229 F.3d 284 (D.C. Cir. 2000)
United States of America, Appellantv.Archibald R. Schaffer, III, Appellee
No. 99-3153
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed October 27, 2000

On Appellee's Petition for Rehearing
Before:  Edwards, Chief Judge, Henderson, Circuit Judge,  andBuckley, Senior Circuit Judge.*


1
Opinion filed by Chief Judge Edwards, concurring in the  denial of the petition for rehearing.


2
Opinion filed by Circuit Judge Henderson, concurring separately.

O R D E R
Per Curiam

3
Upon consideration of appellee's petition for rehearing,  filed on July 19, 2000, and the response thereto, it is


4
ORDERED that the petition for rehearing be denied.


5
Edwards, Chief Judge, concurring in the denial of the  petition for rehearing:


6
In United States v. Schaffer, 214 F.3d  1359 (D.C. Cir. 2000) (Schaffer II), this court reversed a  judgment of the District Court granting a new trial for  defendant Schaffer.  The trial judge had ruled that a new  trial was warranted under Rule 33 of the Federal Rules of  Criminal Procedure because the testimony of Michael Espy,  which was unavailable to the defendant during his first trial,  was newly available and likely to result in an acquittal if  introduced in a new trial.  See id. at 1361.  We rejected this  conclusion because the record revealed that Schaffer had  failed to satisfy the requirements of Thompson v. United  States, 188 F.2d 652 (D.C. Cir. 1951).  See id. at 1363.


7
In his petition for rehearing, Schaffer complains that, in  applying the Thompson test of "diligence," the court in  Schaffer II unjustly adopted a new per se rule with retroactive application.  It is true that, in rejecting Schaffer's claim  that he showed diligence in an attempt to procure Espy's  testimony, the Schaffer II opinion states that,


8
[w]hen, as here, a defendant believes that a particular person's testimony would be vital to his defense but either cannot locate the witness or believes it would be futile to subpoena him, the defendant has the obligation to seek a continuance of his trial or to explain to the trial court why the desired witness will not be produced.


9
Schaffer II, 214 F.3d at 1362.  In retrospect, this could be  viewed as a new per se rule, as Schaffer suggests.  This was  not the intention of the court in Schaffer II, however.


10
The dispositive holding in Schaffer II on the issue of  diligence is as follows:


11
a [mere] belief in the futility of ... action will not satisfy the need for a concrete attempt either to compel the production of relevant evidence or to seek some accommodation from the trial court that would preserve the defendant's right to present evidence that was critical to his case.  Whatever the minimum requirement of diligence, it cannot be a purely private evaluation of the availability of the testimony or the likelihood of relief from the court.  Such a standard would seriously impair the important goal of finality that the diligence requirement serves.


12
Schaffer II, 214 F.3d at 1362 (emphasis added).  This is not a  new per se rule retroactively applied to Schaffer.  It flows  directly from Thompson and other cases construing Rule 33.See id.


13
In order to invoke Rule 33, a "party seeking [a] new trial  must [have shown] diligence in the attempt to procure the  newly discovered evidence."  Thompson, 188 F.2d at 653.The District Court in the instant case opined that the record  facts on diligence "are not in dispute."  United States v.  Schaffer, 83 F. Supp. 2d 52, 55 (D.D.C. 1999).  The trial judge  went on to find "no basis on which to conclude thatcounsel's  wish to have Espy testify was not genuine."  Id. at 57  (emphasis added).  No one could suppose, however, that this  was a finding of "diligence" as required by Thompson.  The  District Court then concluded that "diligent efforts were  made to adduce Espy's testimony" when Schaffer's counsel  conferred with Espy's counsel and then made forthright  representations to the District Court about the unavailability  of Espy's testimony.  Id. at 58.  The problem, however, as  the District Court seemed to recognize, is that Schaffer's  decision not to take concrete action to procure Espy's testimony was based on his personal surmise that any such action  would be futile.  We have no reason to doubt that Schaffer's  counsel intended to be responsible and act professionally. Nonetheless, there is no evidence of "diligence in the attempt  to procure" Espy's testimony as Thompson requires.  The  District Court was simply wrong to conclude otherwise.


14
Schaffer suggests that he failed to take concrete action  because he subscribed to an untested belief that it would have  been futile to subpoena Espy and an unverified view that a  continuance would not have been granted.  That is all that he  offered to show diligence, and Schaffer II says that it is far  short of what is required by Thompson.  There is no mistake  in this conclusion.  The suggestion in the petition for rehearing that the court erred in adopting a new per se rule in  Schaffer II is a red herring.  In any event, lest there be any confusion on this point, we make it clear now that the  judgment in this case does not rest on any per se rule.


