is not `newly discovered' ");
United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th
Cir. 1992) ("The Ninth Circuit has adopted the view that
when a defendant who has chosen not to testify
subsequently comes forward to offer testimony exculpating
a co-defendant, the evidence is not newly discovered."
(internal quotation marks omitted)); United States v.
Lockett, 919 F.2d 585, 591 (9th Cir. 1990) (stating that
"[w]hen a defendant who has chosen not to testify
subsequently comes forward to offer testimony exculpating
a co-defendant, the evidence is not `newly discovered' ");
United States v. DiBernardo, 880 F.2d 1216, 1224-25 (11th
Cir. 1989) (concluding that newly available, exculpatory
testimony of codefendant "cannot be deemed `newly
discovered evidence' within the meaning of Rule 33" if
defendants were aware of testimony before trial); United
States v. Metz, 652 F.2d 478, 480 (5th Cir. 1981)
(concluding that testimony of codefendant who was
unavailable at joint trial because he invoked the Fifth
Amendment "cannot be considered `newly discovered' ");
United States v. Diggs, 649 F.2d 731, 740 (9th Cir. 1981)
("When a defendant who has chosen not to testify
subsequently comes forward to offer testimony exculpating
a co-defendant, the evidence is not `newly discovered.' "),
overruled on other grounds, United States v. McConney, 728
F.2d 1195 (9th Cir. 1984) (en banc). See also United States
v. Yu, 902 F. Supp. 464, 468 (S.D.N.Y. 1995) (concluding
that testimony of individual who did not testify at trial "can
at best be characterized as `newly available,' which is not
synonymous with newly discovered evidence on a Rule 33
motion" (internal quotation marks omitted)), aff'd mem.,
101 F.3d 1393 (2d Cir. 1996); United States v. Matos, 781

15
F. Supp. 273, 279 (S.D.N.Y. 1991) (same); United States v.
Persinger, 587 F. Supp. 899, 901 (W.D. Pa. 1984).

Courts generally consider exculpatory testimony offered
by codefendants after they have been sentenced to be
inherently suspect. Indeed, "a court must exercise great
caution in considering evidence to be `newly discovered'
when it existed all along and was unavailable only because
a co-defendant, since convicted, had availed himself of his
privilege not to testify." United States v. Jacobs, 475 F.2d
270, 286 n.33 (2d Cir. 1973). The rationale for casting a
skeptical eye on such exculpatory testimony is manifest.

It would encourage perjury to allow a new trial once co-
defendants have determined that testifying is no longer
harmful to themselves. They may say whatever they
think might help their co-defendant, even to the point
of pinning all the guilt on themselves, knowing they are
safe from retrial. Such testimony would be
untrustworthy and should not be encouraged.

Reyes-Alvarado, 963 F.2d at 1188.

Jasin attempts to distinguish these cases by suggesting
that the courts weighed all of the Iannelli factors before
ruling on the motion rather than merely applying a
"categorical ban" on codefendant testimony that was
unavailable at trial because the individual asserted his
Fifth Amendment rights. See Br. of Appellant at 40. He
maintains that when these courts denied motions for a new
trial based on newly available codefendant testimony, at
least one other Iannelli factor was unsatisfied, such as, for
example, diligence, materiality, or likelihood of producing
an acquittal. See id. Although this is true in some of the
cases, it is not true in all of them. For instance, the Court
of Appeals for the Ninth Circuit in Reyes-Alvarado ended its
Iannelli-style analysis after it determined that the evidence
was not "newly discovered" insofar as it had been offered by
codefendants who had refused to testify at trial. The Court
of Appeals for the Eleventh Circuit in DiBernardo likewise
considered only whether there was "newly discovered
evidence" in affirming the district court's denial of the
motion for a new trial. See also Rogers, 982 F.2d at 1245;
Lockett, 919 F.2d at 591-92; Metz, 652 F.2d at 479-81.

