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December 3, 1999


The opinion of the court was delivered by: Robertson, District Judge.


Archibald Schaffer's conviction of violating the Meat Inspection Act was reinstated by the Court of Appeals on July 23, 1999, and the case was remanded on September 1, 1999, for sentencing. United States v. Schaffer, 183 F.3d 833, 853 (D.C.Cir. 1999). On October 13, 1999, Schaffer moved pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial, proffering the testimony of A. Michael Espy as newly discovered evidence. Espy, the former Secretary of Agriculture, was the principal target of the same independent counsel who indicted this case. He was indicted, tried, and acquitted of all thirty-nine charges brought against him. Now, if Schaffer were granted a new trial, Espy would testify for the defense.

The Meat Inspection Act violation of which Schaffer stands convicted was the provision of travel, lodging, and amenities to then-Secretary Espy in connection with a birthday party for Don Tyson in Russellville, Arkansas, in May 1993. After reviewing the evidence supporting that count of conviction, the Court of Appeals concluded that the prosecution had identified specific policies of concern to Tyson Foods that were pending in May 1993, about which Schaffer or Tyson Foods had timely communications with Espy, who was then in a position to influence the "trajectory" of those policies. Id. at 850. Those elements having been established, the court said, the jury could rationally have decided the "intent question" either way. Id.

The prosecution's evidence on the "intent question" — that is, the intent to influence specific USDA policies, see 183 F.3d at 847 — focused on proof that Schaffer arranged Secretary Espy's travel in a devious manner, calculated to disguise the fact that the trip was really personal, not official. The prosecution argument was that an invitation for Secretary Espy to address the Arkansas Poultry Federation in Russellville the day before the Tyson birthday party was a sham, something that would "appear to be an official business reason to be in Arkansas when, in truth and in fact, the real reason Mr. Espy traveled to Arkansas was to be with his girlfriend, Patricia Dempsey, and to attend a birthday party celebration. . . ." 6/16/98 tr. at 108 (opening statement). The proposition advanced by the prosecution case and obviously accepted by the jury was: (i) Schaffer put Secretary Espy's trip together to make it look like official travel to address the Arkansas Poultry Federation; (ii) the Arkansas Poultry Federation speech was a sham; and thus (iii) Schaffer must have had a guilty reason for doing what he did. See 6/23/98 tr. at 1367-70.

But Espy's testimony, which I found credible in its material respects after observing the witness, is that the Arkansas Poultry Federation meeting was not a sham event. Espy's testimony is that he not only attended the meeting and gave a speech to about 40 people, but that he prepared carefully for the appearance by making detailed handwritten notes en route to Russellville, working off prepared "talking points" so that he could "internalize" the taking points and speak extemporaneously.*fn1 Contrary to the prosecution theory that Espy was lured to Russellville by the expensive entertainment and by the prospect of meeting his girlfriend there, Espy's testimony is that he accepted the invitation to go to Russellville as a courtesy to Tyson and because Arkansas Senator David Pryor had urged him to accept; that it was nothing special for a native of Indianola, Mississippi, to be invited to hear B.B. King ("no stroke in that for me"); and that he did not know that Patricia Dempsey would be in Russellville until after his arrival. Espy also swears that, during his trip to Russellville, he had no conversations about Tyson Foods or about USDA policies, and that nothing was said to him or done in his presence that suggested to him that the birthday party or his invitation to it was intended to influence him.

I find that Espy's evidence is not merely cumulative or impeaching. There was trial testimony to the effect that the APF meeting was not a sham, see 6/18/98 tr. at 504 (Don Allen); 6/23/98 tr. at 1347-48, but the testimony was elicited on cross-examination from a prosecution witness who did not and could not testify, as only Espy can, that it was the APF meeting and not the birthday party that drew Espy to Russellville, and that Espy needed no "cover" for his travel.

The "intent question" relates of course to Schaffer's subjective intent, not Espy's, but the prosecution's theory of the case placed the nature of the APF meeting and Espy's real reasons for being in Russellville directly in issue. I find that Espy's testimony is clearly material to the issues involved.

