United States v. Peterson

SUMMARY ORDER

Defendant Peterson appeals from the District Court’s denial of his motion for a new trial pursuant to Federal Rule of Criminal Procedure 33(a) and (b)(1). Peterson argues that the post-trial discovery of a witness to some of the underlying events whose testimony at a new trial would probably lead to an acquittal constitutes grounds for granting a new trial. The district court is given broad discretion to decide motions under Rule 33 and such motions are disfavored in this Circuit. See United States v. Gambino, 59 F.3d 353, 364 (2d Cir.1995). In light of this applicable law, we see no basis for concluding that the District Court abused its discretion in denying the motion based on the determination that the putative witness’s testimony “is not so material that its admission would probably lead to an acquittal.” The District Court’s conclusion is bolstered by the fact that the jury in defendant Smalls’ separate trial did consider the witness’s testimony and nonetheless found Smalls guilty. The judgment of the District Court is therefore affirmed.

Defendant Smalls argues that the District Court’s refusal to advise a juror that she was mistaken in her belief that defendant had previously pleaded guilty to a chain snatching charge constituted an abuse of discretion because it improperly forced defendant to choose between trial by an impartial jury and seeking the removal of one of the two minority jurors. There is no reason to believe that Smalls was ever charged with chain snatching or ever pleaded guilty to such a charge. We need not determine whether the refusal to provide this instruction was error, because in light of the broad discretion given the District Court to replace jurors before deliberations, United States v. Purdy, 144 F.3d 241, 247 (2d Cir.1998), and because there is no suggestion that the resulting jury was unfair or partial, United States v. Towne, 870 F.2d 880, 885 (2d Cir.1989), we see no basis for a finding of reversible error.

The Government failed to inform the District Court that the juror was mistaken in her assertion that Smalls had been on trial and had pleaded guilty to a chain snatching charge. In fact, knowing that the chain snatching conviction was the only question at issue here, and that the juror’s recollection was entirely incorrect on that matter, the Government’s brief in this Court continues to insist that the juror was not “wholly inaccurate” and that there is not sufficient information to say whether the juror was mistaken.¹ At oral argument, counsel for the Government finally acknowledged that there was no chain snatching charge and that defendant did not plead guilty to such a charge, but defended the failure to reveal that information to the District Court. We note our disappointment at this belated acknowledgment of the facts known to Government counsel at trial and encourage Government counsel to be more forthcoming regarding such matters in the future.

Smalls also contends that 18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm by a convicted felon, exceeds Congress’ authority to regulate interstate commerce and is thus unconstitutional. This argument has already been considered and rejected by this Court in United States v. Santiago, 238 F.3d 213 (2d Cir.2001). We again reject this argument.

We have considered all of defendants’ claims on appeal and found them to be without merit. We hereby AFFIRM the order of the District Court entered by Judge Stein and judgment of the District Court entered by Judge Hellerstein.

1 . The Government's brief states that "the possibility exists that the juror had indeed seen Smalls in Bronx Supreme Court at that time, and was mistaken only as to the particular circumstances of the event. For these reasons, the Government did not agree at trial, and cannot agree on appeal, with Smalls' contention that the juror’s recollection was wholly inaccurate. The information available to the parties was and is insufficient to make this determination.” Government Brief, at 33-34.