United States v. Donald Griffin ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7466
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:08-cr-00033-JFM-1)
Submitted: June 15, 2012 Decided: July 24, 2012
Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Steven M. Klepper, KRAMON & GRAHAM, PA, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Michael
C. Hanlon, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Donald Griffin (Griffin) was
convicted of carjacking, 18 U.S.C. § 2119, possession of a
firearm in furtherance of a crime of violence, id. § 924(c), and
possession of a firearm by a convicted felon, id. § 922(g)(1),
and sentenced to 360 months’ imprisonment. On direct appeal, we
affirmed the judgment below in toto. United States v. Griffin,
391 F. App’x 311 (4th Cir. 2010). Subsequently, Griffin timely
moved for a new trial under Federal Rule of Criminal Procedure
33 (Rule 33), based upon information that he characterizes as
newly discovered evidence. The district court denied Griffin’s
Rule 33 motion. We affirm.
Under Rule 33, “[u]pon the defendant’s motion, the
court may vacate any judgment and grant a new trial if the
interest of justice so requires.” Fed. R. Crim. P. 33(a). Rule
33 further provides that “[a]ny motion for a new trial grounded
on newly discovered evidence must be filed within 3 years after
the verdict or finding of guilty.” Id. 33(b)(1) (emphasis
added). To receive a new trial based on newly discovered
evidence under Rule 33, a defendant must demonstrate: (1) the
evidence is newly discovered; (2) he has been diligent in
uncovering it; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material to the issues involved;
and (5) the evidence would probably produce an acquittal.
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United States v. Lighty, 616 F.3d 321, 374 (4th Cir. 2010). We
review a district court’s denial of a motion for a new trial
under Rule 33 for abuse of discretion. Id.Griffin’s proffer of newly discovered evidence in
support of his Rule 33 motion consisted of a sworn declaration
containing a single sentence by Griffin’s former codefendant,
Darrick Fraling (Fraling), stating that “I MR. Darrick Fraling
JR. would testify that MR. Griffin did not take part in the
October 31, event that me and two other individuals took part
in.” * (J.A. 15). Fraling executed the declaration approximately
two and one-half years after he pled guilty to one count of
carjacking on the third day of his and Griffin’s joint trial.
Moreover, immediately after Fraling pled guilty, Griffin
notified the district court of his intention to call Fraling as
a witness for the defense. The record is undisputed that
Fraling promptly informed both the district court and Griffin
that, if called to testify during Griffin’s trial, he would
invoke his Fifth Amendment right against self-incrimination
under the United States Constitution and refuse to testify.
The district court denied Griffin’s Rule 33 motion on
the ground that Fraling’s sworn declaration does not constitute
*
The indictment in this case charged that all of the
offense conduct occurred on or about October 31, 2007. The
evidence at trial was wholly consistent with this date.
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newly discovered evidence within the meaning of Rule 33. We
agree. First, the record is undisputed that Griffin knew of
Fraling when he went to trial and tried to call Fraling as a
defense witness during his trial after Fraling’s guilty plea.
Second, based upon Griffin’s testimony during his trial in which
he denied any participation in the carjacking and related
criminal activity on October 31, 2007, as charged in the
indictment, logic dictates that Griffin sought to call Fraling
as a witness during his trial to give the very same exculpatory
testimony (i.e., denial of Griffin’s involvement) that he now
argues should afford him a new trial. A fortiori, such
testimony is not newly discovered evidence.
The fact that Fraling invoked his Fifth Amendment
right against self-incrimination and refused to testify during
Griffin’s trial, but approximately two and one half years later
expressed his willingness to do so does not transform Fraling’s
single-sentence declaration into newly discovered evidence.
Based upon a plain language reading of the term “newly
discovered” in Rule 33(b)(1), the overwhelming majority of our
sister circuits that have considered the issue agree that when a
defendant is aware of the substance of exculpatory testimony
that a codefendant could provide during the defendant’s trial,
the codefendant refuses to testify at the defendant’s trial by
invoking the Fifth Amendment, and, post-trial, the codefendant
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expresses a willingness to testify, the codefendant’s potential
testimony is not newly discovered evidence within the meaning of
Rule 33. See, e.g., United States v. Owen, 500 F.3d 83, 89 (2d
Cir. 2007); United States v. Jasin, 280 F.3d 355, 367-68 (3d
Cir. 2002); United States v. Freeman, 77 F.3d 812, 817 (5th Cir.
1996); United States v. Theodosopoulos, 48 F.3d 1438, 1448-49
(7th Cir. 1995); United States v. Glover, 21 F.3d 133, 138 (6th
Cir. 1994); United States v. Muldrow, 19 F.3d 1332, 1339 (10th
Cir. 1994); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188
(9th Cir. 1992); United States v. DiBernardo, 880 F.2d 1216,
1224-25 (11th Cir. 1989). We have approved of this principle in
the context of considering a habeas petition under 28 U.S.C.
§ 2254. See Cagle v. Branker, 520 F.3d 320, 325-26 (4th Cir.
2008) (state court’s decision not to reopen defendant’s capital
sentencing in order to hear exculpatory testimony of codefendant
who invoked his Fifth Amendment right not to testify during
trial because, inter alia, codefendant’s potential testimony was
not newly discovered was reasonable, and nothing about such
decision involved deficient fact-finding or a violation of
clearly established federal law).
Griffin acknowledges that the weight of authority is
against him regarding the “newly discovered evidence” issue.
However, he urges us to adopt the approach of the United States
Court of Appeals for the First Circuit in United States v.
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Montilla–Rivera, 115 F.3d 1060 (1st Cir. 1997), in which the
First Circuit held that “newly available evidence” constitutes
“newly discovered evidence” within the meaning of Rule 33. We
decline to follow the First Circuit’s approach because it is
inconsistent with the plain and unambiguous term “newly
discovered evidence” found in Rule 33(b)(1). If the defendant
knew about the evidence prior to the conclusion of his trial, by
definition, the evidence cannot be newly discovered after such
trial. See, e.g., Jasin, 280 F.3d at 368 (rejecting defendant’s
argument that “newly available evidence” is synonymous with
“newly discovered evidence” for purposes of Rule 33 on ground
that such argument “cannot overcome the unambiguous language of
Rule 33, which contemplates granting of new trial on the ground
of ‘newly discovered evidence’ but says nothing about newly
available evidence”).
Because we agree with the district court that
Griffin’s proffered evidence was not “newly discovered” within
the meaning of Rule 33, we hold the district court did not abuse
its discretion in denying Griffin’s Rule 33 motion. We also
reject Griffin’s argument that the district court committed
reversible error by refusing to hold an evidentiary hearing on
his Rule 33 motion.
For the reasons stated, we affirm the judgment below
in toto. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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