PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. VERNON JAMES HILL, Defendant - Appellant. No. 12-5176

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORT HERN DISTRICT OF OKLAHOMA (D.C. No. 4:11-CR-00179-GKF-1)

Neil D. Van Dalsem (Robert Scott Williams, with him on the briefs), Taylor, Ryan, Schmidt & Van Dalsem, P.C., Tulsa, Ok lahoma, for Defendant – Appellant. Leena Alam, Assistant United States Attorn ey (Danny C.Williams, Sr., United States Attorney, with her on the brief), Northern District of Oklahoma, Tulsa, Oklahoma, for Plaintiff – Appellee.

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.

HARTZ, Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### December 10, 2013
Elisabeth A. Shumaker Clerk of Court2 Defendant Vernon Hill appeals the denial of his motion for a new trial after his conviction for bank robbery. The motion aros e out of a change in the government’s theory about the involvement of Defendant’s two brothers, Stanley and DeJuan, in the robbery. In the trial at wh ich Defendant was convicted, th e government prosecuted him and Stanley as the two masked men who robbe d an Arvest Bank in Tulsa, Oklahoma, on November 5, 2011. The ju ry convicted Defendant but could not agree on Stanley, although Stanley was later retried and conv icted. Several months after Defendant’s conviction, the government, having obtain ed cell-phone data and other additional evidence, charged Defendant an d DeJuan with conspiring to commit various robberies, including the robbery of the bank. In pres enting the new case to the grand jury, FBI agent Charles Jones testified that the govern ment’s understanding of the bank robbery had changed: Stanley had not been one of the robbers in the bank but had driven the getaway car; the two robbers were Defendant and DeJuan. Having obtained Jones’s grand- jury testimony during disc overy in defense of the new conspiracy charge, Defendant moved to set aside his prior conviction and get a new trial on the bank-robbery charge. For reasons that will be further explained below, the prosecutor at the first trial had emphasized th at there were precisely two men involved in the robbery. Agent Jones’s la ter admission in grand-jury tes timony that this theory was wrong constituted, in Defendant’s view, new, exculpatory evid ence that entitled him to a new trial.3 We disagree and affirm the denial of De fendant’s motion for a new trial. Agent Jones’s admission that the government’s ea rlier two-robbers theo ry was wrong was not admissible evidence. And nothing else described by Defendant as newly discovered evidence (he explicitly declines to rely on the new cell- phone data) was newly discovered because he knew of the evid ence during his trial. I. BACKGROUND A. The Trial Defendant was tried before a jury in the Northern District of Oklahoma. Prosecution witnesses describe d the events as follows: The robbery began when two men wearing black ski masks entered the bank and sh outed for everyone to get on the ground. One of the robbers carried a gun while the other hopped the counter and told bank employees to open their cash drawers and a cash dispenser and put the contents in his bag. When the employees filled the bag, they included bait bills whose serial numbers had been recorded and a GPS tracking device. After collecting the ca sh the robbers fled the bank on foot. The bank’s surveillance video did not capture the robbers’ faces, but did show that they wore black pants, one wo re dark shoes and a black hooded jacket with some white on the inside, and the other wore a black long-sleeved shirt covered by a light-colored T-shirt. Police officers followed the GPS tracking device to a house on East Pine Street and established a perimeter around it. They a rrived at the house within 10 to 15 minutes of the robbery. Several officers watched the house and saw no one enter or leave the4 building. An officer stopped one vehicle that may have been leaving the area, but found only three people who appeared to be on their way to dry laundry. Eventually, Stanley left the house through a back door and was arrested by officers, to whom he gave a false name. De fendant left through the same door about 20 or 30 minutes later and was al so arrested. The police then searched the house and did not find anyone else. They discov ered the bait bills, the GPS tr acking device, and more than $86,000 in a pillowcase in a dr awer under the oven. In th e laundry room they found a light-colored T-shirt and a black shirt, which looked like the clothes worn by one of the robbers in the surveillance vide o. In one of the bedrooms they found a gun, a black ski mask, and a pair of black pants. In a second bedroom they found a black hooded jacket with some white on the inside , a pair of red and black shoes, and a piece of mail on the dresser addressed to Defendant. After the prosecution rested, the defense put on evidence that no fingerprints of either brother were found at the bank and ca lled as a witness Donni e Johnson, one of the officers who had been watching the house. Johnson was called because of his written report that he had seen a black Nissan leave th e house’s driveway shortly after he arrived on the scene. The report described the driver of the car as a black male with dreadlocks