United States v. Turns

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 5, 2000
• Docket: 98-4474
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0001P (6th Cir.) File Name: 00a0001p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellant,   No. 98-4474 v.  > DOUGLAS TURNS,  Defendant-Appellee.  1

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 98-00013—John D. Holschuh, District Judge. Argued: December 7, 1999 Decided and Filed: January 5, 2000 Before: COLE and GILMAN, Circuit Judges; CARR, District Judge.*

* The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation.

1 2 United States v. Turns No. 98-4474

_________________ COUNSEL ARGUED: J. Michael Marous, OFFICE OF THE U.S. ATTORNEY, Columbus, Ohio, for Appellant. Gary W. Deeds, Columbus, Ohio, for Appellee. ON BRIEF: J. Michael Marous, OFFICE OF THE U.S. ATTORNEY, Columbus, Ohio, for Appellant. Gary W. Deeds, Columbus, Ohio, for Appellee. _________________ OPINION _________________ RONALD LEE GILMAN, Circuit Judge. This is an appeal from the district court’s order granting Douglas Turns’s motion for a new trial. Turns was convicted on one count of knowingly possessing and transferring a machine gun in violation of 18 U.S.C. §§ 922(o)(1) and 924(a)(2). Pursuant to Rule 33 of the Federal Rules of Criminal Procedure, Turns timely filed a motion for a new trial, alleging that his sister, Starlet Turns, possessed “newly discovered” evidence. In two affidavits filed within days of Turns’s conviction, Starlet Turns claimed that her former boyfriend was the owner of the machine gun and that her brother was unaware of its nature when he pawned it at her request. After reviewing both sides’ briefs and holding an evidentiary hearing, the district court granted Turns’s motion. The government filed this timely appeal. For the reasons set forth below, we REVERSE the district court’s order granting a new trial, REINSTATE Turns’s conviction, and REMAND for sentencing. I. BACKGROUND During the summer of 1995, Turns attended a gun show in Hilliard, Ohio with his sister’s boyfriend, Anthony Rogers. The government alleges that Turns knowingly purchased a fully automatic M-16 rifle at the gun show and later sold it to a pawn shop. Turns, however, claims that Rogers was the one No. 98-4474 United States v. Turns 3

who purchased the M-16, and that the next time that he saw the rifle was when his sister asked him to pawn it on Rogers’s behalf. He testified that he complied with his sister’s request and sold the M-16 under the belief that it was a semi- automatic firearm, not knowing that the internal mechanism of the M-16 had been altered (the rifle was originally the non- military version of the M-16) to convert it to a fully automatic weapon. Turns claims that he first became aware that the M- 16 was fully automatic when his sister asked him to retrieve the “automatic rifle” from the pawn shop. He was unsuccessful in doing so. The M-16 eventually ended up in the hands of the government, and Turns was charged with knowingly possessing and transferring a machine gun. Turns does not dispute that he possessed and eventually transferred the firearm described in the indictment. Instead, he argues that he was unaware at the time that the firearm was a machine gun. At trial, the central issue was whether Turns knew that the M-16 was a fully automatic weapon when he sold it to the pawn shop. Although Turns claimed that he was unaware of the M-16’s automatic capabilities, five witnesses testified for the government and directly contradicted Turns’s testimony regarding ownership of the firearm and his knowledge that it was a machine gun. Two were law enforcement officers who testified that Turns’s statements during their separate conversations with him revealed his knowledge that the rifle in question was fully automatic. The clerk at the pawn shop where Turns sold the fully automatic rifle also related that “he [Turns] told me that the gun was fully automatic . . . [and] he had test fired it.” In addition, one of Turns’s friends testified that Turns had shown him the fully automatic rifle and had explained how the weapon functioned, which Turns referred to as a “machine gun.” Finally, Rogers took the stand to say that Turns had shown him how to operate the selector switch on the rifle, which enabled the rifle to be fired in fully automatic mode. Even Turns’s own sworn affidavit, tendered in 1995, states that he recognized that the weapon in question was an M-16. This is significant because his former military 4 United States v. Turns No. 98-4474 No. 98-4474 United States v. Turns 9

