United States v. Thomas P. Jasin

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 368 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 substitute for particularized information. I cannot say that Jasin knew the substance of Ivy’s putative testimony simply because they shared a common experience.

*370 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).

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 Montillar-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 ease, 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 Jasin from presenting evidence of his innocence in otherwise *371 proper proceedings under 28 U.S.C. § 2255 .

. 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 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.