UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4711
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN DOUGLAS BIRD, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:09-cr-00015-MR-DLH-1)
Argued: October 29, 2015 Decided: January 15, 2016
Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Donald
David Gast, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Ross Richardson,
Executive Director, Douglas E. Roberts, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Douglas Bird, Jr., an enrolled member of the Eastern
Band of Cherokee Indians, was convicted in federal district
court of attempted murder and other charges related to a 2008
shooting that took place on the Cherokee reservation. See 18
U.S.C. § 1113 (prohibiting attempts to commit murder “within the
special maritime and territorial jurisdiction of the United
States”); 18 U.S.C. § 1153(a) (providing that “[a]ny Indian” who
commits certain offenses “within the Indian country, shall be
subject to the same law and penalties as all other persons
committing any of the above offenses, within the exclusive
jurisdiction of the United States”). Bird thereafter filed a
motion for a new trial based on newly discovered evidence that
someone else committed the shooting. See Fed. R. Crim. P. 33.
The district court denied the motion, and Bird appeals. Finding
no reversible error, we affirm.
I.
A.
The evidence presented at Bird’s trial showed the
following. On Christmas Day, 2008, the victim, Merony George
“Garce” Shell, was walking in the woods at the end of Bunches
Creek Road, a mountainous area within the boundaries of the
Cherokee reservation. He heard someone behind him, turned and
saw Bird, a former co-worker of Shell’s, standing near a gray
2
truck and holding a rifle at his side. Shell responded by
cursing Bird and saying, “You might as well kill me. You’ve got
the gun.” J.A. 156. Bird shot Shell, hitting him multiple
times in the face and on the arm.
After being shot, the next thing Shell recalled was driving
back down Bunches Creek Road and wiping blood off his face; he
could not recall how he got to his car or how long it had been
since he had been shot. 1 Shell wrecked his car while trying to
pull over alongside the creek and tumbled out of his car, down
the bank and into the icy water. He managed to crawl back up
the bank to the road where a neighbor, Theresa McCoy, found him
and called the police. When McCoy asked Shell who had shot him,
he responded, “John Bird.” J.A. 158. McCoy testified that she
had earlier observed Shell’s car going up the road toward the
woods at approximately 11:15 a.m., and that the wreck happened
around 12:15 p.m.
Shell was taken to the hospital, where he was interviewed
by FBI Special Agent Craig Sidwell. Although Shell’s injuries
prevented Sidwell from conducting a full interview, Shell again
identified Bird as the man who shot him. Agent Sidwell passed
1 It is unclear whether the gaps in Shell’s memory were
attributable to his injuries or the excessive amount of alcohol
he had consumed before the shooting.
3
that information on to Detective Gene Owl of the Cherokee Indian
Police Department.
Detective Owl learned through his investigation that Shell
had visited Chuck Taylor on Christmas Eve, and Owl went to
Taylor’s house at approximately 7:45 p.m. on Christmas Day. As
Owl walked onto Taylor’s porch, he saw Bird standing in the
living room. Owl and Bird made eye contact, and Bird ran out
the back door and escaped into the woods. Bird was arrested on
January 8, 2009, after police found him hiding in the closet of
his father’s home.
Detective Owl interviewed Bird the next day. Before Owl
told Bird any details, Bird volunteered that he had heard that
Shell had a wreck on Bunches Creek. Bird nonetheless denied any
knowledge of the shooting, and he gave Owl an account of his
whereabouts on Christmas Eve and Christmas Day. In an interview
the next day with the State Bureau of Investigation (“SBI”),
however, Bird eventually confessed to shooting Shell. 2 The SBI
agent then turned Bird back over to Detective Owl for a follow-
up interview.
In the follow-up interview, Bird again confessed to
shooting Shell. Although Bird claimed that he could not
2Before confessing to the SBI agent, Bird took a polygraph
examination and was told that he failed. The jury was not
informed about the polygraph.
4
remember the entire event, he provided some details of the
incident that he would not have otherwise known. Bird indicated
that the shooting occurred “somewhere in the mountains,” J.A.
234, and he also remembered that Shell cursed at him, saying
something along the lines of, “Shoot me, bitch.” J.A. 235.
Bird further stated, “I didn’t want to kill him. I made a
mistake. I ain’t no killer.” 3 J.A. 236.
