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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, :

: CRIMINAL NO. 4:04-CR-10

v. :

: (Judge McClure)

CHRISTOPHER P. DeSIVO :

MEMORANDUM

January 24, 2007

BACKGROUND:

On August 25, 2005, a jury in the Middle District of Pennsylvania found

defendant Christopher P. DeSivo (“DeSivo”) guilty of four counts related to a

conspiracy to manufacture and distribute methamphetamine, possession of a

firearm, witness tampering, and obstruction of justice. After the verdict, defendant

has filed countless motions, including numerous motions to continue sentencing, a

motion to dismiss counsel, a motion for new trial, and a motion to stay. On

January 9, 2007, the court scheduled defendant’s sentencing for January 24, 2007. 

Shortly thereafter, on January 19, 2007, defendant filed an ex parte motion to

proceed pro se. The court scheduled an ex parte in camera hearing regarding this

motion.

During the hearing, the defendant intimated to the court his intention to file

his second new trial motion and brief based on newly discovered evidence, which

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he had drafted. Defense counsel noted that he reviewed defendant’s papers and

believed the motion had merit, but that he would need more time and that

sentencing would have to be continued so that he could formally draft a brief

supporting defendant’s motion. The court noted that the case is three years old and

that the court has granted defendant’s numerous motions continuing sentencing. 

The court also noted that it generally does not consider motions filed pro se from

defendants who have counsel. Nevertheless, the court decided to accept the

defendant’s pro se new trial motion and brief, and if after initial review the court

determined the motion had potential merit, the court would set forth a briefing

schedule that would allow defense counsel and the government to weigh in. This

would require sentencing to be continued. Otherwise, sentencing would proceed,

as scheduled, for January 24, 2007. Defendant and defense counsel had no

objection to this procedure.

For the reasons set forth below, we find defendant’s new trial motion totally

lacks merit and will be denied. Therefore, we will not set forth a briefing schedule,

and sentencing will proceed, as scheduled, for January 24, 2007.

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DISCUSSION:

 II. Legal Standard

Federal Rule of Criminal Procedure 33 provides that “upon the defendant’s

motion, the court may vacate any judgment and grant a new trial if the interest of

justice so requires.” In interpreting Rule 33 motions alleging newly discovered

evidence, the Third Circuit permits a district court to grant such motions when the

following five requirements are met: (1) the evidence must be in fact, newly

discovered, i.e. discovered since trial; (2) facts must be alleged from which the

court may infer diligence on the part of the movant; (3) the evidence relied on,

must not be merely cumulative or impeaching; (4) it must be material to the issues

involved; and (5) it must be such, and of such nature, as that, on a new trial, the

newly discovered evidence would probably produce an acquittal. United States v.

Cimera, 459 F.3d 452, 458 (3d Cir. 2006) (internal citations omitted). “[T]he

movant has a ‘heavy burden’ of proving each of these requirements.” Id. (internal

citations omitted). Granting a new trial motion is within the discretion of the trial

court. United States v. Console, 13 F.3d 641, 665 (3d Cir. 1993).

II. Defendant’s New Trial Motion Lacks Merit

Defendant offers the following arguments in support of his motion for new

trial: (1) apparent discrepancies in a drug lab report, which allegedly tested drugs

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entered into evidence during defendant’s trial, show that such evidence was

tainted; (2) discrepancies arising from subpoenaed documents from the New York

State Police Crime Laboratory suggest evidence entered in defendant’s case was

tampered; (3) subpoenaed documents from Tioga County Sheriff’s Office show a

chain of custody discrepancy for certain evidence admitted against defendant; (4)

documents recently received by defendant show that documents presented to

defendant during discovery were altered; (5) a written statement from the cell mate

of government witness Ricky Johnson suggests that Ricky Johnson lied on the

stand; (6) newly found evidence suggests Anne Marie DeSivo - another

government witness who was married to defendant - lied on the stand and has a

criminal history which the prosecution failed to disclose to defendant; and (7)

newly discovered evidence suggests government witness Danielle Worthington

testified in exchange for a reduced sentence for her uncle, who was in jail at the

time. We will consider each argument in turn.

