UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 08-20583

GREGORY MAPP,

Defendant.

__________________________________/ 

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL

After a jury trial, Defendant Gregory Mapp was convicted of two counts relating to

his importation, into the United States, of approximately seventy-five pounds of

methylenedioxymethamphetamine (“MDMA” or “Ecstacy’), a Schedule I Controlled

Substance. Pending before the court is Defendant’s “Motion For A New Trial,” brought

pursuant to Federal Rule of Criminal Procedure 33. The motion alleges “newly

discovered evidence and other grounds.” (Def.’s Mot. at 1.) Specifically, Defendant

avers that:

After the trial, [Defendant’s girlfriend] had a discussion with Mitchell Ribitwer,

Mapp’s prior attorney in this case. In the course of that conversation, Ribitwer

told her that in his first conversation with Mapp, on October 27, just two days

following his arrest, Mapp told Ribitwer that he (Mapp) thought he was carrying a

sexual dysfunction drug, like Viagra.

(Id.) Defendant’s attorney argues, in essence, that his failure to identify and call

Ribitwer as a witness amounts to the ineffective assistance of counsel because he

“simply did not think of Mitchell Ribitwer as a potential defense witness.” (Id. at 3.) 

Defendant’s counsel further alleges that he failed to provide “effective assistance of

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counsel because [he] (1) failed to exercise due diligence in not thoroughly interviewing

Mr. Ribitwer about his discussions with defendant, and (2) in not removing himself as

trial counsel, so that he could have appeared as a witness in defendant’s behalf.” (Id. at

5.) The Government has responded. For the reasons stated below, the court will deny

Defendant’s motion.

II. STANDARD

Federal Rule of Criminal Procedure 33 (“Rule 33”), which governs motions for

new trials, provides that:

 (a) Defendant’s Motion. Upon the defendant’s motion, the court may vacate any

judgment and grant a new trial if the interest of justice so requires . . .

 (b) Time to File.

(1) Newly Discovered Evidence. Any motion for a new trial grounded on

newly discovered evidence must be filed within 3 years after the verdict or

finding of guilty. If an appeal is pending, the court may not grant a motion

for a new trial until the appellate court remands the case.

 (2) Other Grounds. Any motion for a new trial grounded on any reason

other than newly discovered evidence must be filed within 7 days after the

verdict or finding of guilty.

Fed. R. Crim. P. 33. “The defendant bears the burden of showing that a new trial ought

to be granted.” United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991). “The

decision to grant or deny a motion for new trial rests within the district court’s sound

discretion” and will not be reversed “absent a clear abuse of discretion.” Id.

III. DISCUSSION

Under Rule 33, Defendant has timely filed his motion for new trial, i.e., within

seven days after conviction. A motion for new trial that is based on newly discovered

evidence is generally disfavored, United States v. Sims, 156 F. Supp. 2d 655, 659 (E.D.

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Mich. 2001), and “should be granted with caution,” Seago, 930 F.2d at 488. Further, in

the typical case, a claim of ineffective assistance of trial counsel is raised in a

post-conviction motion to vacate, set aside, or correct the sentence under 28 U.S.C. §

2255. United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990).

Rule 33 “plac[es] limitations on the new evidence that may warrant the grant of a

motion for new trial.” Seago, 930 F.2d at 488. To obtain a new trial based on newly

discovered evidence, “[t]he defendant must establish that (1) the new evidence was

discovered after the trial; (2) the evidence could not have been discovered earlier with

due diligence; (3) the evidence is material and not merely cumulative or impeaching;

and (4) the evidence would likely produce acquittal.” Id. (citing United States v. O’Dell,

805 F.2d 637, 640 (6th Cir. 1986)).

A. Newly Discovered Evidence

“The first prong of the . . . test requires the newly discovered evidence to be

evidence not known by the defendant at the time of trial.” Seago, 930 F.2d at 488. 

