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Johnson v. United States

United States District Court, D. Delaware

July 3, 2017

ED JOHNSON, Movant/Defendant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff. Civ. A. No. 12-403-LPS

          MEMORANDUM

          HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Presently pending before the Court is Movant Ed Johnson's ("Movant") Motion for New Trial Filed Pursuant to Federal Rule of Criminal Procedure 33 ("Rule 33 Motion"). (D.I. 354)

         II. BACKGROUND

         On October 30, 2009, a jury convicted Movant on multiple counts of mail and wire fraud, engaging in an illegal monetary transaction, and conspiracy related to falsely claiming he had the ability to fund commercial loans or collateralized lines of credit. (D.I. 2; D.I. 201) The Honorable Joseph J. Farnan, Jr. sentenced Movant on May 26, 2010 to 120 months of imprisonment. (D.I. 266; D.I. 279) After the case was reassigned to the undersigned Judge in August 2010, the Court of Appeals for the Third Circuit affirmed Movant's conviction and sentence by order dated October 24, 2011. (D.I. 289)

         Movant filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 on April 2, 2012, which the Court denied on August 2, 2013. (D.I. 316; see also Johnson v. United States, 201 3 WL 4041268 (D. Del. Aug. 2, 2013)) The Third Circuit Court of Appeals denied Movant's appeal of that decision on January 30, 2014. (D.I. 326)

         Movant filed a motion tided "New Evidence Motion filed Under Rule 60A and 60B(2)" ("New Evidence Motion") on November 18, 2014 (D.l. 327), followed by a "Motion to Withdraw Claims pursuant to Rule 60(a) and for Leave to File a Corrected Rule 60(b)(1) and 60(b)(3)" ("Motion for Leave") (D.I. 330). The Court granted the Motion for Leave on May 27, 2015. (D.I. 334)

         On June 18, 2015, Movant filed a Motion Pursuant to Federal Rule of Civil Procedure 60(b) ("Rule 60(b) Motion") (D.I. 340), to which the Government filed a Response in Opposition. (D.I. 343) On July 14, 2015, the Court denied the Rule 60(b) Motion for lack of jurisdiction because it constituted an unauthorized second or successive § 2255 Motion. (D.I. 344; D.I. 345) Movant initially appealed that decision on July 27, 2015 (D.I. 350; D.I. 351), and then asked the Third Circuit to treat his appeal as an application for authorization to file a second or successive § 2255 motion. (D.L 353) On February 4, 2016, the Third Circuit agreed to treat the appeal as an application for authorization to file a second or successive § 2255 motion, terminated the appeal, and denied Movant's request for authorization to file a second or successive § 2255 motion. (D.I. 353) On March 10, 2017, Movant filed the instant Rule 33 Motion for New Trial. (D.L 354)

         III. LEGAL STANDARDS

         Rule 33 of the Federal Rules of Criminal Procedure provides that a "court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). A "motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(1). Five requirements must be met before a court may grant a new trial on the basis of newly discovered evidence:

(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) the 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. Quiles, 618 F.3d 383, 388-89 (3d Cir. 2010). Failure to satisfy any one of those elements is fatal to a motion for a new trial. See United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006).

         As a general rule, a new trial will not be granted under Rule 33 when the new evidence is merely cumulative or impeaching. See United States v. Mensah, 434 F.App'x 123, 126 (3d Cir. 2011). To determine if newly discovered evidence warrants a new trial or is "merely" impeaching evidence, a court must examine (1) if there is a strong exculpatory connection between the newly discovered evidence and the evidence presented at trial or (2) if the newly discovered evidence, though not exculpatory, creates severe doubt on the truthfulness of the critical inculpatory evidence that was introduced at trial. See Ouiles, 618 F.3d at 393.

         IV. ...


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