United States v. Jasin

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

2-5-2002

USA v. Jasin

Precedential or Non-Precedential:

Docket 0-4185

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Filed February 5, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-4185

UNITED STATES OF AMERICA

v.

THOMAS P. JASIN,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 91-cr-00602-08)

District Judge: Honorable Jan E. Dubois

Submitted under Third Circuit LAR 34.1(a)

December 7, 2001

BEFORE: ALITO, AMBRO, and GREENBERG,

Circuit Judges

(Filed: February 5, 2002)

Michael L. Levy

United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Chief of Appeals

Robert E. Goldman

David L. Hall

Assistant United States Attorneys

Office of the United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Attorneys for Appellee

Mark E. Haddad

Frank Menetrez

Sidley Austin Brown & Wood

555 West Fifth Street

Suite 4000

Los Angeles, CA 90013

Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge:

This matter comes on before this court on defendant

Thomas P. Jasin's appeal from the district court's order

entered on November 22, 2000, denying his motion for a

new trial based on newly discovered evidence pursuant to

Fed. R. Crim. P. 33. For the reasons we state herein, we will

affirm.

I. BACKGROUND

During the mid- to late-1980s, Thomas P. Jasin served as

a high-ranking officer of ISC Technologies ("ISCT"), a

subdivision of International Signal and Control ("ISC"),

based in Lancaster, Pennsylvania. ISC designed,

manufactured, sold and brokered sales of "medium to high

technology electronic military equipment and systems for

domestic and international customers." United States v.

Jasin, No. CRIM. A. 91-00602-08, 1993 WL 259436, at *2

(E.D. Pa. July 7, 1993). James H. Guerin, its majority

shareholder, founded ISC in 1971 and served as an officer

and director of its several successor corporations after ISC

went public in 1982.

From July 1984 until March 1986, Jasin was Vice

President of International Marketing at ISCT, and from

March 1986 until March 1987, he was its president. Jasin

was demoted in March 1987, but he remained an employee

at ISCT until March 1990. Throughout his tenure at ISCT,

Jasin managed the Striker missile project involving the sale

of South African anti-tank/anti-armor missiles, partially

2

manufactured with United States parts and technology, to

China. In exchange for brokering the deal, ISC was to

realize a 35% commission on the sale, which was valued at

$300-$500 million.

A grand jury indicted Jasin on October 30, 1991, on

three counts relating to a massive, 11-year conspiracy to

evade the international arms embargo against South Africa.

The 67-count indictment against 19 codefendants,

including as significant here, Robert Clyde Ivy, alleged that

ISC, certain of its high-level officers and employees, and

numerous South African nationals and corporations

conspired to transfer millions of dollars worth of military

weapons and components to and from South Africa through

various front companies in violation of the Arms Export

Control Act, 22 U.S.C. S 2778, the Comprehensive Anti-

Apartheid Act, 22 U.S.C. SS 5001 et seq. , and various

provisions of the federal money laundering statutes, 18

U.S.C. SS 1956, 1957. According to the government, ISC

conspired with the Armaments Corporation of South Africa

Ltd. ("Armscor") -- a state-owned corporation developed to

meet South Africa's armaments needs -- to export

American-made arms, munitions, and weapons technology

to Armscor to enhance its inventory and enable it to market

weapons systems to other countries. See App. 28. The

government also alleged that ISC and Armscor conspired to

import South African missile components into the United

States for testing and evaluation to facilitate the sale of

Striker missiles to China. See App. 31.

Count One charged Jasin with participating in the broad

conspiracy to circumvent the arms embargo against South

Africa. See App. 27-28. Count twenty-three charged him

with violating the Arms Export Control Act by falsely stating

to United States government agencies that the country of

origin of certain pieces of military hardware was Italy when

it was, in fact, South Africa. See App. 59. Finally, count

twenty-four charged him with violating the Arms Export

Control Act by exporting missile flight data and technology

from the United States to South Africa without a license or

written authorization from the United States Department of

State. See App. 60. The government dismissed count

twenty-three before trial because the statute of limitations

had expired on that count.

3

During a five-week trial in November and December

1992, the government presented evidence that Jasin

participated in the unlawful conspiracy through his

management of the Striker missile project. In particular,

the government established that Jasin was involved in the

illegal export of American-made components, such as UVP

lamp bulbs and Eagle Pitcher batteries, to South Africa for

integration into the Striker missile. The government also

offered proof that Jasin arranged to have South African

missile components -- including missile bodies, launch

canisters, a cut-away model, and rocket motors -- imported

unlawfully into the United States by routing them through

Italy. Finally, the prosecution presented evidence that Jasin

illegally transferred certain technical data relating to wind

tunnel testing of Striker missile components to and from

South Africa.1

Because of what he characterizes as poor trial

preparation by his defense attorney, Jasin called only four

witnesses at trial and was left with no alternative but to

present nearly his entire case through his own testimony.

See Br. of Appellant at 17. At trial he did not challenge the

government's ample evidence proving the existence of a

conspiracy to evade the arms embargo against South

Africa, but argued that this mountain of evidence did not

establish his involvement in or knowledge of the

conspiracy.

For instance, Jasin admitted that he was aware of

American-made lamp bulbs and batteries being sent to

South Africa, but he testified that he had been advised that

ISC had received authorization from Washington to export

the components to South Africa. See App. 2218. He also

conceded that he arranged to have the Striker missile

components imported into the United States via Italy, but

he insisted that he was under the honest but mistaken

belief that such an arrangement was lawful as long as

sufficient value had been added in Italy to make Italy the

_________________________________________________________________

1. For a comprehensive review of the evidence presented by the

government against Jasin and a thorough analysis of its sufficiency, see

the district court's opinion in Jasin, 1993 WL 259436, at *4-10, denying

Jasin's post-conviction motion for a judgment of acquittal.

4

appropriate country of origin for purposes of complying

with United States customs regulations. See App. 2203-04,

2211. Finally, he testified that he never intended the South

Africans to receive any technical data from the wind tunnel

testing of the Striker missile. See App. 2283-84, 2318.

