Opinion
Crim. No. 97-147 (MJD/AJB)
October 30, 2001
Kenneth W. Saffold, Assistant United States Attorney for and on behalf of the United States.
Steven J. Meshbesher, Meshbesher Associates, P.A. for and on behalf of Defendant.
ORDER
Before the Court is Defendant's motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure.
The Defendant's motion is based on co-defendant Khansevanh Nhalay's alleged recantation of his trial testimony. At trial, Nhalay testified that Defendant Vong ordered the armed robbery of a Bockstruck's jewelry store, and that Vong paid those who participated in the robbery $6,000. Nhalay furthered testified that he and Vong discussed the use of weapons during robberies, and that Vong asked Nhalay to rob his friend Cheng. In the alleged recantation, which appears to have been notarized by a prison case manager, Nhalay asserted that Vong did not plan, set up or organize any robberies, nor did he aid and abet any robberies, or recruit juveniles to participate in any robberies. Ex. A-1. He further stated that Vong never discussed the use of guns in robberies and that he did not have any involvement in the robbery of Vong's friend, Cheng. Id. Vong has also submitted a statement from a fellow inmate, Louis Sheptin, in support of his motion for a new trial. Ex. A-2.
The government asserts that Nhalay's alleged recantation is not sufficient to warrant a new trial. It first notes that Nhalay's statement is not in affidavit form; it contains no oath or affirmation from Nhalay that the statements contained therein are the true. The government further argues that even if Nhalay's statement is construed as an affidavit, there were numerous other witnesses at trial that provided testimony implicating Vong in the armed robberies.
Standard
The Eighth Circuit has held that five prerequisites must be met before a district court may grant a motion for a new trial on the basis of newly discovered evidence.
1) the evidence must be in fact newly discovered, that is, discovered since the trial;
2 the facts must be alleged from which the court may infer diligence on the part of the movant;
3) the evidence relied upon must not be merely cumulative or impeaching;
4) it must be material to the issues involved; and
5) it must be of such nature that, on a new trial, the newly discovered evidence would probably produce an acquittal.
United States v. Begnaud, 848 F.2d 111, 113 (8th Cir. 1988) (citing United States v. Bednar, 678 F.2d 63, 67 (8th Cir. 1982)). Whether to grant a new trial on the basis of newly discovered evidence is within the broad discretion of the district court. Id. It is also well settled in the Eighth Circuit that the district court has broad discretion in determining whether an evidentiary hearing is necessary. United States v. Provost, 969 F.2d 617, 619 (8th Cir. 1992). See also, United States v. Grey Bear, 116 F.3d 349 (8th Cir. 1997) (motion for new trial based on newly discovered evidence may be decided on either affidavits or after an evidentiary hearing).
A motion for a new trial that is based on the alleged recantation of testimony from a material witness should be viewed with disfavor. Grey Bear, 116 F.3d at 349. This is so to ensure that the stability and finality of verdicts are not too greatly disturbed by witnesses who have changed their minds since trial. Id. After reviewing the submissions of the parties, the Court finds that an evidentiary hearing is not warranted, and will based its ruling on the submissions of counsel.
Analysis
With respect to the five factors that must be considered in determining a motion for a new trial, the Court finds that the statement of Nhalay constitutes newly discovered evidence that Defendant found with due diligence. The Court further finds that Nhalay's recantation is material to the issues involved. However, given the other evidence presented at trial, the Court finds that Nhalay's testimony is not credible, and would not likely produce an acquittal at a new trial.
Nhalay was not the only witness that implicated Vong at trial. For example, Bounthanh Keomany testified that Vong was the individual that purchased the stolen jewelry from the first robbery. Co-conspirators, other than Nhalay, testified that Vong was involved with the robberies. For example, Bounsong Thatsanaphone testified that Vong picked him up after the Bockstruck's robbery and paid Nhalay for the watches that were stolen. Thatsanaphone also testified that Vong discussed the robbery of his friend Cheng. Another co-conspirator, David Martin, testified that although he had never met Vong, he knew that he was referred to as "O.G.", he knew where Vong's store was located and he knew what kind of car he drove. Evidence was also presented at trial showing that numerous phone calls were made from Vong's business and other personal phones to the apartment in which the co-conspirators would meet. Thus, even without Nhalay's testimony, sufficient evidence was presented to the jury to support a guilty verdict against Vong.
In addition, the Court finds that Nhalay's recantation is not credible. As noted above, Nhalay's trial testimony was corroborated by other evidence, specifically the testimony of Thatsanaphone. Vong submitted an unsworn statement from Louis Sheptin, a fellow inmate of Nhalay's, to show that Nhalay did tell Vong that he had lied at trial. However, at the end of his statement, Mr. Sheptin also states that he heard from another inmate that Nhalay and/or David Martin "wanted to kick [Vong's] ass." This statement contradicts his earlier statements that Nhalay was shamed and remorseful when admitting to Vong that he had lied. Based on its contradictory character, the Court finds that Mr. Sheptin's statement lends little to establishing the credibility of Nhalay's alleged recantation.
Accordingly, IT IS HEREBY ORDERED that the Defendant's Motion for a New Trial is DENIED.