Those findings satisfy three of the five elements of this Circuit's test for evaluating newly discovered evidence motions, first announced in Thompson v. United States, 188 F.2d 652 (D.C.Cir. 1951). The record facts relating to the other two Thompson elements — that the evidence has been "discovered since trial" and that defendant has been "diligent" in the attempt to procure it — are not in dispute: Defense counsel knew the substance but not the details of Espy's testimony at the time of trial. After being told unequivocally by Espy's lawyers that Espy would invoke his Fifth Amendment privilege and refuse to testify at Schaffer's trial, defense counsel issued no trial subpoena to Espy and filed no motion for a continuance. The prosecution's argument, based on those undisputed facts, is that the new trial motion must fail as a matter of law. OIC Opposition at 11.

Orders granting new trials for newly discovered evidence are rare, as they should be. Most of the reported cases are appeals from district court denials of Rule 33 motions, and very few of them involve exculpatory testimony fleshed out in an evidentiary hearing and found to be of such nature that it would probably lead to an acquittal in a new trial. The result is a body of case law with diverse fact patterns but not much analysis.

The one clear rule in this Circuit, see United States v. Dale, 991 F.2d 819 (D.C.Cir. 1993), is that the testimony of a co-defendant or a coconspirator can never support a Rule 33 motion for new trial. The rule of the Dale case is in accord with universal mistrust of such testimony, because of the perception that "a convicted co-defendant might be trying `to assume the entire guilt,'" United States v. Purnell, 155 F.3d 563, 1998 WL 405942, *3 (4th Cir.(Va.)) (quoting United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir. 1997)); cf. Byers v. United States, 649 A.2d 279, 287 (D.C. 1994), or that an already convicted co-defendant has nothing to lose by absolving a co-defendant, United States v. Metz, 652 F.2d 478, 481 (5th Cir. 1981), or that already sentenced co-defendants "may say whatever they think might help their co-defendant, even to the point of pinning all the guilt on themselves, knowing they are safe from retrial," United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992); see also United States v. Lockett, 919 F.2d 585, 591 (9th Cir. 1990). Only the First Circuit has indicated that co-defendant testimony, although certainly suspect, might be "newly discovered," see Montilla-Rivera, 115 F.3d at 1066.

Espy, however, was neither a co-defendant of Schaffer nor a co-conspirator,*fn2 and Rule 33 case law with respect to the testimony of persons who are neither co-defendants nor co-conspirators is neither controlling nor uniform. The most recent opinion on newly discovered evidence in this Circuit, United States v. Gloster, 185 F.3d 910 (D.C.Cir. 1999), observes that an earlier decision, United States v. Ortiz, 136 F.3d 161, 168 (D.C.Cir. 1998), "strongly suggested that even a non-party witness' post-trial offer to testify would fail to qualify as newly discovered evidence where the substance of the testimony was known to defendant at the time of trial," Gloster, 185 F.3d at 915 (emphasis added). That suggestion, had it been adopted, would have created a per se rule requiring the denial of the instant motion, but the Gloster opinion declined to "tarry" over the point, id., and Ortiz, although expressing surprise at petitioner's "newly minted definition of `newly discovered evidence,'" did not reject it. 136 F.3d at 167. The Dale, Ortiz, and Gloster decisions thus do not establish Circuit precedent on the precise question presented by this motion.

The legal proposition advanced by the prosecution is that the law should recognize a per se rule: that a Rule 33 motion may never be granted for information that was known to the defense at the time of trial. Our Court of Appeals has not adopted such a rule, however, and my prediction is that they will not.*fn3 The First Circuit has recently, and persuasively, rejected a per se rule, concluding that "the better rule is not to categorically exclude the testimony of a co-defendant [N.B.: a co-defendant] who asserted his Fifth Amendment privilege at trial. . . ." Montilla-Rivera, 115 F.3d at 1066. In that case, the First Circuit agreed with other courts that a co-defendant's testimony should be viewed with "great skepticism," id. at 1066, but observed that

  [G]iven the `[i]n the interests of justice' standard
  of Fed.R.Crim.P. 33, there seems little distinction
  between evidence which a defendant could not present
  because he did not know of it and evidence which he
  could not present because ...

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