Although he acknowledged that the South Africans

eventually obtained the test results, he maintained that the

transfer of data occurred after he had been demoted, and,

therefore, he was not responsible for or involved with the

transfer. See App. 2328.

On December 10, 1992, the jury returned a verdict of

guilty on count one relating to the conspiracy and not

guilty on count twenty-four relating to the transfer of

technical data. On July 16, 1998, the court sentenced

Jasin to 24 months in prison, which represented a

downward departure from his guideline range. Jasin

appealed, but we affirmed his conviction and sentence in

an unreported memorandum opinion dated August 12,

1999. See United States v. Jasin, 191 F.3d 446 (3d Cir.

1999) (table). Jasin filed a petition for certiorari to the

Supreme Court, but the Court denied his petition on

January 24, 2000. See United States v. Jasin, 528 U.S.

1139, 120 S.Ct. 986 (2000).2

Jasin's current appeal relates strictly to proposed

testimony of Robert Clyde Ivy, his former supervisor and a

codefendant. Jasin urges that we should grant him a new

trial at which he may present this testimony. From 1980

until 1989, Ivy served in various capacities as an officer

and director of ISC, including Director and Chairman of the

_________________________________________________________________

2. On January 23, 2001, Jasin filed a petition seeking relief pursuant to

28 U.S.C. S 2255 on the grounds that his prior attorney provided

ineffective assistance of counsel. Jasin contends that his attorney, who

previously had not tried a criminal case, completely failed to investigate

Jasin's case or interview any witnesses who Jasin claimed could provide

exculpatory evidence or useful expert testimony. Jasin also claims that

his attorney neglected to object to the government's violations of Jasin's

rights under Fed. R. Crim. P. 11(e)(6), the Speedy Trial Act, and the Due

Process Clause. Although Jasin dedicates several pages of his brief to his

attorney's alleged failures, his section 2255 motion still was pending in

the district court when he took this appeal and is not implicated directly

on this appeal.

5

Board of ISCT, President of ISC, and CEO of ISC

International. Jasin subpoenaed Ivy to testify at trial, but

Ivy invoked his Fifth Amendment privilege against self-

incrimination and refused to testify. After years of delay, Ivy

eventually pleaded guilty and the court sentenced him to a

six-month term of imprisonment, which he served in 1997.

On November 23, 1999, nearly two and a half years after

Ivy began serving his sentence, an investigator Jasin hired

visited Ivy at his home. Over the strong objections of his

wife, Ivy agreed to answer the investigator's questions.

According to the investigator, Ivy stated that Jasin had no

knowledge of the illegal conspiracy and never attended any

meetings where the conspiracy had been discussed. The

investigator also reported that Ivy stated that he"want[ed]

the truth to come out" and that "[t]here was no need for an

innocent guy to go to jail like I did." App. 3933.

On December 7, 1999, Ivy signed an affidavit declaring:

"I informed Jasin of Guerin's statements to me that ISC's

exports of defense components to South Africa had

Washington's approval." Ivy. Aff. P 7 (App. 3939). He also

stated in the affidavit that Jasin told him "in 1987 that ISC

needed to be cautious that South Africans not obtain

windtunnel data from tests conducted by ISC." Id. P 8 (App.

3939). Based on Ivy's affidavit and his comments to the

investigator, Jasin maintains that Ivy would provide

exculpatory testimony if called as a witness at a new trial.

Contending that good faith is a complete defense to each of

the charges against him, Jasin argues that Ivy's testimony

confirms Jasin's innocence by proving that Jasin operated

under the good faith belief that Washington had approved

the export of Striker missile components.

On September 28, 1999, Jasin filed a pro se motion for

a new trial "pursuant to Fed. R. Crim. P. 33 based upon

newly discovered evidence." In his initial filing, Jasin did

not mention Ivy's testimony, for his investigator had not yet

interviewed Ivy. Even after learning of Ivy's statement and

obtaining an affidavit from Ivy, however, Jasin did not seek

leave to amend his Rule 33 motion to include the proposed

Ivy testimony as a basis for relief. Nevertheless, he did

mention Ivy's exculpatory statement in several of his

subsequent filings, the first one being his pro se reply filed

6

on November 30, 1999, one week after his investigator

interviewed Ivy.

On November 22, 2000, the district court denied Jasin's

motion for a new trial, ruling, inter alia, that testimony of

a codefendant who invoked his Fifth Amendment rights at

trial is not newly discovered evidence. See United States v.

Jasin, No. CRIM. 91-602-08, 2000 WL 1793397 (E.D. Pa.

Nov. 22, 2000). Jasin filed a Notice of Appeal on December

1, 2000.3

II. JURISDICTION AND STANDARD OF REVIEW

A. Jurisdiction

The district court had jurisdiction pursuant to 18 U.S.C.

S 3231, which provides district courts with original

jurisdiction over all offenses against the laws of the United

States. The district court denied Jasin's motion for a new

trial based on "newly discovered evidence" on November 22,

2000, and Jasin filed a timely notice of appeal on December

1, 2000. Therefore, we have jurisdiction pursuant to 28

U.S.C. S 1291.

B. Standard of review

We review a district court's denial of a motion for a new

trial pursuant to Rule 33 for abuse of discretion. See United

States v. Pelullo, 14 F.3d 881, 886 (3d Cir. 1994).

Nevertheless, we determine de novo as a matter of law the

legal issue of whether the testimony of a codefendant who

invoked his Fifth Amendment privilege at trial constitutes

"newly discovered evidence" within the meaning of Rule 33.

See United States v. Johnson, 199 F.3d 123, 125 (3d Cir.

1999).

_________________________________________________________________

3. In its order entered on November 22, 2000, the district court directed

Jasin to report to the Bureau of Prisons on December 12, 2000, to begin

serving his 24-month term of imprisonment. On December 5, 2000,

Jasin filed a pro se Emergency Motion for Stay of Imprisonment to delay

his incarceration until after the court rendered a final decision on his

section 2255 motion. See supra note 2. On December 11, 2000, the

district court denied the motion, see United States v. Jasin, No. CR. 91-

602-08, 2000 WL 1886576 (E.D. Pa. Dec. 11, 2000), so Jasin currently

is serving his prison sentence.

