Of the Eighth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-2149

UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL MOSES LENZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

 Howard, Selya and Hansen,*

Circuit Judges.

Jaye L. Rancourt for appellant.

Donald A. Feith, Assistant United States Attorney, with whom

Thomas P. Colantuono, United States Attorney, and Helen White

Fitzgibbon, Assistant United States Attorney, were on brief, for

appellee.

August 14, 2009
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HANSEN, Circuit Judge. Daniel Moses Lenz appeals from the

district court's denial of his motions for a new trial based on

newly discovered evidence following his conviction for transporting

a minor in interstate commerce with the intent to engage in sexual

activity. We agree with the district court that the victim's

postverdict corroboration of Lenz's defense theory was not newly

discovered evidence, and we affirm. 

I.

Daniel Lenz, a 26-year-old man from Florida, was arrested

after local New Hampshire police located a missing 15-year-old girl

from New Hampshire (we will refer to her as Jane, a fictional name)

with Lenz's friend, Jason Downing, in South Carolina en route to

Florida on March 27, 2007. Lenz had met Jane two months earlier

while playing the on-line role playing game of World of Warcraft

(WOW), and the two had developed an on-line relationship. Jane

suffered from depression, anxiety, and severe social phobia to the

point that she rarely left her house. According to Lenz, he asked

Downing to go to New Hampshire to get Jane because she was

threatening to kill herself if Lenz did not come and get her. Jane

was packed and willingly went with Downing. 

Jane's parents filed a missing persons report, and local

police found her the next day through chat logs maintained by

Blizzard Entertainment, the creator of WOW. The chat logs revealed

much more than a friendship with Lenz. The chat logs contained
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numerous sexually explicit conversations between Lenz and Jane,

describing sexual acts they would perform when Jane could run away

from home and be with Lenz in Florida.

Lenz was charged with transportation of a minor in

interstate commerce with the intent to engage in illegal sexual

activity in violation of 18 U.S.C. §§ 2423(a) & 2. Lenz's defense

at trial was that he was transporting Jane to Florida to save her

from killing herself, not to have sex with her. He conceded the

sexual nature of the on-line chats, but he testified at trial that

the two knew it would be illegal to have sex and they planned to

wait until Jane turned sixteen in August of that year before

engaging in sexual activity. 

During discovery, prosecutors made available to Lenz's

defense counsel statements that Jane made to various sources,

including her mother, a Child Advocacy Center counselor, and a

Federal Bureau of Investigation agent. Jane told the Child

Advocacy counselor that she had felt like she was "losing it" and

had asked Lenz to help her get away from home. According to Jane,

Lenz had tried to talk her out of leaving or breaking the law.

Jane told Lenz that if he did not send someone to get her, she

would "go crazy and hurt herself or something." The discovery file

also included interviews by the FBI with both Jane and her mother.

Jane told an FBI agent that she might have led Lenz to believe that

she was being abused physically and emotionally at home, although
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she was not in fact being abused. Jane's mother stated during an

FBI interview that after Jane returned home, she asked Jane whether

she and Lenz were going to be lovers when she arrived in Florida,

and Jane responded "yes." Jane had also told her mother that Lenz

planned to take her to a free clinic to get a birth control device

when she arrived in Florida. Lenz's counsel did not attempt to

interview Jane prior to trial.

After Lenz's arrest, Jane's treating psychologist, Dr.

Vincent DeSantis, diagnosed her with bipolar disorder. He told

prosecutors that she had created another personality through the

WOW video game and that Jane was in a manic phase of her disorder

when she left with Downing to go to Florida. He strongly

recommended that she not testify at the trial because of the

traumatic reaction she would have to facing the recent events. The

Government sought to have Jane declared unavailable to testify as

part of its pretrial motion to introduce the chat logs at trial.

