United States v. Thornton , 258 F. App'x 432 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-12-2007
USA v. Thornton
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4585
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4585
UNITED STATES OF AMERICA
v.
THOMAS THORNTON,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 05-cr-00387)
District Judge: Honorable Thomas M. Hardiman
Submitted Under Third Circuit LAR 34.1(a)
November 2, 2007
Before: RENDELL, WEIS and NYGAARD, Circuit Judges
(Filed December 12, 2007 )
OPINION OF THE COURT
RENDELL, Circuit Judge.
Appellant Thomas Thornton (“Thornton”) appeals the District Court’s denial of his
motion for a new trial based upon newly discovered evidence under Federal Rule of
Criminal Procedure 33. He requests that his conviction be vacated and that this matter be
remanded for a new trial. Alternatively, Thornton aks that this matter be remanded for a
hearing on the motion for a new trial. For the reasons stated below, we will affirm.
DISCUSSION 1
This case involves a conviction following a bench trial for possession of a firearm
by a convicted felon, in violation of 18 U.S.C. 922(g)(1). After a 911 call reporting a
robbery, the police conducted a traffic stop of a vehicle, which matched the description of
the vehicle involved in the robbery. They observed the front seat passenger (Thornton)
dip his shoulder and later discovered a handgun under the front passenger seat. Based on
the testimony of eyewitnesses, including police officers who claimed to have seen
Thornton in actual or constructive possession of a handgun before, during, and after the
robbery, the District Court found Thornton guilty of possession of a firearm by a
convicted felon. Shortly after the trial, Thornton moved for a new trial under Federal
Rule of Criminal Procedure 33 on the basis of newly discovered evidence, namely a
Computer-Aided Dispatch (CAD) report of the 911 call describing the events surrounding
the robbery. Thornton argued that the evidence regarding the 911 call, not previously
available to him, contradicted the testimony of several witnesses who testified at trial.
The District Court denied the motion, and Thornton appealed to this Court.
1
As we write for the benefit of the parties alone, we need not undergo a lengthy
recitation of the facts.
2
We review the District Court’s denial for an abuse of discretion.2 United States v.
Jasin, 280 F.3d 355, 360 (3d Cir. 2002). To show an abuse of discretion, Thornton “must
show the district court’s action was ‘arbitrary, fanciful[,] or clearly unreasonable.’”
Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir.2002) (quoting Stich v.
United States, 730 F.2d 115, 118 (3d Cir.1984)). We will not disturb a trial court’s
exercise of discretion unless “no reasonable person would adopt the district court’s view.”
Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir.2000).
In interpreting Rule 33, this Court has held that a district court may grant a new
trial based on newly discovered evidence only if five requirements are met:
(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.
United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976). Although the decision to
grant or deny a motion for a new trial lies within the discretion of the district court, the
movant has a “heavy burden” of proving each of these requirements. United States v.
2
Thornton notes in his brief that if a motion for a new trial is based on a Brady v.
Maryland violation, a district court’s conclusions of law are reviewed de novo and the
findings of fact are subject to a clearly erroneous review standard. United States v.
Perdomo, 929 F.2d 967, 969 (3d Cir. 1991). Because Thornton (1) failed to raise Brady
before the District Court and (2) presents no evidence that the CAD information was
known to the Government at any time prior to his trial, we review Thornton’s claims
outside the Brady context.
3
Saada, 212 F.3d 210, 216 (3d Cir. 2000). The failure of one element is a sufficient basis
to deny a motion for a new trial. Jasin, 280 F.3d at 365.
Here, the District Court found that the newly discovered evidence would not
probably produce an acquittal and that Thornton could have discovered the evidence
through due diligence. As to the first point, the District Court reasoned that the
information in the CAD report would have only aided attempts to impeach the
government witnesses who testified regarding the robbery itself, for which Thornton was
not charged, rather than those who testified that they observed Thornton’s possession of a
firearm during the subsequent vehicle stop. Thus, while the CAD report might have
provided Thornton with additional modicum of impeachment material, we cannot
conclude that such evidence would probably produce an acquittal.3
As to the issue of due diligence, the District Court observed that Thornton had
hired a private investigator to obtain the relevant 911 audio recording and found that it no
longer existed. The District Court concluded that once Thornton and his attorney learned
that the 911 audio recording was no longer available, they “reasonably could have asked .
. . whether CAD reports were available instead. The fact that 911 operating centers track
calls in the form of CAD reports or otherwise could have been discovered through due
3
We note further that because the evidence upon which a defendant bases his motion
for a new trial “must not be merely cumulative or impeaching,” Cimera, 459 F.3d at 458
(emphasis added), Thornton’s motion independently fails to satisfy the third prong of the
Cimera analysis in addition to those prongs identified by the District Court.
4
diligence.” United States v. Thornton, No. 2:05-CR-0387, 2006 WL 2987747, at *2
(W.D. Pa. Oct. 17, 2006). We find no error in this reasoning and thus no abuse of
discretion.
Finally, we find no error in District Court’s decision to deny Thornton’s motion for
a new trial without first holding a hearing. See United States v. Gilsenan, 949 F.2d 90, 97
(3d Cir. 1991) (holding that “a hearing need not be held at the behest of a party whose
allegations if established would not entitle it to relief”). Thornton attached as exhibits to
his motion the portions of the CAD report he planned to use and did not identify any
witness whose testimony would have aided the Court’s reading of the report.
Accordingly, it was within the District Court’s discretion to entertain Thornton’s motion
on the pleadings alone.
CONCLUSION
For the reasons set forth above, we will AFFIRM the District Court on all grounds.
5