7

III. DISCUSSION

A. Whether Jasin waived his Rule 33 claim with respect to

the Ivy evidence?

The government first argues that Jasin cannot appeal the

district court's denial of his Rule 33 motion with respect to

the Ivy testimony because he did not raise the issue in the

district court. In particular, the government points out that

Jasin's motion did not identify the Ivy evidence as"newly

discovered evidence" by reason of which the court should

grant a new trial, and Jasin never sought leave to amend

his motion to include the Ivy testimony as a basis for the

relief. Indeed, because Jasin did not raise the Ivy testimony

as a basis for relief in his motion, the government did not

address the testimony in its brief and the court did not

mention it in its ruling. Therefore, inasmuch as Jasin did

not properly present the Ivy testimony issue to the district

court, the government opines that Jasin has waived the

only issue that he has raised on appeal. Thus, it regards

Jasin's appeal as doomed.

Jasin responds that the Ivy testimony was, indeed, before

the district court for he and the government mentioned the

issue on five separate occasions. First, as the government

concedes, Jasin mentioned the Ivy testimony in his pro se

reply filed on November 30, 1999. See App. 3929-34.

Second, Jasin raised the issue in a letter to the court dated

December 9, 1999, in which he requested that Ivy's

affidavit be docketed as an attachment to his November 30

reply. See App. 3935-39. Third, Jasin addressed the Ivy

evidence in his answer to the government's reply on

January 12, 2000. See App. 3953-67A. Fourth, the

government squarely confronted the Ivy testimony in its

letter to the court dated January 19, 2000, in which the

government cited our unpublished decision in United States

v. Evans, No. 98-1706 (3d Cir. Dec. 3, 1999) (per curiam),

as dispositive of Jasin's motion for a new trial. See App.

3968-69. Fifth, Jasin again raised the Ivy evidence in his

third answer to the government's third reply on January

20, 2000. See App. 3981-83.

A review of Jasin's Rule 33 motion confirms that he did

not do the impossible by mentioning the Ivy testimony as

8

Jasin did not have Ivy's affidavit or his assurances that he

would testify on Jasin's behalf until after Jasin filed the

motion. As the parties agree, Jasin first referred to the Ivy

testimony in his initial reply filed on November 30, 1999.

Although Jasin did not move to amend his motion formally

to include the Ivy evidence as a basis for seeking a new

trial, Jasin filed the motion and the reply pro se, and,

therefore, we hold his documents to a less stringent

standard than those drafted by attorneys. See Haines v.

Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972); Zilich

v. Lucht, 981 F.2d 694 (3d Cir. 1992). We also point out

that even if Jasin explicitly had relied on the Ivy evidence

by amending his motion the result in the district court

would have been the same as that court held that the

testimony of another codefendent that became available

only after trial was not "newly discovered." See Jasin, 2000

WL 1793397, at *3-4. In all of the circumstances, we

conclude that Jasin properly raised the Ivy evidence before

the district court and did not waive the issue for appeal.4

B. Whether the District Court erred by failing to consider

the Ivy evidence?

Federal Rule Criminal Procedure 33 authorizes a district

court to grant a new trial "if the interests of justice so

require." If a defendant seeks a new trial based on "newly

discovered evidence," he must file the motion within three

years of the verdict.5 To determine whether a new trial

_________________________________________________________________

4. We hasten to add that we are not suggesting that a district court must

scrutinize every document that a party files in connection with a pending

motion to determine whether the court effectively should expand the

scope of the motion. Here, however, there is a special situation as Jasin

filed his papers pro se, he mentioned the Ivy testimony in several

documents he filed, and the government addressed the issue that this

testimony raised. Thus, our ruling is very narrow and is dependent on

the presence of the unusual circumstances of this case.

5. In 1998, Rule 33 was amended in two significant ways. First, the time

period within which a motion for a new trial based on newly discovered

evidence must be filed was increased from two to three years. Second,

under the previous version of Rule 33, the time period for filing a motion

for a new trial ran from the "final judgment," which referred to the

action

of the court of appeals on a direct appeal from the conviction. The rule

9

based on "newly discovered evidence" should be granted,

courts apply the following five-part test:

(a) the evidence must be[,] in fact, newly discovered,

i.e., discovered since trial; (b) facts must be alleged

from which the court may infer diligence on the part of

the movant; (c) evidence relied on[ ] must not be merely

cumulative or impeaching; (d) it must be material to

the issues involved; and (e) it must be such, and of

such nature, as that, on a new trial, the newly

discovered evidence would probably produce an

acquittal.

United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir.

1976). See also United States v. DiSalvo, 34 F.3d 1205,

1215 (3d Cir. 1994).

As already noted, the district court's order of November

22, 2000, denying Jasin's motion for a new trial did not

specifically address the Ivy evidence. Nevertheless,

inasmuch as we have determined that Jasin raised the

issue presented by the Ivy evidence in the district court, we

agree with Jasin that the court erred in failing to consider

the evidence. Indeed, the government believes that,

assuming Jasin has not waived the issue, we should

remand the case so that the district court properly can

consider whether the Ivy testimony constitutes "newly

discovered evidence." See Br. of Appellee at 45. Jasin

requests, however, that we decide the issue instead of

remanding the case. He argues that remanding the case

will deny him effective relief for he likely would have served

his entire sentence by the time the district court finally

considers the matter. See Br. of Appellant at 32.

We will proceed as Jasin wishes. While ordinarily in

circumstances similar to those here we might remand the

_________________________________________________________________

was changed to establish the district court's verdict as the point at

which the period begins to run.

Because Jasin was convicted in 1992, the district court applied the

pre-1998 version of Rule 33 to his case. Inasmuch as we affirmed Jasin's

conviction on August 12, 1999, and Jasin filed his motion for a new trial

on September 26, 1999, Jasin filed his motion well within the applicable

time period.