The district court did not initially rule on Jane's unavailability,

but stated that it would take up the issue if Lenz subpoenaed Jane

to testify. When the Government introduced the chat logs at trial,

the court overruled Lenz's objection that the Government had not

established that Jane was unavailable to testify. The court ruled

that the Government did not need to establish her unavailability

because Jane's statements contained in the chat logs were allowed

only for the purpose of establishing context for Lenz's statements,
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which themselves were allowed as party admissions. Lenz declined

the court's offer of an instruction to the jury concerning the

limited use the jury could make of Jane's chat log statements.

Lenz did not call Jane to testify as part of his defense.

Lenz was convicted on August 30, 2007, following a threeday jury trial. Subsequently, Lenz began writing letters to Jane

expressing his love for her and to Jane's parents apologizing for

his actions. Jane's parents became convinced that Lenz meant no

harm to Jane and allowed her to visit him in jail. In December

2007, Jane and her mother met with Lenz's trial counsel and made a

recorded statement in which Jane stated that although she and Lenz

"would have eventually" had sex after she went to Florida, that was

not the real reason that Lenz attempted to take her to Florida.

Jane's mother stated that Jane had "clarified" with her that the

two would have had sex "eventually."

Lenz filed a Rule 33 Motion to Vacate Verdict and Grant

New Trial based on the allegedly newly discovered evidence that

Jane would testify that the real reason Lenz took her from her home

in New Hampshire was to save her from killing herself, not to have

sex with her. The district court held a hearing on January 17,

2008, and denied the motion. Lenz then discharged his trial

counsel and retained new counsel, who filed a second motion for a

new trial on the basis that Lenz's trial counsel provided

ineffective assistance by failing to interview Jane prior to trial.
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The district court denied the second motion without a hearing.

Lenz appeals the denial of both motions for a new trial.

II.

We review the district court's denial of Lenz's two Rule

33 motions for a new trial for a "manifest abuse of discretion."

United States v. Hernandez-Rodriguez, 443 F.3d 138, 143 (1st Cir.

2006) (internal quotation marks omitted). "We give considerable

deference to the district court's 'broad power to weigh the

evidence and assess the credibility of both the witnesses who

testified at trial and those whose testimony constitutes "new"

evidence.'" United States v. Falu-Gonzalez, 205 F.3d 436, 443 (1st

Cir. 2000) (quoting United States v. Montilla-Rivera, 115 F.3d

1060, 1067 (1st Cir. 1997)).

Lenz premised both of his motions for a new trial on

newly discovered evidence, which was the only basis available to

him since the motions were filed more than seven days after his

guilty verdict. See Fed. R. Crim. P. 33(b) (requiring all motions

for a new trial grounded on any basis other than newly discovered

evidence to be brought within seven days of a guilty verdict but

allowing three years in which to bring a motion based on newly

discovered evidence). Under the Wright test, Lenz must establish

each of the following before he is entitled to a new trial based on

newly discovered evidence: "(1) the evidence was unknown or

unavailable to [him] at the time of trial; (2) failure to learn of
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the evidence was not due to [his] lack of diligence . . . ; (3) the

evidence is material, and not merely cumulative or impeaching; and

(4) it will probably result in an acquittal upon retrial . . . ."

United States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980). 

Lenz's first motion is premised on the allegedly newly

discovered evidence that Jane would corroborate his version of the

events by testifying that the two did not intend to have sex when

she arrived in Florida. Lenz claims that he learned from the

discovery record that Jane would not testify in his favor if called

as a witness based on her mother's statement in the FBI interview

that Jane had told her that she and Lenz "intended to be lovers

upon [her] arrival in Florida." According to Lenz, Jane's change

in her story to one that corroborated Lenz's defense theory, which

was not revealed until months after the trial when she was

interviewed by Lenz's trial counsel, was therefore unknown to Lenz

at the time of trial. 

