Case: 15-11152 Date Filed: 06/19/2017 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11152; 15-13674
Non-Argument Calendar
________________________
D.C. Docket No. 3:11-cr-00054-SLB-JEO-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY WALTER DENTON,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
________________________
(June 19, 2017)
Before ED CARNES, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:
Case: 15-11152 Date Filed: 06/19/2017 Page: 2 of 9
Ricky Denton, proceeding pro se, appeals the district court’s denial of his
Federal Rule of Criminal Procedure 33 motion for a new trial based on newly
discovered evidence. He also challenges the district court’s decision not to hold an
evidentiary hearing. He contends that affidavits from two trial witnesses —
Jonathon Todd, Denton’s son, and Hollie Todd, Denton’s daughter-in-law —
entitle him to a new trial. 1
I.
In March 2011 Denton was charged with armed bank robbery and
brandishing a firearm during and in relation to a crime of violence. He chose to
represent himself and proceeded to a jury trial. Before the trial began, Denton
wrote letters to Jonathon suggesting that he testify falsely and perjure himself at
trial. Denton also threatened the life of Jonathon’s wife, Hollie. 2 After Jonathon
received the letters and after Hollie learned that Denton had threatened her life,
Jonathon and Hollie stopped visiting and communicating with him, despite his
letters to them asking to “interview them” about their upcoming trial testimony.
1
After Denton filed his notice of appeal from the denial of his Rule 33 motion, he filed a
motion for reconsideration, which the district court denied. Then he filed a motion to vacate the
dismissal of the motion for reconsideration, which the district court also denied. He filed a new
notice of appeal of those two orders, and we consolidated that appeal with the present one.
Because Denton has not addressed the part of the district court’s judgment denying his motion to
reconsider or his motion to vacate, he has abandoned any argument challenging those decisions.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
2
We use the Todds’ first names not to be overly familiar but for ease of reference.
2
Case: 15-11152 Date Filed: 06/19/2017 Page: 3 of 9
At trial, the government called as witnesses Hollie, Jonathon, and Denton’s
other son, Jamie. It also called Forrest Sims, an eyewitness who saw the robber
fleeing the bank. Jonathon testified that the bank robber shown in the bank’s
security footage walked like Denton and that he had not been promised anything in
exchange for testifying against Denton. Hollie also testified against Denton, after
which Denton asked the court to permit him to interview her. The district court
would allow Denton to conduct that interview if Hollie agreed to speak to him, but
she refused. Sims testified that the driver of the car that fled the bank after the
robbery was a “black man with a gold grill.” Denton is a white male.
The jury found Denton guilty of both charges, and the district court
sentenced him to 244 months imprisonment. Denton appealed that conviction and
we affirmed it. See United States v. Denton, 535 F. App’x 832 (11th Cir. 2013)
(unpublished). A little more than two months after judgment was entered, Denton
filed a timely Rule 33(b)(1) motion for a new trial based on newly discovered
evidence allegedly showing government obstruction and fraud. The district court
denied that motion on the merits without holding an evidentiary hearing. This is
Denton’s appeal.
II.
We review for an abuse of discretion both the district court’s denial of a
motion for a new trial and its denial of an evidentiary hearing. United States v.
3
Case: 15-11152 Date Filed: 06/19/2017 Page: 4 of 9
Sweat, 555 F.3d 1364, 1367–68 (11th Cir. 2009). Under Federal Rule of Criminal
Procedure 33, “[u]pon the defendant’s motion, the court may vacate any judgment
and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33. To
prevail on a Rule 33 motion based on newly discovered evidence, Denton must
establish that:
(1) the evidence was discovered after trial, (2) the failure of the
defendant to discover the evidence [earlier] was not due to a lack of
due diligence, (3) the evidence is not merely cumulative or
impeaching, (4) the evidence is material to issues before the court, and
(5) the evidence is such that a new trial would probably produce a
different result.
United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003). The newly
discovered evidence, however, “need not relate directly to the issue of guilt or
innocence to justify a new trial, but may be probative of another issue of law.”
United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc) (quotation
marks omitted). At the same time, “we have held that motions for a new trial are
highly disfavored, and that district courts should use great caution in granting a
new trial motion based on newly discovered evidence.” Jernigan, 341 F.3d at 1287
(quotation marks omitted).
“In determining whether a motion for a new trial based on newly discovered
evidence was properly denied, . . . ‘the acumen gained by a trial judge over the
course of the proceedings [makes her] well qualified to rule on the basis of
affidavits without a hearing.’” United States v. Schlei, 122 F.3d 944, 994 (11th
4
Case: 15-11152 Date Filed: 06/19/2017 Page: 5 of 9
Cir. 1997) (quoting United States v. Hamilton, 559 F.2d 1370, 1373–74 (5th Cir.
1977)) (alteration in original); see United States v. Reed, 887 F.2d 1398, 1404 n.12
(11th Cir. 1989) (“In ruling on a motion for new trial based upon newly discovered
evidence, it is within the province of the trial court to consider the credibility of
those individuals who give statements in support of the motion.”).
A.
Denton first contends that newly discovered evidence shows that the
government improperly interfered with his right to establish a defense by
instructing his sons, Jamie and Jonathon, and his daughter-in-law, Hollie, not to
have any contact with him before his trial. Cf. Schlei, 122 F.3d at 991 (“This court
has held that substantial government interference with a defense witness’ free and
unhampered choice to testify violates due process rights of the defendant.”)
(quotation marks omitted).