who was wearing a white T-shirt. On direct examination Johnson confirmed that he had seen a black Nissan parked in the house’s driv eway when he arrived on the scene; that it had left the house within a few minutes of hi s arrival; and that he had made eye contact with the driver as the car left but did not stop or question him. During the government’s5 cross-examination, Johnson acknowledged that he had not seen anyone enter or exit the house, and that a police perime ter had been established befo re his arrival. He then testified that when he entere d the courthouse for trial he had noticed the driver of the Nissan, and he pointed him out in the courtroo m. Neither party named the driver at the time, but there is no dispute that the man pointed out was DeJuan Hill. The prosecutor argued in closing that because the police quickly followed the tracking device to the house and established a perimeter, no on e could have come or gone unobserved. She told the jury, “I submit to you the tes timony has been unrefuted that no one came or went to [the house] other than th ese two defendants . . . . No one else. The testimony was unrefuted.” R., Vol. II pt. 3 at 557. She downplayed the importance of the car that Johnson had se en leaving the house: [Y]ou might listen for argument regarding this mysterious car that was seen in the area of [the house] . . . Officer Johnson testified that, one, he wasn’t the first person on the scene. So th ink about the point in time when he arrived. Certainly a perimeter had al ready been established. You heard testimony from officers who said that they had it on-point, they were watching that back door. Didn’t s ee anyone come or go until those two came out. Id. at 535–36. She asked the jury to conclude that the two men who exited the house— Defendant and his brother Stan ley—must have been the same two men who robbed the bank. She also reminded the jury about trial e xhibits found in the house that were consistent with items wo rn by the robbers. Defense counsel tried to cast doubt on the government’s theory that the two men in the house must have been the bank robb ers. He questioned whether the government6 really established a secure perimeter, refere ncing Johnson’s testimony about the car seen in the driveway: “[T]here are some significant cracks in the foundation of the government’s case. One being the fact that there is a black male leaving in a car that does not get questioned.” Id. at 550. He argued that the driver of that car “maybe had access to this house[,] came[,] and put that money there.” Id. at 552. He also pointed out that none of the eyewitnesses to the ro bbery identified Defendant and that the government had no fingerprint ev idence linking him to the bank. The jury convicted Defendant, but did not reach a verdict as to Stanley. B. The Conspiracy Charge A few months after his conviction, Defe ndant was charged with conspiracy to commit several robberies as a member of a street gang. One alleged overt act was the robbery of the Arvest Bank by Defendant and his brothers Stanley and DeJuan. FBI agent Charles Jones, who had also testified at Defendant’s tria l, laid out the government’s new theory in grand-jury testimony. He ba sed his analysis primar ily on cell-phone data for phones linked to the three brothers, whic h showed what numbers were called and the approximate location of the phones. He also had learned that Stan ley’s girlfriend owned a black Nissan resembling the vehicle seen by Officer Johnson outside the house shortly after the robbery. Knowing the locations of th e phones and what numbers were called, he inferred that Defendant and DeJuan traveled to the bank the night be fore the robbery to scope it out, and that the next day they me t Stanley at his girlfriend’s house before driving to the bank. Then, according to J ones, Defendant and DeJu an went inside to7 commit the robbery while Stanley waited outs ide as the getaway driver. Finally, he concluded that DeJuan was the one seen driv ing the black Nissan away from the house. Defendant’s role in the robbery did not ch ange under this new theory, but now the government claimed that Stanley was the getaway driver and DeJuan was the other robber with Defendant in th e bank. Jones summed up the ch ange: “Initially, we believed that Stanley and [Defendant] were the robber s. . . . We were wrong. We think that Stanley was the getaway driver and that [D efendant] and DeJuan were the robbers.” Id. , Vol. 1 at 163. Jones’s grand-jury testimony also brie fly described monitored calls between Defendant and DeJuan when De fendant was in jail. DeJuan made statements suggesting that he was one of the robbers, such as “I’m playing boy on the run.” Id. C. Defendant’s Motion for New Trial After receiving Jones’s grand-jury tes timony in the new cr iminal proceedings, Defendant filed a motion in the first case, arguing that he wa s entitled to a new trial based on newly discovered evidence. Although the motion does not explicitly identify anything as the “new evidence,” its ar gument section uses the term evidence on three occasions that may indicate what is being referred to. Twice, the “evidence” appears to be the belief of the officers about who the robbers we re: (1) “[Defendant] had no evidence that the