33 SKIDOO

United States v. Owen, Docket No. 06-1078-cr (2d Cir. September 4, 2006 [sic]) (Parker, Raggi, Wesley, CJJ)

In case you were wondering, Rule 33 applies only to “newly discovered” evidence, and not “newly available” evidence.

Facts: Lance Owen and two co-defendants loaded five years worth of marijuana into a truck from a warehouse in the Bronx. Owen was pulled over while driving the truck, and explained, not very convincingly, that he was a mover, in the process of moving personal items to Florida for a client. When DEA agents found the marijuana in the truck, they arrested him.

Owen and the two others, Samuels and Baroody, went to trial. No defendant testified, but each, through counsel, pointed his finger at the others. All were convicted, and Judge Patterson sentenced Owen to five years’ imprisonment.

At Samuels’ sentencing, before sentence was imposed, Samuels exculpated Owen. He said that he had “hired him for a job” but that Owen “didn’t know anything about drugs.” Samuels also said that he told the government that Owen was innocent during a proffer. Owen then, pro se, moved for a new trial under Fed.R.Crim.P. 33, characterizing Samuels’ statements as newly discovered evidence, and Judge Patterson granted the motion.

The Court’s Ruling: On the government’s appeal, the Circuit reversed. It characterized the evidence as “newly available,” and not “newly discovered,” rejecting Owen’s claim that he was unaware of Samuels’ ability to exculpate him until Samuels did so. If in fact Samuels never told Owen that there was marijuana in the boxes he was transporting, Owen “would have known prior to trial” that Samuels could testify to that fact. The court then declined to extend Rule 33 to newly available evidence, rejecting the First Circuit’s minority holding on this point.

Comment: Despite the bad outcome for Owen, this case nevertheless has a few helpful nuggets. First, it seems to endorse severance as the proper relief where “a codefendant’s assertion of privilege deprives the defendant of exculpatory testimony” at trial. Moreover, ths case does not completely shut the door to this type of Rule 33 motion, noting that there “may be” cases where a codefendant’s post trial testimony “does indeed constitute newly discovered evidence.”