United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion for New Trial (Doc. 244).
The Government filed a Memorandum in Opposition (Doc. 245),
to which Defendant filed a Response (Doc. 246). For the
reasons stated herein, Defendant's Motion (Doc. 244) is
16, 2019, Defendant was convicted by a unanimous jury verdict
of five counts of Wire Fraud and one count of Conspiracy to
Commit Wire Fraud. (Doc. 192). Following two hearings
concerning Defendant's post-trial representation,
Defendant filed a Motion to Proceed Pro Se (Doc. 223). The
Court granted Defendant's request to proceed pro
se and appointed stand-by counsel. See (Doc.
231). Defendant is currently scheduled for sentencing on
October 24, 2019. Now, Defendant moves for a new trial under
Federal Rule of Criminal Procedure 33.
argues that his conviction is based on a single piece of
evidence- the testimony of Co-Defendant Dorothy Delima-which
Defendant claims would be discredited by text messages he
sent Ms. Delima. (Doc. 244, at 2). Ms. Delima testified at
trial that Defendant instructed her to lie to Kandyce Cowart
from Blue Cross Blue Shield of Louisiana in order to receive
payment for policies for persons who did not know they were
being signed up. (Doc. 246 at 2). Attached to Defendant's
Motion are correspondences with his former counsel and
screenshots of text messages, including those Defendant
describes as newly discovered evidence warranting a new
trial. Those messages show a conversation dated March
2, 2015 with "Dorothy," presumably Ms.
Delima. Defendant tells "Dorothy" that he
"can't talk about it on the phone," but that
"that's the answer...just be honest," and that
he "want[s] to speak to them no matter what." (Doc.
244-1 at p. 3-4). Defendant instructs "Dorothy" on
how to respond to questions about signing up, and further
instructs her to "[f]or the most part just tell them
that you are the agent of record" and to relax and
breathe. (Doc. 244-1 at p. 2-3).
April 29, 2019 email to his then counsel, Defendant provided
a list of items he believed could "potentially change
the outcome of the case if needed," including the text
conversations between himself and Dorothy Delima. (Doc.
244-5, at 1). In this email, Defendant noted that he would
like to make it known that his requests to make these items
available for trial were neglected by counsel and expressed
some frustration with his counsel's decisions not to
investigate. Id. Defendant's Motion even states
he requested the messages be submitted as evidence at trial.
Id. Screenshots of the messages described above were
sent by Defendant to his counsel on May 13, 2019, during the
trial. See (Doc. 244-1).
provides that a court may vacate judgment and grant a new
trial if the interest of justice so requires. FED. R. CRIM.
P. 33(a). Discovery of new evidence post-trial may serve as
grounds for granting a new trial. Fifth Circuit law provides
five factors that a defendant must show to justify a new
trial on the basis of newly discovered evidence: (1) that the
evidence is newly discovered and was unknown to the defendant
at the time of trial; (2) failure to detect the evidence was
not due to a lack of diligence by the defendant; (3) that the
evidence is not merely cumulative or impeaching; (4) that the
evidence is material; and (5) that the evidence if introduced
at a new trial would probably produce an acquittal.
United States v. Piper, 912 F.3d 847, 858 (5th
Cir.), cert, denied, 139 S.Ct. 1639 (2019) (Citation
omitted). Motions for new trial based on newly discovered
evidence are "disfavored and reviewed with great
caution." United States v. Wall, 389 F.3d 457,
467 (5th Cir. 2004) (Citation omitted).
detailed above, the first element of the legal standard for
determining whether evidence is newly discovered and warrants
a new trial requires that the evidence be unknown to the
defendant at the time of trial. Piper, 912 F.3d at
858. Dodging this threshold requirement, Defendant seeks to
wedge a distinction between "evidence" and
"information alone." (Doc. 244 at p.5). However,
the Federal Rules of Evidence contain no such distinction.
Instead, the Rules focus on relevance. Evidence is relevant
if it has any tendency to make a fact more or less probable
than it would be without the evidence and is of consequence
in determining the action. FED. R. EVID. 401. Irrelevant
evidence is not admissible. FED. R. EVID. 402.
of the relevant text messages were sent in pre-trial emails
to Defendant's counsel, and presumably have been on
Defendant's personal phone since 2015. Defendant's
anticipation that Ms. Delima may misrepresent something at
trial based on her "prior instances of dishonesty"
without knowing "[t]he specific facts or alleged beliefs
that would prove not to be true" was a strategic issue
that should have been addressed before cross-examining Ms.
Delima. (Doc. 244 at p.6) Counsel generally has a wide
latitude in making tactical and strategic decisions, and
failure to present a particular line of argument is presumed
to be the result of strategic choice. Trottie v.
Stephens, 720 F.3d 231, 243 (5th Cir. 2011). Pre-trial
uncertainty as to the details of Ms. Delima's testimony
does not influence whether the messages constituted
"evidence." As such, Defendant fails to establish
that the evidence was newly discovered.
Defendant fails to establish that the text messages are
"not merely impeaching" or would "probably
produce an acquittal" if introduced in a new trial.
Evidence which could only serve to impeach testimony of a
government witness is not normally a basis for granting a
motion for new trial. United States v, Villareal,
324 F.3d 319, 326 (5th Cir. 2003). Defendant's argument
hinges on impeaching Ms. Delima's testimony-which
Defendant claims is the only evidence supporting his
conviction-with what comes down to a single text message.
Yet, Defendant neglects to address the fact that the
Government called twenty-one other witnesses during the
trial. (Docs. 171, 172 & 184).
the Court were to accept Defendant's assertion, the Court
is not persuaded that these text messages would reliably
counter Ms. Delima's testimony. Defendant claims that the
new evidence will establish that he only instructed Ms.
Delima to be honest. However, the instruction to "be
honest" is buried among other instructions directing how
Ms. Delima should respond. Defendant even stated that he
"can't talk about it on the phone" and wants to
"speak to them no matter what." (Doc. 244-1, at p.
3-4). Finally, Defendant fails to demonstrate how these text
messages would influence the jury verdict with respect to the
five counts of wire fraud he was convicted of in addition to
his conspiracy charge. The evidence that is the subject of
Defendant's Motion is not newly discovered, could only
serve to impeach, and would not probably produce an acquittal
at a new trial.