Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-13-2008
USA v. Rottschaefer
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1142
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"USA v. Rottschaefer" (2008). 2008 Decisions. Paper 1607.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 07-1142 & 07-1673
UNITED STATES OF AMERICA
v.
BERNARD ROTTSCHAEFER, M.D.,
Appellant
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Crim. Action No. 03-cr-00162-1)
District Judge: Hon. Gary L. Lancaster
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 12, 2008
BEFORE: SLOVITER, SMITH and STAPLETON, Circuit Judges
(Opinion Filed: February 13, 2008)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Bernard Rottschaefer appeals the District Court’s denial of his motion
for a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons stated
below, we will affirm.
I.
Because we write only for the parties who are familiar with the factual context and
procedural history of the case, we set forth only those facts necessary to our analysis.
On March 9, 2004, Rottschaefer was convicted of 153 counts of unlawful
distribution of a controlled substance based on his practice of over-prescribing painkillers
until his patients became addicted, and then demanding sexual favors in exchange for
subsequent refills. In his instant motion, Rottschaefer argues that he is entitled to a new
trial because the recent deposition testimony of his former patients proves that some of
them had been suffering from medical conditions that merited the treatment that he
provided. Further, he argues that he deserves a new trial because two former patients lied
by testifying that they had not been promised leniency in exchange for their cooperation,
an allegation he supports by the fact that these patients ultimately received lenient
sentences on the charges that they were facing.
After considering these arguments, the District Court denied Rottschaefer’s motion
on December 29, 2006. This appeal followed.1
II.
1
Although this appeal was premature when it was filed on January 12, 2007, this defect
was cured once the District Court entered the judgment of sentence on February 18, 2006.
E.g., United States v. Cottman, 142 F.3d 160, 164 n.5 (3d Cir. 1998); United States v.
Hashagen, 816 F.2d 899, 901 (3d Cir. 1987). Our jurisdiction is therefore proper
pursuant to 28 U.S.C. § 1291.
2
“Our case law makes clear that five requirements must be met before a trial court
may grant a new trial on the basis of newly discovered evidence: (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) 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. Saada, 212 F.3d 210,
216 (3d Cir. 2000). Because “Rule 33 motions for a new trial are directed to the district
court’s discretion,” our review is limited to “decid[ing] whether the trial judge abused that
discretion or failed to exercise it.” United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir.
1976).
What Rottschaefer offers as new evidence is in reality nothing more than
cumulative impeachment evidence that is unlikely to produce an acquittal. Therefore, we
agree with the District Court’s conclusion:
“Defendant was given ample opportunity to cross examine these witnesses
and call their testimony into question, and he did so. Veracity of witnesses
may not be tested for a second time. The testimony is merely cumulative
and impeaching . . . . The overall circumstances, and evidence, of this case
are such that regardless of what the patient witnesses may have told
defendant about their symptoms, the prescriptions were not written for
medical purposes. As such, defendant cannot satisfy the elements
warranting a new trial based on newly discovered evidence.”
United States v. Rottschaefer, No. CRIM 03-0162, 2006 WL 3840997, *2 (W.D. Pa. Dec.
29, 2006) (internal citations omitted).
3
By the same token, although it is well settled that a defendant’s Due Process rights
are violated when “(1) evidence was suppressed; (2) the evidence was favorable to the
defense; and (3) the evidence was material to guilt or punishment,” we agree with the
District Court’s conclusion that there is nothing in the record indicating that evidence was
suppressed, as one “cannot infer from the fact that these two witnesses have now received
leniency, that they had been promised leniency at the time of trial, but lied about it on the
stand.” United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006); Rottschaefer, 2006 WL
3840997, at *2.
Accordingly, Rottschaefer has not carried the “heavy burden” necessary to warrant
a new trial pursuant to Rule 33. Saada, 212 F.3d at 216.
III.
For the reasons set forth above, we will affirm the District Court on all grounds.
4