NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 28, 2012*
Decided September 10, 2012
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11‐3316
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 3:08‐cr‐0087‐bbc‐2
COREY J. THOMAS, Barbara B. Crabb,
Defendant‐Appellant. Judge.
O R D E R
Corey Thomas appeals from the district court’s denial of his motion for a new trial
based on what he calls newly discovered evidence, namely a codefendant’s declaration that
Thomas is innocent. Because this declaration does not satisfy the standard for a new trial
under Federal Rule of Criminal Procedure 33, we affirm the district court’s judgment.
*
The United States moved for an order of non‐involvement in this appeal, which
was granted. After examining the appellant’s brief and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the appellant’s brief and the
record. See FED. R. APP. P. 34(a)(2)(C).
No. 11‐3316 Page 2
Following a jury trial, Thomas and a codefendant, Prince Beck, were convicted of
bank robbery, see
18 U.S.C. §§ 2113(a), (d), conspiracy to commit bank robbery, see
id. § 371,
and use of a firearm in connection with a crime of violence, see id. § 924(c)(1)(A)(ii). The
government charged that Thomas and Beck were part of a five‐person conspiracy, and its
case against the pair rested heavily on the testimony of two other codefendants, Michael
Simmons and Lamar Liggons, who each pleaded guilty to one count and agreed to
cooperate. Simmons and Liggons testified that in May 2008 they robbed the US Bank in
Blooming Grove, Wisconsin, along with three others: Thomas, Beck, and another
codefendant, Jarrell Murray. (Murray is the one who now asserts that Thomas is innocent.)
The government also presented other evidence against Thomas and Beck. Thomas’s
fingerprints were found on a bag of kitchen gloves recovered from the getaway van—the
robbers wore these gloves into the bank—and he purchased a car one day after the robbery
using more than $6,000 in $100 bills. (These bills could not, however, be conclusively tied to
the bank.) Beck also paid cash for a car just after the robbery, and the jury heard recordings
of phone conversations between Beck and Simmons in which they made coded but obvious
references to having recently committed a lucrative crime. The defense theory was that
Simmons and Liggons falsely implicated Thomas and Beck to protect the actual culprits.
Thomas and Beck’s convictions were affirmed in United States v. Beck,
625 F.3d 410 (7th Cir.
2010).
Throughout the trial proceedings, neither Thomas nor Beck sought testimony from
codefendant Murray. Murray’s case had been severed from theirs because he chose to
challenge his competence to stand trial, but his competence was eventually established, and
he then pleaded guilty to the bank robbery. Murray now swears in an affidavit that,
although he was one of the five who robbed the bank, Thomas and Beck were not involved.
Murray adds that the five true offenders, most of whom he does not name, agreed to blame
Thomas and Beck because the offenders were all friends.
In the district court, Thomas argued that Murray’s affidavit is “newly discovered
evidence” that justifies a new trial. See FED. R. CRIM. P. 33. The district court denied
Thomas’s motion, explaining that Murray’s testimony does not qualify as newly discovered
evidence under Rule 33 because his account is incomplete, implausible, and fails to
undermine the evidence of Thomas’s guilt. We review the district court’s decision for abuse
of discretion. See United States v. Taylor,
600 F.3d 863, 869 (7th Cir. 2010).
On appeal Thomas maintains that Murray’s affidavit is indeed newly discovered
evidence. He points out that it was not written until after his trial, and he contends that he
had no way of obtaining a statement from Murray before or during trial because the court
was evaluating Murray’s competence. Thomas also argues that Murray’s version of events,
No. 11‐3316 Page 3
if presented to a jury, would likely lead to acquittal because it supports the defense theory
that Thomas and Beck were sacrificed to protect others.
We agree with the district court that Murray’s affidavit does not qualify as newly
discovered evidence. When a defendant moves for a new trial based on testimony from a
witness who did not previously testify, the motion will be granted only if (1) the defendant
learned of this evidence after trial, (2) the defendant could not have discovered the evidence
sooner through the exercise of due diligence, (3) the evidence is material (not merely
cumulative or impeaching), and (4) the evidence would probably lead to acquittal if
presented at a new trial. Taylor,
600 F.3d at 869; United States v. Bender,
539 F.3d 449, 455–56
(7th Cir. 2008).
We first focus on the second factor, which is missing here. Thomas knew all along
that Murray was charged with participating in the bank‐robbery scheme and therefore
could be expected to know who was not involved. But despite knowing that testimony from
Murray could support his defense, Thomas did not attempt to subpoena Murray. Had
Thomas sought to compel Murray’s testimony, Murray might have resisted on Fifth
Amendment grounds, but Thomas was nonetheless required to make the effort if he hoped
to show due diligence. See United States v. Kamel,
965 F.2d 484, 493 (7th Cir. 1992) (“If there is
possible evidence which would exonerate a defendant, he may not simply ignore it. . . .”).
Furthermore, Thomas’s lack of diligence is not excused because Murray challenged his
competence to stand trial. Incompetence to stand trial is not necessarily incompetence to
testify. Compare Drope v. Missouri,
420 U.S. 162, 171‐72 (1975) (competence to stand trial
requires an ability to understand the proceedings and assist counsel) with United States v.
Gutman,
725 F.2d 417, 420 (7th Cir. 1984) (competence to testify requires an ability to tell the
truth and understand the oath witnesses take); see also United States v. Barnes,
30 F.3d 575
(5th Cir. 1994) (no error in district court’s finding that defendant was competent to stand
trial but incompetent to testify). What is more, the government moved to delay Thomas’s
trial until the issue of Murray’s competence could be resolved—which would have nullified
Thomas’s concern—but Thomas objected to the proposed delay. And he objected even
though he was already serving a prison sentence for an unrelated crime, meaning that a
delay would not have increased the length of his incarceration.
Thomas’s lack of diligence is enough to doom his motion, see Taylor,
600 F.3d at
869–70, but we also conclude that a jury would be unlikely to acquit based on Murray’s
statement. For one thing, Murray purports to exonerate Beck as well as Thomas even
though Beck made self‐incriminating statements on tape. Additionally, other than naming
Simmons and himself, Murray declines to identify the other three “real” perpetrators, and
this omission also undercuts the credibility of his statement, particularly when it is weighed
No. 11‐3316 Page 4
against the evidence of Thomas’s guilt. Thus, the district court did not abuse its discretion
by denying Thomas’s motion.
The judgment of the district court is AFFIRMED.