As noted, the testimony of Theresa McCoy placed the
shooting sometime between 11:00 a.m. and 12:15 p.m. on Christmas
Day. During Bird’s first interview with Detective Owl, Bird
claimed that he was at Dahne Driver’s house having breakfast
from 8 or 9 a.m. until 12:30 p.m. on Christmas Day. He then
returned to his father’s house until his grandmother, Myrtle
Bird, picked him up and took him to her house to cut wood at
around 12:45 p.m. Bird stated that he stayed at his
grandmother’s house until he went to Chuck Taylor’s house at
around 7 p.m.
Bird did not testify at trial, nor did he call his father
or grandmother as witnesses. Instead, Bird called Nellie
3
Bird vomited at the beginning of the interview with Owl on
January 9 and several more times the next day, including twice
on the hour-long drive to the SBI office. Bird told Owl that
his stomach was “messed up” and that he had to “drink [a] couple
[of] beers every day to make him feel better.” J.A. 220. At no
point on either day did Bird ask for medical assistance or seek
a delay of the interviews.
5
Littlejohn, who, at the time of the shooting, was the girlfriend
of Bird’s father. Littlejohn testified that she, Bird, and
Bird’s father went to Driver’s house for breakfast but that they
returned home between 11 and 11:30 and that she was with Bird at
his father’s house until Bird’s grandmother picked him up at
about 12:45 p.m. Littlejohn admitted on cross-examination that
Bird’s father told her that they would have to lie for his son
and say that he was with them when the shooting took place. She
denied, however, that she was lying on the stand.
The jury rejected Bird’s alibi defense and convicted him of
all charges. The district court sentenced Bird to a total of
330 months’ imprisonment, and we affirmed his conviction and
sentence on appeal. See United States v. Bird, 409 F. App’x 681
(4th Cir. Jan. 31, 2011).
B.
On May 29, 2012, Bird filed a motion for a new trial in
which he contended that newly discovered evidence showed that a
man named Justin Denig shot Shell. The district court ordered
briefing on the motion and held an extensive evidentiary
hearing. As developed through testimony and offers of proof
made by Bird’s attorney, the newly discovered evidence is set
out below.
6
1. Deborah Caro
On July 11, 2011 – more than two years after the shooting –
Deborah Caro went to the Cherokee Indian Police Department. At
that time, Caro spoke to Detective Owl and claimed that her
husband, Justin Denig, was the one who shot Shell in 2008. The
government disclosed this statement to the defense, and Owl and
the Federal Defender’s office conducted a follow-up
investigation into Caro’s claims. Counting her first
conversation with Detective Owl, Caro ultimately gave a total of
four statements to Owl and James Allard, the defense
investigator. Caro did not testify at the evidentiary hearing,
as the district court permitted her to assert the marital
testimonial privilege. The court permitted Bird to proffer the
substance of Caro’s statements.
In her first conversation with Detective Owl, Caro told Owl
that Denig was physically abusive and that she had not reported
him previously because she was afraid of him. She explained,
however, that they had separated “this past Saturday” and that
she had “t[aken] out a protective order on [him].” J.A. 523.
Caro stated that on Christmas Eve, 2008, she, Denig, and Shell
were drinking together at Caro’s trailer, which was then located
beside Caro’s mother’s home. Caro passed out at her mother’s
house, but Denig brought her back and put her to bed. She woke
up at around 6 a.m. and found blood in the trailer. Caro told
7
Owl that she walked outside and saw Shell lying on the ground,
bloody, with a “bullet mark” on his arm. J.A. 522. Denig was
crying and said, “I shot him.” J.A. 522. Caro stated that she
told Denig that Shell needed to go to the hospital, but Denig
refused and threatened to kill her unless she helped him put
Shell into his car. Denig and Shell then left in Shell’s car;
Caro did not see Denig again until late in the day when he
called and asked to be picked up at a place near Bunches Creek.
Denig was muddy and wet, and he told Caro that he had gotten
lost hiking and had fallen in the creek.
