The Honorable John B. Jones, United States District Judge, United States

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District Court for the District of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-3234

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United States of America, *

*

Appellant, * Appeal from the United States

* District Court for the Eastern

v. * District of Arkansas.

*

Excel Warren, Jr., *

*

Appellee. *

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 Submitted: January 13, 1998 

Filed: March 26, 1998

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Before BOWMAN, MORRIS SHEPPARD ARNOLD, Circuit Judges, and JOHN B.

JONES , District Judge. 1

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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 the basis of newly discovered evidence. Defendant was charged

with conspiracy to distribute and possess with the intent to distribute cocaine,
Although different spellings of this witness’ last name have been used in the

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record in this case, we will refer to her as Ms. Heron, which appears to be the correct

spelling and is the spelling contained in the District Court’s memorandum opinion and

order granting a new trial.

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and attempting to possess with the intent to distribute cocaine, all in violation of 21

U.S.C. §§ 841(a)(1) and 846. We reverse.

I. BACKGROUND

A jury trial on the two drug charges held in August 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 requesting 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 defense

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counsel to inform him that she felt a portion of her testimony was inaccurate and

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 the

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 the

testimony of Delbra Heron given during the post-trial hearing was newly discovered

evidence. The District Court held that the evidence was discovered after the trial and

that her testimony was extremely prejudicial because she was the only credible witness

to state, in effect, that defendant had possessed drugs. In its memorandum opinion and

order granting a new trial, the District Court examined the trial 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
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the government in exchange for their testimony against the defendant, and therefore,

they were not credible witnesses. The District Court did not discuss what effect the

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 in

granting a new trial because Delbra Heron’s testimony was not newly discovered and

that the District 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 to

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 ...
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A. All I know is it left. I can’t say that 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 few occasions while he was seeking treatment for his drug addiction. Delbra

Heron testified Talley informed her that he owned the cocaine in her garage. She did

not, however, testify that Talley told her he, rather than the defendant, took the cocaine

from her garage. In response to questions posed by defense counsel, Delbra Heron

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.
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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. Provost, 921 F.2d

163, 164 (8th Cir. 1990), cert. denied, 499 U.S. 968 (1991). The District Court’s

decision on whether to grant or deny a new trial on the basis of newly discovered

evidence will 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 case 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 evidence was in fact discovered after trial; (2) the failure to

discover the evidence was not attributable to a lack of diligence by the

movant; (3) the evidence would not be merely cumulative or impeaching;

(4) the evidence is material; and (5) the evidence would likely produce an

acquittal if a new trial were granted. 

United States 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 wrong legal standard

in evaluating defendant’s motion for a new trial based on newly discovered evidence.

The District Court did not specifically set forth the prerequisites which must be

satisfied to grant such a motion. 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. Although not explicitly stated, the District

Court applied the appropriate test for evaluating defendant’s motion for a new trial

based on newly discovered evidence.
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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 informed 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, defense

counsel could have cross-examined Delbra Heron at trial to impeach her stated belief

that defendant must have taken the cocaine from her garage. The District Court

concluded the evidence given by Delbra Heron at the hearing on defendant’s motion

for new trial 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

evidence was not newly discovered by defendant after his trial. The District Court

clearly abused its discretion in concluding that evidence of Talley’s presence in the

garage was newly discovered.

III. CONCLUSION

For the reasons stated herein, we find that the District Court clearly abused its

discretion in granting defendant’s motion for a new trial based on newly discovered

evidence. We reverse and remand the case for sentencing.

A true copy.

Attest:

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