United States v. Jones , 369 F. App'x 937 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
March 23, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-8080
(D.C. No. 2:05-CR-00078-ABJ-5)
STEVEN B. JONES, a/k/a Smooth, (D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and HOLMES, Circuit Judges.
Steven B. Jones appeals the district court’s denial of his pro se motion for a
new trial under Fed. R. Crim. P. 33. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
A superseding indictment charged Mr. Jones with drug-related offenses,
including conspiracy to possess with intent to distribute and conspiracy to
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
distribute crack cocaine. At his trial the government presented evidence that
Mr. Jones and his co-conspirators sold crack cocaine at a house in Cheyenne,
Wyoming, during 2004 and part of 2005. Witnesses who frequented the
Cheyenne crack house testified about Mr. Jones’s role in the crack-cocaine
distribution ring. Several stated that they purchased crack from Mr. Jones. One
witness testified that she saw Mr. Jones manufacturing crack cocaine. Some of
Mr. Jones’s co-conspirators also testified that he was dealing crack cocaine.
James Kirby Davis, one of the customers who frequented the Cheyenne crack
house, testified that he had deposited into a bank account most of a large
settlement he had received for a work-related injury. During a seven-month
period beginning in July 2004, he used ATMs to withdraw over $160,000 from
the account. Mr. Davis said he used most of that money to buy crack cocaine and
that most of his purchases were from Mr. Jones. Video surveillance showed
Mr. Davis and Mr. Jones arriving and leaving the Cheyenne crack house on days
that Mr. Davis had withdrawn money from ATMs.
A jury found Mr. Jones guilty on August 25, 2005, and the district court
subsequently sentenced him to 300 months’ imprisonment. His conviction and
sentence were affirmed on appeal. United States v. Jones, 468 F.3d 704, 706
(10th Cir. 2006). On October 29, 2007, Mr. Jones filed a motion for new trial,
arguing that one of his co-conspirators had recanted his trial testimony. The
district court denied the motion, and this court affirmed the denial on appeal.
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Mr. Jones filed a second new-trial motion on June 10, 2009, again purporting to
raise issues related to newly discovered evidence. The district court denied
Mr. Jones’s second motion and he appealed.
“A motion for a new trial is not regarded with favor and is only [granted]
with great caution.” United States v. Herrera, 481 F.3d 1266, 1269-70 (10th Cir.
2007). We review the district court’s denial of a new-trial motion for abuse of
discretion, reversing only if the decision is “arbitrary, capricious, whimsical, or
manifestly unreasonable.” Id. at 1270 (quotation omitted). If a motion for new
trial is filed more than seven days after a verdict, it must be grounded on newly
discovered evidence. See id. 1 Therefore, because Mr. Jones filed his second
new-trial motion more than seven days after his guilty verdict, “newly discovered
evidence is the only ground available to [him] for a new trial.” 2 Id.1
At the time Mr. Jones filed his second motion for new trial, Rule 33(b)(2)
required a defendant to file a motion based on any ground other than newly
discovered evidence within seven days of the verdict or finding of guilt. The rule
was subsequently amended, giving defendants fourteen days to file such motions.
See Fed. R. Civ. P. 33(b)(2) (eff. Dec. 1, 2009).
2
Rule 33(b)(1) provides that a motion grounded on newly discovered
evidence must be filed within three years of the verdict or finding of guilt.
Mr. Jones filed his second motion after the three-year deadline. But the Rule 33
time limitations are not jurisdictional and are subject to forfeiture if the
government fails to object to an untimely submission. See Eberhart v. United
States, 546 U.S. 12, 18-19 (2005). Here the government did not raise in the
district court the untimeliness of Mr. Jones’s second new-trial motion under Rule
33(b)(1). The government has conceded its waiver of this objection.
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In his second new-trial motion, filed nearly four years after the guilty
verdict, Mr. Jones contended he had discovered new evidence that the government
presented perjured testimony and other false evidence at his trial. This
purportedly new evidence consisted of booking documents from two jails and trial
testimony by an ATF agent. He argued the booking documents established that he
was in jail during early December 2004 and again on January 3, 2005; therefore,
he contended, the government’s evidence that he was involved in crack-cocaine
transactions during those time periods was false.
More specifically, Mr. Jones argued that proof of his incarceration in
December 2004 shows that Mr. Davis perjured himself in testifying about crack
cocaine purchases from Mr. Jones that coincided with his ATM withdrawals.
Mr. Jones did not identify in his motion any allegedly false testimony by
Mr. Davis regarding crack purchases in December 2004. He pointed instead to
the prosecutor’s references in closing argument to ATM withdrawals by
Mr. Davis between December 7 and 13, 2004. Mr. Jones claimed that the
prosecutor intended for the jury to infer, based on these withdrawals, that
Mr. Davis purchased crack from Mr. Jones on these dates. Mr. Jones also argued
that the government presented false evidence attempting to connect him to
crack-cocaine transactions, specifically a large amount of currency seized from
one of his co-conspirators on January 3, 2005, another date on which he claims he
was in jail. Finally, Mr. Jones argued that the government knew or should have
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known that Mr. Davis’s testimony was perjured because an ATF agent testified at
the trial that Mr. Davis initially lied to the investigators.
In order to prevail on his second new-trial motion, Mr. Jones was required
to show that:
(1) the evidence was discovered after trial; (2) the failure to learn of
the evidence was not caused by his own lack of diligence; (3) the
new evidence is not merely impeaching; (4) the new evidence is
material to the principal issues involved; and (5) the new evidence is
of such a nature that in a new trial it would probably produce an
acquittal.
Herrera, 481 F.3d at 1270 (quotation omitted). The district court denied his
motion, holding that he failed to raise any issue grounded on newly discovered
evidence, and the motion was therefore untimely under Rule 33(b)(2). We agree.
Mr. Jones characterizes the evidence he submitted in support of his motion as
“newly presented,” but he confuses newly presented with newly discovered. The
ATF agent’s trial testimony certainly cannot qualify as evidence Mr. Jones
discovered after his trial. Nor are we persuaded that he had no knowledge until
after his trial that he was in jail during the dates he identifies in December 2004
and January 2005. 3 And while Mr. Jones apparently did not obtain the booking
documents he filed in support of his motion until after the trial, he failed to
3
Mr. Jones asserts only that there was no conceivable way for him to
remember the dates he was in jail because he has been incarcerated many
different times in numerous different facilities.
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establish he was unaware of the existence of such records or that they were
unavailable to him during his trial.
The district court did not abuse its discretion in denying Mr. Jones’s second
new-trial motion as untimely under Rule 33(b)(2) because he failed to raise any
issue grounded on newly discovered evidence. The judgment of the district court
is AFFIRMED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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