On August 5, 2011, defense investigator Allard briefly
interviewed Caro while she was at work, and she again stated
that Denig shot Shell. Allard gave Caro a copy of Owl’s notes
about the July 11 conversation, and she generally affirmed the
substance of that statement. When Allard interviewed Caro again
three days later, however, she recanted much of her previous
statement. She denied ever saying that Denig admitted to
shooting Shell, or saying that she saw a bullet mark, and she
said that the blood she saw on Shell could have been from a
bloody nose. Caro also told Allard that Denig, who had been
arrested for assaulting Caro, had been released from custody and
was again living with her.
On May 30, 2012, Detective Owl interviewed Caro again. In
this interview, Caro talked about a night in the fall of an
8
unspecified year when she, Denig, and Shell were together at her
trailer and were very drunk. She passed out and saw blood on
the floor when she woke up. However, contrary to her July 11
account of the incident, Caro told Owl that she saw Shell and
Denig -- each with a bloody nose -- sitting together inside the
trailer, drunk but apparently content and without animus. She
claimed that she and Denig helped Shell out to his car because
he was drunk, but Caro did not claim to see any bullet wound or
any injury other than the bloody nose. She said that Denig
later went fishing, which was not unusual, and that he came back
home wet after falling in the creek. Caro recanted her previous
statement that Denig threatened to kill her if she did not help
to get Shell into the car, and she indicated that her mother
(who did not like Denig) told her to say that. See J.A. 665.
Caro stated that months after the confrontation with Shell,
Denig told her that he shot Shell. Caro told Owl that she did
not believe him and that she had not seen evidence of a
shooting, and she described Denig’s statements about the
confrontation as “boasting” and “bragging.” J.A. 645-46, 651,
659. Caro told Owl that she asked Denig about the shooting
multiple times when Denig was sober and that Denig told her he
didn’t know what she was talking about. At the conclusion of
the interview, Caro prepared a hand-written statement in which
9
she stated, “I am willing to testify to Justin’s words, that he
said he shot [Shell].” J.A. 672.
2. Justin Denig
At the evidentiary hearing, Justin Denig invoked his Fifth
Amendment right against self-incrimination as to most of the
relevant questions. The district court received as offers of
proof reports of two prior interviews of Denig.
Defense investigator Allard interviewed Denig on October
20, 2011, while Denig was in state custody because of a Florida
probation violation. In that interview, Denig claimed that he
was drinking with Shell on Christmas Eve. Denig said that
around 1:30 a.m. Christmas morning, he saw Shell with his hand
in his pants standing over the passed-out Caro. Fearing that
Shell was going to sexually assault Caro and might have a
weapon, Denig hit Shell in the head with a skillet. Denig told
Allard that he and Caro dragged Shell outside and that Shell
left in his own car, alone. Allard asked Denig if he shot
Shell, perhaps in self-defense, and Denig responded that he had
only “busted his head” with the skillet. J.A. 684. Denig then
asked Allard, “If I did shoot him in self-defense, can you
guarantee that I would not go to prison one hundred percent?”
J.A. 684. Allard stated he could not make that guarantee, and
Denig again denied shooting Shell. Denig added, “I wouldn’t
shoot him because people would hear the gun go off,” and, “I was
10
probably just running my mouth if I told anyone I shot Garce.”
J.A. 684-85.
On November 16, 2011, Detective Owl interviewed Denig.
Denig told Owl substantially the same story about hitting Shell
in the head with a skillet. Denig denied shooting Shell, and he
refused to take a polygraph.
3. Garce Shell
In light of Caro’s allegations, Detective Owl re-
interviewed Shell on August 15, 2011. Shell stated that he was
with two women on Christmas Eve 2008, not Denig and Caro. Shell
said that he knew Denig and drank with him a couple of times,
but he said that he was not around Denig and did not drink with
him at any time around the shooting. Shell described the events
of Christmas Day as he previously had, and he again identified
Bird as the shooter. When asked if he knew why Bird would have
been mad enough to shoot him, Shell explained that there was a
rumor going around that he had given Bird’s then-girlfriend
prescription drugs in exchange for sex. Shell insisted the
rumor was untrue, but he indicated that Bird was mad about it.
4. Other Evidence
Bird presented evidence that Denig made statements about
shooting someone to Caro’s nephew and to a woman who bought
Caro’s trailer, neither of whom believed Denig’s story. Bird
11
also presented evidence that there were bullet holes in the door
of the trailer and a large, dark stain on the carpet. 4
Denig’s state probation officer testified that, shortly
after Allard’s interview with Denig, she overheard Denig say on
the telephone, “it happened the way we said it did, right?” J.A.