10

matter for reconsideration by the district court, as we

stated in PAAC v. Rizzo, 502 F.2d 306, 308 n.1 (3d Cir.

1974), "[i]t is proper for an appellate court to affirm a

correct decision of a lower court even when that decision is

based on an inappropriate ground." Of course, if we uphold

the order denying the new trial, our opinion will come

comfortably within that principle. Moreover, inasmuch as

we make our determination as a matter of law that the Ivy

testimony is not newly discovered evidence, we see no

reason to remand.

C. Whether the unavailable testimony of a codefendant

who invokes his Fifth Amendment privilege at trial qualifies

as "newly discovered evidence" under Rule 33 ?

The pivotal issue on appeal is whether the previously

known, but only newly available, testimony of a

codefendant who invoked his Fifth Amendment privilege

against self-incrimination and did not testify at trial

qualifies as "newly discovered evidence" for the purpose of

considering a motion for a new trial under Rule 33. After

careful consideration of this matter, we join the majority of

courts of appeals in concluding that evidence known but

unavailable at trial does not constitute "newly discovered

evidence" within the meaning of Rule 33.6

The first prong of the Iannelli test addresses whether the

proffered evidence is "newly discovered" -- that is, whether

it was known to the defendant at trial. See United States v.

Bujese, 371 F.2d 120, 125 (3d Cir. 1967) ("It is equally well

settled that evidence is not `newly discovered' when it was

known or could have been known by the diligence of the

defendant or his counsel."). It is undisputed that Jasin was

aware of the substance of the Ivy testimony at the time of

trial, but that the testimony nevertheless was unavailable

because Ivy would not testify and could avoid doing so by

_________________________________________________________________

6. We are one of only a few courts of appeals who have yet to resolve this

issue in a published opinion. The "question of whether testimony which

was previously unavailable because of a witness' invocation of a fifth

amendment right, properly can be deemed `newly discovered' under Rule

33" surfaced in United States v. Herman, 614 F.2d 369, 372 (3d Cir.

1980), but we decided to let the district court address the "thorny" issue

in the first instance on remand.

11

asserting his Fifth Amendment right against self-

incrimination.7 It was only after Ivy had pleaded guilty and

served his sentence that his testimony became available. In

these circumstances, Jasin urges us to adopt the approach

of the Court of Appeals for the First Circuit in United States

v. Montilla-Rivera, 115 F.3d 1060 (1st Cir. 1997), by

establishing that "newly available evidence" constitutes

"newly discovered evidence" within the meaning of Rule 33.

The government, on the other hand, requests that we reject

the holding in Montilla-Rivera and follow the majority rule

that "newly available evidence" is not synonymous with

"newly discovered evidence."

In Montilla-Rivera, the three defendants sold two

kilograms of cocaine to a DEA confidential informant and

subsequently were indicted for distribution and conspiracy

to distribute cocaine. See id. at 1061-62. Two defendants

entered guilty pleas, but defendant Montilla went to trial,

maintaining that his mere presence did not constitute

participation in the drug sale. See id. He subpoenaed his

co-defendants as witnesses, but informed the court that

they would exercise their Fifth Amendment rights and

would not testify, as they both were awaiting sentencing.

See id. at 1063. After being convicted on the conspiracy

count, Montilla filed a motion for a new trial, attaching

thereto affidavits from his codefendants, who since had

been sentenced, to the effect that Montilla had not been

involved in the drug transaction. See id. The district court

denied Montilla's motion, ruling that his codefendants were

known and available at the time of trial, and therefore, their

testimony did not constitute "newly discovered evidence"

under Rule 33. See id.

_________________________________________________________________

7. Indeed, our holding is premised entirely on the conclusion that Jasin

was aware of the substance of Ivy's testimony at trial, for if Ivy

presented

evidence of which Jasin had no knowledge at trial, Ivy's testimony clearly

would be "newly discovered evidence" under the first prong of Iannelli

and would be a basis for granting a new trial if it satisfied the

remaining

prongs. Nevertheless, nowhere in his briefs or the record does Jasin

intimate that he was unaware of the substance of Ivy's statements at

trial. Instead, he argues that we should make an exception under the

Iannelli test for previously known but newly available evidence.

12

The Court of Appeals for the First Circuit reversed on the

grounds that "[t]his circuit has, for almost twenty years,

held that the `newly discovered' language of Rule 33

encompasses evidence that was `unavailable.' " Id. at 1066.

The court rejected the district court's conclusion that the

codefendants were available to testify, explaining that

Montilla "did not have the power to compel them to testify

at his trial in light of their Fifth Amendment privileges." Id.

at 1065. In reaching its result, the court reasoned that

"there seems little distinction between evidence which a

defendant could not present because he did not know of it

and evidence which he could not present because the

witness was unavailable despite exercising due diligence."

Id. at 1066.8

The government dismisses Montilla-Rivera as an anomaly

_________________________________________________________________

8. Jasin also cites two opinions of the Court of Appeals for the Fifth

Circuit that he believes by implication held that"newly discovered

evidence" includes testimony of codefendants who refused to testify at

trial by asserting their Fifth Amendment rights. In Newsom v. United

States, 311 F.2d 74, 75 (5th Cir. 1962), defendants Newsom and Linton

were indicted jointly for selling 276 grams of marijuana to an undercover

federal agent. Newsom went to trial and was convicted. See id. Only days

later, Linton entered a guilty plea and stated in open court that he was

sorry for getting his friend Newsom in trouble because Newsom had no

knowledge of the drug sale. See id. at 78. Shortly thereafter, Newsom

filed a motion for a new trial accompanied by an affidavit from Linton

attesting to Newsom's innocence. See id. at 78-79. The court of appeals

reversed the district court's denial of the motion on the grounds that the

evidence against Newsom was "weak," that Newsom was unable to avail

himself of Linton's testimony at trial, and that another jury could "find

Linton's testimony sufficiently credible to raise a reasonable doubt as to

the truth and the meaning of the special employee, and hence of the

defendant's guilt." Id. at 79.