officers who testified believed that DeJuan Hill was one of the robbers until [the last two weeks],” id. at 133; and (2) “[t]he evidence th at the government’s own witness, Mr. Jones, does not believe the government’s theory of the evidence did not even exist8 until after the trial,” id. On the third occasion it appears to be evidence that someone had left the house before officers created a perime ter: “The new evidence from Mr. Jones is that, in fact, one of the two people who robbe d the bank left the House before the House was secured by law enforcement officers,” id. at 134. The motion also may be suggesting a different item of evidence when it argues that the government’s two-robbers theory “completely unravels wh en the government concedes that a car, containing [a] previously unknown robber, left the hous e before the police arrived,” id. ; but there is no evidence of any car leaving the house befo re officers arrived. II. DISCUSSION A motion for a new trial may be granted “i f the interest of ju stice so requires,” Fed. R. Crim. P. 33, but a motion based on newly discovered evidence “is not favorably regarded and should be granted only with great caution.” United States v. Orr , 692 F.3d 1079, 1099 (10th Cir. 2012) (internal quota tion marks omitted). The district court’s denial of a motion for a new trial is reviewed for abuse of discretion. See id. To prevail on a motion for a new trial based on newly discovered evidence, the defendant must establish: (1) the evidence was discovered after tr ial; (2) the failure to learn of the evidence was not caused by lack of diligence; (3) the new evidence is not merely impeaching or cumulative; (4) the new ev idence is material to the principal issues involved; and (5) the new evidence would probably produce an acquittal if a ne w trial were granted. Id. Implicit in a claim of newly discove red evidence is that there is new evidence —that is, material that is admissible at trial. See, e.g. , United States v. Parker , 903 F.2d 91,9 102–03 (2d Cir. 1990) (requiring that new ev idence would probably produce an acquittal “presupposes, of course, that the proffered new ‘evidence’ would be admissible at the new trial.”); United States v. MacDonald , 779 F.2d 962, 964 (4th Cir. 1985) (“To obtain a new trial on the basis of after discovered evid ence, that evidence mu st be admissible in a new trial”); United States v. Kamel , 965 F.2d 484, 491 (7th Ci r. 1992) (agreeing with Parker ); United States v. Dogskin , 265 F.3d 682, 686 (8th Ci r. 2001) (new testimony did not warrant a new trial because it was inadmissible); Wolcher v. United States , 233 F.2d 748, 749 (9th Cir. 1956) (“One important r eason such alleged newly discovered evidence is insufficient . . . is th at such evidence would be inadmissible . . . .”); cf. United States v. Tolliver, 730 F.3d 1216, 1228 (10th Cir. 2013) (i nadmissible hearsay could not require new trial because it “at most c onstitutes impeachment evidence”); United States v. Redcorn , 528 F.3d 727, 744–45 (10t h Cir. 2008) (proposed newly discovered evidence was either “inadmissible and incorrect” or unhelpful to the de fendant’s argument). What then is the new admissible evidence relied on by Defendant? His briefs are unclear on this point, so we must pr oceed by a process of elimination. One thing that is certain is that the ne w evidence is not the cell-phone data or Agent Jones’s analysis of that data. On th e contrary, Defendant emphatically argues that we cannot consider that data or analys is in our consideration of his claim. 1 The reason

1 Defendant asserts in his opening brief that the government’s suggestion that the only new evidence is cell-phone data is nothing mo re than a strategy “to create a straw man argument by identifying some other newly discovered evidence that it says would not Continued . . .10 for Defendant’s position on the da ta is understandable. The analysis of the data is quite damning. Perhaps Defendant is claiming that the new evidence is that De Juan was the driver of the black Nissan observed by Officer Johns on. But Defendant knew that during trial— when Johnson pointed to DeJuan in the courtroom as the drive r. Therefore, that evidence was not newly discovered. Or perhaps the new evidence claimed by Defendant is that one of the robbers (specifically, DeJuan) had left the house afte r the money had been deposited there. But there was no new evidence placing DeJuan in the house after the robbery. No new witness observed him leave the house. An d even the cell-phon e evidence, which Defendant would not have us use, did not place him in the house—the data were not that precise and DeJuan’s phone was appare ntly turned off at that time. There remains only the possib ility that the “new evidence” was that Agent Jones had a new theory of the case—in particula r, that the prior two-robbers theory was incorrect. Defendant refers to this claim as “[t]he eviden ce that the government’s own witness, Mr. Jones, does not believe the governme nt’s theory of the ev idence.” R., Vol. I justify granting a new trial.” Aplt. Br. at 16–17. The brief goes on to say that “undersigned counsel has not been able to find any publis hed or unpublished decision where a court ruled that it would be proper, standing alone, to deny a