                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                            UNITED STATES COURT OF APPEALS
                                                                                        October 27, 2004
                                     FIFTH CIRCUIT
                                 _______________________
                                                                                     Charles R. Fulbruge III
                                                                                             Clerk
                                         No. 03-30987
                                   _______________________


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellant,
                                               versus

RICHARD E. WALL,

                                                              Defendant-Appellee.

______________________________________________________________________________

                       Appeal from United States District Court
                         for the Middle District of Louisiana
______________________________________________________________________________

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

CHARLES W. PICKERING, SR., Circuit Judge:

       Before the court is the government’s appeal from the district court’s order granting

defendant Richard Wall’s Fed. R. Crim. P. 33 motion for a new trial. We conclude that the

district court abused its discretion when it granted the motion.

                                   I. FACTS AND PROCEEDINGS

       Wall was indicted on charges of conspiracy involving a scheme to defraud the state of

Louisiana of the proper quality of steel for use in Louisiana Department of Transportation and

Development (LADOTD) road construction projects. Wall was the regional sales manager for

Inland Steel Company. He was charged with one count of conspiracy, eleven counts of mail

fraud, and five counts of making false statements about the quality of steel provided by his
company for highway projects.

       The LADOTD maintains a Qualified Products List (QPL) for products that have been

tested and approved for use in highway and road construction in Louisiana. This case focuses in

particular on QPL 43 and products approved by LADOTD for use as steel culverts. The listing

for QPL 43 included information about which companies had been approved to do certain

processes on the approved product. Dow Chemical developed a laminate film to be applied to

steel coils. Inland Steel manufactured this laminated steel product under the trade name of Blac-

Klad. An outside processor, PreFinish Metals, laminated the steel coils for Inland Steel.

LADOTD tested and approved Blac-Klad for use in steel culverts on highway projects. In fact,

Blac-Klad, manufactured by Inland and laminated by PreFinish Metals, was the only product

approved for such use. Caldwell Culvert Company used Blac-Klad, manufactured by Inland and

laminated by PreFinish, to fabricate culverts used in highway construction projects in Louisiana.

       According to the government, beginning in the late 1980s, Wall conspired with Caldwell’s

president Bill Lovelace and Caldwell’s vice-presidents Keith Wingfield and Don Gee to use a

polymer-coated steel product that was not approved by Louisiana. Inland also used an

unapproved company, National Galvanizing, to galvanize steel coils that Inland then used to

fabricate the laminated steel pipe. Additionally, Inland used an unapproved laminator, ACI, to

apply the laminate film to the steel coils. A stencil was applied to these steel coils indicating

certain information about the steel, such as the name of the sheet producer, brand name, specified

thickness of metallic coated sheet, type of metallic coating, and type or thickness of polymer

coating. The parties dispute on appeal whether it was required by LADOTD that the name of the

laminator be included on the stencil. Regardless, the government presented evidence at trial


                                                   2
indicating that Wall and his co-conspirators agreed to leave the name of the laminator off of the

stencil. Presumably this was done because the substitute laminator, ACI, was not approved for

laminating steel used in Louisiana highway projects.

       The government also presented evidence that Wall and Lovelace conspired to purchase

galvanized steel from Wheeling Steel, whose product had failed to meet LADOTD standards, and

to have the coils laminated by ACI with the Blac-Klad name stenciled on the steel. The

government presented evidence indicating that Caldwell sold over one million pounds of non-

conforming culvert pursuant to the conspiracy. The parties further stipulated that Caldwell sold

non-conforming culvert for use in Louisiana road projects.

       As a result of a federal investigation, Inland project manager Roger McDowell pleaded

guilty to misprision of a felony because he failed to report a fraud. Lovelace, Wingfield and Gee

pleaded guilty to conspiracy to commit mail fraud.

       Wall’s trial began on February 25, 2002, and lasted for two weeks. Kirk Clement of the

LADOTD testified for the government. According to Clement, Inland’s Blac-Klad was the only

steel product that met the state of Louisiana’s qualifications for laminated steel. He also testified

that Wheeling Steel had submitted samples of steel that had not met the state’s specifications.

Clement inspected steel on highway projects that was marked as Inland steel, but which in fact

had been manufactured by Wheeling Steel. Clement communicated with Wall and his office on

several occasions regarding Louisiana’s specifications for laminated steel and the prohibition

against deviating from these standards. After hearing rumors that Inland was using ACI instead

of PreFinish Metals to laminate steel, Clement expressed his concerns directly to Wall. Wall

reassured Clement that Inland was still using PreFinish as the laminator.


                                                  3
        James Smith, Inland’s Manager of Coated Products, testified that in the late 1980s, Inland

began using an outside company, National Galvanizing, to galvanize Inland steel. He testified that

Wall was aware of this substitution, which would have been contrary to Louisiana specifications,

and that Wall knew of Louisiana’s specifications regarding the steel product. He also testified

that Wall was aware that Louisiana’s specifications required PreFinish Metals to laminate Blac-

Klad.

        On the third day of trial, Roger McDowell, a former section manager for Inland, testified

that Wall and his staff orchestrated the use of ACI to coat steel manufactured by Inland in

violation of Louisiana’s specifications that approved only PreFinish to laminate the steel. He also

testified that Wall conspired to have the stencil on the steel altered. McDowell discussed his

concerns with Wall about these deviations and the continued filling of Blac-Klad orders.

McDowell testified that he attended a meeting around November 1993 with Wall, William Ristau

(the general manager of Inland), and Richard Hartwig (McDowell’s supervisor) to discuss these

objections. McDowell’s testimony regarding this meeting was the focal point of the district

court’s decision to grant a new trial.