Jane's testimony about the reason for her trip to Florida

arises from her conversations with Lenz when she begged Lenz to

come and get her and threatened to hurt herself if he did not, as

well as from her conversations with Lenz about waiting until she

turned sixteen before having sex. Because Lenz was a party to the

conversations in which the pair discussed their shared mutual

intent to wait until Jane turned sixteen before having sex, the

fact that Jane knew the "real" reason for Lenz wanting to take her
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to Florida (to save her from hurting herself) cannot be said to be

"newly discovered evidence" unknown or unavailable to him before

trial. See Falu-Gonzalez, 205 F.3d at 443 ("Information

surrounding a defendant's own conversations rarely qualifies as

newly discovered evidence."); United States v. DeLuca, 137 F.3d 24,

40 (1st Cir.) ("[S]ince [the defendant] participated in these

conversations he must have known long before trial that the

'exculpatory' testimony these witnesses could provide would be

essential to respond to the evidence against him . . . ."), cert.

denied, 525 U.S. 874 (1998). 

Lenz claims that although he knew the substance of his

conversations with Jane, what was new to him was Jane's willingness

to testify to those facts in corroboration of his story. Lenz's

argument loses sight of the rule. Rule 33 allows a district court

to grant a new trial if the defendant brings forward "newly

discovered evidence." Fed. R. Crim. P. 33(b)(1) (emphasis added).

"Whether or not a witness will testify truthfully if called to the

stand is simply not 'evidence' that can be used as a basis to

invoke Rule 33 of the Federal Rules of Criminal Procedure." United

States v. Turns, 198 F.3d 584, 588 (6th Cir. 2000) (rejecting a

Rule 33 motion premised on postconviction affidavits offered by the

defendant's sister, who had refused to testify at the first trial

and threatened to lie on the stand, but who was now willing to

testify at a new trial); see also United States v. Lofton, 333 F.3d
We note that Lofton may be in tension with our own precedent 1

in one respect. See, e.g., Hernandez-Rodriguez, 443 F.3d at 144;

Montilla-Rivera, 115 F.3d at 1065-66. But the area of tension is

immaterial to the issues in this case.

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874, 876 (8th Cir. 2003) (rejecting claim of newly discovered

evidence based on nontestifying codefendant's postverdict

willingness to testify that defendant was unaware of presence of

drugs where defendant did not subpoena codefendant to testify at

trial).1

In Lofton, the court distinguished between a witness's

willingness to testify (or testify truthfully), which is not itself

evidence, and the particular relevant fact about which the witness

may testify, which is evidence. Lofton, 333 F.3d at 876 ("Before

trial, [defendant] knew the relevant fact at issue - whether [his

codefendant] had advised [defendant] during the course of their

travels that [the codefendant] was carrying illegal drugs in the

vehicle."). Where the relevant fact itself is known prior to

trial, that the defendant learns after trial that the witness will

testify about that fact is not newly discovered evidence for

purposes of Rule 33. Id. The Sixth Circuit similarly held that

where a witness who was capable of offering exculpatory testimony

was not called to the stand because of fears she would testify

dishonestly, the after-trial revelation that she is willing to

testify honestly is not itself newly available evidence. Turns,

198 F.3d at 588 ("What [the defendant's] sister would or would not
Our willingness to rule out categorically postconviction 2

codefendant statements as new evidence puts us at odds with ten

other circuits, see United States v. Del-Valle, 566 F.3d 31, 39 n.5

(1st Cir. 2009), such that we take "a more expansive view of Rule

33" than the majority of circuits, United States v. Owen, 500 F.3d

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have said on the witness stand about this key fact was certainly

relevant to [defendant's] decision . . . to call her, but is not

itself 'newly discovered' evidence under Rule 33."). Here, the

relevant fact at issue was whether Lenz took Jane to Florida for

the purpose of engaging in illegal sexual activity, a subject about

which Lenz and Jane had conversed prior to Lenz's arrest. Jane's

newfound willingness to testify to the substance of those

conversations is not new evidence. See id. at 587 ("A witness's

shifting desire to testify truthfully does not make that witness's

testimony 'newly discovered' evidence."). 

