                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                      PUBLISH
                                                                       December 10, 2013
                     UNITED STATES COURT OF APPEALS
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                    No. 12-5176

 VERNON JAMES HILL,

       Defendant - Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE NORTHERN DISTRICT OF OKLAHOMA
                     (D.C. No. 4:11-CR-00179-GKF-1)


Neil D. Van Dalsem (Robert Scott Williams, with him on the briefs), Taylor, Ryan,
Schmidt & Van Dalsem, P.C., Tulsa, Oklahoma, for Defendant – Appellant.

Leena Alam, Assistant United States Attorney (Danny C.Williams, Sr., United States
Attorney, with her on the brief), Northern District of Oklahoma, Tulsa, Oklahoma, for
Plaintiff – Appellee.


Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.


HARTZ, Circuit Judge.
       Defendant Vernon Hill appeals the denial of his motion for a new trial after his

conviction for bank robbery. The motion arose out of a change in the government’s

theory about the involvement of Defendant’s two brothers, Stanley and DeJuan, in the

robbery. In the trial at which Defendant was convicted, the government prosecuted him

and Stanley as the two masked men who robbed an Arvest Bank in Tulsa, Oklahoma, on

November 5, 2011. The jury convicted Defendant but could not agree on Stanley,

although Stanley was later retried and convicted. Several months after Defendant’s

conviction, the government, having obtained cell-phone data and other additional

evidence, charged Defendant and DeJuan with conspiring to commit various robberies,

including the robbery of the bank. In presenting the new case to the grand jury, FBI

agent Charles Jones testified that the government’s understanding of the bank robbery

had changed: Stanley had not been one of the robbers in the bank but had driven the

getaway car; the two robbers were Defendant and DeJuan.

       Having obtained Jones’s grand-jury testimony during discovery in defense of the

new conspiracy charge, Defendant moved to set aside his prior conviction and get a new

trial on the bank-robbery charge. For reasons that will be further explained below, the

prosecutor at the first trial had emphasized that there were precisely two men involved in

the robbery. Agent Jones’s later admission in grand-jury testimony that this theory was

wrong constituted, in Defendant’s view, new, exculpatory evidence that entitled him to a

new trial.


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       We disagree and affirm the denial of Defendant’s motion for a new trial. Agent

Jones’s admission that the government’s earlier two-robbers theory was wrong was not

admissible evidence. And nothing else described by Defendant as newly discovered

evidence (he explicitly declines to rely on the new cell-phone data) was newly discovered

because he knew of the evidence during his trial.

I.     BACKGROUND

       A.     The Trial

       Defendant was tried before a jury in the Northern District of Oklahoma.

Prosecution witnesses described the events as follows: The robbery began when two men

wearing black ski masks entered the bank and shouted for everyone to get on the ground.

One of the robbers carried a gun while the other hopped the counter and told bank

employees to open their cash drawers and a cash dispenser and put the contents in his

bag. When the employees filled the bag, they included bait bills whose serial numbers

had been recorded and a GPS tracking device. After collecting the cash the robbers fled

the bank on foot. The bank’s surveillance video did not capture the robbers’ faces, but

did show that they wore black pants, one wore dark shoes and a black hooded jacket with

some white on the inside, and the other wore a black long-sleeved shirt covered by a

light-colored T-shirt.

       Police officers followed the GPS tracking device to a house on East Pine Street

and established a perimeter around it. They arrived at the house within 10 to 15 minutes

of the robbery. Several officers watched the house and saw no one enter or leave the
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building. An officer stopped one vehicle that may have been leaving the area, but found

only three people who appeared to be on their way to dry laundry.

       Eventually, Stanley left the house through a back door and was arrested by

officers, to whom he gave a false name. Defendant left through the same door about 20

or 30 minutes later and was also arrested. The police then searched the house and did not

find anyone else. They discovered the bait bills, the GPS tracking device, and more than

$86,000 in a pillowcase in a drawer under the oven. In the laundry room they found a

light-colored T-shirt and a black shirt, which looked like the clothes worn by one of the

robbers in the surveillance video. In one of the bedrooms they found a gun, a black ski

mask, and a pair of black pants. In a second bedroom they found a black hooded jacket

with some white on the inside, a pair of red and black shoes, and a piece of mail on the

dresser addressed to Defendant.