        McDowell testified that at this meeting he voiced concerns about the laminator’s name

being removed from the steel stencil. He further testified that Wall, Ristau, and Hartwig decided

to fill Caldwell’s order for Blac-Klad without the name of the laminator on the stencil despite

McDowell’s objections. Some time shortly after this meeting, on November 8, 1993, McDowell

drafted a memorandum to Wall, with a copy to Hartwig and others, in which he wrote “[p]er our

discussion, Caldwell will accept a deviation to the State of Louisiana specification requiring a

processing route of Inland materials through PreFinish Metals. . . The customer [Caldwell] insists


                                                 4
that the Blac-Klad coils DO NOT reference the new coil coater in our stenciling.” (emphasis in

original). Defense counsel cross-examined McDowell extensively regarding the alleged meeting

and the fact that entries in his daily planner did not mention this meeting.

       Bryan Stephens, who worked at Inland’s Coated Products Division in the 1990s, testified

that Inland used National Galvanizing to galvanize steel and ACI to laminate steel. Stephens also

testified that Inland put its name on invoices for steel shipped to Caldwell, although the steel

actually had been manufactured by Wheeling Steel. Stephens testified that he had discussions

with Wall about using ACI instead of PreFinish because Inland was having difficulty getting Blac-

Klad to Caldwell in a timely fashion. According to Stephens, Wall told him that steel would be

purchased from Wheeling to meet Caldwell’s needs. Stephens testified that Wall had the

authority to make this purchasing decision. He further stated that it was common knowledge at

Inland that Blac-Klad was the only product approved for Louisiana highway projects.

       Bill Lovelace, former president of Caldwell, testified that in approximately 1992, Wall

informed him that Inland could no longer galvanize its own steel and that it had begun sending

steel to National Galvanizing instead. He further testified that National Galvanizing’s product had

not been approved by the state of Louisiana. Beginning in 1992-93, Lovelace and Wall discussed

PreFinish’s unwillingness to continue laminating Inland’s Blac-Klad product. Thus, Wall

substituted ACI as the laminator in place of PreFinish. When Lovelace asked Inland to take care

of the problem with the stencil, i.e. the name of the laminator, he had several discussions with

Wall. Wall assured Lovelace that Inland would take care of the stencil problem. Lovelace

testified that he and Wall first attempted to purchase steel from Wheeling Steel, but Wheeling

refused to sell to Inland. Consequently, Lovelace and Wall arranged to have Caldwell buy its


                                                  5
steel directly from Wheeling and send it to Inland. Inland then took the steel from Wheeling and

sent it to ACI for lamination. Lovelace testified that Wall knew that the steel in question was

intended for use in Louisiana road construction projects and that Wall was familiar with

Louisiana’s specifications for steel.

        Don Gee, a former vice-president for Caldwell, testified that Lovelace and Wall arranged

to purchase steel from National Galvanizing to meet Caldwell’s demands for steel in the

fabrication of culverts for Louisiana highway construction projects.1 Gee also provided to

LADOTD for approval a sample of Inland steel, laminated by PreFinish, but intentionally

mislabeled as Wheeling steel, laminated by ACI. Gee testified that Wall was unaware of this

switch. As a result of this testimony, the district court dismissed, over the government’s

objections, the counts of the indictment alleging Wall’s involvement in the conspiracy to have the

Wheeling steel sample approved under false pretenses.

        Wall presented testimony from his former secretary and former vice-president of sales.

Neither witness provided testimony as to Wall’s involvement or non-involvement in the scheme.

Wall then took the stand on his own behalf. Wall denied any involvement in a conspiracy to

defraud the state of Louisiana. He also denied that a conspiratorial meeting took place in Chicago

as testified to by McDowell.

        During closing argument, the government urged that the evidence at trial demonstrated

that Wall knew of and participated in the scheme to defraud Louisiana. The government



        1
        Although Gee testified that Inland purchased steel from National Galvanizing to meet
Caldwell’s needs, this testimony is inconsistent with all other witnesses who indicated that Inland
purchased steel from Wheeling. However, Inland then sent the Wheeling steel to National
Galvanizing to be galvanized.

                                                 6
mentioned the alleged conspiratorial meeting in Chicago: “Wherever that meeting occurred,

Roger McDowell remembers, he and Wall discussed [removing the name from the stencil].”

Defense counsel attacked McDowell’s testimony during closing argument and pointed to the lack

of an entry in McDowell’s daily planner as proof that the meeting did not occur.

       On rebuttal, the government responded and stated that Wall made a “big deal” about the

Chicago meeting and that Wall testified “very loudly, very emphatically it didn’t happen.” The

government emphasized that the only evidence supporting Wall’s claim that the meeting did not

occur was “the unsupported testimony of Rick Wall.” The government further argued that:

       we are not the only people who can call witnesses. The defendant has the
       subpoena power. You saw two out-of-state witnesses testify there before you. If
       this was a big deal, and if that meeting didn’t really take place, either of those two
       other gentlemen [Ristau and Hartwig] could have been called by a witness by
       either side.

Wall did not object to the government’s arguments.

       The judge instructed the jury, among other things, that the arguments of counsel were not

evidence and that the jury should only weigh the evidence presented at trial. After deliberation,

the jury found Wall guilty of conspiracy and the remaining mail fraud counts. Wall was acquitted

on the false statement counts.

       Motion for New Trial

       Within seven days of the jury verdict, Wall filed a motion for acquittal pursuant to Fed. R.