A. Drug Lab Report

Defendant argues that a drug lab report he received from the Drug

Enforcement Administration, which he attaches as exhibit A to his brief,

demonstrates that certain evidence entered against him was tainted. Specifically,

defendant argues the lab report, which he suggests tests evidence admitted against

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 Defendant does not specify in his brief what piece of evidence this lab

report relates to.

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him during trial, contains a discrepancy on page two and page five of the report

regarding two drugs tested and discussed in the report. On page two of the report,

exhibit no. 1 is given lab no. 156253, and is listed as cocaine. On the same page,

exhibit no. 2 is given lab no. 156254 and is listed as methamphetamine. On page

five, however, the lab numbers become mixed up and exhibit no. 1 is referred to as

lab no. 156254, not as lab no. 156253. Defendant argues that the prosecution kept

this discrepancy from the defendant and that “this information would have been

invaluable to the defense.” (New Trial Brief, Rec. Doc. No. 249, p. 6).

We fail to see how this discrepancy is material at all to defendant’s case. 

The lab report was not used by the prosecutor, nor did any witness testify regarding

its content. Assuming that the report does relate to evidence admitted against

defendant,1

 at best the discrepancy noted by the defendant represents a mere

clerical error that has no material impact on the admissibility of any evidence

admitted during trial. Because this discrepancy is not material to the issues

involved in this case, defendant’s argument concerning this lab report fails to meet

the fourth requirement for newly discovered evidence. 

Even if the lab report was material, the discrepancy pointed to by the

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defendant at best would act as impeaching evidence. In other words, the error on

the lab report would go to the credibility of whether exhibit no. 1 was really

cocaine and exhibit no. 2 was really methamphetamine, as stated in the report. 

Rule 33's third requirement, however, prevents impeachment evidence from

qualifying as valid newly discovered evidence warranting a new trial. Thus, we

reject defendant’s arguments regarding the drug lab report. 

B. New York State Police Crime Laboratory Documents

Defendant argues that discrepancies between documents he received from

the New York State Police Crime Laboratory and the Tioga County Sheriff’s

Department suggest tampering of relevant documents to such a level that a new

trial is warranted. Defendant points to two forms, one of which he received from

the New York State Police and the other he received from the Tioga County

Sheriff’s Department, that are each entitled as “Return to Submitting Agency.”

(Compare New Trial Brief, exhibit B with exhibit J, p. 1). Defendant argues that

these two forms, which apparently relate to evidence admitted against defendant

during trial, are supposed to be identical, but that they are not. Defendant notes

that the time stamping on both forms are different and that one form is signed,

while the other is not. He argues that these discrepancies evince tampering of these

documents.

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We fail to see the significance of these alleged discrepancies. The forms,

which refer to one sealed plastic bag containing two knotted bags of a powder

substance, seem to relate to the two baggies containing powder that were admitted

against defendant as exhibit 2.4. The discrepancies defendant points to, however,

are too minor to have any material effect on the credibility of this evidence. Again,

even if the discrepancies were material, they would act merely as impeachment

evidence, which we have already noted is not enough to warrant a new trial for

newly discovered evidence. For these reasons, we reject defendant’s argument.

Defendant also argues that apparent tampering with the date and time stamp

of a form entitled “Evidence Submission Form” that defendant received from the

New York State Police Crime Laboratory, and the failure of the Tioga County

Sheriff’s Office to supply him with its original copy of its “Evidence Submission

Form,” evince tampering of evidence admitted against him. Again, we fail to see

the material connection between these discrepancies and any evidence admitted

against defendant, and that even if the discrepancies were materially relevant, they

would act only as impeachment evidence. For these reasons, we reject defendant’s

arguments concerning the forms he received from the New York Police Crime

Laboratory.