Had the district court ruled that Jane was unavailable to

testify, her testimony that sex was not the reason Lenz was taking

her to Florida may have been considered "not previously available"

for purposes of Rule 33. See Hernandez-Rodriguez, 443 F.3d at 144

("This circuit has long held that exculpatory affidavits from

co-defendants who exercised their Fifth Amendment privilege not to

testify at trial may constitute 'newly discovered evidence' for

Rule 33 purposes."). We need not concern ourselves with the

propriety of extending the rule from Hernandez-Rodriguez outside of

the context of codefendants who refuse to testify and invoke their

Fifth Amendment privilege not to incriminate themselves. Lenz 2
83, 88 (2d Cir. 2007), cert. denied, 128 S. Ct. 1459 (2008).

However, we do share in the skepticism voiced by our sister

circuits about whether such statements will warrant a new trial.

See Del-Valle, 566 F.3d at 39 (cautioning that codefendant

exculpatory evidence "must be regarded with great skepticism, since

it is not unusual for the obviously guilty codefendant to try to

assume the entire guilt and a convicted, sentenced codefendant has

little to lose (and perhaps something to gain) from such testimony”

(internal marks omitted)); Montilla-Rivera, 115 F.3d at 1067-68.

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never attempted to subpoena Jane or otherwise ask the district

court to rule on her availability. Thus, the content of any of

Jane's statements that Lenz knew about prior to trial was not made

unavailable by Jane's failure to testify at trial. 

The basis for Lenz's second motion for a new trial is

equally unavailing. Lenz claims that his trial attorney provided

ineffective assistance of counsel because he did not contact Jane

prior to trial to ascertain whether she would corroborate Lenz's

testimony. "[A] claim of ineffective assistance of counsel is not

newly discovered for the purposes of Rule 33 when based on facts

known to the defendant at the time of trial." United States v.

Lema, 909 F.2d 561, 566 (1st Cir. 1990). "Properly read, Lema

precludes defendants from prevailing under Rule 33's 'newly

discovered evidence' provision when their lawyers knew at trial

about the evidence that defendants now claim is newly discovered."

United States v. Osorio-Pena, 247 F.3d 14, 19 (1st Cir. 2001). 

At the hearing on the first Rule 33 motion, Lenz's trial

counsel testified that he did not contact Jane to determine whether

she would corroborate Lenz's version of why she was going to
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Florida because he did not want to increase hostilities with her

family. Even though Lenz's trial attorney did not interview Jane,

he knew about the substance of the conversations between Lenz and

Jane because those conversations formed the basis for Lenz's

defense at trial and Lenz testified about the conversations at

trial. Further, Lenz recognizes in his brief that "at least three

of [Jane's] statements to law enforcement and others corroborated

defendant's testimony and the defense theory at trial." The

evidence that Jane threatened to kill herself if Lenz did not take

her to Florida and the evidence that Jane had discussed waiting

until she was sixteen to have sex with Lenz were available and

known at the time of trial without interviewing Jane; it was only

Jane's willingness to testify to the evidence that was in doubt.

Again, whether or not Jane would testify favorably is distinct from

the substance of the evidence she might give. We have previously

joined the decided majority of circuits that agree that ineffective

assistance of counsel claims based on evidence known to the

defendant at the time of trial "are not newly discovered under the

rule, accepting the notion that 'newly discovered evidence must be

newly discovered evidence.'" Lema, 909 F.2d at 565 (collecting

cases and quoting United States v. Ellison, 557 F.2d 128, 133 (7th

Cir. 1977)). Lenz's ineffective assistance claim is not based on

newly discovered evidence, and the district court properly denied

the Rule 33 motion on that basis. A claim of ineffective
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assistance of counsel is customarily raised in a petition for postconviction relief, see 28 U.S.C. § 2255, and our decision today

does not prejudice Lenz's right to seek such relief. 

III.

We affirm the district court's judgments denying Lenz's

Rule 33 motions for a new trial.