Crim. P. 29, and a motion for new trial pursuant to Fed. R. Crim. P. 33. In his motion for new

trial, Wall argued that (1) a juror had been dismissed for improper reasons; (2) the government

failed to disclose McDowell’s testimony regarding the November 1993 Chicago meeting involving

McDowell, Wall, Ristau, and Hartwig; and (3) Wall obtained newly discovered evidence in the


                                                 7
form of a statement from Ristau, who denied that he took part in a conspiratorial meeting as

testified to by McDowell. In his motion, Wall argued that Ristau’s statement was not available

prior to trial because the prosecution had advised Ristau that it was not in his best interest to talk

to other witnesses regarding the case. In a later pleading, Wall contended that newly discovered

evidence from Ristau and Hartwig would demonstrate that the Chicago meeting did not take

place. Although he did not attach an affidavit to his motion, Wall eventually obtained an affidavit

from Ristau. In that affidavit, Ristau stated:

       There was never a meeting or conversation in which I participated in which I,
       knowing that the State of Louisiana’s specifications required the name of the
       laminator to appear in the stenciling of the product, agreed to have the product
       produced in violations [sic] of those specifications and to not disclose that to the
       state.

Ristau further stated that “[t]o the extent McDowell represents this to have occurred his

testimony is in error and is not an accurate statement of the facts of any meeting that I attended or

participated [in].” Defense counsel also provided an affidavit indicating that he had conversations

with Hartwig in which Hartwig also denied that a conspiratorial meeting took place, but that

Hartwig was not willing to provide a statement.

       District Court’s Order

       The district court conducted a hearing on the motions. The court found that there was

sufficient evidence to support the conviction and denied the motion for acquittal. The court also

rejected Wall’s contention that a new trial was warranted based on the dismissal of a juror or

based on a Brady2 violation.

        The court then proceeded to analyze whether a motion for new trial should be granted


       2
           Brady v. Maryland, 373 U.S. 83 (1963).

                                                   8
based on newly discovered evidence under the Berry rule. See United States v. Erwin, 277 F.3d

727, 731-32 (5th Cir. 2001); Berry v. State, 10 Ga. 511 (1851). The district court first analyzed

the statements of Ristau and Hartwig and determined that the affidavits constituted newly

discovered evidence that was not available at the time of trial through no fault of Wall’s and that

the evidence was not merely cumulative or impeaching. The court reasoned that “because the

government capitalized on the absence of such evidence during its closing argument to impeach

the credibility of the defendant, such evidence is material.”

       After dealing with all of the other Berry factors, the court turned to the final Berry factor,

whether the newly discovered evidence probably would have resulted in an acquittal. The court

found that “it is likely that the jury could have found the defendant guilty based on the testimony

of Mr. Lovelace and Mr. Clement.” (emphasis added). However, the court abruptly interrupted

its Berry analysis and determined that because the motion for new trial was made promptly within

seven days of the judgment, it did not need to reach the issue of whether the testimony of Ristau

and Hartwig probably would have resulted in an acquittal. It held that the Berry rule does not

apply to motions filed within seven days of the verdict and based on the “interests of justice.”

Instead, the district court explained that “‘the more onerous restrictions on later motions on the

ground of newly discovered evidence do not apply.’” Quoting WRIGHT, FEDERAL PRACTICE &

PROCEDURE: CRIMINAL § 557 (2d ed. 1982).3

       The district court then proceeded to analyze whether Wall’s motion should be granted in

the “interests of justice.” It granted Wall’s motion based on the newly discovered evidence in

conjunction with the government’s comments during rebuttal. In reaching this conclusion the


       3
           The district court cited to § 755. In fact, the quoted portion is found at § 557.

                                                   9
district court stated that:

        This alleged conspiratorial meeting was a small piece of evidence in a lengthy and
        complex trial. However, if Mr. Ristau and Mr. Hartwig had testified for the
        defense, the government would not have been able to argue to the jury, moments
        before deliberation, that the defendant’s entire case hung on the defendant’s own
        uncorroborated testimony.

        Ultimately, this court is left with the unusual circumstance that, although
        defendant’s newly discovered evidence was not, itself, material, the government
        made it material by capitalizing on it during closing argument. While the
        government no doubt acted in good faith, its suggestion to the jury that the
        defendant must be guilty because Mr. Ristau and Mr. Hartwig did not testify
        disrupted the “equal playing field between the prosecution and the defense
        necessary to allow the jury to perform its truth-seeking function.”

The government filed a timely notice of appeal from the district court’s grant of new trial.

                                      II. LAW AND ANALYSIS

A. Jurisdiction

        This court has jurisdiction of the case by operation of 18 U.S.C. § 3731, which provides

that the government may appeal the grant of a new trial after verdict or judgment, except that no

appeal shall lie where the double jeopardy clause of the United States Constitution prohibits

further prosecution. See United States v. Frye, 372 F.3d 729, 733-34 (5th Cir. 2004); United

States v. Woolard, 981 F.2d 756, 757 (5th Cir. 1993). The double jeopardy clause is not

implicated in this case.

B. Standard of Review

        A district court’s decision to grant or deny a motion for new trial pursuant to Rule 33 is

reviewed for an abuse of discretion. United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997).

This standard is necessarily deferential to the trial court because the appellate court has only read

the record and, unlike the trial court, did not see the impact of witnesses on the jury or observe


                                                 10
the demeanor of witnesses. Id. Questions of law are reviewed de novo. Id. On mixed questions

of law and fact, this court reviews the underlying facts for abuse of discretion, but the conclusions

to be drawn from those facts de novo. Id. at 893-94. This court will uphold the trial court’s

decision to grant a new trial if that decision is in the interest of justice. Id. at 898. The “interest

of justice” may be based on the trial judge’s evaluation of witnesses and weighing of the evidence.

Id.

C. Rule 33

        Rule 33 states in relevant part:

                (a)     Defendant’s Motion. Upon the defendant’s motion,
                        the court may vacate any judgment and grant a new
                        trial if the interest of justice so requires. . .

                (b)     Time to File.
                        (1) Newly Discovered Evidence. Any motion for
                        new trial grounded on newly discovered evidence
                        must be filed within 3 years after the verdict or
                        finding of guilty. . .

                        (2) Other grounds. Any motion for a new trial
                        grounded on any reason other than newly discovered
                        evidence must be filed within 7 days after the verdict
                        or finding of guilty, or within such further time as
                        the court sets during the 7-day period.