In Ledet v. United States, 297 F.2d 737, 738 (5th Cir. 1962), customs

agents found 41 grams of heroin under the passenger seat occupied by

defendant Ledet in a car owned and driven by defendant Bourg. At trial,

Bourg opted not to testify, but Ledet took the stand and testified that he

knew nothing about the heroin. See id. After both defendants were

convicted and sentenced, Bourg offered an affidavit completely

exculpating Ledet. See id. at 739. The court of appeals reversed the

district court largely based on the "ambiguous facts" concerning

possession of the heroin. The court explained that:

the fact that total and complete possession by Bourg, the owner and

driver of the automobile would be entirely consistent with Ledet's

13

and argues that we should follow the majority rule that

testimony known to the defendant at the time of trial is not

"newly discovered evidence," even if it was unavailable at

trial by reason of the witness's Fifth Amendment privilege

against self-incrimination. See United States v. Freeman, 77

F.3d 812, 817 (5th Cir. 1996) ("When a defendant is aware

of a co-defendant's proposed testimony prior to trial, it

cannot be deemed newly discovered under Rule 33 even if

the co-defendant was unavailable because she invoked the

Fifth Amendment."); United States v. Theodosopoulos, 48

F.3d 1438, 1448-50 (7th Cir. 1995) (concluding that post-

trial testimony of person who exercised his Fifth

Amendment right against self-incrimination does not

qualify as "newly discovered evidence" because defendant

knew substance of testimony during trial); United States v.

Glover, 21 F.3d 133, 138 (6th Cir. 1994) (concluding that

newly available testimony of individual who asserted his

Fifth Amendment privilege against self-incrimination was

not "newly discovered evidence" within the meaning of Rule

33); United States v. Muldrow, 19 F.3d 1332, 1339 (10th

Cir. 1994) ("If a former codefendant who originally chose

not to testify subsequently comes forward and offers

testimony exculpating a defendant, the evidence is not

_________________________________________________________________

complete innocence or knowledge of, or dominion over, the

narcotics, requires that a new trial be granted in order that the

previously silent witness who knows most about the transaction

may be given an opportunity to testify to facts that he has now

asserted in the form of an affidavit.

Id.

Jasin's reliance on Newsom and Ledet, while understandable, is

misplaced for the court based both opinions on the"peculiar

circumstances" of the respective cases. Newsom, 311 F.2d at 79; Ledet,

297 F.2d at 739. Indeed, the court later explicitly limited these cases to

their facts and rejected the contention that Jasin makes here that "newly

available evidence" constitutes "newly discovered evidence" within the

meaning of Rule 33. See United States v. Metz , 652 F.2d 478, 480 (5th

Cir. 1981). See also United States v. Perez-Paredes, 678 F. Supp. 259,

261 (S.D. Fla. 1988) (stating that "Metz narrowly restricts both Ledet and

Newsom to their facts and . . . rejects the notion that newly available

evidence is synonymous with newly discovered evidence for the purposes

of a motion for a new trial").

14

newly discovered if the defendant was aware of the

proposed testimony prior to trial."); United States v. Dale,

991 F.2d 819, 838-39 (D.C. Cir. 1993) ("The unanimous

view of circuits who have considered the question is that

this [newly discovered evidence] requirement is not met

simply by offering the post-trial testimony of a co-

conspirator who refused to testify at trial."); United States v.

Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993) (stating that

"when a defendant who has chosen not to testify

subsequently comes forward to offer testimony exculpating

a co-defendant, the evidence is not `newly discovered' ");

United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th

Cir. 1992) ("The Ninth Circuit has adopted the view that

when a defendant who has chosen not to testify

subsequently comes forward to offer testimony exculpating

a co-defendant, the evidence is not newly discovered."

(internal quotation marks omitted)); United States v.

Lockett, 919 F.2d 585, 591 (9th Cir. 1990) (stating that

"[w]hen a defendant who has chosen not to testify

subsequently comes forward to offer testimony exculpating

a co-defendant, the evidence is not `newly discovered' ");

United States v. DiBernardo, 880 F.2d 1216, 1224-25 (11th

Cir. 1989) (concluding that newly available, exculpatory

testimony of codefendant "cannot be deemed `newly

discovered evidence' within the meaning of Rule 33" if

defendants were aware of testimony before trial); United

States v. Metz, 652 F.2d 478, 480 (5th Cir. 1981)

(concluding that testimony of codefendant who was

unavailable at joint trial because he invoked the Fifth

Amendment "cannot be considered `newly discovered' ");

United States v. Diggs, 649 F.2d 731, 740 (9th Cir. 1981)

("When a defendant who has chosen not to testify

subsequently comes forward to offer testimony exculpating

a co-defendant, the evidence is not `newly discovered.' "),

overruled on other grounds, United States v. McConney, 728

F.2d 1195 (9th Cir. 1984) (en banc). See also United States

v. Yu, 902 F. Supp. 464, 468 (S.D.N.Y. 1995) (concluding

that testimony of individual who did not testify at trial "can

at best be characterized as `newly available,' which is not

synonymous with newly discovered evidence on a Rule 33

motion" (internal quotation marks omitted)), aff'd mem.,

101 F.3d 1393 (2d Cir. 1996); United States v. Matos, 781

15

F. Supp. 273, 279 (S.D.N.Y. 1991) (same); United States v.

Persinger, 587 F. Supp. 899, 901 (W.D. Pa. 1984).

Courts generally consider exculpatory testimony offered

by codefendants after they have been sentenced to be

inherently suspect. Indeed, "a court must exercise great

caution in considering evidence to be `newly discovered'

when it existed all along and was unavailable only because

a co-defendant, since convicted, had availed himself of his

privilege not to testify." United States v. Jacobs, 475 F.2d

270, 286 n.33 (2d Cir. 1973). The rationale for casting a

skeptical eye on such exculpatory testimony is manifest.