training had taught him that the M-16 is fully automatic. In The Ninth Circuit dealt with these policy concerns in addition to its direct evidence, the government also Baumann v. United States, 692 F.2d 565 (9th Cir. 1982), impeached Turns by noting numerous inconsistencies where the defendant sought a new trial based upon an between Turns’s pretrial statements and his testimony at trial. uncalled witness’s “newly discovered” evidence. In denying The jury found the government’s evidence convincing and the defendant’s motion for a new trial, the court reasoned as convicted Turns on April 23, 1998. follows: Turns filed a motion for a new trial three weeks later, based Baumann’s evidence is not newly discovered because on what he characterized as newly discovered evidence. allowing criminal defendants to raise such allegations Specifically, he submitted two affidavits from his sister that after a judgment of conviction has been entered . . . tended to exonerate him, both of which were prepared within would permit them to “sandbag” the fairness of the trial a few days after his conviction. The district court held a by withholding or failing to seek material, probative hearing on the motion on September 15, 1998. At that evidence and later attempting to collaterally attack their hearing, Turns’s sister testified that the M-16 belonged to convictions under Fed. R. Crim. P. 33 . . . . Rogers, and that she had asked Turns to pawn it on Rogers’s behalf. Turns’s sister also stated that after she had given the Id. at 580. For the same reasons, allowing Turns a new trial firearm to Turns, Rogers told her that the M-16 was a on the basis of his sister’s affidavits would constitute a machine gun and that he wanted it back. “sandbagging” of the judicial process. Starlet Turns further said that at the time of her brother’s In summary, Turns failed to meet his burden of proof on the trial, she had told Turns that she would not testify truthfully first prong of Barlow as a matter of law. The district court on his behalf because she was involved in an intimate thus clearly abused its discretion when it granted Turns’s relationship with Rogers and did not want to place her motion for a new trial. We therefore reverse the district boyfriend in jeopardy. In countering the testimony of Turns’s court’s order on this basis and need not address the sister, the government argued that the contents of her government’s remaining arguments. affidavits were at best “newly available” evidence, not “newly discovered” evidence, and thus were not sufficient to warrant III. CONCLUSION a new trial. For all of the reasons set forth above, we REVERSE the The district court found that Turns was aware of the district court’s order granting a new trial, REINSTATE information contained in his sister’s affidavits at the time of Turns’s conviction, and REMAND for sentencing. his trial, but that he did not “discover” her willingness to testify truthfully until afterwards. In so ruling, the district court reasoned as follows: Prior to trial, not only did Starlet refuse to testify, she told the Defendant that she would perjure herself if she were forced to testify. While the Court recognizes that this is not a case in which the Defendant has discovered the identity of a new witness, in a realistic sense and as a practical matter, this is a case in which there is newly 8 United States v. Turns No. 98-4474 No. 98-4474 United States v. Turns 5

than it would be without the evidence.” The only fact that discovered evidence: to wit, the truthful testimony of a was of consequence at Turns’s trial was whether Turns knew key witness for the defense, evidence that was not that the M-16 was an automatic rifle on the day he pawned it. previously available to Defendant. Accordingly, the What Turns’s sister would or would not have said on the Court finds that the first requirement of Barlow has been witness stand about this key fact was certainly relevant to met. Turns’s decision on whether to call her, but is not itself “newly discovered” evidence under Rule 33. After finding that Turns had also met all of the remaining requirements set forth in United States v. Barlow, 693 F.2d In the instant case, Turns was aware at the time of trial that 954 (6th Cir. 1982), to establish a proper foundation for his sister possessed the information set forth in the two newly discovered evidence, the district court granted his affidavits she submitted in support of his motion for a new motion for a new trial. The government timely appealed. trial. Turns had even notified his attorney prior to trial about the information his sister possessed and “had implored his II. ANALYSIS sister to come forward and testify truthfully.” Because Turns and his counsel believed that she would not tell the truth, they A. Standard of review made a strategic decision not to call her. Based on the reasoning in Glover, the proposed testimony of Turns’s sister Motions for a new trial based upon newly discovered is at best “newly available” evidence, not “newly discovered” evidence are disfavored and should be granted with caution. evidence. Turns had the option of subpoenaing his sister and, See United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991). if necessary, he could have attempted to discredit any perjured When such a motion is granted, however, the decision will testimony. not be disturbed unless the district court clearly abused its discretion. See United States v. Pierce, 62 F.3d 818, 823 (6th Moreover, it is not clear that the proposed testimony was Cir. 1995). A district court clearly abuses its discretion when even “newly available,” because Turns’s sister testified at the it “applies the wrong legal standard, misapplies the correct motion hearing that she would have told the truth if she had legal standard, or relies on clearly erroneous findings of fact.” been called to the stand at trial, despite having told Turns she Schachner v. Blue Cross & Blue Shield, 77 F.3d 889, 895 (6th would not do so. The fact that Turns’s sister now claims that Cir. 1996) (internal quotation marks and citation omitted); see she wants to testify for her brother does not mitigate Turns’s Steinhoff v. Harris, 698 F.2d 270 (6th Cir. 1983) (addressing deliberate choice of omitting her testimony at trial. If the a Rule 60(b) motion in a social security case and treating the district court’s decision was allowed to stand, then other phrases “abuse of discretion” and “clear abuse of discretion” defendants would be encouraged to file motions for new trials the same for the purpose of review). based solely upon the existence of previously uncalled witnesses who, after learning of the defendant’s conviction, B. The district court clearly abused its discretion when state for the first time that they are willing to testify truthfully it granted Turns’s motion for a new trial on the defendant’s behalf. Such a precedent would also encourage defendants to hold a witness or two in reserve, When a defendant makes a motion for a new trial based knowing that if they lost at trial, they might get another upon newly discovered evidence, he must show that (1) the chance by producing sworn affidavits from their reserve evidence was discovered after the trial, (2) it could not have witnesses. been discovered earlier with due diligence, (3) it is material and not merely cumulative or impeaching, and (4) it would likely produce an acquittal if the case was retried. See 6 United States v. Turns No. 98-4474 No. 98-4474 United States v. Turns 7