Rule 33 permits the district court to vacate judgment and grant a new trial “if the interest of

justice so requires.” Fed. R. Crim. P. 33; see United States v. McBride, 862 F.2d 1316, 1319 (8th

Cir. 1988) (the interest of justice standard “requires the district court to balance the alleged errors

against the record as a whole and evaluate the fairness of the trial.”). However, Rule 33 divides

motions for new trial based on the interest of justice into two different subcategories: (1) motions

based on newly discovered evidence; and (2) motions based on “other grounds.” The former may


                                                   11
be brought within three years of the verdict or finding of guilt, while the latter must be brought

within seven days of the verdict or finding of guilt.

         Generally, this court has held that the trial court should not grant a motion for new trial

unless there would be a miscarriage of justice or the weight of evidence preponderates against the

verdict. O’Keefe, 128 F.3d at 898. A new trial is granted only upon demonstration of adverse

effects on substantial rights of a defendant. United States v. Rasco, 123 F.3d 222, 228 (5th Cir.

1997).

         When a court of appeals reviews a district court’s decision to grant or deny a motion for

new trial, to some extent it must begin with the error or grounds upon which the district court

based its decision and then proceed to examine the court’s decision as measured against the

relevant standard.4 See e.g. United States v. Runyan, 290 F.3d 223, 247 (5th Cir. 2002) (applying

three-prong Brady test to motion for new trial based on alleged Brady violation); United States v.

Logan, 861 F.2d 859, 864 (5th Cir. 1988) (holding that the Strickland analysis for ineffective

assistance of counsel applies to motions for new trial); cf. McBride, 862 F.2d at 1319 (holding

that the district court should balance the alleged errors against the record as a whole). Otherwise,

it would be impossible to give any meaning to the concept of “miscarriage of justice.”5 Thus, we

turn to the possible grounds for the district court’s granting Wall’s motion for new trial.

         There is some uncertainty as to the precise basis for the district court’s decision to grant


         4
          In collateral review cases, the term “miscarriage of justice” means the conviction of one
who is actually innocent. See United States v. Olano, 507 U.S. 725, 736 (1993). As with plain
error review under Rule 52(b); however, the term “miscarriage of justice” permits remedial action
under Rule 33 in cases other than just “actual innocence.” See id.
         5
         Defendant unconvincingly asserts “[a]ll that is needed is the Judge’s feeling that a
miscarriage of justice has taken place.”

                                                   12
Wall’s Rule 33 motion. The district court explicitly declined to consider fully the motion under

the applicable standard for newly discovered evidence; yet newly discovered evidence, in the form

of post-trial affidavits, is precisely what convinced the district court to grant the motion for new

trial. The district court then indicated that it would grant the motion based on the “interests of

justice.”6 The three potential grounds that seem to be implicated by the court’s ruling are (1)

newly discovered evidence; (2) false testimony revealed by newly discovered evidence; and (3) the

prosecutor’s comments during closing argument.

1. Newly Discovered Evidence

       Motions for new trial based on newly discovered evidence are “disfavored and reviewed

with great caution.” Erwin, 277 F.3d at 731. As a general rule, there are five prerequisites

(typically referred to as the Berry rule) that must be met to justify a new trial on the ground of

newly discovered evidence.7 The defendant must prove that (1) the evidence is newly discovered

and was unknown to the defendant at the time of trial; (2) the failure to detect the evidence was

not due to a lack of diligence by the defendant; (3) the evidence is not merely cumulative or

impeaching; (4) the evidence is material; and (5) the evidence if introduced at a new trial would

probably produce an acquittal. Id. at 231-32. If the defendant fails to demonstrate any one of


       6
         The district court relied on WRIGHT, FEDERAL PRACTICE & PROCEDURE § 557 (2d ed.
1982), in support of its conclusion that promptly filed motions based on newly discovered
evidence are not reviewed using the Berry rule. The third edition of Wright, which is the most
current version, no longer contains the legal proposition quoted from Wright and so prominently
relied upon by the district court. See WRIGHT, FEDERAL PRACTICE & PROCEDURE § 557 (3d ed.
2004).
       7
         The Fifth Circuit has described the Berry rule as having four or five parts. See Erwin,
277 F.3d at 731-32 (five-part test); United States v. Sullivan, 112 F.3d 180, 183 (5th Cir. 1997)
(four-part test). Some statements of the standard combine the element of materiality with
whether the evidence is merely impeaching or cumulative.

                                                 13
these factors, the motion for new trial should be denied. United States v. Freeman, 77 F.3d 812,

817 (5th Cir. 1996). The government suggests that the district court improperly applied the Berry

rule for newly discovered evidence in its treatment of the testimony of Ristau and Hartwig. The

government does not focus its argument exclusively on the Berry rule; nor does it explicitly assert

that the district court applied the wrong standard of review when it declined to address the fifth

and final factor of the Berry analysis. Nevertheless, we conclude that the government has

properly raised the trial court’s failure to follow Berry.8

        The district court erred in its application of the requisite standard of review. It concluded

that the motion for new trial, although based in part on newly discovered evidence, was not

subject to the Berry factors because it was filed within seven days of the jury verdict. Instead, the

district court concluded that the motion should be granted in the “interest of justice.” Contrary to

the district court’s conclusion, the “interest of justice” is not an independent ground for granting a

Rule 33 motion, but rather is the standard for granting any Rule 33 motion, whether based on

newly discovered evidence or other grounds. See United States v. Villareal, 324 F.3d 319, 325

(5th Cir. 2003) (“motion for new trial based on newly discovered evidence may be filed any time

within three years after the verdict or finding of guilt, and may be granted by the district court ‘if

the interests of justice so require.’”). Whether a motion for a new trial based on newly discovered



        8
          The government argued in reference to the Berry factors that “the trial judge’s implicit
finding that the evidence was unavailable to Wall even though Wall exercised due diligence is
incorrect.” Later, the government asserted “by the district court’s own analysis, there was no
newly discovered evidence that would warrant a new trial under Berry.” In its reply brief, the
government reasserted that “there was no newly discovered evidence under Berry;” and that
“Wall took the stand and denied the meeting took place; had Ristau and Hartwig testified, their
testimony would have served only to corroborate Wall’s testimony and to impeach McDowell’s.
This is exactly the sort of evidence that is not ‘newly discovered’ for purposes of the Berry rule.”