900. The probation officer also testified that Denig became
very nervous when he was subpoenaed to testify at the
evidentiary hearing and that he told her he thought about
running away.
C.
After considering the testimony and the offers of proof
presented by Bird, the district court denied the motion for a
new trial. The district court concluded that, given his
assertion of his Fifth Amendment privilege, Justin Denig would
not be permitted to testify at a new trial. The court also
concluded that Denig’s statements to law enforcement would be
inadmissible at a new trial. As to Deborah Caro, the district
court held that she was entitled to invoke the marital testimony
privilege and that she therefore could not be compelled to
testify at a new trial. The court held that Caro’s statements
4
Caro’s nephew testified at the evidentiary hearing that
Denig told him he shot someone who was trying to “get at” Caro
and dumped the body in a cave near Bunches Creek. J.A. 794.
When explaining the bullet holes in the trailer door, Denig told
the buyer that “he had shot someone.” J.A. 878.
12
to Owl and Allard were inadmissible hearsay, concluding that
Caro’s statements – which she twice recanted – “simply are not
sufficiently credible to warrant admission under the applicable
rules.” J.A. 1170. The district court also concluded that even
if all of the newly discovered evidence were admissible, the
motion should still be denied because a new trial would not
likely result in an acquittal.
II.
The Federal Rules of Criminal Procedure authorize a
district court to “vacate any judgment and grant a new trial if
the interest of justice so requires.” Fed. R. Crim. P. 33(a).
We review the district court’s denial of a Rule 33 motion for
abuse of discretion. See United States v. Robinson, 627 F.3d
941, 948 (4th Cir. 2010).
As we explained in Robinson, for newly discovered evidence
to warrant a new trial,
(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 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.
Id. (quoting United States v. Custis, 988 F.2d 1355, 1359 (4th
Cir. 1993). In addition, “[t]o obtain a new trial on the basis
of after discovered evidence, that evidence must be admissible
13
in a new trial.” United States v. MacDonald, 779 F.2d 962, 964
(4th Cir. 1985); accord United States v. Hill, 737 F.3d 683, 687
(10th Cir. 2013) (“Implicit in a claim of newly discovered
evidence is that there is new evidence — that is, material that
is admissible at trial.”).
On appeal, Bird contends that the district court erred by
denying his Rule 33 motion. Bird argues that because Justin
Denig was not a party to these proceedings, the district court
erred by permitting Caro to assert the marital testimony
privilege. Bird also argues that the district court erred in
concluding that Denig’s out-of-court statements would be
inadmissible in a new trial. Bird contends that this evidence
would “probably result in acquittal at a new trial,” United
States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989), and that
the district court thus abused its discretion by denying his
Rule 33 motion. The government in response argues that the
district court properly resolved the privilege and admissibility
issues. The government also argues that even if all of the
evidence were considered, the evidence would not “probably
result in acquittal.” Id.
We need not consider whether the district court properly
applied the marital testimony privilege to Caro, nor do we need
to consider whether the court properly found Denig’s statements
14
to be inadmissible. 5 As we will explain, we agree with the
government that even if we consider the statements of Caro and
Denig, the evidence is insufficient to satisfy the probability-
of-acquittal requirement. See Robinson, 627 F.3d at 948;
Chavis, 880 F.2d at 793.
When considering Bird’s motion to dismiss, the district
court, as it was required to do, evaluated the credibility of
the newly discovered evidence. See United States v. Wilson, 624
F.3d 640, 663 (4th Cir. 2010) (“[T]he district court is required
to make a credibility determination as part of its probability-
of-acquittal determination.” (internal quotation marks
omitted)); United States v. McCullough, 457 F.3d 1150, 1167
(10th Cir. 2006) (“[T]he district court is to serve as a
gatekeeper to a new trial, deciding in the first instance
whether the defendant’s proffered ‘new evidence’ is credible.”).
As we have explained, “if the district court does not find a
witness credible, it follows that the district court would not
5 We reject Bird’s argument that Denig’s invocations of his
Fifth Amendment rights would have been admissible at a new
trial. See United States v. Branch, 537 F.3d 328, 342 (4th Cir.
