United States v. Michael Kluge , 469 F. App'x 483 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3303
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Michael James Kluge, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 1, 2012
Filed: May 3, 2012
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Before MURPHY, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Michael Kluge was sentenced to 30 years in prison after a jury found him guilty
of conspiracy to manufacture 50 grams or more of actual methamphetamine; the trial
included the testimony of the conspiracy leader and seven coconspirators that Kluge
was part of a network of pseudoephedrine suppliers for the leader, who admitted
involvement in at least 350 grams of actual methamphetamine, see United States v.
Malloy, 614 F.3d 852, 855, 861-62 (8th Cir. 2010), cert. denied, 131 S. Ct. 3023(2011). Kluge moved for a new trial under Federal Rule of Criminal Procedure 33
based on newly discovered evidence, undisclosed by the government, in the form of
a lab report analyzing the drugs seized from one of Kluge’s coconspirators. The
district court1 denied the motion and Kluge appeals, arguing that the evidence could
have been offered to show a general lack of purity of the methamphetamine the
conspiracy produced.
Following careful review, we find no abuse of discretion. See United States
v. Duke, 255 F.3d 656, 659 (8th Cir. 2001) (standard of review). To justify a new
trial on the ground of newly discovered evidence, Kluge needed to prove (1) the new
evidence was discovered after trial; (2) the failure to discover it before trial was not
attributable to a lack of due diligence; (3) the evidence was material and not merely
cumulative or impeaching; and (4) the new evidence would likely produce an
acquittal upon retrial. See United States v. Huggans, 650 F.3d 1210, 1225 (8th Cir.
2011), cert. denied, 132 S. Ct. 1583 (2012). Even assuming the evidence in question
was material, should have been disclosed by the government, and was discovered
after trial through no lack of diligence, it was insufficient to warrant a new trial. See
id. at 1225-26 & n.8; Malloy, 614 F.3d at 855, 861-62. Accordingly, we affirm.
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1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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