                                                  14
evidence is filed within seven days, or some time later, but still within three years, the standard of

review is the same. See United States v. Quintanilla, 193 F.3d 1139, 1146-47 (10th Cir. 1999)

(rejecting the notion that a motion based on newly discovered evidence, if filed within seven days,

is analyzed under a different test); United States v. Johnson, 26 F.3d 669, 682 n.9 (7th Cir. 1994)

(same). The obvious reason for the differentiation in the filing deadlines is that a defendant may

not learn of newly discovered evidence until well after the trial, but should know all other grounds

at the time of trial.

        As the Tenth Circuit has explained, “[a] number of circuits have stated, without any

substantive explanation and often in dicta, that a motion for new trial which is based on newly

discovered evidence and is asserted within seven days after the verdict, is subject to a heightened

discretion standard.” Quintanilla, 193 F.3d at 1146. The Tenth Circuit rejected that distinction.

Id. at 1147. The court further explained that if motions based on newly discovered evidence were

treated differently if asserted within seven days of the verdict, “defendants would have no

diligence obligation and could keep an evidentiary trump card in the event of a conviction. Such a

rule also would penalize convicted defendants who discover exculpatory evidence more than

seven days (but within three years) of the verdict.” Id. We agree with this assessment of Rule 33

and hold that whether a motion for new trial based on newly discovered evidence is filed within

seven days or within three years of the verdict, the Berry rule applies.9


        9
          Both Quintanilla and WRIGHT § 557 (2d ed. 1982) cite to a Fifth Circuit case, United
States v. Rachal 473 F.2d 1338 (5th Cir. 1973), in support of the contention that a promptly filed
Rule 33 motion based on newly discovered evidence is somehow treated differently from a Rule
33 motion based on newly discovered evidence filed later than seven days after the verdict or
judgment. In Rachal, the defendant filed his motion for new trial twenty-seven days after the
verdict. Id. at 1343. Hence, the court applied the Berry rule and recognized in dicta that a
defendant bears a heavier burden to carry a motion for new trial based on newly discovered

                                                  15
       The district court’s decision to grant a new trial hinged on the existence of newly

discovered evidence. Although the prosecutor’s comments in closing argument played a crucial

role in its analysis, the district court never would have reached the decision to grant a new trial

but for the “newly discovered” post-trial statements of Ristau and Hartwig. The district court

apparently recognized that newly discovered evidence was the basis of Wall’s motion. However,

the district court declined to apply the last factor of the Berry test, not because the motion did not

implicate newly discovered evidence, but because the motion for new trial was filed promptly

within seven days of the verdict. Thus, the district court erred as to a question of law, which we

review de novo. Consequently on review, we must examine Wall’s newly discovered evidence

under the appropriate Berry test.

       a. The Berry Test

       (1) First Berry Factor: evidence unknown at time of trial

       Under the first of the Berry factors, the district court concluded that the evidence was

unknown to the defendant at the time of trial. It is true that Wall did not have Ristau’s affidavit in

his possession prior to or during trial. Arguably, Wall has satisfied the first Berry factor.

       (2) Second Berry Factor: due diligence

       Evidence that is unknown at the time of trial cannot be the basis for granting a new trial if

the defendant should have known of its existence through the exercise of due diligence. Wall did

not know that McDowell was going to testify regarding a meeting in Chicago; however,



evidence as opposed to motions filed within seven days of the verdict. It is questionable whether
Rachal stands for the proposition that the standard of review for motions based on newly
discovered evidence changes merely depending on whether or not it was filed within seven days of
the verdict. Regardless, Rachal makes this alleged distinction in dicta.

                                                  16
McDowell’s testimony occurred on the third day of a two-week trial.10 Thus, Wall became aware

of the potential significance of testimony from Ristau and/or Hartwig early in the trial.

Nevertheless, their affidavits were not produced until after the trial.

        When a defendant becomes aware of evidence early in a trial, it is incumbent upon the

defendant to seek a continuance or demonstrate efforts to obtain the evidence before it will be

considered newly discovered. See United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997)

(failure to investigate or seek a continuance on government’s theory constitutes lack of due

diligence); Sullivan, 112 F.3d at 183 (defense counsel was made well aware of government’s

theory of intent early in trial, yet did not investigate this theory); United States v. Peña, 949 F.2d

751, 758 (5th Cir. 1991) (defendant was aware of alleged new evidence regarding a witness’ drug

and alcohol problems “[a]t trial, if not before”); United States v. Wilson, 894 F.2d 1245, 1251

(11th Cir. 1990) (defendants were on notice of witnesses cooperation with government “midway

through the trial”).

        During the trial, Wall did not have physically within his possession statements from Ristau

and Hartwig denying that the Chicago meeting took place. However, as soon as McDowell

testified that he participated in a meeting with Wall, Ristau, and Hartwig, Wall possessed all the

information necessary to begin looking for the “newly discovered evidence.” See Villareal, 324

F.3d at 326 (defense counsel’s failure to appreciate the significance of impeachment testimony

constituted a lack of diligence). McDowell testified that Wall was present at a conspiratorial

meeting in Chicago. Wall denied that such a meeting took place. Assuming that Wall’s testimony



        10
          McDowell testified on February 27, 2002. The court did not submit the case to the jury
for deliberation until March 8, 2002.