As evidence of the government’s interference with his defense, Denton first
points to a request that Jamie made after he testified at trial, asking to speak to
Denton. Even if Jamie’s request were evidence of government interference, which
we seriously doubt, it is not newly discovered evidence because Denton heard what
Jamie said at trial when he said it. “Any motion for a new trial grounded on any
reason other than newly discovered evidence must be filed within 14 days after the
verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). Because the motion for
5
Case: 15-11152 Date Filed: 06/19/2017 Page: 6 of 9
new trial was not filed until more than nine months after the trial had ended, it is
untimely under Rule 33.
The evidence Denton says shows that the government interfered with his
right to establish a defense by preventing Jonathon and Hollie from testifying on
his behalf came from Jonathon and Hollie’s post-trial affidavit; those affidavits
included statements that law enforcement had instructed them not to have contact
with Denton before the trial.
The district court did not abuse its discretion in finding that those statements
in Jonathon and Hollie’s affidavits were not credible. The court noted that it was
apparent at trial that neither Jonathon nor Hollie wanted to speak to Denton. It
based that finding on the fact that Denton had written letters to Jonathon
suggesting that he testify falsely; Denton had made statements about trying to have
Hollie murdered; and as a result Jonathon and Hollie chose (as opposed to having
been instructed) not to speak to Denton. The district court noted that at trial it had
given Hollie an opportunity to speak to Denton, and she had refused to do so. The
court did not abuse its discretion in finding unfounded Denton’s claims that the
government interfered with his right to establish a defense.
B.
Denton also contends that the newly discovered evidence demonstrates
constitutional violations under Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763
6
Case: 15-11152 Date Filed: 06/19/2017 Page: 7 of 9
(1972), and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and that, as a
result, the district court abused its discretion by denying his motion for a new trial.
“In order to succeed on a Giglio challenge, the defendant must demonstrate that the
prosecutor knowingly used perjured testimony, or failed to correct what he
subsequently learned was false testimony, and that the falsehood was material.”
United States v. Vallejo, 297 F.3d 1154, 1163–64 (11th Cir. 2002) (quotation
marks omitted). And to establish a Brady violation, a defendant must show that
“(1) the government possessed favorable evidence to [him]; (2) [he] does not
possess the evidence and could not obtain the evidence with any reasonable
diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the
evidence been disclosed to [him], there is a reasonable probability that the outcome
would have been different.” Id. at 1164.
When law enforcement was investigating Denton for the bank robbery, they
interviewed Hollie and, during one of those interviews, Hollie gave consent to
search the apartment where she lived with Jonathon and Denton. In her post-trial
affidavit Hollie stated that she did not freely go to the police station to be
interviewed about Denton and that investigators told her that she had no choice but
to go to the station. Denton contends that those statements demonstrate Giglio and
Brady violations because they show that Hollie did not freely consent to law
enforcement searching the apartment, and that some resulting evidence should
7
Case: 15-11152 Date Filed: 06/19/2017 Page: 8 of 9
have been suppressed. Hollie’s affidavit, however, says nothing at all about the
apartment search or her consent to it. Even if her post-trial statements about not
freely going to the police station were true, that would not render the apartment
search unconstitutional, nor would it demonstrate a Giglio or Brady violation.
See United States v. Jones, 475 F.2d 723, 730 (5th Cir. 1973) (“[A] defendant
under arrest or in custody may voluntarily consent to a search . . . .”). The district
court did not abuse its discretion in rejecting Denton’s request for a new trial based
on Hollie’s affidavit.
In his affidavit, Jonathon stated that investigators had told him he would not
be charged for any crimes related to the bank robbery if he testified against his
father by identifying his father in the bank security camera footage. Denton
contends that Jonathon’s affidavit demonstrates Giglio and Brady violations
because it shows that the prosecution knowingly permitted Jonathon to commit
perjury at trial and suppressed evidence by permitting Jonathon to state that he had
not been promised anything in exchange for his testimony.
The district court found that those statements in Jonathon’s affidavit were
not credible. It noted that Jonathon’s testimony against Denton at trial — that the
man in the bank security video walked like Denton — was consistent with the
court’s own observations of Denton’s gait during the trial. The court also noted
that Denton had attempted to have Jonathon testify falsely in Denton’s favor at
8
Case: 15-11152 Date Filed: 06/19/2017 Page: 9 of 9
trial, which further undermined the credibility of Jonathon’s post-trial statements in
the affidavit. As a result the district court did not abuse its discretion in concluding
that the newly discovered evidence did not demonstrate either a Giglio violation
(because Jonathon did not perjure himself at trial) or a Brady violation (because
those statements did not credibly show that the prosecution suppressed any
favorable testimony Jonathon could have given).3
III.
Denton also contends that the district court abused its discretion in failing to
hold an evidentiary hearing on his newly discovered evidence claims. The district
court found that, based on the record and insight gained from presiding at trial, the
relevant statements in the affidavits were not credible and Denton’s claims lacked
merit. It was permitted to make that finding under our Reed decision. 887 F.2d at
1404 n.12. The district court did not abuse its discretion in deciding that no
evidentiary hearing was required.
AFFIRMED.
3
Denton also contends that the government failed to disclose other exculpatory evidence
before trial. The evidence he points to is eyewitness Sims’ statement to law enforcement that the
man driving the car fleeing from the bank robbery was “a black man with a gold grill.” Sims,
however, testified at trial that the driver of the fleeing car was “a black man with a gold grill.”
Assuming that the government did not disclose that evidence to Denton before trial, Denton
heard it at trial and any alleged non-disclosure of it was not newly discovered evidence found
after the trial ended. Denton should have raised any arguments about non-disclosure during the
trial or within 14 days “after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). He
failed to do so.
9