“[E]vidence of ineffective assistance of counsel is not newly discovered evidence for

purposes of a motion for new trial where the facts supporting the claim were within the

defendant’s knowledge at the time of trial.” Id. at 489. This “narrow interpretation of

‘newly discovered’ is justified by the heightened finality concerns and practical

implications of Rule 33 motions based on new evidence.” Johnson v. United States,

246 F.3d 655, 658 n. 5 (6th Cir. 2001).

Here, the newly discovered evidence consists of statements allegedly made by

Defendant to his first attorney, in which he disclaimed knowledge of the true nature of

the substance he smuggled into the United States, and averred that he believed it to be

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a Viagra-like knock-off. (Def.’s Mot. at 1.) Defendant, through his trial counsel, alleges

ineffectiveness of that counsel in failing to present this testimony (or alternatively,

counsel’s failure to remove himself from the case and attempt to testify to the same

effect himself). (Id. at 3.) Defendant’s counsel argues that he only later realized the

importance of Defendant’s earlier statements, in light of Defendant’s testimony at trial

showing that he never questioned anyone at the time of his arrest about the true nature

of the substance, reacted in any way to being told that the drugs were “Ecstacy,” or

stated anything about a supposed belief that the pills were essentially harmless sexual

potency knock-offs. (Id. at 2-3.) At trial, Defendant’s testimony was not inconsistent

with the investigating agent’s recollections of his interviews with Defendant. (Id. at 3.)

Defendant, of course, was in the best position to know what, if anything, he had

told his prior attorney, whether that information be useful or damaging. Thus, any facts

giving rise to the current alleged ineffectiveness of trial counsel were well within

Defendant’s knowledge at the time of trial. Indeed, these same facts were known by

Defendant since the time of his alleged disclosure, on November 3, 2008, more than six

months before trial. (Def.’s Mot. at 1.) His attorney’s purported deficiencies during trial

being obvious to him, Defendant cannot argue that the evidence giving rise to them is

“newly discovered.” See United States v. Pierce, 62 F.3d 818, 825 (6th Cir. 1995). In

addition, Defendant could easily have testified himself on these matters, and if his

testimony were challenged as a recent fabrication he could have brought in his prior

lawyer or others to prove that the statements were, in fact, made at the time alleged.

The failure to pursue a particular potential witness – to elicit the statements a

defendant made to that potential witness – constitute “facts” that are within the

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The evidence would likely have never been heard by the jury since, in any event,

the Federal Rules of Evidence would have barred its presentation. This is because

Defendant seeks to use his own out-of-court statements, through his prior attorney, as a

“statement of memory or belief to prove the fact remembered or believed,” and this

would constitute a use excluded from the hearsay exception normally available for

statements tending to prove a “declarant’s then existing state of mind.” Fed. R. Evid.

803(c).

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defendant’s knowledge at the time of trial. Seago, 930 F.2d at 489. It is the evidence

itself, and not its legal implications or significance, that must be newly discovered. Id.;

United States v. Olender, 338 F.3d 629, 635 (6th Cir. 2003). The court concludes that

the facts supporting Defendant’s “newly-discovered evidence” claim were within his

knowledge before and during trial. Therefore, his ineffective assistance of counsel

claim does not warrant relief under Rule 33 and the first prong of the O’Dell test.

B. Remaining O’Dell Factors

The court need not consider whether Defendant’s alleged statements to his prior

counsel could have been discovered earlier, are material, or would likely produce an

acquittal, since Defendant has failed to satisfy the first prong of the test. The failure to

prove any one of the O’Dell factors is fatal to a motion for a new trial. Sims, 156 F.

Supp. 2d at 661 (citing United States v. Freeman, 77 F.3d 812, 817 (5th Cir.1996)).1

III. CONCLUSION

Defendant has not shown that his trial attorney’s alleged ineffectiveness, in his

failure to present statements Defendant allegedly made to his prior counsel, is newly

discovered evidence within the meaning of Rule 33(b)(1).

Accordingly, IT IS ORDERED that Defendant’s “Motion for a New Trial” [Dkt. #

37] is DENIED.

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 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: July 15, 2009

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, July 15, 2009, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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