It would encourage perjury to allow a new trial once co-

defendants have determined that testifying is no longer

harmful to themselves. They may say whatever they

think might help their co-defendant, even to the point

of pinning all the guilt on themselves, knowing they are

safe from retrial. Such testimony would be

untrustworthy and should not be encouraged.

Reyes-Alvarado, 963 F.2d at 1188.

Jasin attempts to distinguish these cases by suggesting

that the courts weighed all of the Iannelli factors before

ruling on the motion rather than merely applying a

"categorical ban" on codefendant testimony that was

unavailable at trial because the individual asserted his

Fifth Amendment rights. See Br. of Appellant at 40. He

maintains that when these courts denied motions for a new

trial based on newly available codefendant testimony, at

least one other Iannelli factor was unsatisfied, such as, for

example, diligence, materiality, or likelihood of producing

an acquittal. See id. Although this is true in some of the

cases, it is not true in all of them. For instance, the Court

of Appeals for the Ninth Circuit in Reyes-Alvarado ended its

Iannelli-style analysis after it determined that the evidence

was not "newly discovered" insofar as it had been offered by

codefendants who had refused to testify at trial. The Court

of Appeals for the Eleventh Circuit in DiBernardo likewise

considered only whether there was "newly discovered

evidence" in affirming the district court's denial of the

motion for a new trial. See also Rogers, 982 F.2d at 1245;

Lockett, 919 F.2d at 591-92; Metz, 652 F.2d at 479-81.

16

Although it may be advisable for a district court to analyze

each prong of the Iannelli test after finding that one factor

has not been met, such an analysis of the remaining factors

is not required inasmuch as the failure of one element is a

sufficient basis to deny a motion for a new trial. 9

Jasin also cites two of our opinions that he believes

implicitly reject a categorical ban on newly available

codefendant testimony to support a Rule 33 motion. In

United States v. Rocco, 587 F.2d 144 (3d Cir. 1978), four

men were indicted for embezzling and conspiring to

embezzle $100,000 from a union pension fund. Defendant

La Duca went to trial and called his codefendant, Neiman,

as a witness, but Neiman, who already had pled guilty to

the conspiracy count, invoked his Fifth Amendment rights

and thus would not testify. Nevertheless, after Neiman was

sentenced and La Duca was convicted, Neiman expressed

his willingness to testify on La Duca's behalf. Consequently,

La Duca filed a motion for a new trial supported by an

affidavit in which Neiman stated he would provide

testimony exonerating La Duca.

The district court denied the motion on the grounds that

La Duca had not been diligent in requesting that the

government provide Neiman use immunity for his

testimony. Although we rejected the district court's

rationale, we nevertheless affirmed its denial of the motion

for a new trial on the alternative grounds that (1) La Duca

had not been diligent in determining whether Neiman still

had a Fifth Amendment privilege at the time of La Duca's

trial and (2) Neiman's testimony probably would not have

produced an acquittal. Jasin maintains that our application

_________________________________________________________________

9. We recognize that in some instances, application of the Iannelli

factors

may require a necessarily inexact analysis as, for example, whether the

evidence probably would have produced an acquittal. In such

circumstances, it might well be particularly prudent for a court

considering a Rule 33 motion to consider all the Iannelli factors. On the

other hand, if a court determines as a matter of law that evidence is not

newly discovered, then no matter what the court's conclusions are as to

the other Iannelli factors, it must deny the defendant's Rule 33 motion.

Of course, even in those circumstances, it might be advisable for a

district court to consider other Iannelli factors, as it is possible that

a

court of appeals might regard the evidence as newly discovered.

17

of the Iannelli test to Neiman's testimony despite his status

as a codefendant was an implicit rejection of a categorical

ban on newly available codefendant testimony.

In United States v. Lowell, 649 F.2d 950, 966 (3d Cir.

1981), defendants Lowell and Pionzio were tried jointly for

and convicted of participation in a bribery conspiracy.

Pionzio did not testify at trial, but later, under a grant of

immunity, he provided grand jury testimony that appeared

to exculpate Lowell. Lowell did not file a Rule 33 motion

based on Pionzio's grand jury testimony with the district

court, but instead raised the issue for the first time on

appeal. In our opinion, we noted that Pionzio's grand jury

testimony, if true, completely contradicted the only witness

who tied Lowell to the bribery conspiracy. Even so, we

refused to weigh the probative value of Pionzio's testimony,

stating that it would "be necessary for Lowell to raise this

issue, if at all, in an appropriate motion under Fed. R.

Crim. P. 33, to be presented in the first instance to the

district court." Id. at 966. We added:"Pionzio's newly given

testimony may or may not be sufficiently exculpatory to

warrant retrial on the basis of newly discovered evidence."

Id.

Even though Jasin relies on these opinions, neither one

controls our result. Although Jasin is correct that Rocco did

not reject Neiman's testimony because of his status as a

codefendant, we did not address squarely the issue of

whether testimony that was unavailable to a defendant as

a result of the witness's Fifth Amendment privilege against

self-incrimination qualifies as "newly discovered evidence"

under Rule 33. Similarly, Lowell is of little help to Jasin.

We did not say in Lowell that the codefendant's testimony

would constitute newly discovered evidence; we merely

stated that if the defendant were to raise the issue at all, he

would have to do so in a Rule 33 motion before the matter

could be addressed on appeal. At bottom, although these

two decisions perhaps leave the door open for us to adopt

the holding in Montilla-Rivera, the opinions do not make a

persuasive case for such an approach.

The government urges us to reject Jasin's interpretation

of Rocco and Lowell and instead follow the reasoning of our

more recent unreported opinion in United States v. Evans,

18

No. 98-1706 (3d Cir. Dec. 3, 1999) (per curiam), which the

government cites only as "persuasive authority." Although

there can be no doubt that Evans supports the result we

reach here, inasmuch as the opinion is unreported it

should not be regarded as precedential. See Third Circuit

IOP 5.8. Thus, we reach our result on the bases we have

set forth independently of our result in Evans .