       After the prosecution rested, the defense put on evidence that no fingerprints of

either brother were found at the bank and called as a witness Donnie Johnson, one of the

officers who had been watching the house. Johnson was called because of his written

report that he had seen a black Nissan leave the house’s driveway shortly after he arrived

on the scene. The report described the driver of the car as a black male with dreadlocks

who was wearing a white T-shirt. On direct examination Johnson confirmed that he had

seen a black Nissan parked in the house’s driveway when he arrived on the scene; that it

had left the house within a few minutes of his arrival; and that he had made eye contact

with the driver as the car left but did not stop or question him. During the government’s
                                             4
cross-examination, Johnson acknowledged that he had not seen anyone enter or exit the

house, and that a police perimeter had been established before his arrival. He then

testified that when he entered the courthouse for trial he had noticed the driver of the

Nissan, and he pointed him out in the courtroom. Neither party named the driver at the

time, but there is no dispute that the man pointed out was DeJuan Hill.

       The prosecutor argued in closing that because the police quickly followed the

tracking device to the house and established a perimeter, no one could have come or gone

unobserved. She told the jury, “I submit to you the testimony has been unrefuted that no

one came or went to [the house] other than these two defendants . . . . No one else. The

testimony was unrefuted.” R., Vol. II pt. 3 at 557. She downplayed the importance of

the car that Johnson had seen leaving the house:

       [Y]ou might listen for argument regarding this mysterious car that was seen
       in the area of [the house] . . . Officer Johnson testified that, one, he wasn’t
       the first person on the scene. So think about the point in time when he
       arrived. Certainly a perimeter had already been established. You heard
       testimony from officers who said that they had it on-point, they were
       watching that back door. Didn’t see anyone come or go until those two
       came out.

Id. at 535–36. She asked the jury to conclude that the two men who exited the house—

Defendant and his brother Stanley—must have been the same two men who robbed the

bank. She also reminded the jury about trial exhibits found in the house that were

consistent with items worn by the robbers.

       Defense counsel tried to cast doubt on the government’s theory that the two men

in the house must have been the bank robbers. He questioned whether the government
                                              5
really established a secure perimeter, referencing Johnson’s testimony about the car seen

in the driveway: “[T]here are some significant cracks in the foundation of the

government’s case. One being the fact that there is a black male leaving in a car that

does not get questioned.” Id. at 550. He argued that the driver of that car “maybe had

access to this house[,] came[,] and put that money there.” Id. at 552. He also pointed out

that none of the eyewitnesses to the robbery identified Defendant and that the

government had no fingerprint evidence linking him to the bank.

       The jury convicted Defendant, but did not reach a verdict as to Stanley.

       B.     The Conspiracy Charge

       A few months after his conviction, Defendant was charged with conspiracy to

commit several robberies as a member of a street gang. One alleged overt act was the

robbery of the Arvest Bank by Defendant and his brothers Stanley and DeJuan. FBI

agent Charles Jones, who had also testified at Defendant’s trial, laid out the government’s

new theory in grand-jury testimony. He based his analysis primarily on cell-phone data

for phones linked to the three brothers, which showed what numbers were called and the

approximate location of the phones. He also had learned that Stanley’s girlfriend owned

a black Nissan resembling the vehicle seen by Officer Johnson outside the house shortly

after the robbery. Knowing the locations of the phones and what numbers were called, he

inferred that Defendant and DeJuan traveled to the bank the night before the robbery to

scope it out, and that the next day they met Stanley at his girlfriend’s house before

driving to the bank. Then, according to Jones, Defendant and DeJuan went inside to
                                             6
commit the robbery while Stanley waited outside as the getaway driver. Finally, he

concluded that DeJuan was the one seen driving the black Nissan away from the house.

Defendant’s role in the robbery did not change under this new theory, but now the

government claimed that Stanley was the getaway driver and DeJuan was the other

robber with Defendant in the bank. Jones summed up the change: “Initially, we believed

that Stanley and [Defendant] were the robbers. . . . We were wrong. We think that

Stanley was the getaway driver and that [Defendant] and DeJuan were the robbers.” Id.,

Vol. 1 at 163.

       Jones’s grand-jury testimony also briefly described monitored calls between

Defendant and DeJuan when Defendant was in jail. DeJuan made statements suggesting

that he was one of the robbers, such as “I’m playing boy on the run.” Id.

       C.        Defendant’s Motion for New Trial

       After receiving Jones’s grand-jury testimony in the new criminal proceedings,

Defendant filed a motion in the first case, arguing that he was entitled to a new trial based

on newly discovered evidence. Although the motion does not explicitly identify anything

as the “new evidence,” its argument section uses the term evidence on three occasions

that may indicate what is being referred to. Twice, the “evidence” appears to be the

belief of the officers about who the robbers were: (1) “[Defendant] had no evidence that

the officers who testified believed that DeJuan Hill was one of the robbers until [the last

two weeks],” id. at 133; and (2) “[t]he evidence that the government’s own witness,

Mr. Jones, does not believe the government’s theory of the evidence did not even exist
                                             7
until after the trial,” id. On the third occasion it appears to be evidence that someone had

left the house before officers created a perimeter: “The new evidence from Mr. Jones is

that, in fact, one of the two people who robbed the bank left the House before the House

was secured by law enforcement officers,” id. at 134. The motion also may be suggesting

a different item of evidence when it argues that the government’s two-robbers theory

“completely unravels when the government concedes that a car, containing [a] previously

unknown robber, left the house before the police arrived,” id.; but there is no evidence of

any car leaving the house before officers arrived.

II.    DISCUSSION

        A motion for a new trial may be granted “if the interest of justice so requires,”

Fed. R. Crim. P. 33, but a motion based on newly discovered evidence “is not favorably

regarded and should be granted only with great caution.” United States v. Orr, 692 F.3d

1079, 1099 (10th Cir. 2012) (internal quotation marks omitted). The district court’s

denial of a motion for a new trial is reviewed for abuse of discretion. See id.

       To prevail on a motion for a new trial based on newly discovered evidence, the

defendant must establish:

       (1) the evidence was discovered after trial; (2) the failure to learn of the
       evidence was not caused by lack of diligence; (3) the new evidence is not
       merely impeaching or cumulative; (4) the new evidence is material to the
       principal issues involved; and (5) the new evidence would probably
       produce an acquittal if a new trial were granted.

Id. Implicit in a claim of newly discovered evidence is that there is new evidence—that

is, material that is admissible at trial. See, e.g., United States v. Parker, 903 F.2d 91,
                                               8
102–03 (2d Cir. 1990) (requiring that new evidence would probably produce an acquittal

“presupposes, of course, that the proffered new ‘evidence’ would be admissible at the

new trial.”); United States v. MacDonald, 779 F.2d 962, 964 (4th Cir. 1985) (“To obtain

a new trial on the basis of after discovered evidence, that evidence must be admissible in

a new trial”); United States v. Kamel, 965 F.2d 484, 491 (7th Cir. 1992) (agreeing with

Parker); United States v. Dogskin, 265 F.3d 682, 686 (8th Cir. 2001) (new testimony did

not warrant a new trial because it was inadmissible); Wolcher v. United States, 233 F.2d

748, 749 (9th Cir. 1956) (“One important reason such alleged newly discovered evidence

is insufficient . . . is that such evidence would be inadmissible . . . .”); cf. United States v.

Tolliver, 730 F.3d 1216, 1228 (10th Cir. 2013) (inadmissible hearsay could not require

new trial because it “at most constitutes impeachment evidence”); United States v.

Redcorn, 528 F.3d 727, 744–45 (10th Cir. 2008) (proposed newly discovered evidence

was either “inadmissible and incorrect” or unhelpful to the defendant’s argument).

       What then is the new admissible evidence relied on by Defendant? His briefs are

unclear on this point, so we must proceed by a process of elimination.

       One thing that is certain is that the new evidence is not the cell-phone data or

Agent Jones’s analysis of that data. On the contrary, Defendant emphatically argues that

we cannot consider that data or analysis in our consideration of his claim.1 The reason


1
 Defendant asserts in his opening brief that the government’s suggestion that the only
new evidence is cell-phone data is nothing more than a strategy “to create a straw man
argument by identifying some other newly discovered evidence that it says would not
                                                                             Continued . . .
                                                9
for Defendant’s position on the data is understandable. The analysis of the data is quite

damning.

       Perhaps Defendant is claiming that the new evidence is that DeJuan was the driver

of the black Nissan observed by Officer Johnson. But Defendant knew that during trial—

when Johnson pointed to DeJuan in the courtroom as the driver. Therefore, that evidence

was not newly discovered.

       Or perhaps the new evidence claimed by Defendant is that one of the robbers

(specifically, DeJuan) had left the house after the money had been deposited there. But

there was no new evidence placing DeJuan in the house after the robbery. No new

witness observed him leave the house. And even the cell-phone evidence, which

Defendant would not have us use, did not place him in the house—the data were not that

precise and DeJuan’s phone was apparently turned off at that time.

       There remains only the possibility that the “new evidence” was that Agent Jones

had a new theory of the case—in particular, that the prior two-robbers theory was

incorrect. Defendant refers to this claim as “[t]he evidence that the government’s own

witness, Mr. Jones, does not believe the government’s theory of the evidence.” R., Vol. I

justify granting a new trial.” Aplt. Br. at 16–17. The brief goes on to say that
“undersigned counsel has not been able to find any published or unpublished decision
where a court ruled that it would be proper, standing alone, to deny a defendant’s new
trial motion based upon the government’s bald claim that it has other newly discovered
evidence that would produce a conviction.” Id. at 17. The reply brief, referring to the
cell-phone evidence, says that the court “should not consider evidence that might be
presented at retrial but which has not been presented in this case.” Reply Br. at 11.