                                                  17
was true, Wall knew during the trial that McDowell’s statement was false and that Ristau and

Hartwig could corroborate his contention that no such meeting took place. It was incumbent

upon Wall to take measures to secure the testimony of Ristau and/or Hartwig. See Sullivan, 112

F.3d at 183 (upholding district court’s finding that defendant lacked due diligence where adverse

witness testified at the beginning of trial). In fact, the district court noted that Wall gave no

reason why these witnesses were not subpoenaed after McDowell’s testimony. This court and

others have found no abuse of discretion where district courts found that due diligence was

lacking because defendant gained knowledge of the “new evidence” during trial but failed to seek

a continuance or subpoena witnesses. See Mulderig, 120 F.3d at 546 (defendant failed to seek

continuance to explore the matter of “new evidence”); Sullivan, 112 F.3d at 183 (defendants

failed to seek continuance); United States v. DeLuca, 137 F.3d 24, 40 (1st Cir. 1998) (defendant

failed to seek continuance or invoke compulsory process); see also McBride, 862 F.2d at 1319

(holding that in reviewing a motion for new trial, “[c]ounsel cannot stand idly by, permit the

presentation of erroneous matter at trial, and then complain about the inclusion of that evidence in

the trial record, absent plain error.”). By the same token, in light of the fact that the district court

specifically found no reason proffered as to why Wall did not locate Ristau and Hartwig during

the course of trial, the district court erred in concluding that Wall satisfied the due diligence factor

under Berry.

        (3) Third Berry Factor: evidence not cumulative or impeaching

        The district court found that Ristau’s and Hartwig’s testimony would not be cumulative or

impeaching. This is contrary to Wall’s own admission on appeal that the premise of his motion




                                                   18
for new trial was to secure the “impeaching” testimony of Ristau and Hartwig.11 Impeachment

testimony normally is not a basis for granting a motion for new trial. See Mesarosh v. United

States, 352 U.S. 1, 9 (1956); Villareal, 324 F.3d at 326 (concluding that testimony “could have

served no purpose other than to impeach the testimony” of a government witness); United States

v. Reedy, 304 F.3d 358, 372 (5th Cir. 2002) (upholding district court’s denial of motion for new

trial based on newly discovered impeachment evidence); Peña, 949 F.2d at 758 (“[e]vidence

which merely discredits or impeaches a witness’ testimony does not justify a new trial.”). The

affidavits regarding Ristau and Hartwig relate exclusively to McDowell’s testimony that a

conspiratorial meeting took place in Chicago. The affidavits do not purport to exonerate Wall in

any other fashion or weigh on any other issues that were before the jury. The district court’s

conclusion that this was not impeachment evidence was erroneous.

       (4) Fourth Berry Factor: materiality

       The district court candidly found that Ristau and Hartwig’s testimony was not material in

and of itself. Rather, it was only by virtue of the prosecution’s rebuttal argument that the

testimony became material. The new evidence does bear on whether Wall participated in a

conspiratorial meeting in Chicago, which if it had been presented during the trial could have been

considered by the jury.

       The district court relied on the alleged testimony of both Ristau and Hartwig when it

analyzed the Berry test. Although Ristau provided an affidavit, Hartwig refused to provide a

statement. In evaluating Hartwig’s proposed testimony, the district court had before it only


       11
          In concluding his brief on appeal, Wall argues that “[t]he premise of Wall’s argument all
along has been that McDowell proffered false testimony, and had William Ristau and Richard
Hartwig been called to testify, they would have impeached McDowell.” (emphasis added).

                                                 19
representations from defense counsel repeating statements that Hartwig had made to counsel.

Other circuits have held that a motion for new trial may not be based on inadmissible evidence.

See United States v. Parker, 903 F.2d 91, 102-03 (2d Cir. 1990); United States v. MacDonald,

779 F.2d 962, 964 (4th Cir. 1985). Thus far, Wall has submitted only inadmissible hearsay from

Hartwig. We conclude that the district court’s reliance on Hartwig’s hearsay testimony was

erroneous.

       Ristau’s affidavit is of marginal value to Wall’s defense. Ristau’s affidavit actually makes

no reference to whether Wall did or did not participate in a meeting in Chicago, only that Ristau

himself did not participate in a meeting in which he “knowing that the State of Louisiana’s

specifications required the name of the laminator to appear in the stenciling on the product,

agreed to have the product produced in violations [sic] of those specifications and did not disclose

that to the State.” Ristau’s statement is very carefully and narrowly worded. Ristau does not say

that a meeting was not held by these same participants in Chicago, or elsewhere, in which this

very topic was discussed. He does not even deny that a meeting or discussion took place in which

these same participants agreed to change the stencils at Caldwell’s request. He merely denies that

such a meeting took place at a time when Ristau knew that Louisiana required the name of the

laminator to appear on the stenciled product and that he agreed to the change without notifying

the State of Louisiana. The affidavit denies Ristau’s culpability, but touches only indirectly on

Wall’s participation in the conspiracy. The district court erred in concluding that Ristau’s

statement was material.

(5) Fifth Berry Factor: weight of new evidence

       There remains the question posed by the district court but left unanswered in its Berry


                                                 20
analysis: would the testimony of Ristau probably have resulted in an acquittal? There is

considerable evidence of Wall’s guilt outside of McDowell’s testimony. Reflecting this fact, the

district court concluded that the evidence was sufficient to support a finding of guilt and that it

was likely the jury could have found Wall guilty based on the testimony of Clement and Lovelace.

The implication is that the trial court did not feel Wall had met this fifth Berry factor, but the trial

court felt it was not fair to so find in view of the government’s comments during closing

argument.

        A brief review of the evidence convinces this court that there was ample evidence of

Wall’s guilt when measured against the conflicting testimony of Wall and Ristau. For example,

Clement expressly testified that he communicated with Wall regarding Louisiana’s specifications

for polymer coated steel and that Wall reassured Clement that the product delivered to Louisiana

highway projects was manufactured in accordance with the state’s specifications. The parties

stipulated at trial that the product that came from Caldwell, and which was used in Louisiana

highway projects, in fact was not manufactured using the approved Blac-Klad product. Wall was

regional sales manager. The jury easily could have inferred that this was in Wall’s area of

responsibility and that he would have had knowledge of what was taking place.

        Although Wall challenges whether the Chicago meeting took place as testified by

McDowell, McDowell’s contention that he discussed with Wall a scheme to deviate from

Louisiana’s specifications was corroborated by a contemporaneous memo written by McDowell

on November 8, 1993. This memo was addressed to Wall and spelled out that Caldwell would

accept a deviation from Louisiana’s specifications, not that Louisiana had waived the

specifications. The memo further spelled out that the work was to be done by ACI, which was


                                                   21
not approved under the LADOTD’s qualified product listing, rather than by PreFinish Metals,

which had been approved to do the laminating. The memo further noted that the stencils would

not reference the new coil laminator. When questioned at trial, Wall did not deny having received

the memo. Lovelace testified unequivocally that he and Wall arranged to manufacture culverts for

Louisiana highway projects using an unapproved product. Other witnesses offered corroborating

testimony. Specifically James Smith and Bryan Stephens, who were employees of Inland, and

Don Gee, the vice-president of Caldwell, all gave testimony that strongly implicated Wall’s guilt.

Based on this overwhelming evidence of guilt, the court concludes that Wall failed to meet his

burden on the final Berry factor. Wall failed to establish that Ristau’s testimony probably would

have resulted in an acquittal.

       As demonstrated above, the district court’s decision to grant a new trial based on the

newly discovered evidence of Ristau and Hartwig does not withstand scrutiny under the

appropriate Berry analysis. Wall clearly did not meet his burden as to four of the five Berry

factors. Failure to meet his burden as to any factor doomed his request for a new trial based on

newly discovered evidence. See Freeman, 77 F.3d at 817.

       b. False Testimony

       Wall introduces an additional wrinkle into the analysis of newly discovered evidence. He

asserts that the newly discovered evidence which he relies on for a new trial establishes that

McDowell’s testimony was false. Thus, Wall argues that even if the district court’s judgment

were based on newly discovered evidence, the appropriate test would be the Larrison12 rule



       12
          See Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), overruled by United
States v. Mitrione, 357 F.3d 712, 717-18 (7th Cir. 2004).

                                                 22
rather than the Berry rule. At the conclusion of his brief on appeal, Wall contends that “[t]he

premise of Wall’s argument all along has been that McDowell proffered false testimony, and had

William Ristau and Richard Hartwig been called to testify, they would have impeached

McDowell.”

       As an initial matter, we reject Wall’s assertion that the Larrison rule should apply. The

Larrison rule provides a relaxed standard for granting a new trial when material testimony that is

false or perjured is presented at trial. See Larrison, 24 F.2d at 87-88. Under this relaxed

standard, the court may grant a new trial if it is reasonably well satisfied that a material witness

gave false testimony, that without the false testimony the jury might have reached a different

result, and that the party seeking the new trial was taken by surprise by the false testimony and

was unable to meet it or did not know of its falsity until after trial. Id. However, this circuit has

not adopted the Larrison rule for evaluating false testimony. See Sullivan, 112 F.3d at 183 n.3.

Moreover, the Seventh Circuit recently overruled Larrison. See Mitrione, 357 F.3d at 717-18.

       Although the district court did not explicitly rule that it would grant Wall’s motion based

on false testimony, the court’s opinion cited to portions of this court’s O’Keefe opinion that relate

to the government’s knowing use of false testimony. The knowing use of false testimony is

commonly referred to as a Napue violation after the Supreme Court’s opinion in Napue v. Illinois,

360 U.S. 264 (1959). The district court’s language mimics portions of O’Keefe’s explanation for

the appropriate standard of review for a Napue violation. For example, the O’Keefe opinion held

that false testimony deprives a defendant of due process when “the government reinforces the

falsehood by capitalizing on it in its closing argument.” 128 F.3d at 895. Compare this with the

district court’s assertion that a new trial was justified because “the government made [the newly


                                                  23
discovered evidence] material by capitalizing on it during closing argument.” The O’Keefe

opinion also states that when a court assesses the materiality of false testimony, “materiality is a

method of maintaining the equal playing field between the prosecution and the defense necessary

to allow the jury to perform its truth-seeking function.” Id. The district court quoted this

language directly from O’Keefe as a basis for granting Wall’s motion for new trial. In view of

Wall’s argument that McDowell gave false testimony, and given the district court’s seeming

reliance on a “false testimony” standard, it is appropriate to examine whether the underlying

decision could be upheld on that basis.

       This court has recognized that if the government used false testimony that it knew or

should have known was false, then the standard applied for newly discovered evidence is slightly

more lenient. See United States v. MMR Corp., 954 F.2d 1040, 1046-47 (5th Cir. 1992).

However, this standard requires a finding that the testimony in question was “actually false.” See

United States v. Chagra, 735 F.2d 870, 874 (5th Cir. 1984); United States v. Antone, 603 F.2d

566, 571 (5th Cir. 1979). This standard also incorporates all of the elements of a motion for new

trial based on newly discovered evidence, except the fifth Berry factor, the testimony probably

would have resulted in an acquittal. See MMR Corp., 954 F.2d at 1046-47. A new trial based on

false testimony is justified if there is any reasonable likelihood that the false testimony affected

the judgment of the jury. See id. at 1047. Hence, a Rule 33 motion for false testimony is not as

demanding a standard with respect to the impact the new evidence might have on the outcome of

the trial. But, the remaining Berry factors for granting a new trial based on newly discovered

evidence must be met even when the assertion is based on false testimony, i.e., that: (1) the

evidence was unknown to defendant at the time of trial; (2) defendant’s failure to learn of the


                                                  24
evidence was not due to a lack of diligence; and (3) the evidence is material, not merely

cumulative or impeaching. Id.

       The district court’s order granting Wall a new trial cannot be sustained on the basis of

false testimony. As explained earlier, Wall’s proffered evidence fails to qualify as “newly

discovered” because Wall has not demonstrated due diligence or that the evidence is anything

other than impeachment evidence. Moreover he fails to meet the additional criteria for false

testimony. The district court made no finding that McDowell’s testimony was false or that the

prosecution knowingly used perjured testimony. In fact, the court exonerated the prosecution

from any wrongdoing with respect to McDowell’s testimony. According to the district court’s

findings, the government did not know that McDowell would give testimony about the Chicago

meeting. Furthermore, Wall has not established that McDowell’s testimony was actually false.

He has merely shown that Ristau’s testimony would establish a conflict in the testimony, a far cry

from showing that it was “actually false.” Absent a showing that the evidence was actually false

and that the government knowingly presented the false testimony, a mere conflict in evidence is

insufficient to uphold the grant of a Rule 33 motion based on false testimony.

2. Other Grounds– Prosecutor’s Closing Argument

       Given the district court’s apparent decision to forego the Berry analysis and grant the

motion for new trial in the “interest of justice,” we must examine the second broad sub-category

of Rule 33: whether the district court abused its discretion in granting the motion for new trial on

“other grounds.” If the motion is based on any “other grounds,” the trial court is not required to

consider the restrictive Berry rules. Rather, “any error of sufficient magnitude to require reversal

on appeal is an adequate ground for granting a new trial.” WRIGHT, FEDERAL PRACTICE &


                                                 25
PROCEDURE § 556 (3d ed. 2004).13 As with motions based on newly discovered evidence, “the

grant or denial of the motion is entrusted to the sound discretion of the judge, motions for new

trial are not favored, and are granted only with great caution.” O’Keefe, 128 F.3d at 898

(reviewing motion for new trial based on alleged Brady violation); but see WRIGHT, § 551 (stating

that a motion for new trial based not on newly discovered evidence, but on errors or other

grounds “should be neither favored nor disfavored, and the question is only what the interest of

justice requires.”).

        The only “other ground” that Wall asserts entitles him to a new trial is the prosecutor’s

comment on his failure to call Ristau and Hartwig to testify. Commenting on a failure to call

witnesses generally is not an error, unless the comment implicates the defendant’s right not to

testify. See United States v. Sblendorio, 830 F.2d 1382, 1391 (7th Cir. 1987). Here, Wall

testified on his own behalf; therefore, there was no danger that the prosecutor’s comments would

implicate Wall’s privilege against self-incrimination. In reviewing the denial of a motion for new

trial, this court has examined alleged improper remarks by the prosecution to determine whether

the remarks prejudicially affected the substantial rights of the defendant. See Rasco, 123 F.3d at

228-29; United States v. Cardenas, 778 F.2d 1127, 1130-31 (5th Cir. 1985). In determining

whether the prosecutor’s remarks affected a defendant’s substantial rights, the trial court should



        13
           WRIGHT, § 556 provides an illustrative list of the types of errors that might justify a
motion for new trial on “other grounds”: denial of a separate trial, absence of witnesses,
objections to jurors or the jury selection process, failure to provide discovery, the lack of an
intelligent waiver of trial by jury, incompetency to stand trial, absence of defendant from the trial,
refusal to allow defendant to be free on bail during the trial, exclusion of evidence, admission of
improper evidence, accepting a plea of guilty from a codefendant during trial, variance between
the indictment or information and the proof, instructions to the jury, and allowing the jury to
separate during deliberations.

                                                  26
consider (1) the magnitude of the prejudicial effect of the statements; (2) the efficacy of any

cautionary instructions; and (3) the strength of the evidence of defendant’s guilt. Cardenas, 778

F.2d at 1131. The district court specifically found that the prosecution did not act in bad faith.

Wall did not object to the prosecution’s comment. Furthermore, there was ample evidence of

Wall’s guilt, and the jury was instructed that the closing arguments of counsel were not evidence.

        The magnitude of the prejudicial effect of the prosecutor’s remarks is the only factor that

arguably weighs in Wall’s favor. The district court specifically pointed out that the prosecutor

commented on the failure to call witnesses “moments before deliberation.” Nevertheless, given

the lack of bad faith on the part of the government, and given the considerable evidence of Wall’s

guilt, Wall failed to demonstrate that the prosecutor’s remarks amounted to a miscarriage of

justice. Even considering the prosecutor’s comments in conjunction with Ristau’s affidavit, Wall

fails to satisfy the miscarriage of justice standard.

                                           III. CONCLUSION

        Wall has not provided an adequate basis for upholding the district court’s grant of a

motion for new trial. Whether his motion is based on newly discovered evidence, false testimony,

or prosecutorial misconduct none of these grounds, singularly or collectively, provided an

adequate vehicle under the facts of this case for the district court to disturb the jury’s verdict.

This is particularly true in light of the considerable evidence of guilt, which even the district court

recognized in its opinion. Given the fact that new trials granted pursuant to Rule 33 are generally

disfavored regardless of whether based on newly discovered evidence or other grounds, see

O’Keefe, 128 F.3d at 898, the district court abused its discretion when it vacated the jury verdict

and granted a new trial.


                                                   27
        Accordingly the district court’s order is VACATED and the case REMANDED. The

district court is instructed to re-instate the jury verdict.

        VACATED AND REMANDED, with instructions.




                                                    28