Having said that, we nevertheless will explore the Evans

decision further, for it exposes the fallacy of Jasin's

argument. In that case, defendants Evans and Handy were

convicted of various offenses related to a bank robbery.

Evans filed a Rule 33 motion several years later based on

an affidavit from Handy stating that Handy's attorney

informed the prosecution during plea negotiations that the

masked man accompanying Handy during the robbery was

actually the government's key witness, Tyrone Mallory, not

Evans. The panel considered the substance of the

statement to constitute two distinct pieces of evidence: (1)

that Evans was not the masked robber and (2) that Mallory

was the masked robber.

The panel concluded that the first piece of evidence that

Evans was not the masked robber failed the first prong of

the Iannelli test because Evans knew at the time of trial

that he was not the masked man. In so holding, the panel

explicitly rejected Montilla-Rivera, opting to align with other

courts of appeals who have determined that "newly

available evidence" is not synonymous with "newly

discovered evidence." The panel concluded that our "limited

jurisprudence on this narrow matter does not allow for Rule

33 relief if the evidence is newly available." Id. at 7 n.4

(citing Herman, 614 F.2d at 372, and Bujese, 371 F.2d at

125).

With regard to the second piece of evidence, the panel

stated that "[t]he evidence that Mallory was the masked

robber is conceivably new and may meet the first prong of

the test." Id. at 7. The panel nevertheless affirmed the

district court's denial of the motion for new trial because it

could not "say that this testimony would probably have

produced an acquittal." Id. Jasin insists that the holding

with respect to this second piece of evidence supports his

position insofar as the panel did not bar the newly available

19

testimony because it was offered by a codefendant, but

instead fully applied the Iannelli test and ultimately

concluded that the evidence failed the fifth prong. Jasin

loses sight, however, of the crux of the issue. Unlike Evans

who did not know the substance of Handy's statement

regarding the true identity of the masked robber, Jasin was

aware of the substance of Ivy's testimony -- namely, that

Jasin was not involved in or aware of the conspiracy. In

other words, Ivy's testimony is analogous to the first part of

Handy's statement, not the second. Jasin fails to

understand that whether the defendant was aware of the

substance of the testimony at the time of trial-- not

whether the testimony came from a codefendant who

asserted his Fifth Amendment privilege at trial-- is the

determining factor under the first prong of the Iannelli test.

Consequently, even under Jasin's reading of Evans, Jasin's

knowledge of the substance of Ivy's testimony before trial,

regardless of Ivy's unavailability as a witness during trial, is

fatal to the Rule 33 motion for new trial.

Finally, Jasin argues that imposing a per se ban10 on

subsequently available codefendant testimony is not"in the

interests of justice." Jasin recognizes that such testimony

should be considered with greater caution, but he insists

that courts should consider it with this justified skepticism

in the context of all five prongs of the Iannelli test rather

than categorically banning it under the "newly discovered"

prong. He argues that if courts are concerned about the

credibility of a convicted codefendant's testimony because

he or she falsely may assume all of the blame without

further consequences in an effort to help his or her cohort,

courts should weigh this possibility under the fifth Iannelli

prong when they determine whether such questionable

testimony probably would produce an acquittal. Jasin

contends that his approach "affords an innocent defendant

-- particularly one who was convicted, as Jasin was here,

_________________________________________________________________

10. Throughout his briefs, Jasin insists on characterizing the holdings of

the majority of the courts of appeals as imposing a per se ban on newly

available codefendant testimony. We do not interpret these opinions or

our holding as such. The standard we adopt today bans newly available

codefendant testimony only if the defendant was aware of the substance

of the testimony at trial.

20

on weak evidence -- the opportunity to raise exculpatory

evidence that he was unable to present at trial through no

fault of his own." Br. of Appellant at 43-44. 11

The government responds that the rule proposed by

Jasin would cause chaos within the criminal justice

system. It argues that acceptance of Jasin's position that

testimony of a codefendant after his or her sentencing

qualifies as "newly discovered evidence" under Rule 33

"could render countless joint criminal trials meaningless,

only to be followed, in later years, by multiple new trials as

defendants jockey to offer testimony for each other in an

effort to obtain different results." Br. of Appellee at 49 n.10.

In the end, we opt to follow the majority rule in

concluding that a codefendant's testimony known to the

defendant at the time of trial cannot be considered"newly

discovered evidence" under Rule 33, regardless of the

codefendant's unavailability during trial because of

invocation of his Fifth Amendment privilege. Not only does

such an approach establish a straightforward bright-line

rule, but it is anchored in the plain meaning of the text of

Rule 33. Although Jasin advances a reasonable justification

for allowing a district court to consider certain"newly

available" testimony of a witness who previously invoked

his Fifth Amendment privilege when deciding a motion for

a new trial, he cannot overcome the unambiguous language

of Rule 33, which contemplates granting of a new trial on

the ground of "newly discovered evidence" but says nothing

about newly available evidence. Moreover, as we have

explained, there are compelling practical reasons to reject

his argument.

In light of our decision to adopt the majority rule that

"newly available evidence" is not synonymous with "newly

discovered evidence," it is clear that Jasin is not entitled to

a new trial under Rule 33. Although we believe that the

district court should have considered the Ivy evidence

under the Iannelli test, we nevertheless will affirm its denial

of the motion for a new trial, for it is undisputed that Jasin

knew of the substance of Ivy's testimony before trial.

_________________________________________________________________

11. Of course, Jasin's characterization of the case against him as "weak"

is his own. The district court merely said that the case was close.

21

Jasin's failure to satisfy the first requirement under Iannelli

obviates the need for further analysis of the Ivy evidence

under the four remaining prongs of the Iannelli test.

Accordingly, the order of the district court will be affirmed.

IV. CONCLUSION

For the foregoing reasons, we will affirm the district

court's order entered on November 22, 2000.

