United States v. Jordan
2015 U.S. App. LEXIS 20222
| 10th Cir. | 2015Background
- In 1999 inmate David Stone was fatally stabbed in USP Florence; Mark Jordan was indicted and convicted in 2005 of murder and related assaults based on eyewitnesses, surveillance, and recovery of a bloody shank thrown by Jordan onto a roof.
- Trial evidence showed Stone and an unknown minor DNA contributor to the shank; Jordan conceded handling the shank and running after Stone but denied being the killer, implicating fellow inmate Sean Riker.
- Post-conviction, Riker (present at the scene) gave inconsistent statements: multiple letters and a sworn declaration confessing to the stabbing, then recantations; later a DNA sample from Riker matched the minor contributor on the shank per new testing.
- Jordan moved for a new trial under Fed. R. Crim. P. 33 based on the newly discovered DNA and Riker’s confessions; the district court held an evidentiary hearing that also featured six new government witnesses (including testimony about Stone’s dying declarations).
- The district court found the new DNA merely corroborated the undisputed fact that Riker touched the shank, found Riker not credible, credited the government witnesses, and denied a new trial as a jury would likely not acquit.
- The Tenth Circuit affirmed, holding Jordan failed to satisfy Rule 33’s requirement that the new evidence probably produce an acquittal; any error in considering government proffered new evidence was harmless because Jordan’s own new evidence was insufficient.
Issues
| Issue | Jordan's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a district court may consider new government evidence at a Rule 33 hearing | Rule 33 permits consideration only of trial evidence and defendant-offered newly discovered evidence; court should not rely on new government evidence | Court may consider all evidence a jury would hear at a new trial; district court may weigh credibility | Court assumed without deciding that admission might be erroneous but found any error harmless because Jordan’s new evidence alone failed Rule 33’s standard |
| Whether new DNA linking Riker to shank warrants a new trial | New DNA shows Riker’s contribution and supports that Jordan did not stab Stone | DNA only confirms Riker touched the shank, a fact already undisputed and consistent with government theory | DNA was cumulative and did not make acquittal probable |
| Whether Riker’s confessions/recantations are sufficient newly discovered evidence | Riker’s confessions (and sworn declaration) establish alternative perpetrator and would likely produce acquittal | Riker’s statements are inconsistent, motivated, and not credible; trial evidence still strong | District court’s adverse credibility findings were not clearly erroneous; Riker’s evidence fails Rule 33 requirement |
| Whether excluding the government’s new dying-declaration evidence (Evid. R. 804(b)(2) / Confrontation Clause) was required | Jordan argues dying declarations were inadmissible and improperly relied on | Government relied on those statements to rebut defense-proffered evidence | Court declined to decide admissibility because Jordan’s new evidence failed regardless; affirmed denial of new trial |
Key Cases Cited
- United States v. Jordan, 485 F.3d 1214 (10th Cir. 2007) (affirming convictions on direct appeal)
- United States v. Jordan, 594 F.3d 1265 (10th Cir. 2010) (denial of post-conviction DNA testing under IPA affirmed)
- United States v. McCullough, 457 F.3d 1150 (10th Cir. 2006) (standards for Rule 33 newly discovered evidence)
- Anderson v. City of Bessemer, 470 U.S. 564 (1985) (deference to trial-court credibility findings)
- United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) (district court’s advantage in assessing impact of new evidence after presiding at trial)
- Dominguez Benitez v. United States, 542 U.S. 74 (2004) (prejudice standard and Rule 52 harmless-error principles)