                                            10
at 133. He also quotes Jones’s statement that “We were wrong,” id. at 201 (internal

quotation marks omitted). Defendant argues that this new evidence would likely lead to

his acquittal because the possibility of a third robber undermined the inference that the

two men who left the house after the police arrived must have been the two robbers in the

bank.

        Before analyzing this remaining claim, we think it helpful to note an argument

Defendant is not making. He is not claiming that he was denied due process by the

change in the government’s theory of its case. Such a due-process claim was considered,

although not resolved, by the Supreme Court in a federal habeas action. In Bradshaw v.

Stumpf, 545 U.S. 175 (2005), the defendant had pleaded guilty in state court, admitting to

participation in a robbery in which he shot a man (who survived) but claiming that he did

not shoot the woman who died. See id. at 178. The prosecutor argued at a penalty

hearing before a three-judge panel that the defendant had shot the woman, and the panel

sentenced the defendant to death. See id. at 179–80. In the later trial of the defendant’s

accomplice, however, the prosecutor argued, based on new testimony from the

accomplice’s cellmate, that it was the accomplice who had killed the woman. See id. at

180. The defendant moved to withdraw his plea or vacate his death sentence, arguing

that the prosecutor’s changed theory exonerated him as the shooter. See id. at 180–81.

The motion was denied. See id. at 181. The Court held that the prosecutor’s use of

inconsistent theories did not invalidate the defendant’s original guilty plea, but it did not

decide whether due process required setting aside his sentence, remanding that issue to
                                              11
the circuit court. See id. at 186–88. In this case, however, Defendant is not challenging

the propriety of the government’s changing its theory; he is claiming, in essence, that the

new theory is new evidence.

       Turning to the claim actually made by Defendant—that Agent Jones’s grand-jury

testimony is newly discovered evidence—it fails because the testimony (at least as

Defendant would use it) is not admissible evidence. It is opinion testimony by Agent

Jones. He did not observe any of the brothers participate in the bank robbery or see

DeJuan leave the house. Of course, opinion testimony may be admissible in certain

circumstances. See Fed. R. Evid. 702. And here perhaps Agent Jones’s conclusions

would be proper expert testimony, because his knowledge and experience enabled him to

analyze the cell-phone data and infer how the crime was committed. But Defendant

insists that use of the cell-phone data is improper in resolving his motion, thereby

removing from consideration any basis for viewing Agent Jones’s testimony as

admissible expert-opinion evidence. Defendant cannot have it both ways. He cannot

argue that Jones’s opinion (and only one component of the opinion at that) is newly

discovered evidence but that the evidentiary predicate for its admissibility (the cell-phone

data and Jones’s expertise in analyzing it) cannot be considered. We understand why

Defendant wishes to avoid consideration of the cell-phone data and the rest of Jones’s

opinion. If we consider that evidence, it is obvious that the new evidence would not

change the jury’s verdict, so he would not be entitled to a new trial. See Orr, 692 F.3d at

1099. An analogy may help illuminate what Defendant is arguing here. Say a
                                             12
pathologist concluded from performing a posttrial autopsy that a wound to the decedent’s

abdomen, while potentially life-threatening, was not the cause of death because another

wound sustained at the same time ended the decedent’s life first. No court would grant a

motion for new trial in which the defendant argued that the pathologist’s testimony that

the abdominal wound was not the cause of death was new evidence, but that the

remainder of the pathologist’s observations and analysis could not be considered.

       Finally, we note that even if Defendant argues that Jones’s testimony would be

admissible as impeachment, he cannot prevail. His problem is that neither Jones or

anyone else testified at Defendant’s trial that there were only two robbers. That

proposition was advanced by the prosecutor, but the prosecutor’s statements were not

evidence. See United States v. Rogers, 556 F.3d 1130, 1141 (10th Cir. 2009) (approving

of the jury instruction “that closing arguments are not evidence and that Defendant

should only be convicted on the basis of evidence submitted at trial”). The witnesses did

not express an opinion on the number of robbers; they just reported their observations.

And, of course, newly discovered evidence cannot be mere impeachment. See Orr, 692

F.3d at 1099.

        The district court did not abuse its discretion in denying Defendant’s motion for a

new trial based on newly discovered evidence.

       We AFFIRM the judgment below.




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