UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Crim. Action No. 05-100-2 (RWR) ) DAVID WILSON, ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION AND ORDER
After being found guilty of two counts of aiding and
abetting first-degree murder, in addition to other charges, the
defendant moved for a new trial on the basis of newly discovered
evidence. Because the evidence is not of the type that would
probably produce an acquittal in a new trial, the defendant’s
motion will be denied.
BACKGROUND
The background of this case is discussed fully in United
States v. Wilson, 720 F. Supp. 2d 51 (D.D.C. 2010). Briefly, the
defendant was a member of a group who sold crack cocaine in the
Congress Park neighborhood of Southeast Washington, D.C. Id. at
55. One of Wilson’s childhood friends was shot and killed, and
members of the Congress Park group believed that Ronnie Middleton
was the shooter. Wilson committed himself to avenging the death
of his friend. Witnesses testified that in 1998, Wilson and two
other members of the Congress Park group, Antonio Roberson and
Antoine Draine, spotted Middleton and his girlfriend, Sabrina -2-
Bradley, sitting in a white Ford Bronco. Wilson drove to
Roberson’s house to obtain a gun, and drove back with Roberson
and Draine to where Middleton had parked his car. Roberson
opened fire on the car, and Middleton and Bradley both died as a
result of the gunshot wounds they sustained. Id. at 56.
On November 28, 2007, the defendant was found guilty of
aiding and abetting the first-degree murders while armed of
Sabrina Bradley and Ronnie Middleton (Counts 31 and 33), in
addition to counts of distribution of crack cocaine and unlawful
use of a communication facility. Id. at 55. The defendant filed
a motion for a new trial alleging that the government failed to
disclose exculpatory Brady material and that the government
sponsored false testimony. That motion was denied because the
testimony was not demonstrably false and neither that nor the
undisclosed information could reasonably have affected the
outcome or the fairness of the trial. Id.
On November 27, 2010, the defendant filed an additional
motion under Federal Rule of Criminal Procedure 33 for a new
trial, arguing that newly discovered evidence shows that another
individual –– not the defendant –– aided and abetted the murders
of Bradley and Middleton.1 (Def.’s Nov. 27, 2010 Mot. for a New
1 The government argues that the motion is untimely. “Any 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). The defendant timely filed his motion on November 27, 2010, which is within three years after the jury -3-
Trial (“Def.’s Mot.”) at 2-3.) The newly discovered evidence is
an affidavit of Dorian Von Holt, who swore to it while
incarcerated at the District of Columbia jail in July 2009.
(Id., Ex. 11 ¶ 2.) Wilson was incarcerated in the same jail
during that time. Holt’s affidavit claims the following. During
a summer night in 1998, he went to Congress Park to purchase
crack. Roberson brandished a gun, and induced Holt to drive
Roberson and another man to a white Ford truck. Roberson shot at
the truck, and then Holt drove Roberson and the other individual
back to Congress Park. Holt knew Wilson at the time, Holt did
not see Wilson in Congress Park that night, and Wilson was not at
the shooting nor did he ride in the car to or from the shooting.
(Id. ¶ 3.)
The government opposes the defendant’s motion, arguing that
Holt’s affidavit is not credible. (Gov’t Mem. in Opp’n to Def.’s
Mot. for a New Trial at 3.)
DISCUSSION
Under Rule 33, a court may “grant a new trial if the
interest of justice so requires.” To obtain a retrial because of
newly discovered evidence,
(1) the evidence must have been discovered since trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely
returned its verdict on November 28, 2007. -4-
cumulative or impeaching; (4) it must be material to the issues involved; and (5) [it must be] of such nature that in a new trial it would probably produce an acquittal.
Thompson v. United States, 188 F.2d 652, 653 (D.C. Cir. 1951);
see also United States v. Johnson, 519 F.3d 478, 487 (D.C. Cir.
2008) (citing Thompson). The showing required to obtain a new
trial on the basis of newly discovered evidence poses “a high bar
to cross[.]” United States v. Celis, 608 F.3d 818, 848 (D.C.
Cir. 2010). If a defendant cannot demonstrate that a new trial
would probably produce an acquittal, his motion may be denied on
that ground alone. See, e.g., United States v. Sensi, 879 F.2d
888, 901 (D.C. Cir. 1989) (assuming defendant met first four
factors and affirming denial of motion for new trial for failure
to meet the fifth factor). No evidentiary hearing is required;
such a motion may be decided on the basis of affidavits. United
States v. Kearney, 682 F.2d 214, 219 (D.C. Cir. 1982).