2008) (“[P]lacing Johnson on the stand solely to invoke his
Fifth Amendment privilege would lead to unfair prejudice in the
form of both unwarranted speculation by the jury and the
government’s inability to cross-examine Johnson. And any
inferences that the jury might have drawn from Johnson’s
privilege assertion would have been only minimally probative —
and likely improper — in any event.” (internal quotation marks
omitted)).
15
find the witness sufficiently persuasive to enable the district
court to conclude that witness testimony would probably produce
an acquittal at a new trial.” Wilson, 624 F.3d at 663.
As to Deborah Caro, the district court explicitly found her
statements to be “patent[ly] unreliab[le].” J.A. 1170; see also
id. (“Caro’s statements simply are not sufficiently credible to
warrant admission under the applicable rules.”); id. (“Caro has
implicated Denig on numerous occasions only to recant her story
later. As such, her actions render her statements to be far
from trustworthy.”). The record fully supports the district
court’s view in this regard: Caro first alleged that Denig had
shot Shell at a time when she was separated from Denig and had
obtained a protective order against him; there are significant
differences in Caro’s various descriptions of the incident
between Shell and Denig; Caro recanted some of the most
important of her accusations against Denig; one of Bird’s
witnesses told Detective Owl that “you can’t believe a word
[Caro] says,” J.A. 871, and Caro herself effectively
acknowledged her willingness to lie to police in order to make
Denig look bad, see J.A. 665. In light of these facts, there is
no basis for us to conclude that the district court abused its
discretion in finding Caro’s statements lacking in credibility.
While the district court did not make express findings about the
credibility of Denig’s statements to third parties, the court
16
did recognize the relative weakness of that evidence, describing
it as consisting only of “vague” statements that “do[] not even
specifically identify Shell as the victim of any shooting Denig
may have committed.” J.A. 1171.
Weighed against this vague and less-than-credible evidence
of Denig’s guilt is the trial evidence showing Bird’s guilt:
Shell knew Bird and immediately and consistently identified Bird
as the shooter, and Bird confessed to the crime and recounted
details of the crime that he could not otherwise have known.
Additionally, Bird fled from the police on the day of the
shooting and was found hiding in a closet in his father’s house
when he was arrested. Given the strength and importance of the
trial evidence, the district court rejected Bird’s claim that
his vague and unpersuasive new evidence would probably result in
acquittal at a new trial. Under the circumstances of this case,
we simply cannot say that the district court abused its
discretion in its evaluation of the newly discovered evidence or
its weighing of that evidence against the evidence presented at
trial. 6
6 We reject Bird’s argument that the district court should
have considered the effect of the newly discovered evidence in
light of an improved defense strategy “likely” to be pursued at
a new trial. Brief of Appellant at 27. While the ultimate Rule
33 question is whether the evidence would “probably result in
acquittal at a new trial,” United States v. Chavis, 880 F.2d
788, 793 (4th Cir. 1989) (emphasis added), the new trial
(Continued)
17
Accordingly, because we find no error in the district
court’s determination that Bird’s new evidence would not make an
acquittal probable, we hereby affirm the district court’s denial
of Bird’s Rule 33 motion for a new trial.
AFFIRMED
contemplated is not a perfect trial with all holes in the
defense shored up, but a new trial that includes the newly
discovered evidence along with the evidence presented at the
original trial. See United States v. Wilson, 624 F.3d 640, 663
(4th Cir. 2010) (“[A] district court should focus on whether a
jury probably would reach a different result upon hearing the
new evidence.” (emphasis added)); id. (“[T]he district court
cannot view the [newly discovered evidence] in a vacuum; it must
weigh the [evidence] against all of the other evidence in the
record, including the evidence already weighed and considered by
the jury in the defendant’s first trial.” (emphasis added)).
When analyzing the probability-of-acquittal factor, the district
court thus properly disregarded counsel’s assertion that an
acquittal was even more likely in a new trial because he would
present scholarly articles and expert testimony about false
confessions and problems with eyewitness identifications --
evidence that could have been but was not presented in Bird’s
trial.
We likewise reject Bird’s argument that the district court
applied the wrong standard when denying Bird’s Rule 33 motion.
The district court’s opinion states the correct probability-of-
acquittal standard, see J.A. 1147, and it is clear enough from
the court’s overall analysis that it did not require Bird to
prove that a new trial would result in an acquittal.
18