United States v. Rashad McKay

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2362
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Rashad McKay, also known *
as Rashod McKay, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 7, 2008
Filed: November 17, 2008
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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
Rashad McKay appeals the district court’s1 denial of his Federal Rule of
Criminal Procedure 33 motion for a new trial based on newly discovered evidence.
McKay, along with his codefendant Sterling McKoy, was convicted in June 2004,
following a jury trial, of conspiring to distribute cocaine base. This court affirmed the
conviction, in part rejecting a challenge to the sufficiency of the evidence. See United
States v. McKay, 431 F.3d 1085, 1087-89, 1094 (8th Cir. 2005). McKay submitted
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
four exhibits with his Rule 33 motion, arguing they showed that some of the witnesses
who testified against him at trial had recanted their testimony and admitted that they
had committed perjury.
We conclude the district court did not abuse its discretion in denying McKay’s
motion. See United States v. Duke, 255 F.3d 656, 659 (8th Cir. 2001) (standard of
review; requirements to justify new trial under Rule 33). Of the four documents
McKay submitted, only two were from witnesses who testified against him at trial.
One document is a page from a letter written by witness Kevin Birdine to his friend
Jerome Daniels, in which Birdine apologized to Daniels for testifying against him in
another trial, but did not indicate that his testimony was untruthful. The other is an
unsigned statement purportedly from witness Levi Brown, indicating that he gave
testimony against codefendant McKoy that was untrue in order to receive a sentence
reduction. Brown, however, signed an affidavit stating that he had never seen the
statement and would not have signed it because he testified truthfully at trial. This
evidence falls far short of that required for a new trial. See United States v. Dogskin,
265 F.3d 682, 685, 687 (8th Cir. 2001) (evidence insufficient for new trial where it is
not material and not likely to produce acquittal; recantation is looked upon with
suspicion). Further, the district court did not err in declining to conduct an evidentiary
hearing. See id. at 687 (absent exceptional circumstances, new trial motion based on
new evidence may be decided on affidavits without hearing).
The judgment is affirmed.
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