Other circuits have held that newly discovered evidence
consisting solely of an affidavit of a prisoner who spent time
incarcerated with a defendant in which the prisoner claimed
responsibility for the crime for which the defendant had been
convicted, or attributed it to someone other than the defendant,
did not satisfy the standard that it would probably produce an
acquittal. For instance, in Jones v. United States, 279 F.2d
433, 434 (4th Cir. 1960), a third party confessed to committing
the robbery for which two defendants had been convicted. Both -5-
defendants were incarcerated for more than two months with the
confessor, and they spoke during exercise periods. The confessor
spent another two months incarcerated with one of the two
defendants before he prepared a written statement in which he
took responsibility for the robbery. The court affirmed the
trial court’s denial of a motion for a new trial on the ground
that the confession was “improbable and unworthy of belief[.]”
Id. at 436. In Evans v. United States, 122 F.2d 461, 464 (10th
Cir. 1941), the appellant had been convicted of the first-degree
murder of a fellow prisoner. A third fellow prisoner swore an
affidavit stating that the victim’s injuries were self-inflicted.
Id. at 468. The Tenth Circuit refused to remand for a new trial
on the basis of newly discovered evidence, concluding that the
affidavit was “of very doubtful credibility” because the affiant
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Crim. Action No. 05-100-2 (RWR) ) DAVID WILSON, ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION AND ORDER
After being found guilty of two counts of aiding and
abetting first-degree murder, in addition to other charges, the
defendant moved for a new trial on the basis of newly discovered
evidence. Because the evidence is not of the type that would
probably produce an acquittal in a new trial, the defendant’s
motion will be denied.
BACKGROUND
The background of this case is discussed fully in United
States v. Wilson, 720 F. Supp. 2d 51 (D.D.C. 2010). Briefly, the
defendant was a member of a group who sold crack cocaine in the
Congress Park neighborhood of Southeast Washington, D.C. Id. at
55. One of Wilson’s childhood friends was shot and killed, and
members of the Congress Park group believed that Ronnie Middleton
was the shooter. Wilson committed himself to avenging the death
of his friend. Witnesses testified that in 1998, Wilson and two
other members of the Congress Park group, Antonio Roberson and
Antoine Draine, spotted Middleton and his girlfriend, Sabrina -2-
Bradley, sitting in a white Ford Bronco. Wilson drove to
Roberson’s house to obtain a gun, and drove back with Roberson
and Draine to where Middleton had parked his car. Roberson
opened fire on the car, and Middleton and Bradley both died as a
result of the gunshot wounds they sustained. Id. at 56.
On November 28, 2007, the defendant was found guilty of
aiding and abetting the first-degree murders while armed of
Sabrina Bradley and Ronnie Middleton (Counts 31 and 33), in
addition to counts of distribution of crack cocaine and unlawful
use of a communication facility. Id. at 55. The defendant filed
a motion for a new trial alleging that the government failed to
disclose exculpatory Brady material and that the government
sponsored false testimony. That motion was denied because the
testimony was not demonstrably false and neither that nor the
undisclosed information could reasonably have affected the
outcome or the fairness of the trial. Id.
On November 27, 2010, the defendant filed an additional
motion under Federal Rule of Criminal Procedure 33 for a new
trial, arguing that newly discovered evidence shows that another
individual –– not the defendant –– aided and abetted the murders
of Bradley and Middleton.1 (Def.’s Nov. 27, 2010 Mot. for a New
1 The government argues that the motion is untimely. “Any 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). The defendant timely filed his motion on November 27, 2010, which is within three years after the jury -3-
Trial (“Def.’s Mot.”) at 2-3.) The newly discovered evidence is
an affidavit of Dorian Von Holt, who swore to it while
incarcerated at the District of Columbia jail in July 2009.
(Id., Ex. 11 ¶ 2.) Wilson was incarcerated in the same jail
during that time. Holt’s affidavit claims the following. During
a summer night in 1998, he went to Congress Park to purchase
crack. Roberson brandished a gun, and induced Holt to drive
Roberson and another man to a white Ford truck. Roberson shot at
the truck, and then Holt drove Roberson and the other individual
back to Congress Park. Holt knew Wilson at the time, Holt did
not see Wilson in Congress Park that night, and Wilson was not at
the shooting nor did he ride in the car to or from the shooting.
(Id. ¶ 3.)
The government opposes the defendant’s motion, arguing that
Holt’s affidavit is not credible. (Gov’t Mem. in Opp’n to Def.’s
Mot. for a New Trial at 3.)
DISCUSSION
Under Rule 33, a court may “grant a new trial if the
interest of justice so requires.” To obtain a retrial because of
newly discovered evidence,
(1) the evidence must have been discovered since trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely
returned its verdict on November 28, 2007. -4-
cumulative or impeaching; (4) it must be material to the issues involved; and (5) [it must be] of such nature that in a new trial it would probably produce an acquittal.
Thompson v. United States, 188 F.2d 652, 653 (D.C. Cir. 1951);
see also United States v. Johnson, 519 F.3d 478, 487 (D.C. Cir.
