United States District Court, W.D. Oklahoma
MILES-LaGRANGE UNITED STATES DISTRICT JUBGE.
the Court is defendant's Motion for a New Trial and Brief
in Support, filed November 29, 2016. On January 30, 2017, the
government responded. On February 6, 2017, defendant replied.
Based on the parties' submissions, the Court makes its
January 6, 2015, defendant Jackie Duncan
(“Duncan”) was charged in a ten count Superseding
Indictment. Pursuant to the Hobbs Act, Count 9, of the
Superseding Indictment charged Duncan with unlawfully
obstructing, delaying, and affecting, and attempting to
obstruct, delay and affect, commerce by robbery by taking
personal property consisting of cocaine base and monetary
proceeds of cocaine base sales from Donald Willis
(“Willis”) in violation of 18 U.S.C. § 1951.
Count 10 charged Duncan with knowingly possessing and
brandishing a firearm during the robbery, described in Count
9, in violation of 18 U.S.C. § 924(c)(1)(A). Counts 9
and 10 stem from the robbery of Willis, in which, on March 1,
2014, Duncan robbed Willis, at gunpoint, of his drugs and
March 13, 2015, during the trial in this matter, Willis
testified that Duncan robbed him of his drugs - crack, ice,
and weed, and took approximately $1, 100.00 from Willis and
Gray. See Excerpt of Jury Trial Testimony of Donald
Willis at 22 & 25, attached as Exhibit 3 to Duncan's
reply brief. Gray also testified during trial that Duncan
took Willis' drugs and money. See Excerpt of
Jury Trial Testimony of Sasha Gray at 24, attached as Exhibit
4 to Duncan's reply brief.
March 17, 2015, the jury returned verdicts of guilty on all
counts, but 3 and 4. Duncan now moves this Court, pursuant to
Federal Rule of Criminal Procedure 33, for a new trial
asserting that new evidence has come to light, not available
at trial. Specifically, Duncan asserts that Willis, in his
Declaration of Victim Losses, relays to the Court that the
source of the funds taken by Duncan on March 1, 2014, were
from the sale of his car and not drug proceeds. Duncan
contends that in order to be convicted on Counts 9 and 10,
the funds stolen from Willis were required to be drug
proceeds, and since Willis now represents that the funds
Duncan stole from him were from the sale of his car and not
drug proceeds, Duncan is entitled to a new trial.
permits “the court to vacate any judgment and grant a
new trial if the interest of justice so requires.” Fed.
R. Crim. P. 33(a). However, “a motion for a new trial
based on newly discovered evidence is not favorably regarded
and should be granted only with great caution.”
United States v. Jordan, 806 F.3d 1244, 1252 (10th
Cir. 2015), cert. denied 136 S.Ct. 1700 (2016)
(citing United States v. McCullough, 457 F.3d 1150,
1167 (10th Cir. 2006)).
prevail, a defendant must prove:
(1) the evidence was discovered after trial, (2) the failure
to learn of the evidence was not caused by [his] own lack of
diligence, (3) the new evidence is not merely impeaching, (4)
the new evidence is material to the principal issues
involved, and (5) the new evidence is of such a nature that
in a new trial it would probably produce an acquittal.
contends that Willis' testimony as to the source of the
funds Duncan robbed him of has continually changed.
Specifically, Duncan contends that during Willis'
testimony to the Federal Grand Jury, Willis testified that
Duncan took $800 from Gray during the robbery, which came
from her social security check. See Federal Grand
Jury Testimony of Donald Willis at 14, attached as Exhibit 1
to Duncan's reply brief. Duncan asserts that during the
trial, Willis testified that Duncan took $300 from him and
about $1, 100 all together from him and Gray during the
robbery. See Excerpt of Jury Trial Testimony of
Donald Willis at 24-25, attached as Exhibit 3 to Duncan's
reply brief. Further, Duncan contends that during trial,
Willis testified that $250 of the $300 Duncan took from him
was from money given to him by Gray. Id. at 45.
Lastly, Duncan contends that Willis now represents to the
Court in his Declaration of Victim Losses that the money
Duncan took from him during the robbery was from the sale of
his car. The government contends that Duncan is not entitled
to a new trial because the information Willis presented in
his Declaration of Victim Losses is merely impeaching and the
evidence is not material to the principle issues involved.
carefully reviewed the parties' submissions, the Court
finds that Duncan is not entitled to a new trial.
Specifically, the Court finds that the information presented
to the Court in Willis' Declaration of Victim Losses does
not rise to the level of new evidence entitling Duncan to a
new trial but is merely impeachable information against
Willis. Jury Instruction No. 24 instructed the jury on ...