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C. Chain of Custody Discrepancy

Defendant argues that chain of custody documents concerning evidence used

against him indicate evidence tampering. Specifically, defendant avers that he

received from the government in March 2004 Tioga County Sheriff’s Chain of

Custody document, which apparently detailed the chain of custody of evidence

taken from the defendant’s vehicle, a black Chevy Blazer. Defendant attaches this

document as exhibit D(b), and notes that there are only two entries regarding this

evidence, with the latest entry being February 12, 2003. In January 2006,

defendant received a chain of custody form from a civil subpoena he served on the

Tioga County Sheriff’s Office. Defendant alleges this form concerns the same

evidence, but unlike the form disclosed to him during discovery, this form includes

nine new entries. Defendant argues that from this form, “it appears someone went

back and filled out the chain of custody form to make the custody appear totally

accounted for when in fact it was all filled in at one time after the defendant’s

trial.” (New Trial Brief, Rec. Doc. NO. 249-1, p. 9).

Again, we fail to see how this alleged discrepancy has any material impact

on evidence admitted against defendant during trial. Furthermore, even if it did

have a material impact, its impact would only be impeachment, and therefore not

enough to warrant a new trial. For these reasons, we reject defendant’s chain of

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custody argument.

D. Remaining Alleged Document Discrepancies

Defendant makes several other allegations of document and evidence

tampering, none of which is convincing. First, defendant argues that he has

compiled evidence of tampering and document alteration concerning John Pierce,

the government expert who testified about methamphetamine evidence admitted

against defendant. Defendant argues that Pierce testified that he tested evidence

resembling a brown chunky substance, even though all of the evidentiary records

in the case refer only to partial knotted bags of white powder. Defendant argues

this discrepancy calls Pierce’s testimony into question. Defendant states that he

submitted this and other examples of tampering to the New York State Police

Internal Affairs. He notes that he received a reply stating there was an

investigation, but pursuant to New York state law he has been denied access to the

results of the investigation. He appealed this determination, which was denied, and

attaches as exhibit E documents concerning these requests and denials.

None of these documents equates to newly discovered evidence. 

Defendant’s argument concerning the discrepancy in Pierce’s testimony does not

stem from evidence he found after trial. In fact, his defense counsel crossexamined Pierce concerning the brown chunky vs. white powder substance

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discrepancy, which demonstrates that defendant already had an opportunity to

make this argument to the jury, to no avail. See Trial Tr. vol. 6, 96-98, August 23,

2005. Further, none of the documents filed by the defendant supports his other

allegations of document and evidence tampering. Without newly discovered

evidence, defendant’s arguments concerning Pierce are not sufficient to warrant a

new trial.

Second, defendant argues, in general, that documents produced by the

prosecutor were altered and tampered. (New Trial Brief, Rec. Doc. No. 249-1, p.

11). Because of these alleged alterations, defendant states that he filed a complaint

with the Pennsylvania State Police Internal Affairs Division, but that the complaint

was found to have no merit. Defendant attaches as exhibit F to his brief

correspondence and documents related to his complaint. We fail to see how these

documents would be material, and therefore reject defendant’s general arguments

concerning document tampering. 

E. Ricky Johnson

Defendant attaches to his brief a written statement from a Matthew Cole,

who allegedly was Ricky Johnson’s cell mate. The statement alleges that Johnson

told Cole that he was going to testify against DeSivo, and that “the things he was

going to tell the court wasn’t even true.” (New Trial Brief, exhibit G, Rec. Doc.

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No. 249-8, p. 2). DeSivo argues that he recently found out these statements from

Cole after the trial, and that Johnson’s statement to Cole taints Johnson’s testimony

to the point that a new trial is required.

We disagree. Johnson’s statement to Cole, if admitted, would have

relevance only for impeaching Johnson’s testimony. As we mentioned earlier, the

requirements under Rule 33 do not allow impeachment evidence alone to justify a

new trial when such a motion is based on newly discovered evidence. Therefore,

Johnson’s statement to Cole does not warrant a new trial for defendant.

