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 NORTHERN 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, Oklahoma, for Defendant – Appellant. 

Leena Alam, Assistant United States Attorney (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 Court
2 

Defendant Vernon Hill appeals the denial of his motion for a new trial after his 

conviction for bank robbery. The motion arose 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 which Defendant was convicted, the government prosecuted him 

and Stanley as the two masked men who robbed an Arvest Bank in Tulsa, Oklahoma, on 

November 5, 2011. The jury convicted Defendant but could not agree on Stanley, 

although Stanley was later retried and convicted. Several months after Defendant’s 

conviction, the government, having obtained cell-phone data and other additional 

evidence, charged Defendant and DeJuan with conspiring to commit various robberies, 

including the robbery of the bank. In presenting the new case to the grand jury, FBI 

agent Charles Jones testified that the government’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 discovery 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 that there were precisely two men involved in 

the robbery. Agent Jones’s later admission in grand-jury testimony that this theory was 

wrong constituted, in Defendant’s view, new, exculpatory evidence that entitled him to a 

new trial. 
3 

We disagree and affirm the denial of Defendant’s motion for a new trial. Agent 

Jones’s admission that the government’s earlier two-robbers theory 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 evidence during his trial. 

I. BACKGROUND 

A. The Trial 

Defendant was tried before a jury in the Northern District of Oklahoma. 

Prosecution witnesses described the events as follows: The robbery began when two men 

wearing black ski masks entered the bank and shouted 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 cash 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 wore 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 arrived at the house within 10 to 15 minutes 

of the robbery. Several officers watched the house and saw no one enter or leave the 
4 

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. Defendant left through the same door about 20 

or 30 minutes later and was also arrested. The police then searched the house and did not 

find anyone else. They discovered the bait bills, the GPS tracking device, and more than 

$86,000 in a pillowcase in a drawer under the oven. In the 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 video. 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 called as a witness Donnie 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 the 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 driveway when he arrived on the scene; that it 

had left the house within a few minutes of his 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’s 
5 

cross-examination, Johnson acknowledged that he had not seen anyone enter or exit the 

house, and that a police perimeter had been established before his arrival. He then 

testified that when he entered the courthouse for trial he had noticed the driver of the 

Nissan, and he pointed him out in the courtroom. 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 one could have come or gone 

unobserved. She told the jury, “I submit to you the testimony has been unrefuted that no 

one came or went to [the house] other than these 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 seen 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 think about the point in time when he 

arrived. Certainly a perimeter had already been established. You heard 

testimony from officers who said that they had it on-point, they were 

watching that back door. Didn’t see 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 Stanley—must have been the same two men who robbed the 

bank. She also reminded the jury about trial exhibits found in the house that were 

consistent with items worn 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 robbers. He questioned whether the government 
6 

really established a secure perimeter, referencing 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 robbery identified Defendant and that the 

government had no fingerprint evidence 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, Defendant 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 trial, laid out the government’s 

new theory in grand-jury testimony. He based his analysis primarily on cell-phone data 

for phones linked to the three brothers, which showed what numbers were called and the 

approximate location of the phones. He also had learned that Stanley’s girlfriend owned 

a black Nissan resembling the vehicle seen by Officer Johnson outside the house shortly 

after the robbery. Knowing the locations of the phones and what numbers were called, he 

inferred that Defendant and DeJuan traveled to the bank the night before the robbery to 

scope it out, and that the next day they met Stanley at his girlfriend’s house before 

driving to the bank. Then, according to Jones, Defendant and DeJuan went inside to 
7 

commit the robbery while Stanley waited outside as the getaway driver. Finally, he 

concluded that DeJuan was the one seen driving the black Nissan away from the house. 

Defendant’s role in the robbery did not change under this new theory, but now the 

government claimed that Stanley was the getaway driver and DeJuan was the other 

robber with Defendant in the bank. Jones summed up the change: “Initially, we believed 

that Stanley and [Defendant] were the robbers. . . . We were wrong. We think that 

Stanley was the getaway driver and that [Defendant] and DeJuan were the robbers.” Id., 

Vol. 1 at 163. 

