United States v. Lee , 81 F. App'x 453 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-6321
GRANT VENEY LEE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonard D. Wexler, Senior District Judge, sitting by designation.
(CR-99-43)
Argued: October 29, 2003
Decided: November 24, 2003
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Anita Barondes, SEYFARTH SHAW, Washington, D.C.,
for Appellant. Patricia Marie Haynes, Assistant United States Attor-
ney, Alexandria, Virginia, for Appellee. ON BRIEF: Michael B.
Hubbard, Russell H. Gore, David M. Burns, SEYFARTH SHAW,
Washington, D.C., for Appellant. Paul J. McNulty, United States
Attorney, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. LEE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Grant Lee appeals the district court’s denial of his motion for a new
trial under Federal Rule of Criminal Procedure 33. Lee claims to pos-
sess newly discovered evidence that proves his innocence and entitles
him to another trial. We disagree and affirm.
I.
In 1999, Lee was convicted of sexually assaulting Jane Doe, a
mentally disabled woman with cerebral palsy.1 At the trial, Lee "ad-
mitted that he tried to grope [Doe] and that he touched her breasts,
‘butt,’ and vaginal area," but denied that he had intercourse with Doe.
(Dist. Ct. Op. at 3.) Doe testified that Lee had forcibly raped her, and
that Lee hurt her "a whole lot." (J.A. at 63.) An emergency room phy-
sician who had examined Doe after the incident testified that Doe had
vaginal injuries that resulted from "a rapid, violent stretching" and
that the vaginal mucosa had "been torn or stretched to the point where
the . . . surface tissue started to separate." (J.A. at 52, 64-65). Lee’s
attorney never asked the physician the condition of Doe’s hymen.
Two years after the sexual assault, Doe sought medical attention for
a heavy menstrual flow. The doctor who examined Doe noted in his
medical report that her hymen was intact. Lee became aware of the
report and filed a motion for a new trial, which the district court
denied.
1
Lee was convicted of violating 18 U.S.C.A. § 2241(a) (West 2000),
which prohibits using force to cause another to engage in a "sexual act"
within the territorial jurisdiction of the United States. According to 18
U.S.C.A. § 2246(2)(A) (West 2000), "the term ‘sexual act’ means . . .
contact between the penis and the vulva, . . . [which] occurs upon pene-
tration, however, slight."
UNITED STATES v. LEE 3
II.
We review the denial of a Rule 33 motion for new trial for abuse
of discretion. United States v. Adam, 70 F.3d 776, 779 (4th Cir.
1995). In order for a district court to grant a convicted criminal defen-
dant a new trial on the basis of newly discovered evidence, it must
determine whether:
(1) the evidence relied on is, "in fact, newly discovered"; (2)
there are facts "alleged from which the court may infer due
diligence on the part of the movant"; (3) "the evidence relied
upon [is] not merely cumulative or impeaching"; (4) "the
evidence [is] material to the issues involved"; and (5) the
evidence is of such a nature that it would "probably result
in [an] acquittal at a new trial."
United States v. Lofton, 233 F.3d 313, 318 (4th Cir. 2000) (quoting
United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989)). "Unless
the answer to each of these inquiries is affirmative, a new trial is not
appropriate." Chavis, 880 F.2d at 793.
In this case, the district court concluded that Lee did not exercise
due diligence and thus did not satisfy the Chavis requirements. We
agree. Lee never inquired into the condition of Doe’s hymen during
the long course of the criminal proceedings against him.2 To counter
his neglect, Lee points out that he had reason to believe that Doe’s
hymen was not intact in 1998, as he was prepared to produce a wit-
ness who claimed to have had sex with Doe on multiple occasions.
Due diligence required more than mere speculation on Lee’s part,
however — it required investigation.3 Because, at the very least, Lee
2
Lee was tried twice, the first trial ending in a mistrial. Lee did not
inquire into the condition of Doe’s hymen during either proceeding.
3
The government avers that it is probable that Doe’s hymen healed
after the attack and was "intact" in 2000, but not in 1998. The prosecu-
tion’s expert, Dr. Berryman, stated that, "an ‘intact hymen’ in November
2000 says nothing about the condition of [Doe’s] hymen in 1998," and
that he "would expect that, without further sexual intercourse, the hymen
would have healed." (J.A. at 104). Dr. Berryman also concluded that in
order for Dr. Halliday, the emergency room physician, to make the
observances that he did, Doe’s hymen must not have been intact at the
time of his examination in 1998. (J.A. at 105).
4 UNITED STATES v. LEE
could have inquired as to the condition of Doe’s hymen by the time
of his second trial, the district court did not abuse its discretion in
finding that Lee had not been duly diligent.
III.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED