UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
                                                                      No. 97-4057
YVONNE L. PURNELL, a/k/a Yvonne
Anderson,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-96-252)

Argued: April 9, 1998

Decided: June 9, 1998

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,
and CHAMBERS, United States District Judge for the
Southern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Vincent L. Gambale, Assistant United States Attorney,
Alexandria, Virginia, for Appellant. Robert Stanley Powell, Arling-
ton, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, LeDora Knight, Assistant United States Attorney,
Alexandria, Virginia, for Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In this case, the government appeals the district court's order of a
new trial for Yvonne L. Purnell pursuant to Fed. R. Crim. P. 33. The
court concluded that newly discovered evidence, not available to Pur-
nell during her original trial, warranted retrial. Finding no abuse of
discretion in this decision, we affirm.

I.

The "Section 8" rent subsidies program, administered by the
Department of Housing and Urban Development ("HUD"), provides
financial assistance to help low-income families afford housing. See
42 U.S.C. § 1437a. Purnell applied for and began to receive such
assistance in 1987. In annual recertification applications between
1988 and 1995, Purnell was required to report changes in her income
and the size of her household. Purnell reported on her applications the
births of two children but not her marriage in 1989 to Robert G.
Anderson, Jr. Apparently, the marriage was a tumultuous one. Ander-
son stayed in Purnell's home only for brief periods of time and pro-
vided no financial support other than occasional assistance for day
care. In 1995, local housing officials discovered Anderson's and Pur-
nell's marriage certificate and confronted her with it. Purnell later
withdrew from the Section 8 program.

The government then sought criminal charges against Purnell for
not disclosing her marriage or including Anderson's income in her
recertification applications between 1991 and 1995. A grand jury
indicted Purnell on one count of knowingly making a materially false
statement in a matter within HUD's jurisdiction in violation of 18
U.S.C. § 1001; five counts of knowingly making a false statement for
the purpose of influencing the action of HUD in violation of 18
U.S.C. § 1010; and five counts of knowingly presenting a false claim
to HUD in violation of 18 U.S.C. § 287.

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From the time the indictment was returned, Purnell's attorney,
Robert Stanley Powell, made several unsuccessful attempts to locate
Anderson before the trial. He tried to telephone Anderson, but Ander-
son would not return the calls. He paged Anderson, who returned the
page but hung up after discovering he was calling a law firm. Finally,
he obtained a subpoena for Anderson, issued two weeks before the
trial, but Anderson could not be located and served.

Trial commenced on August 28, 1996. The government presented
the following evidence: Purnell had not disclosed her marriage to the
housing authorities; she had listed Anderson's address to be the same
as hers on her children's school records; Anderson briefly had
received mail at Purnell's address; Purnell and Anderson had filed
joint income tax returns between 1993 and 1995; and Anderson some-
times picked up Purnell's children from a neighbor who provided day
care. At the close of the government's case, the trial judge granted
Purnell's Rule 29 motion and dismissed three counts of the indictment
relating to her 1991 recertification application. Purnell testified on her
own behalf. She stated that Anderson stayed at her home for short
periods of time but did not reside there; she also explained that she
received no financial support from Anderson except occasional assis-
tance for day care. Three of Purnell's friends testified that they were
at her residence during various times and saw no indication that
Anderson lived there. The jury found Purnell guilty of four counts of
making a false statement to HUD and four counts of presenting a false
claim to HUD.

After the trial but before sentencing, Powell finally spoke with
Anderson. Anderson told Powell that he did not reside with Purnell
during the times alleged by the government but only stayed at her
home for brief periods of time. Instead, he resided with his mother or
his sister during this entire period. Anderson also admitted that he
provided Purnell no financial support other than some money for day
care. Powell promptly filed a motion for a new trial based on this evi-
dence. The same judge who had presided over Purnell's trial held a
hearing on this motion; Anderson attended this hearing. At the close
of the hearing, the judge reviewed this circuit's test for granting a new
trial on the basis of newly discovered evidence and found that Ander-
son's proffered testimony satisfied it. He found that this testimony
was "newly discovered since the trial;" that Powell's efforts to locate

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Anderson constituted "diligence;" that "Mr. Anderson is one of the
important people in this case to testify as to whether or not he did in
fact live in the Section 8 housing;" that the testimony was "material;"
and that "it may well produce an acquittal if the jury buys it." He then
granted a new trial to Purnell. After the judge also denied the govern-
ment's motion for reconsideration, the government filed this appeal.

II.

On a defendant's motion, a court may grant a new trial on the basis
of newly discovered evidence. Fed. R. Crim. P. 33. Such grants
should be rare. This circuit has applied a five-part test articulated in
United States v. Bales to determine whether newly discovered evi-
dence warrants a new trial:

          (a) the evidence must be, in fact, newly discovered, i.e., dis-
          covered since the trial; (b) facts must be alleged from which
          the court may infer diligence on the part of the movant; (c)
          the evidence relied on must not be merely cumulative or
          impeaching; (d) it must be material to the issues involved;
          and (e) it must be such, and of such nature, as that, on a new
          trial, the newly discovered evidence would probably pro-
          duce an acquittal.