Barlow, 693 F.2d at 966. In the case at bar, the main focus is proposed testimony prior to trial. Therefore, the testimony on the first prong of Barlow. cannot be deemed ‘newly discovered evidence’ within the meaning of Rule 33.”). In United States v. Glover, 21 F.3d 133 (6th Cir. 1994), this court elaborated on what it means for evidence to be newly In all of the above cases, co-defendants or other witnesses discovered after trial. The defendant in Glover was convicted threatened to plead or did plead the Fifth Amendment in order of possessing cocaine with the intent to distribute. He then to avoid testifying, and then changed their minds after the filed a motion for a new trial based upon newly discovered defendant was convicted. Although the present case has evidence. To support his motion, the defendant submitted an slightly different facts, the same logic should apply where a affidavit from a witness who claimed to have placed the witness threatens to lie if called as a witness and then, after cocaine in the defendant’s kitchen stove where it was trial, decides to testify truthfully on the defendant’s behalf. In eventually found by the police (the witness allegedly had a fact, it strikes us that a defendant has a stronger argument key to the defendant’s apartment). At the defendant’s trial, (although still unavailing) for a new trial when a witness the witness had asserted his Fifth Amendment privilege refuses to testify because of the witness’s Fifth Amendment against self-incrimination and had refused to testify. privilege than when a witness threatens to lie if called to the Following the witness’s conviction on separate drug-related stand. In the latter instance, the witness can still be charges, the witness changed his mind and decided to testify subpoenaed and forced to answer questions under penalties of on the defendant’s behalf. In affirming the district court’s perjury, whereas a witness asserting his or her Fifth denial of the defendant’s motion for a new trial, the court in Amendment privilege cannot be forced to answer any Glover held as follows: questions that may be self-incriminating. Glover is unable to establish that the evidence offered by The key to deciding whether evidence is “newly [the witness] “was discovered after the trial” and thus he discovered” or only “newly available” is to ascertain when the fails to carry his burden of proof. Glover acknowledges defendant found out about the information at issue. A that he was well aware of [the witness]’s testimony prior witness’s shifting desire to testify truthfully does not make to trial. . . . While [the witness]’s testimony may have that witness’s testimony “newly discovered” evidence. See, been newly available, it was not in fact “newly e.g., Glover, 21 F.3d at 138. Defendants and their counsel discovered evidence” within the meaning of Rule 33. frequently have to make strategic choices as to whether to call certain witnesses who have credibility problems or might not Id. at 138. For other cases reaching the same conclusion, see testify truthfully. Our system of justice relies, in large part, on Pierce, 62 F.3d at 825 (“Evidence is not newly discovered the theory that when a person takes the witness stand and when it is necessarily known by the defendant at the time of swears to tell the truth, that he or she will in fact do so. trial.”); United States v. Hawkins, 969 F.2d 169, 175 (6th Cir. 1992) (holding that if a defendant knew about the evidence at Whether or not a witness will testify truthfully if called to the time of trial, he cannot satisfy the newly discovered the stand is simply not “evidence” that can be used as a basis evidence requirement of Rule 33); Seago, 930 F.2d at 489 to invoke Rule 33 of the Federal Rules of Criminal Procedure. (holding that evidence known by the defendant at the time of “Relevant evidence” is defined by Rule 401 of the Federal trial cannot constitute “newly discovered” evidence); United Rules of Evidence as “evidence having any tendency to make States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989) the existence of any fact that is of consequence to the (“Here, both [defendants] were well aware of [the witness]’s determination of the action more probable or less probable