defendant’s new trial motion based upon the gov ernment’s bald claim that it has other newly discovered evidence that would produce a conviction.” Id. at 17. The reply brief, referring to the cell-phone evidence, says that the court “sho uld not consider evidence that might be presented at retrial but which has not been presented in this case. ” Reply Br. at 11.11 at 133. He also quotes Jones’s statement that “We were wrong,” id. at 201 (internal quotation marks omitted). Defendant argues th at this new evidence would likely lead to his acquittal because the possib ility of a third robber underm ined the inference that the two men who left the house after the police arri ved must have been the two robbers in the bank. Before analyzing this remaining claim, we think it helpful to note an argument Defendant is not making. He is not clai ming that he was denied due process by the change in the government’s theory of its ca se. Such a due-proce ss claim was considered, although not resolved, by th e Supreme Court in a federal habeas action. In Bradshaw v. Stumpf , 545 U.S. 175 (2005), the de fendant had pleaded guilty in state court, admitting to participation in a robbery in which he shot a man (who survived) but claiming that he did not shoot the woman who died. See id. at 178. The prosecutor argued at a penalty hearing before a three-judge pa nel that the defendant had shot the woman, and the panel sentenced the defendant to death. See id. at 179–80. In the later trial of the defendant’s accomplice, however, the prosecutor argue d, based on new testimony from the accomplice’s cellmate, that it was the accomplice who had killed the woman. See id. at 180. The defendant moved to withdraw hi s plea or vacate his death sentence, arguing that the prosecutor’s ch anged theory exonerated him as the shooter. See id. at 180–81. The motion was denied. See id. at 181. The Court held that the prosecutor’s use of inconsistent theories did not invalidate the de fendant’s original guilty plea, but it did not decide whether due process required setting as ide his sentence, remanding that issue to12 the circuit court. See id. at 186–88. In this case, howev er, Defendant is not challenging the propriety of the government’s changing its theory; he is claiming, in essence, that the new theory is new evidence. Turning to the claim actually made by De fendant—that Agent Jones’s grand-jury testimony is newly discovered evidence—it fa ils because the testimony (at least as Defendant would use it) is not admissible evidence. It is opinion testimony by Agent Jones. He did not observe a ny of the brothers participate in the bank robbery or see DeJuan leave the house. Of course, opinion testimony may be admissible in certain circumstances. See Fed. R. Evid. 702. And here perhaps Agent Jones’s conclusions would be proper expert testim ony, because his knowledge and experience enabled him to analyze the cell-phone data and infer how the crime was committe d. But Defendant insists that use of the cell-phone data is improper in resolving his motion, thereby removing from consideration any basis for viewing Agent Jones’s testimony as admissible expert-opinion evidence. Defendant cannot have it both ways. He cannot argue that Jones’s opinion (and only one co mponent of the opini on at that) is newly discovered evidence but that th e evidentiary predicate for its admissibility (the cell-phone data and Jones’s expertise in analyzing it) cannot be considered. We understand why Defendant wishes to avoid cons ideration of the cell-phone da ta and the rest of Jones’s opinion. If we consider that evidence, it is obvious that the new evidence would not change the jury’s verdic t, so he would not be entitled to a new trial. See Orr , 692 F.3d at 1099. An analogy may help illuminate what Defendant is arguing here. Say a13 pathologist concluded from performing a posttrial autopsy that a wound to the decedent’s abdomen, while potentially lif e-threatening, was not the cause of death because another wound sustained at the same tim e ended the decedent’s life firs t. No court would grant a motion for new trial in which the defendant argued that the pathologist’s testimony that the abdominal wound was not the cause of death was new evidence, but that the remainder of the pathologist’s observations and analysis could not be considered. Finally, we note that even if Defendant argues that Jones’s testimony would be admissible as impeachment, he cannot prevail. His problem is that neither Jones or anyone else testified at Defendant’s tria l that there were only two robbers. That proposition was advanced by th e prosecutor, but the prosecut or’s statements were not evidence. See United States v. Rogers , 556 F.3d 1130, 1141 (10th Cir. 2009) (approving of the jury instruction “that closing argum ents are not evidence and that Defendant should only be convicte d on the basis of evidence submitte d at trial”). The witnesses did not express an opinion on the num ber of robbers; they just reported their observations. And, of course, newly discovered eviden ce cannot be mere impeachment. See Orr , 692 F.3d at 1099. The district court did not abuse its di scretion in denying Defendant’s motion for a new trial based on newly discovered evidence. We AFFIRM the judgment below.