22

AMBRO, Circuit Judge, concurring:

I concur because I do not believe that Jasin can satisfy

the fifth Iannelli prong--that the new evidence would

probably result in his acquittal. United States v. Iannelli,

528 F.2d 1290, 1292 (3d Cir. 1976). I write separately,

however, because I respectfully disagree with the majority's

position on the first prong--whether the statements in Ivy's

affidavit are in fact newly discovered evidence. The majority

professes not to follow a per se rule barring a co-

defendant's previously unavailable testimony, but it

achieves the same result, I believe, by construing too

narrowly what it means for evidence to be newly discovered.

I believe that "the better rule is not to categorically exclude

the testimony of a co-defendant who asserted his Fifth

Amendment privilege at trial under the first prong but to

consider it, albeit with great skepticism, in the context of all

prongs of our [Iannelli] test." United States v. Montilla-

Rivera, 115 F.3d 1060, 1066 (1st Cir. 1997).

The majority's approach is nuanced. It eschews a"per se

ban on newly available codefendant testimony." Maj. Op. at

n.10. Instead, "[t]he standard we adopt today bans newly

available codefendant testimony only if the defendant was

aware of the substance of the testimony at trial." Id. But,

according to the majority, a defendant who has a general

impression of how a witness might testify at trial is "aware"

of that witness's testimony. Thus, the defendant cannot

later employ it to prove his innocence because he ostensibly

knew the non-existent testimony during his trial.

Rule 33, however, is not always so strict and criminal

defendants are not so prophetic. In my view, this case

survives the first Iannelli prong because Jasin not only

lacked the statements in Ivy's affidavit at his trial, he did

not even have particularized knowledge of what Ivy would

say. Ivy's affidavit exculpating Jasin in some measure did

not exist until December 1999. The record does not show

that Jasin knew at trial what Ivy would have testified. That

means that the only "evidence" that existed in 1992 was

Jasin's general awareness that Ivy knew the extent of his

involvement in the conspiracy.1 Such awareness cannot

_________________________________________________________________

1. As a separate matter, I question the majority's implicit conclusion

that

Jasin possessed at his trial the "evidence" he now seeks to introduce. To

23

substitute for particularized information. I cannot say that

Jasin knew the substance of Ivy's putative testimony simply

because they shared a common experience.

By comparison, most of the cases from other circuits on

which the majority relies involved defendants who at trial

actually had particularized knowledge about or even the

text of the evidence they later claimed was "newly

discovered." See United States v. Freeman, 77 F.3d 812,

817 (5th Cir. 1996) (defendant actually knew the proposed

testimony of her co-defendant); United States v.

Theodosopoulos, 48 F.3d 1438, 1448-50 (7th Cir. 1995)

(defendant's attorney had interviewed co-defendant prior to

trial and obtained the contents of his proposed testimony);

United States v. Glover, 21 F.3d 133, 138 (6th Cir. 1994)

(defendant was "well aware of [previously unavailable

witnesses'] testimony prior to trial"); United States v.

Muldrow, 19 F.3d 1332, 1339 (10th Cir. 1994) ("substance

of [co-defendant's] testimony was known to defendant's

counsel prior to trial and was produced at trial"); United

States v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993)

(defendant claimed as newly discovered evidence a letter

from a co-defendant available to him throughout the trial);

United States v. DiBernardo, 880 F.2d 1216, 1224-25 (11th

Cir. 1989) (defendants seeking new trial were "well aware of

[co-defendant's] proposed testimony prior to trial"); United

States v. Metz, 652 F.2d 478, 480 (5th Cir. 1981)

(defendant's attorney knew prior to trial the "entire

substance," including "specific details and facts," of co-

defendant's testimony).

_________________________________________________________________

me, evidence is something tangible, such as testimony or documents,

that a litigant can present to a factfinder. Evidence is not merely an

abstraction.

In this case, tangible evidence that Jasin could present to a court on

this issue did not exist until 1999. Until then, Jasin had little more

than

a hunch what Ivy would testify. A hunch is not evidence, as

demonstrated by the obvious fact that no court would accept it as such.

But the majority would accept Jasin's suspicion of what Ivy knew as

evidence. Because all that Jasin had at trial was at most an informed

guess, I disagree. That distinction by itself should get Jasin past the

first

Iannelli prong.

24

I am unconvinced by the Government's argument that

perjured testimony by former co-defendants will cause

turmoil in the courts "as defendants jockey to offer

testimony for each other in an effort to obtain different

results." Gov't Br. at 49 n.10. While I agree that there is

some risk of perjury in permitting a former co-defendant

under no threat of criminal prosecution to testify, the

appropriate response is not to ban such testimony. Rather,

I would rely on the adversarial process, on the court's

discretion to exclude irrelevant or prejudicial testimony,

and on its ability to assess credibility. Moreover, there is no

sign that chaos has reigned in the First Circuit since the

Montilla-Rivera decision. Indeed, the Government allocates

its dire prediction only a footnote near the end of its brief.

In addition, I am concerned that the Government will be

encouraged by today's holding to delay trials of co-

defendants who might give exculpatory testimony in order

to bar that testimony. Although this concern is speculative,

it is no more so than the Government's predictions the

other way.

My reading of what constitutes newly discovered evidence

does not mean that I would grant new trials with abandon.

While I would permit a defendant to overcome the first

prong more frequently than the majority would, the

remaining Iannelli prongs will defeat many new trial

motions anyway. Frequently, although a piece of evidence is

new, it will also be cumulative because it tends to prove a

fact already determined through other evidence. In that

case, the new trial motion will be denied under the third

prong. In other cases, the fourth or fifth Iannelli prongs will

prevent a new trial because the newly discovered evidence

is not material or is unlikely to result in an acquittal.

Although I would permit Jasin to overcome the first

Iannelli prong, I concur in the majority's result because I

am not convinced that the statements in Ivy's affidavit

would probably result in an acquittal. The record, in

conjunction with Ivy's carefully worded affidavit, suggests

that Jasin knew enough of the conspiracy to support his

conviction. In any event, our holding today does not prevent

25

Jasin from presenting evidence of his innocence in

otherwise proper proceedings under 28 U.S.C. S 2255.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

26