District Court Should Have Allowed Defendant to Seek Discovery on Rule 33 Claim
U.S. v. Velarde, --- F.3d ----, 2007 WL 1252482 (10th Cir. May 1, 2007)
District court erred in failing to allow Defendant to pursue discovery on his Rule 33 claim of newly discovered evidence, when it determined that the evidence was not admissible and not material. Defendant had been convicted of aggravated sexual abuse of his girlfriend’s child. Shortly after his conviction (after a re-trial), in which the child testified against Defendant, he learned that the child had accused a schoolteacher and vice principal just before the retrial, of improper touching (Defendant’s related Brady claim arose from school officials claiming they had informed the FBI of this which the agent denied). Defendant’s defense had been that the child made a false accusation to get her way, and that appeared to be her MO in accusing her teacher.
Defendant’s evidence in support of his R. 33 motion fell short because the district court cancelled the evidentiary hearing and Defendant was unable to subpoena–compel–the reluctant school witnesses to a hearing, and was otherwise unable to compel then to give affidavits. D’s showing was through the affidavit of his investigator.
Analogizing to habeas cases, the 10th construed Defendant’s request for issuance of subpoenas as a request for discovery (and warns that in future such situations, the Defendant MUST request discovery or the issue will be waived). Discovery is warranted because there is a firm basis for believing the evidence Defendant sought exists.
The decision is worth careful reading where the 10th weighs in on the admissibility of the evidence. It acknowledges that there probably are barriers to allowing the extrinsic evidence in unless the child denied accusing the teachers on direct exam, assuming a new trial. It is unlikely the government would ask her that question. So, Defendant could only inquire of it on cross, but not introduce the extrinsic evidence. But interestingly, the 10th skirts the “merely impeaching” aspect of the newly discovered evidence rule, and says that discovery, if Defendant had been allowed to engaged in it, might have issued more information he could use on cross examination to attack the child’s credibility which, in this case was key, and the only thing that Defendant’s conviction rested upon.
District court erred in failing to allow Defendant to pursue discovery on his Rule 33 claim of newly discovered evidence, when it determined that the evidence was not admissible and not material. Defendant had been convicted of aggravated sexual abuse of his girlfriend’s child. Shortly after his conviction (after a re-trial), in which the child testified against Defendant, he learned that the child had accused a schoolteacher and vice principal just before the retrial, of improper touching (Defendant’s related Brady claim arose from school officials claiming they had informed the FBI of this which the agent denied). Defendant’s defense had been that the child made a false accusation to get her way, and that appeared to be her MO in accusing her teacher.
Defendant’s evidence in support of his R. 33 motion fell short because the district court cancelled the evidentiary hearing and Defendant was unable to subpoena–compel–the reluctant school witnesses to a hearing, and was otherwise unable to compel then to give affidavits. D’s showing was through the affidavit of his investigator.
Analogizing to habeas cases, the 10th construed Defendant’s request for issuance of subpoenas as a request for discovery (and warns that in future such situations, the Defendant MUST request discovery or the issue will be waived). Discovery is warranted because there is a firm basis for believing the evidence Defendant sought exists.
The decision is worth careful reading where the 10th weighs in on the admissibility of the evidence. It acknowledges that there probably are barriers to allowing the extrinsic evidence in unless the child denied accusing the teachers on direct exam, assuming a new trial. It is unlikely the government would ask her that question. So, Defendant could only inquire of it on cross, but not introduce the extrinsic evidence. But interestingly, the 10th skirts the “merely impeaching” aspect of the newly discovered evidence rule, and says that discovery, if Defendant had been allowed to engaged in it, might have issued more information he could use on cross examination to attack the child’s credibility which, in this case was key, and the only thing that Defendant’s conviction rested upon.
posted by Anonymous at 9:21 AM
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