Jones’s grand-jury testimony also briefly described monitored calls between 

Defendant and DeJuan when Defendant 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 testimony in the new criminal proceedings, 

Defendant filed a motion in the first case, arguing that he was entitled to a new trial based 

on newly discovered evidence. Although the motion does not explicitly identify anything 

as the “new evidence,” its argument 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 were: (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 that the government’s own witness, 

Mr. Jones, does not believe the government’s theory of the evidence did not even exist 
8 

until after the trial,” id. On the third occasion it appears to be evidence that someone had 

left the house before officers created a perimeter: “The new evidence from Mr. Jones is 

that, in fact, one of the two people who robbed 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 when the government concedes that a car, containing [a] previously 

unknown robber, left the house before the police arrived,” id.; but there is no evidence of 

any car leaving the house before officers arrived. 

II. DISCUSSION 

 A motion for a new trial may be granted “if the interest of justice 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 quotation 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 trial; (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 evidence is material to the 

principal issues involved; and (5) the new evidence would probably 

produce an acquittal if a new trial were granted. 

Id. Implicit in a claim of newly discovered 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 evidence 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 evidence, that evidence must be admissible in 

a new trial”); United States v. Kamel, 965 F.2d 484, 491 (7th Cir. 1992) (agreeing with 

Parker); United States v. Dogskin, 265 F.3d 682, 686 (8th Cir. 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 reason such alleged newly discovered evidence 

is insufficient . . . is that such evidence would be inadmissible . . . .”); cf. United States v. 

Tolliver, 730 F.3d 1216, 1228 (10th Cir. 2013) (inadmissible hearsay could not require 

new trial because it “at most constitutes impeachment evidence”); United States v. 

Redcorn, 528 F.3d 727, 744–45 (10th Cir. 2008) (proposed newly discovered evidence 

was either “inadmissible and incorrect” or unhelpful to the defendant’s argument). 

What then is the new admissible evidence relied on by Defendant? His briefs are 

unclear on this point, so we must proceed by a process of elimination. 

One thing that is certain is that the new evidence is not the cell-phone data or 

Agent Jones’s analysis of that data. On the contrary, Defendant emphatically argues that 

we cannot consider that data or analysis 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 more 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 data is understandable. The analysis of the data is quite 

damning. 

Perhaps Defendant is claiming that the new evidence is that DeJuan was the driver 

of the black Nissan observed by Officer Johnson. But Defendant knew that during trial—

when Johnson pointed to DeJuan in the courtroom as the driver. 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 after 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. And even the cell-phone 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 apparently turned off at that time. 

There remains only the possibility that the “new evidence” was that Agent Jones 

had a new theory of the case—in particular, that the prior two-robbers theory was 

incorrect. Defendant refers to this claim as “[t]he evidence that the government’s own 

witness, Mr. Jones, does not believe the government’s theory of the evidence.” 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 published 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 government’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 “should 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 that this new evidence would likely lead to 

his acquittal because the possibility of a third robber undermined the inference that the 

two men who left the house after the police arrived 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 claiming that he was denied due process by the 

change in the government’s theory of its case. Such a due-process claim was considered, 

although not resolved, by the Supreme Court in a federal habeas action. In Bradshaw v. 

Stumpf, 545 U.S. 175 (2005), the defendant 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 panel 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 argued, 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 his plea or vacate his death sentence, arguing 

that the prosecutor’s changed 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 defendant’s original guilty plea, but it did not 

decide whether due process required setting aside his sentence, remanding that issue to 
12 

the circuit court. See id. at 186–88. In this case, however, 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 Defendant—that Agent Jones’s grand-jury 

testimony is newly discovered evidence—it fails 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 any 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 testimony, because his knowledge and experience enabled him to 

analyze the cell-phone data and infer how the crime was committed. 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 component of the opinion at that) is newly 

discovered evidence but that the 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 consideration of the cell-phone data 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 verdict, 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 a 
13 

pathologist concluded from performing a posttrial autopsy that a wound to the decedent’s 

abdomen, while potentially life-threatening, was not the cause of death because another 

wound sustained at the same time ended the decedent’s life first. 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 trial that there were only two robbers. That 

proposition was advanced by the prosecutor, but the prosecutor’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 arguments are not evidence and that Defendant 

should only be convicted on the basis of evidence submitted at trial”). The witnesses did 

not express an opinion on the number of robbers; they just reported their observations. 

And, of course, newly discovered evidence cannot be mere impeachment. See Orr, 692 

F.3d at 1099. 

 The district court did not abuse its discretion in denying Defendant’s motion for a 

new trial based on newly discovered evidence. 

We AFFIRM the judgment below.