Case Information
*1 Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Alfonzo Traymayne Lee appeals the district court's [1] denial of his motion for a new trial. We affirm.
I
Lee was convicted by a jury of one count of conspiracy to distribute and possess
with intent to distribute fifty grams or more of cocaine base (crack) in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1), and 846, and one count of using, carrying, or
brandishing a firearm during a drug trafficking offense in violation of 18 U.S.C. §
924(c)(1)(A)(ii). Lee was sentenced to 262 months imprisonment on the conspiracy
count and a consecutive term of 84 months imprisonment on the firearm count. Lee
appealed his conviction and sentence. The case was remanded to the district court by
this Court for re-sentencing following remand by the Supreme Court. United States
v. Lee,
At his criminal trial, the government presented testimony from several cooperating witnesses receiving a reduced sentence for their testimony. These witnesses testified about Lee's numerous purchases and sales of crack. Two of these witnesses also testified regarding Lee's leadership or supervision of a man identified as "Thug." In addition, the government introduced evidence of crack seized from Lee during a traffic stop on June 15, 2004.
In his motion for a new trial, Lee alleges that, if McArthur Higgins, aka Thug, had testified on his behalf at trial, this would have resulted in his acquittal on the conspiracy charge. Specifically, Higgins would testify Lee did not deal crack. As additional support for his new trial motion, Lee offered into evidence a portion of a report regarding Chester Doyle’s proffer interview, in which Doyle asserts Isaiah Cobb, who testified against Lee at his trial, conspired with another person to incriminate Doyle.
The district court found Higgins's testimony was material, but Lee failed to demonstrate he was unaware of the evidence at the time of trial, he was diligent in attempting to discover the evidence, or the new evidence would likely result in an acquittal. The court also found Higgins was not a credible witness. Accordingly, the court denied the motion for new trial. Lee was then re-sentenced to 168 months imprisonment on the conspiracy charge and a consecutive term of 84 months imprisonment on the firearm charge. This appeal followed.
II
We review the denial of a motion for a new trial for abuse of discretion. United
States v. Rojas,
In order to prevail on his motion for a new trial based on newly discovered
evidence, Lee must demonstrate: "(1) the evidence was unknown or unavailable at the
time of trial, (2) the defendant did not lack diligence in attempting to uncover it, (3)
the newly found evidence is material, and (4) the evidence is likely to produce an
acquittal if a new trial is granted." United States v. Grover,
The district court properly held Lee had not met his burden of establishing
reasonable diligence as to the testimony of Higgins. Due to the evidence adduced at
trial connecting Lee to Higgins, Higgins was a prime target to question. But, at the
new-trial hearing, Lee's counsel admitted Lee and he had done nothing to locate
Higgins prior to trial. Such inaction does not qualify as reasonable diligence. See
United States v. Moore,
In addition, Doyle’s proffer interview would be offered merely to impeach a
government witnesses’s testimony, which is insufficient to warrant a new trial. See
United States v. Baker,
Thus, Lee has failed to demonstrate the district court abused its discretion in denying his motion for a new trial.
III
We affirm the district court.
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Notes
[1] The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.