16
Although it may be advisable for a district court to analyze
each prong of the Iannelli test after finding that one factor
has not been met, such an analysis of the remaining factors
is not required inasmuch as the failure of one element is a
sufficient basis to deny a motion for a new trial. 9

Jasin also cites two of our opinions that he believes
implicitly reject a categorical ban on newly available
codefendant testimony to support a Rule 33 motion. In
United States v. Rocco, 587 F.2d 144 (3d Cir. 1978), four
men were indicted for embezzling and conspiring to
embezzle $100,000 from a union pension fund. Defendant
La Duca went to trial and called his codefendant, Neiman,
as a witness, but Neiman, who already had pled guilty to
the conspiracy count, invoked his Fifth Amendment rights
and thus would not testify. Nevertheless, after Neiman was
sentenced and La Duca was convicted, Neiman expressed
his willingness to testify on La Duca's behalf. Consequently,
La Duca filed a motion for a new trial supported by an
affidavit in which Neiman stated he would provide
testimony exonerating La Duca.

The district court denied the motion on the grounds that
La Duca had not been diligent in requesting that the
government provide Neiman use immunity for his
testimony. Although we rejected the district court's
rationale, we nevertheless affirmed its denial of the motion
for a new trial on the alternative grounds that (1) La Duca
had not been diligent in determining whether Neiman still
had a Fifth Amendment privilege at the time of La Duca's
trial and (2) Neiman's testimony probably would not have
produced an acquittal. Jasin maintains that our application
_________________________________________________________________

9. We recognize that in some instances, application of the Iannelli
factors
may require a necessarily inexact analysis as, for example, whether the
evidence probably would have produced an acquittal. In such
circumstances, it might well be particularly prudent for a court
considering a Rule 33 motion to consider all the Iannelli factors. On the
other hand, if a court determines as a matter of law that evidence is not
newly discovered, then no matter what the court's conclusions are as to
the other Iannelli factors, it must deny the defendant's Rule 33 motion.
Of course, even in those circumstances, it might be advisable for a
district court to consider other Iannelli factors, as it is possible that
a
court of appeals might regard the evidence as newly discovered.

17
of the Iannelli test to Neiman's testimony despite his status
as a codefendant was an implicit rejection of a categorical
ban on newly available codefendant testimony.

In United States v. Lowell, 649 F.2d 950, 966 (3d Cir.
1981), defendants Lowell and Pionzio were tried jointly for
and convicted of participation in a bribery conspiracy.
Pionzio did not testify at trial, but later, under a grant of
immunity, he provided grand jury testimony that appeared
to exculpate Lowell. Lowell did not file a Rule 33 motion
based on Pionzio's grand jury testimony with the district
court, but instead raised the issue for the first time on
appeal. In our opinion, we noted that Pionzio's grand jury
testimony, if true, completely contradicted the only witness
who tied Lowell to the bribery conspiracy. Even so, we
refused to weigh the probative value of Pionzio's testimony,
stating that it would "be necessary for Lowell to raise this
issue, if at all, in an appropriate motion under Fed. R.
Crim. P. 33, to be presented in the first instance to the
district court." Id. at 966. We added:"Pionzio's newly given
testimony may or may not be sufficiently exculpatory to
warrant retrial on the basis of newly discovered evidence."
Id.

Even though Jasin relies on these opinions, neither one
controls our result. Although Jasin is correct that Rocco did
not reject Neiman's testimony because of his status as a
codefendant, we did not address squarely the issue of
whether testimony that was unavailable to a defendant as
a result of the witness's Fifth Amendment privilege against
self-incrimination qualifies as "newly discovered evidence"
under Rule 33. Similarly, Lowell is of little help to Jasin.
We did not say in Lowell that the codefendant's testimony
would constitute newly discovered evidence; we merely
stated that if the defendant were to raise the issue at all, he
would have to do so in a Rule 33 motion before the matter
could be addressed on appeal. At bottom, although these
two decisions perhaps leave the door open for us to adopt
the holding in Montilla-Rivera, the opinions do not make a
persuasive case for such an approach.

The government urges us to reject Jasin's interpretation
of Rocco and Lowell and instead follow the reasoning of our
more recent unreported opinion in United States v. Evans,

18
No. 98-1706 (3d Cir. Dec. 3, 1999) (per curiam), which the
government cites only as "persuasive authority." Although
there can be no doubt that Evans supports the result we
reach here, inasmuch as the opinion is unreported it
should not be regarded as precedential. See Third Circuit
IOP 5.8. Thus, we reach our result on the bases we have
set forth independently of our result in Evans .

