737 F.3d 683
10th Cir.2013Background
- Defendant Vernon Hill appeals the denial of his motion for a new trial after conviction for bank robbery in Oklahoma.
- The government previously prosecuted Hill and his brother Stanley as the two robbers; Stanley was later convicted separately.
- Months after Hill’s conviction, the government charged a conspiracy including DeJuan, using new evidence and grand-jury testimony by FBI agent Jones.
- Jones testified the theory had changed: Stanley was the getaway driver, and Hill and DeJuan were the robbers.
- Hill moved for a new trial based on this change as newly discovered evidence; the district court denied the motion.
- The court of appeals agrees the evidence was not admissible or new as described by Hill.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Jones’s grand-jury testimony newly discovered evidence admissible at a new trial? | Hill argues Jones’s testimony reveals a new, exculpatory theory. | Hill contends the testimony is new admissible evidence that could produce acquittal. | No; Jones’s testimony is not admissible evidence for a new-trial claim. |
| Does the government’s change in theory constitute new evidence warranting relief? | Hill relies on a new theory to undermine the earlier two-robbers theory. | Hill contends the theory shift is new evidence favoring relief. | Not sufficient; theory change alone does not amount to admissible new evidence. |
| Would any alleged new evidence, including cell-phone data, have produced acquittal if admitted? | Hill argues the new theory would lead to acquittal. | Hill cannot rely on inadmissible or non-admissible data to obtain a new trial. | Even if admissible, the new evidence would not likely produce acquittal. |
Key Cases Cited
- United States v. Orr, 692 F.3d 1079 (10th Cir. 2012) (newly discovered-evidence standards; cautionary approach; abuse of discretion standard)
- United States v. Parker, 903 F.2d 91 (2d Cir. 1990) (new evidence must be admissible at retrial)
- United States v. MacDonald, 779 F.2d 962 (4th Cir. 1985) (new evidence must be admissible at new trial)
- United States v. Kamel, 965 F.2d 484 (7th Cir. 1992) (admissibility of new testimony as prerequisite to new trial)
- United States v. Tolliver, 730 F.3d 1216 (10th Cir. 2013) (inadmissible hearsay cannot require new trial; impeachment limits)
- United States v. Redcorn, 528 F.3d 727 (10th Cir. 2008) (proposed new evidence was inadmissible or unhelpful)
- United States v. Rogers, 556 F.3d 1130 (10th Cir. 2009) (closing arguments are not evidence; new trial based on trial evidence)
- Bradshaw v. Stumpf, 545 U.S. 175 (U.S. 2005) (Due-process concerns about shifting theories; not dispositive here)