United States v. Owens ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
April 23, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-60706
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS OWENS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:03-CR-9-2-BrS
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
A jury found Carlos Owens guilty of conspiracy to
distribute, and possession with the intent to distribute,
controlled substances. Owens filed a motion for a new trial based
on newly discovered evidence — a police report that contradicted
the testimony of the confidential informant as to his culpability
in the offense that led to him becoming an informant. Owens
appeals the district court’s denial of that motion.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Motions for new trials based on newly discovered evidence
are disfavored by the courts and therefore are viewed with great
caution. See United States v. Pena, 949 F.2d 751, 758 (5th Cir.
1991). This court has established a four-part test, known as
the “Berry Rule,” for determining whether a new trial should be
granted on the basis of newly discovered evidence. United States
v. Sullivan, 112 F.3d 180, 183 (5th Cir. 1997). The four factors
are whether: (1) the evidence was newly discovered and unknown to
the defendant at the time of the trial; (2) the failure to detect
the evidence was not a result of lack of due diligence by the
defendants; (3) the evidence is material, not merely cumulative or
impeaching; and (4) the evidence will probably produce an
acquittal. Id. If the defendant fails to meet one of the four
factors, the motion for new trial should be denied. Id.Owens argues that the “Berry Rule” ought to be “relaxed”
in his case because of the nature of the evidence not presented —
perjured testimony. He suggests that the “alternative criteria”
set forth in the “Larrison Rule” would assist this court in
determining if he received a fair trial.
The Larrison Rule was annunciated by the Seventh Circuit
in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928).
The rule “relaxes the standard for granting a new trial when
material, false or perjured testimony is presented at trial.” See
Sullivan, 112 F.3d at 183 n.3. Under the rule, a new trial should
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be granted when (1) the testimony given by a material witness was
false; (2) without the false testimony, the jury might have reached
a different conclusion; and (3) the party seeking the new trial was
“taken by surprise” by the testimony and was unable to meet it or
did not know if its falsity until after the trial. Id.There is “some doubt” as to whether the Larrison Rule has
ever “taken hold” in this circuit. See id. At least six circuits
have rejected it. See United States v. Williams, 233 F.3d 592, 594
(D.C. Cir. 2000)(collecting cases); United States v. Huddleston,
194 F.3d 214, 219 (1st Cir. 1999). Moreover, the Seventh Circuit
has overruled Larrison and has adopted the reasonable probability
test. See United States v. Mitrione, F.3d (7th Cir.
Feb. 9, 2004), 2004 WL 231508 at *5-6.
Given the foregoing, we decline Owens’s invitation to
apply the Larrison Rule to these facts and affirm the district
court’s denial of the motion for a new trial based upon an
application of the Berry factors.
Owens also argues that the district court abused its
discretion in rejecting his Brady1 claim based on a determination
that the Government did not know of the report’s existence. He
argues that because of the close relationship between the
Government and the Natchez/Adams County officers, knowledge of the
report should have been imputed to the Government.
1
Brady v. Maryland, 373 U.S. 83 (1963).
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Under Brady, the Government’s failure to disclose
evidence violates due process where the evidence is favorable to
the defense and material to guilt or punishment. United States v.
Brown, 303 F.3d 582, 593 (5th Cir. 2002), cert. denied, 537 U.S.
1173 (2003). Nondisclosure of evidence affecting credibility falls
within Brady’s general rule. Giglio v. United States, 405 U.S.
150, 154 (1972). “Materiality is present if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” Brown,
303 F.3d at 593. A reasonable probability exists when suppression
of the evidence undermines confidence in the outcome of the trial.
Id.Owens has not shown a reasonable probability that the
jury would have voted to acquit had defense counsel had access to
the police report. The confidential informant’s testimony clearly
reflected that he was experienced in the drug trade, and he was
effectively cross-examined on his motives for acting as an
informant. Moreover, the testimony of the informant was not the
only evidence of guilt introduced at trial. The judgment of the
district court is AFFIRMED.
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