Having said that, we nevertheless will explore the Evans
decision further, for it exposes the fallacy of Jasin's
argument. In that case, defendants Evans and Handy were
convicted of various offenses related to a bank robbery.
Evans filed a Rule 33 motion several years later based on
an affidavit from Handy stating that Handy's attorney
informed the prosecution during plea negotiations that the
masked man accompanying Handy during the robbery was
actually the government's key witness, Tyrone Mallory, not
Evans. The panel considered the substance of the
statement to constitute two distinct pieces of evidence: (1)
that Evans was not the masked robber and (2) that Mallory
was the masked robber.

The panel concluded that the first piece of evidence that
Evans was not the masked robber failed the first prong of
the Iannelli test because Evans knew at the time of trial
that he was not the masked man. In so holding, the panel
explicitly rejected Montilla-Rivera, opting to align with other
courts of appeals who have determined that "newly
available evidence" is not synonymous with "newly
discovered evidence." The panel concluded that our "limited
jurisprudence on this narrow matter does not allow for Rule
33 relief if the evidence is newly available." Id. at 7 n.4
(citing Herman, 614 F.2d at 372, and Bujese, 371 F.2d at
125).

With regard to the second piece of evidence, the panel
stated that "[t]he evidence that Mallory was the masked
robber is conceivably new and may meet the first prong of
the test." Id. at 7. The panel nevertheless affirmed the
district court's denial of the motion for new trial because it
could not "say that this testimony would probably have
produced an acquittal." Id. Jasin insists that the holding
with respect to this second piece of evidence supports his
position insofar as the panel did not bar the newly available

19
testimony because it was offered by a codefendant, but
instead fully applied the Iannelli test and ultimately
concluded that the evidence failed the fifth prong. Jasin
loses sight, however, of the crux of the issue. Unlike Evans
who did not know the substance of Handy's statement
regarding the true identity of the masked robber, Jasin was
aware of the substance of Ivy's testimony -- namely, that
Jasin was not involved in or aware of the conspiracy. In
other words, Ivy's testimony is analogous to the first part of
Handy's statement, not the second. Jasin fails to
understand that whether the defendant was aware of the
substance of the testimony at the time of trial-- not
whether the testimony came from a codefendant who
asserted his Fifth Amendment privilege at trial-- is the
determining factor under the first prong of the Iannelli test.
Consequently, even under Jasin's reading of Evans, Jasin's
knowledge of the substance of Ivy's testimony before trial,
regardless of Ivy's unavailability as a witness during trial, is
fatal to the Rule 33 motion for new trial.

Finally, Jasin argues that imposing a per se ban10 on
subsequently available codefendant testimony is not"in the
interests of justice." Jasin recognizes that such testimony
should be considered with greater caution, but he insists
that courts should consider it with this justified skepticism
in the context of all five prongs of the Iannelli test rather
than categorically banning it under the "newly discovered"
prong. He argues that if courts are concerned about the
credibility of a convicted codefendant's testimony because
he or she falsely may assume all of the blame without
further consequences in an effort to help his or her cohort,
courts should weigh this possibility under the fifth Iannelli
prong when they determine whether such questionable
testimony probably would produce an acquittal. Jasin
contends that his approach "affords an innocent defendant
-- particularly one who was convicted, as Jasin was here,
_________________________________________________________________

10. Throughout his briefs, Jasin insists on characterizing the holdings of
the majority of the courts of appeals as imposing a per se ban on newly
available codefendant testimony. We do not interpret these opinions or
our holding as such. The standard we adopt today bans newly available
codefendant testimony only if the defendant was aware of the substance
of the testimony at trial.

20
on weak evidence -- the opportunity to raise exculpatory
evidence that he was unable to present at trial through no
fault of his own." Br. of Appellant at 43-44. 11

The government responds that the rule proposed by
Jasin would cause chaos within the criminal justice
system. It argues that acceptance of Jasin's position that
testimony of a codefendant after his or her sentencing
qualifies as "newly discovered evidence" under Rule 33
"could render countless joint criminal trials meaningless,
only to be followed, in later years, by multiple new trials as
defendants jockey to offer testimony for each other in an
effort to obtain different results." Br. of Appellee at 49 n.10.

In the end, we opt to follow the majority rule in
concluding that a codefendant's testimony known to the
defendant at the time of trial cannot be considered"newly
discovered evidence" under Rule 33, regardless of the
codefendant's unavailability during trial because of
invocation of his Fifth Amendment privilege. Not only does
such an approach establish a straightforward bright-line
rule, but it is anchored in the plain meaning of the text of
Rule 33. Although Jasin advances a reasonable justification
for allowing a district court to consider certain"newly
available" testimony of a witness who previously invoked
his Fifth Amendment privilege when deciding a motion for
a new trial, he cannot overcome the unambiguous language
of Rule 33, which contemplates granting of a new trial on
the ground of "newly discovered evidence" but says nothing
about newly available evidence. Moreover, as we have
explained, there are compelling practical reasons to reject
his argument.

In light of our decision to adopt the majority rule that
"newly available evidence" is not synonymous with "newly
discovered evidence," it is clear that Jasin is not entitled to
a new trial under Rule 33. Although we believe that the
district court should have considered the Ivy evidence
under the Iannelli test, we nevertheless will affirm its denial
of the motion for a new trial, for it is undisputed that Jasin
knew of the substance of Ivy's testimony before trial.
_________________________________________________________________

11. Of course, Jasin's characterization of the case against him as "weak"
is his own. The district court merely said that the case was close.

21
Jasin's failure to satisfy the first requirement under Iannelli
obviates the need for further analysis of the Ivy evidence
under the four remaining prongs of the Iannelli test.
Accordingly, the order of the district court will be affirmed.

IV. CONCLUSION

For the foregoing reasons, we will affirm the district
court's order entered on November 22, 2000.

22
AMBRO, Circuit Judge, concurring:

I concur because I do not believe that Jasin can satisfy
the fifth Iannelli prong--that the new evidence would
probably result in his acquittal. United States v. Iannelli,
528 F.2d 1290, 1292 (3d Cir. 1976). I write separately,
however, because I respectfully disagree with the majority's
position on the first prong--whether the statements in Ivy's
affidavit are in fact newly discovered evidence. The majority
professes not to follow a per se rule barring a co-
defendant's previously unavailable testimony, but it
achieves the same result, I believe, by construing too
narrowly what it means for evidence to be newly discovered.
I believe that "the better rule is not to categorically exclude
the testimony of a co-defendant who asserted his Fifth
Amendment privilege at trial under the first prong but to
consider it, albeit with great skepticism, in the context of all
prongs of our [Iannelli] test." United States v. Montilla-
Rivera, 115 F.3d 1060, 1066 (1st Cir. 1997).

The majority's approach is nuanced. It eschews a"per se
ban on newly available codefendant testimony." Maj. Op. at
n.10. Instead, "[t]he standard we adopt today bans newly
available codefendant testimony only if the defendant was
aware of the substance of the testimony at trial." Id. But,
according to the majority, a defendant who has a general
impression of how a witness might testify at trial is "aware"
of that witness's testimony. Thus, the defendant cannot
later employ it to prove his innocence because he ostensibly
knew the non-existent testimony during his trial.

Rule 33, however, is not always so strict and criminal
defendants are not so prophetic. In my view, this case
survives the first Iannelli prong because Jasin not only
lacked the statements in Ivy's affidavit at his trial, he did
not even have particularized knowledge of what Ivy would
say. Ivy's affidavit exculpating Jasin in some measure did
not exist until December 1999. The record does not show
that Jasin knew at trial what Ivy would have testified. That
means that the only "evidence" that existed in 1992 was
Jasin's general awareness that Ivy knew the extent of his
involvement in the conspiracy.1 Such awareness cannot
_________________________________________________________________

1. As a separate matter, I question the majority's implicit conclusion
that
Jasin possessed at his trial the "evidence" he now seeks to introduce. To

23
substitute for particularized information. I cannot say that
Jasin knew the substance of Ivy's putative testimony simply
because they shared a common experience.

