The Honorable John B. Jones, United States District Judge, United State s 1 District Court for the District of South Dakota, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-3234

_____________ United States of America, * * Appellant, * Appeal from the United States

* District Court for the Eastern v. * District of Arkansas. * Excel Warren, Jr., * * Appellee. *

_____________ Submitted: January 13, 1998

Filed: March 26, 1998

_____________ Before BOWMAN, MORRIS SHEPPARD ARNOLD, Circuit Judges, and JOHN B. JONES , District Judge.

1

_____________ JONES, District Judge. The United States appeals from a final judgment entered in the District Court for the Eastern District of Arkansas granting the defendant, Excel Warren, a new trial on two drug charges on th e basis of newly discovered evidence. Defendant was charged with conspiracy to distribute and possess with the intent to distribute cocaine,Althou gh different spellings of this witness’ last name have been used in th e 2 record in this case, we will refer to her as Ms. Heron, which appears to be the correct spelling and is the spelling co ntained in the District Court’s memorandum opinion and order granting a new trial. -2- and atte mpting to possess with the intent to distribute cocaine, all in violation of 2 1 U.S.C. §§ 841(a)(1) and 846. We reverse.

I. BACKGROUND A jury trial on the two drug charges held in Aug ust of 1996 resulted in a mistrial because the jury could not reach a unanimous verdict. In October of 1996, a second jury found the defendant, Excel Warren, guilty of the two drug charges. In February of 1997 the defendant filed a post-trial motion reques ting a judgment of acquittal of the attempt conviction and to set aside the jury verdict because a rebuttal witness for the government, Delbra Heron , after the conclusion of the jury trial, contacted defens e 2 counsel to inform him that she felt a portion of her testimony was inaccurate an d misleading. The District Court conducted a hearing on defendant’s motions. Delbra Heron was the only witness to testify at the hearing. The District Court granted th e defendant’s motion for new trial on both counts based on what the court found to be newly discovered evidence presented by Delbra Heron. The United States appeals.

In granting the motion for new trial, the District Court concluded that th e test imony of Delbra Heron given during the post-trial hearing was newly discovere d evidence. The Dist

rict Court held that the evidence was discovered after the trial and that her testimony was extremely prejudicial because sh e was the only credible witness to state, in effect, that defendant had possessed drug s. In its memorandum opinion and order granting a new trial, the District Court examined the tr ial testimony of each of the United States ’ witnesses, concluding that, except for Delbra Heron, they had all been charged with criminal conduct or had been promised something by-3-

th e government in exchange for their testimony against the defendant, and therefore , the y were not credible witnesses. The District Court did not discuss what effect th e videotape and cassette tapes that the prosecution introduced into evidence and played for the jury may have had on the jury’s decision.

The United States contends that the District Court abused its discretion i n granting a new tri al because Delbra Heron’s testimony was not newly discovered and that the D istrict Court applied the wrong legal standard in evaluating defendant’ s motion for new trial. During the second jury trial, Delbra Heron testified as follows in response t o questions posed by the government’s attorney: Q. Was there ever an occasion, Ms. [Heron], where you found, I believe this is through your son, located some cocaine? A. Yes, in my garage in some books. Q. Who actually found that? A. My son. Q. Your son did. And did he tell you about it? A. Yes. Q. What happened -- or can you describe for us where it was? A. It was in my garage ... Q. Was it white powder? A. Yes, in some little plastic bags. Q. What happened to that cocaine? A. I believe Excel (defendant) took it. Defense counsel objects. Q. Do you know for sure what happened ...-4-

A. All I know is it left. I can’t saythat I saw him take it, just actually say it, because all I know is it left there. Q. Where did you leave it? A. In the book.

... Q. Where did you put the book? A. Back on the shelf in the garage. Q. Did Excel Warren later come by? A. Yes he did. Q. Did he go into your garage? A. Yes. Trial Transcript, pp. 646-47. During the post-trial hearing Delbra Heron testified that both defendant and an individual named Richard Talley (“Talley”) were present in the garage and that after they left the cocaine was no longer in her garage. Talley lived in Delbra Heron’s house
on a fe w occasions while he was seeking treatment for his drug addiction. Delbr a Heron test ified Talley informed her that he owned the cocaine in her garage. She did not, however, testify that Talley told her he, rather tha n the defendant, took the cocaine from her garage. In response to questions posed by defense counsel, Delbra Hero n testified as follows: Q. ... But you have no reason to believe that Excel Warren took those drugs out of your garage, is that correct?
A. I don’t know who took them, I don’t care who took them. All I know is they were gone after [Excel Warren and Richard Talley] left. Post-trial Transcript, p. 738.-5- II. DECISION

The District Court is allowed broad discretion in granting or denying a motion for a new trial based on newly discovered evidence. United States v. Pr ovost , 921 F.2d 163, 164 (8th Cir. 1990), cert. denied , 499 U.S. 968 (1991). The District Court’ s deci sion on whether to grant or deny a new trial on the basis of newly discovere d evidence wi ll not be reversed absent a clear abuse of discretion. United States v

. Roulette , 75 F.3d 418, 425 (8th Cir.), cert. denied , ___ U.S. ___, 117 S. Ct. 147 (1996). In this ca se we find that the District Court clearly abused its discretion in granting a new trial. There are five prerequisites which must be met to obtain a new trial on the basis of newly discovered evidence: (1) the ev idence was in fact discovered after trial; (2) the failure t o dis cover the evidence was not attributable to a lack of diligence by th e movant; (3) the evidence would not be merely cumulative or impeaching; (4) the evidence is material; and (5) the evid ence would likely produce an acquittal if a new trial were granted. United State s v. Willis , 89 F.3d 1371, 1380 (8th Cir.) (citation omitted), cert. denied ,

___ U.S. ___, 117 S.Ct. 273 (1996); and United States v. Luna , 94 F.3d 1156, 1161 (8th Cir. 1996). The United States argues that the District Court applied the wro ng legal standard in evaluating defendant’s motion for a new trial based on newly discovered evidence. The Dis trict Court did not specifically set forth the prerequisites which must b e satisfied to grant such a m otion. However, the District Court did cite United States v. Lisko , 747 F.2d 1234, 1237 (8th Cir. 1984), which sets forth the five prerequisites for granting defendant’s motion for a new trial. Al though not explicitly stated, the District Court appl ied the appropriate test for evaluating defendant’s motion for a new tria l based on newly discovered evidence.-6-

We held in Luna , supra , that evidence within the defendant’s knowledge at the time of trial which could have been communicated to defense counsel could not later be classified as newly discovered evidence. 94 F.3d at 1161. In the present case , defendant obviously knew at the time of trial that Talley was in Delbra Heron’s garage at the same time he was there. Defendant could have inf ormed defense counsel, either before trial or during Delbra Heron’s testimony at trial, that Talley was in the garage with him. If defendant had informed defense counsel of Talley’s presence, defens e counsel c ould have cross-examined Delbra Heron at trial to impeach her stated belief that def endant must have taken the cocaine from her garage. The District Court concludedthe evidence given by Delbra Heron at the hearing on defendant’s motion for new tri al was discovered after trial. However, prior to the time of trial, defendant obviously was aware of Talley’s presence with him in the garage, and therefore, this evidenc e was not newly discovered by defendant after his trial. The District Court cl early abused its discretion in concluding that evidence of Talley’s presence in th e garage was newly discovered.

III. CONCLUSION

For the reasons stated herein, we find that the District Court clearly abused its di scretion in granting defendant’s motion for a new trial based on newly discovere d evidence. We reverse and remand the case for sentencing. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.