The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
After being found guilty of two counts of aiding and abetting first-degree murder, in addition to other charges, the defendant moved for a new trial on the basis of newly discovered evidence. Because the evidence is not of the type that would probably produce an acquittal in a new trial, the defendant's motion will be denied.
The background of this case is discussed fully in United States v. Wilson, 720 F. Supp. 2d 51 (D.D.C. 2010). Briefly, the defendant was a member of a group who sold crack cocaine in the Congress Park neighborhood of Southeast Washington, D.C. Id. at
55. One of Wilson's childhood friends was shot and killed, and members of the Congress Park group believed that Ronnie Middleton was the shooter. Wilson committed himself to avenging the death of his friend. Witnesses testified that in 1998, Wilson and two other members of the Congress Park group, Antonio Roberson and Antoine Draine, spotted Middleton and his girlfriend, Sabrina Bradley, sitting in a white Ford Bronco. Wilson drove to Roberson's house to obtain a gun, and drove back with Roberson and Draine to where Middleton had parked his car. Roberson opened fire on the car, and Middleton and Bradley both died as a result of the gunshot wounds they sustained. Id. at 56.
On November 28, 2007, the defendant was found guilty of aiding and abetting the first-degree murders while armed of Sabrina Bradley and Ronnie Middleton (Counts 31 and 33), in addition to counts of distribution of crack cocaine and unlawful use of a communication facility. Id. at 55. The defendant filed a motion for a new trial alleging that the government failed to disclose exculpatory Brady material and that the government sponsored false testimony. That motion was denied because the testimony was not demonstrably false and neither that nor the undisclosed information could reasonably have affected the outcome or the fairness of the trial. Id.
On November 27, 2010, the defendant filed an additional motion under Federal Rule of Criminal Procedure 33 for a new trial, arguing that newly discovered evidence shows that another individual ---- not the defendant ---- aided and abetted the murders of Bradley and Middleton.*fn1 (Def.'s Nov. 27, 2010 Mot. for a New
Trial ("Def.'s Mot.") at 2-3.) The newly discovered evidence is an affidavit of Dorian Von Holt, who swore to it while incarcerated at the District of Columbia jail in July 2009. (Id., Ex. 11 ¶ 2.) Wilson was incarcerated in the same jail during that time. Holt's affidavit claims the following. During a summer night in 1998, he went to Congress Park to purchase crack. Roberson brandished a gun, and induced Holt to drive Roberson and another man to a white Ford truck. Roberson shot at the truck, and then Holt drove Roberson and the other individual back to Congress Park. Holt knew Wilson at the time, Holt did not see Wilson in Congress Park that night, and Wilson was not at the shooting nor did he ride in the car to or from the shooting. (Id. ¶ 3.)
The government opposes the defendant's motion, arguing that Holt's affidavit is not credible. (Gov't Mem. in Opp'n to Def.'s Mot. for a New Trial at 3.)
Under Rule 33, a court may "grant a new trial if the interest of justice so requires." To obtain a retrial because of newly discovered evidence,
(1) the evidence must have been discovered since trial;
(2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (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] of such nature that in a new trial it would probably produce an acquittal.
Thompson v. United States, 188 F.2d 652, 653 (D.C. Cir. 1951); see also United States v. Johnson, 519 F.3d 478, 487 (D.C. Cir. 2008) (citing Thompson). The showing required to obtain a new trial on the basis of newly discovered evidence poses "a high bar to cross[.]" United States v. Celis, 608 F.3d 818, 848 (D.C. Cir. 2010). If a defendant cannot demonstrate that a new trial would probably produce an acquittal, his motion may be denied on that ground alone. See, e.g., United States v. Sensi, 879 F.2d 888, 901 (D.C. Cir. 1989) (assuming defendant met first four factors and affirming denial of motion for new trial for failure to meet the fifth ...