By comparison, most of the cases from other circuits on
which the majority relies involved defendants who at trial
actually had particularized knowledge about or even the
text of the evidence they later claimed was "newly
discovered." See United States v. Freeman, 77 F.3d 812,
817 (5th Cir. 1996) (defendant actually knew the proposed
testimony of her co-defendant); United States v.
Theodosopoulos, 48 F.3d 1438, 1448-50 (7th Cir. 1995)
(defendant's attorney had interviewed co-defendant prior to
trial and obtained the contents of his proposed testimony);
United States v. Glover, 21 F.3d 133, 138 (6th Cir. 1994)
(defendant was "well aware of [previously unavailable
witnesses'] testimony prior to trial"); United States v.
Muldrow, 19 F.3d 1332, 1339 (10th Cir. 1994) ("substance
of [co-defendant's] testimony was known to defendant's
counsel prior to trial and was produced at trial"); United
States v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993)
(defendant claimed as newly discovered evidence a letter
from a co-defendant available to him throughout the trial);
United States v. DiBernardo, 880 F.2d 1216, 1224-25 (11th
Cir. 1989) (defendants seeking new trial were "well aware of
[co-defendant's] proposed testimony prior to trial"); United
States v. Metz, 652 F.2d 478, 480 (5th Cir. 1981)
(defendant's attorney knew prior to trial the "entire
substance," including "specific details and facts," of co-
defendant's testimony).
_________________________________________________________________

me, evidence is something tangible, such as testimony or documents,
that a litigant can present to a factfinder. Evidence is not merely an
abstraction.

In this case, tangible evidence that Jasin could present to a court on
this issue did not exist until 1999. Until then, Jasin had little more
than
a hunch what Ivy would testify. A hunch is not evidence, as
demonstrated by the obvious fact that no court would accept it as such.
But the majority would accept Jasin's suspicion of what Ivy knew as
evidence. Because all that Jasin had at trial was at most an informed
guess, I disagree. That distinction by itself should get Jasin past the
first
Iannelli prong.

24
I am unconvinced by the Government's argument that
perjured testimony by former co-defendants will cause
turmoil in the courts "as defendants jockey to offer
testimony for each other in an effort to obtain different
results." Gov't Br. at 49 n.10. While I agree that there is
some risk of perjury in permitting a former co-defendant
under no threat of criminal prosecution to testify, the
appropriate response is not to ban such testimony. Rather,
I would rely on the adversarial process, on the court's
discretion to exclude irrelevant or prejudicial testimony,
and on its ability to assess credibility. Moreover, there is no
sign that chaos has reigned in the First Circuit since the
Montilla-Rivera decision. Indeed, the Government allocates
its dire prediction only a footnote near the end of its brief.

In addition, I am concerned that the Government will be
encouraged by today's holding to delay trials of co-
defendants who might give exculpatory testimony in order
to bar that testimony. Although this concern is speculative,
it is no more so than the Government's predictions the
other way.

My reading of what constitutes newly discovered evidence
does not mean that I would grant new trials with abandon.
While I would permit a defendant to overcome the first
prong more frequently than the majority would, the
remaining Iannelli prongs will defeat many new trial
motions anyway. Frequently, although a piece of evidence is
new, it will also be cumulative because it tends to prove a
fact already determined through other evidence. In that
case, the new trial motion will be denied under the third
prong. In other cases, the fourth or fifth Iannelli prongs will
prevent a new trial because the newly discovered evidence
is not material or is unlikely to result in an acquittal.

Although I would permit Jasin to overcome the first
Iannelli prong, I concur in the majority's result because I
am not convinced that the statements in Ivy's affidavit
would probably result in an acquittal. The record, in
conjunction with Ivy's carefully worded affidavit, suggests
that Jasin knew enough of the conspiracy to support his
conviction. In any event, our holding today does not prevent

25
Jasin from presenting evidence of his innocence in
otherwise proper proceedings under 28 U.S.C. S 2255.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

26