2008) (citing Thompson). The showing required to obtain a new
trial on the basis of newly discovered evidence poses “a high bar
to cross[.]” United States v. Celis, 608 F.3d 818, 848 (D.C.
Cir. 2010). If a defendant cannot demonstrate that a new trial
would probably produce an acquittal, his motion may be denied on
that ground alone. See, e.g., United States v. Sensi, 879 F.2d
888, 901 (D.C. Cir. 1989) (assuming defendant met first four
factors and affirming denial of motion for new trial for failure
to meet the fifth factor). No evidentiary hearing is required;
such a motion may be decided on the basis of affidavits. United
States v. Kearney, 682 F.2d 214, 219 (D.C. Cir. 1982).
Other circuits have held that newly discovered evidence
consisting solely of an affidavit of a prisoner who spent time
incarcerated with a defendant in which the prisoner claimed
responsibility for the crime for which the defendant had been
convicted, or attributed it to someone other than the defendant,
did not satisfy the standard that it would probably produce an
acquittal. For instance, in Jones v. United States, 279 F.2d
433, 434 (4th Cir. 1960), a third party confessed to committing
the robbery for which two defendants had been convicted. Both -5-
defendants were incarcerated for more than two months with the
confessor, and they spoke during exercise periods. The confessor
spent another two months incarcerated with one of the two
defendants before he prepared a written statement in which he
took responsibility for the robbery. The court affirmed the
trial court’s denial of a motion for a new trial on the ground
that the confession was “improbable and unworthy of belief[.]”
Id. at 436. In Evans v. United States, 122 F.2d 461, 464 (10th
Cir. 1941), the appellant had been convicted of the first-degree
murder of a fellow prisoner. A third fellow prisoner swore an
affidavit stating that the victim’s injuries were self-inflicted.
Id. at 468. The Tenth Circuit refused to remand for a new trial
on the basis of newly discovered evidence, concluding that the
affidavit was “of very doubtful credibility” because the affiant
“was a fellow prisoner with appellant . . . and did not disclose
his information” until nearly two years after the alleged murder.
Id. at 469. The court further reasoned that the affidavit
appeared to be “a last effort scheme . . . in order that
appellant may escape punishment for his crime, and is certainly
not of that character of testimony which, if placed in evidence
on a new trial, would probably produce an acquittal.” Id.
Here, too, Holt’s account is of questionable reliability.
As in Jones and Evans, the new witness and the defendant were
incarcerated in the same facility at the same time. -6-
Additionally, Holt communicated his version of the events of the
night at issue to the defendant’s lawyer nearly eleven years
later, and more than a year and a half after the jury returned
its verdict. That delay further reduces the affidavit’s
credibility since the timing suggests, like in Evans, a last
ditch effort for the defendant to escape punishment.
Even if Holt were to testify consistently with his affidavit
at a new trial, his testimony is not such that it would probably
produce an acquittal in light of the force of the evidence of
Wilson’s involvement in the murders that the government presented
at trial. Bobby Capies and Kairi Kelliebrew testified that the
defendant admitted to driving Roberson and Antoine Draine to the
site where Middleton had parked his Ford Bronco. Wilson, 720 F.
Supp. 2d at 62. Renne Cottingham, to whom Wilson was like a son
and whom Wilson would sometimes call “Mom,” testified that Wilson
admitted to her that he had a role in Bradley’s death. Id. at
62-63. Her testimony “was particularly compelling given her
relationship with Wilson and the fact that she . . . was not
testifying under any deal she had cut with the government.” Id.
at 65 n.6.
The defendant argues that the witnesses based their
testimony on alleged admissions by the defendant, and that all
three witnesses “were extensively impeached.” (Def.’s Mot. at
3.) However, the jury was entitled to credit testimony that -7-
recounted the defendant’s admissions. See Fed. R. Evid.
801(d)(2)(A). Additionally, although defense counsel did attempt
to impeach the witnesses who testified about Wilson’s admissions
of his involvement in the murders, the witnesses’ testimony
ultimately was “corroborated and credible[.]” Wilson, 720 F.
Supp. 2d at 65. Even considering any weaknesses in the
government’s case, a jury would likely be at pain to credit
Holt’s recitation of the events of that night in light of the
absence of corroboration in Wilson’s motion of Holt’s presence on
the murder scene, viewed against the consistent details provided
independently by Capies, Kelliebrew, and Cottingham corroborating
Wilson’s culpable conduct. The newly discovered evidence,
therefore, would be unlikely to produce an acquittal in a new
trial.
CONCLUSION AND ORDER
Holt’s affidavit is not of such a nature that it would
probably produce an acquittal in a new trial. Accordingly, it is
hereby
ORDERED that the defendant’s motion [1410] for a new trial
be, and hereby is, DENIED.
SIGNED this 23rd day of February, 2011.
/s/ RICHARD W. ROBERTS United States District Judge