F. Anne Marie Desivo

Defendant argues that he recently received evidence indicating that Anne

Marie DeSivo lied on the witness stand. Specifically, defendant states that

although Anne Marie DeSivo testified to buying a rifle at a flea market at

defendant’s request, she stated in her statement to the New York State Police that

she bought a hand gun at the flea market. Defendant, however, fails to attach Anne

Marie DeSivo’s police statement. He also argues that Anne Marie DeSivo’s

mother is willing to testify that Anne Marie DeSivo told her that she was the driver

of the black Chevy Blazer, which was pursued by police and eventually left

abandoned on a snow bank. During trial, the prosecution argued that the

defendant, who owned the Blazer, was driving the SUV when the police pursued it. 

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Again, defendant fails to present the court with evidence supporting his claim. 

Finally, defendant argues that he has recently found out that Ann Marie DeSivo,

who was his wife, had a criminal history, which the prosecution allegedly failed to

disclose to the defendant. Once again, defendant does not offer any evidence to

support his claim that his wife had a criminal history. Nevertheless, defendant

argues that newly discovered evidence that calls into question his wife’s testimony

warrants a new trial.

Once again, defendant’s arguments lack merit. First, although defendant

says he has evidence to support his arguments concerning Anne Marie DeSivo’s

testimony and criminal history, he has not presented any of it to the court, which

seriously undermines the existence of said newly discovered evidence. Second,

even if he did have such evidence and it was newly discovered, such evidence

would again act merely as impeachment evidence, which as we have noted is not

enough to warrant a new trial. For these reasons, defendant’s arguments for new

trial based on evidence concerning Anne Marie DeSivo’s testimony are rejected.

G. Danielle Worthington

Defendant argues that he has evidence that shows Danielle Worthington

testified for the government in exchange for a lower sentence for her uncle, John

Worthington. To support this argument, defendant attaches a news article that

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discusses John Worthington’s trial, which includes below the article an unsigned

handwritten note that states “this is the article about her testifying against you to

get a lighter sentence.” (New Trial Brief, exhibit H, Rec. Doc. No. 249-9, p. 2). 

Defendant argues this news article and unsigned statement is enough evidence to

warrant a new trial.

Defendant’s alleged new evidence does not support his argument. First, the

news article gives no indication whatsoever that Danielle Worthington gave her

testimony in exchange for a lower sentence for her uncle. The article merely

demonstrates that a gentleman named John Worthington, who may or may not be

related to Danielle Worthington, pled guilty to a conspiracy to manufacture

methamphetamine. Second, the handwritten note under the article lacks credibility

because not only do we not know who wrote the statement, but defendant has not

offered any evidence to establish the underlying basis for what the statement

suggests - that Danielle Worthington did in fact testify against DeSivo in exchange

for a lower sentence for John Worthington. An unsigned statement suggesting that

she did, and nothing more, is not enough evidence to support DeSivo’s claim, and

therefore the alleged newly discovered evidence is not material to the issues

involved. Furthermore, even if the evidence was material, it would amount again

to nothing more than mere impeachment evidence. For these reasons, defendant’s

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evidence concerning Danielle Worthington’s testimony fails to meet Rule 33's

third and fourth requirements regarding newly discovered evidence.

Finally, we find that every piece of newly discovered evidence offered by

the defendant - either individually or cumulatively - would fail to result in a

probable acquittal and therefore defendant’s motion fails to meet Rule 33's fifth

requirement related to motion for new trial based on newly discovered evidence. 

Defendant’s trial lasted over a week and a half, with more than a dozen witnesses

testifying against the defendant. Even discounting all the evidence and testimony

defendant argues should be discounted, there still would be overwhelming

evidence from the testimony of the other witnesses to support defendant’s

conviction. Defendant has had his day in court, and a jury of his peers found him

guilty of four counts related to a conspiracy to manufacture and distribute

methamphetamine, possession of a firearm, witness tampering, and obstruction of

justice. We find that none of defendant’s newly discovered evidence would

change this result. Therefore, we deny defendant’s motion for a new trial based on

newly discovered evidence, and we will continue with defendant’s sentencing as

scheduled. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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