813 F.2d 1289, 1295 (4th Cir. 1987) (quoting Mills v. United States,
281 F.2d 736, 738 (4th Cir. 1960) (citation omitted)); accord United
States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995); United States v.
Custis, 988 F.2d 1355, 1359 (4th Cir. 1993), aff'd, 511 U.S. 485
(1994).

We review district court decisions about whether to grant a new
trial for abuse of discretion. See Singh, 54 F.3d at 1190; United States
v. Christy, 3 F.3d 765, 768 (4th Cir. 1993). Under this deferential
standard, a reviewing court "may not substitute its judgment for that
of the district court . . . [but] must determine whether the court's exer-
cise of discretion, considering the law and the facts, was arbitrary or
capricious." United States v. Mason, 52 F.3d 1286, 1289 (4th Cir.
1995) (citing James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993)). An
appeals court may uphold the exercise of a trial court's discretion
even when it might have ruled differently on the matter in the first

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instance. District courts generally are in the best position to apply the
Bales requirements and ascertain whether a new trial is warranted.
They often are aware of the defense's efforts to obtain evidence and
can determine whether those efforts constitute diligence. District
courts also are most familiar with the evidence presented at trial and
can best evaluate the exculpatory value of newly discovered evidence.

In this case, the government does not question the level of defer-
ence we accord to the district court's decision. Instead, it offers three
arguments for why the district court abused its discretion in ordering
a new trial.

First, the government argues that Anderson's proffered testimony
was not newly discovered after trial but merely became newly avail-
able. It cites several decisions to support the proposition that newly
available testimony does not provide a basis for ordering a new trial.
E.g., United States v. Theodosopoulos , 48 F.3d 1438, 1448 (7th Cir.
1995); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir.
1994). This line of cases is inapposite for at least two reasons. Ini-
tially, in several of these cases, the defense knew the content of the
proposed testimony prior to trial. By contrast, in Purnell's case, Pow-
ell was able to speak with Anderson only after trial and, until that
time, did not know how Anderson would testify. See United States v.
Garland, 991 F.2d 328, 335 (6th Cir. 1993). Furthermore, in several
of the cases on which the government relies, the unavailable witness
was a nontestifying codefendant. Under those circumstances, such
testimony is untrustworthy because a convicted codefendant might be
trying "to assume the entire guilt." United States v. Montilla-Rivera,
115 F.3d 1060, 1066 (1st Cir. 1997) (citing United States v.
Alejandro, 527 F.2d 423, 428 (5th Cir. 1976)). This case does not
raise that concern, as Anderson is not a codefendant. Thus, we agree
with the district court that Anderson's proffered testimony qualifies
as newly discovered.

Second, the government argues that Powell was not diligent in
attempting to secure Anderson's appearance at trial. It identifies a
number of additional steps that Powell might have taken such as
requesting a continuance or offering the same evidence through alter-
native means. But Bales does not require the defense to prove that it
did everything possible to secure the evidence before trial. It only

                     5
requires the defense to allege facts "from which the court may infer
diligence." 813 F.2d at 1295 (internal quotations and citations omit-
ted). After Purnell's indictment, Powell attempted to contact Ander-
son through a variety of means. He telephoned Anderson; he paged
Anderson; he even obtained a subpoena for Anderson after his other
efforts proved fruitless. The district judge expressly found these
efforts constituted diligence, and we see no basis for overturning that
finding.

Finally, the government argues that Anderson's proffered testi-
mony would not be likely to result in an acquittal at a new trial. It
contends that Anderson's testimony would not be exculpatory and
that, even with this testimony, sufficient evidence in the original trial
supported the verdict. However, the district judge, who presided over
Purnell's trial and was intimately familiar with the evidence presented
there, found that Anderson's testimony could well produce an acquit-
tal. Our review of that finding "is anchored in an acknowledgment
that the judge who tried the case is best equipped to examine the issue
of whether the new evidence would likely result in an acquittal."
United States v. Henry, 136 F.3d 12, 23 (1st Cir. 1998). Robert
Anderson was at the center of this case. Much of the first trial focused
on his residence and income, and both sides spent substantial time
introducing evidence on these matters such as tax returns, school
records, and testimony from Purnell's friends and one of her neigh-
bors. Anderson's proffered testimony about his residence and extent
of financial support appears largely to corroborate Purnell's own
account at trial. His testimony thus "can supply evidence of vital
importance and the only similar evidence at the trial was that of" Pur-
nell herself. Amos v. United States, 218 F.2d 44, 44 (D.C. Cir. 1954).
Therefore, a jury hearing this testimony might well conclude that Pur-
nell had neither knowingly made false statements with the purpose of
influencing the action of HUD nor knowingly submitted false claims
to HUD. See Garland, 991 F.2d at 336; United States v. Liebo, 923
F.2d 1308, 1314 (8th Cir. 1991).

III.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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