15
Schaffer also complains that, in reversing the District  Court, the decision in Schaffer II fails to give due deference  to the trial judge's view that Espy's testimony would likely  result in an acquittal.  There is merit to this contention, for it  has long been said that


16
findings on conflicting evidence by trial courts on motions for new trial based on newly discovered evidence remain undisturbed except for most extraordinary circumstances.


17
United States v. Johnson, 327 U.S. 106, 111 (1946).  "If there  is an issue of credibility of the newly discovered evidence, the  role of the judge is that of fact finder, and his resolution of  the fact issues is ordinarily not reviewable on appeal."  3  Charles Alan Wright, Federal Practice and Procedure  § 557, at 336 (2d ed. 1982).  Thus, we review the District  Court's grant or denial of a new trial for abuse of discretion. See Langevine v. District of Columbia, 106 F.3d 1018, 1023  (D.C. Cir. 1997).


18
In cases in which a motion for a new trial is granted, "the  degree of appellate scrutiny of new trial rulings should depend on the reasons given for the awarding of a new trial."Vander Zee v. Karabatsos, 589 F.2d 723, 728 (D.C. Cir. 1978).When, for example, a motion is granted on the ground that  the verdict is against the weight of the evidence, a higher  degree of scrutiny will be applied by the appellate court,  because of "the concern that a judge's nullification of the  jury's verdict may encroach on the jury's important fact finding function."  Tri County Indus. Inc. v. District of  Columbia, 200 F.3d 836, 840 (D.C. Cir. 2000) (quoting Langevine, 106 F.3d at 1023 (quoting Vander Zee, 589 F.2d at  729)), cert. granted, 69 U.S.L.W. 3191 (U.S. Sept. 26, 2000)  (No. 99-1953).  However, when the District Court orders a  new trial "because confusing testimony and events created a  potential for injustice, not because the jury's verdict is  against the weight of the evidence[,] ... [o]nly the grossest  abuse of discretion could justify reinstating the jury's verdict."  Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 849 (D.C. Cir. 1981), cert. denied, 455 U.S. 994 (1982).  In  light of this highly deferential standard of review, I cannot  say that the District Court erred in applying the "probably produce-an-acquittal" prong of the Thompson test.


19
The trial judge observed that, [b]ecause the evidence of Schaffer's specific unlawful intent was so thin--it was an entirely circumstantial case on which the jury could have decided either way, Schaffer, 183 F.3d at 850--the proffered evidence about the nature of the [Arkansas Poultry Federation] meeting and Espy's reasons for attending has an important bearing on the "intent question."  I find it indeed to be of such nature that, in a new trial, it would probably produce an acquittal.


20
United States v. Schaffer, 83 F. Supp. 2d at 54-55.  The  Schaffer II opinion mistakenly doubts the relevance of the  Espy testimony and, therefore, concludes that its introduction  in a new trial "would do little to undermine the independent  counsel's case."  Schaffer II, 214 F.3d at 1363.  However,  because the Espy testimony cannot fairly be rejected as  irrelevant, and because the District Court was in the best  position to evaluate Espy's believability and the likely effect  of Espy's testimony on the rest of the evidence, it was a  mistake for this court to second-guess the trial judge on this  point.


21
This court's failure to give deference to the District Court  on the probably-produce-an-acquittal prong of Thompson  does not save the day for Schaffer, however.  Even assuming,  arguendo, that Rule 33 may be applied in the absence of  "newly discovered" evidence, Schaffer's demand for a new  trial nonetheless fails for want of diligence.  Furthermore,  although the decision in Schaffer II expresses skepticism  regarding the applicability of Rule 33 in cases involving  "newly available" (as opposed to "newly discovered") evidence, see Schaffer II, 214 F.2d at 1363, Schaffer's petition  has not persuaded this court to perform a juridic tour de force  as regards the contours of Rule 33.


22
This result, admittedly, produces a curious disposition,  indeed, one that is somewhat troublesome.  Traditionally, we  defer to the trial judge's exercise of discretion to grant a new  trial on grounds that there is a fair likelihood of acquittal.  In  this case, however, we are obliged to ignore this powerful  consideration.  Defendant simply failed to act with the diligence required by Thompson, and such failure is fatal.  My  concern over this curious application of the Thompson factors  is, in my view, noteworthy, though not peremptory.  In the  end analysis, it is far from clear that this case involves newly  discovered evidence which Rule 33 absolutely requires, so  Schaffer's case fails in any event under the existing Federal  Rules of Criminal Procedure.


23
In short, I can find no basis upon which to set aside the  judgment of the court in Schaffer II.  The petition for  rehearing must therefore be denied.



Notes:


*
 Senior Judge Buckley was a member of the panel which decided  United States v. Schaffer, 214 F.3d 1359 (D.C. Cir. 2000), at issue in  the instant petition for rehearing.  Having retired on October 1,  2000, however, Senior Judge Buckley did not participate in the  consideration of the petition for rehearing.



24
Karen LeCraft Henderson, Circuit Judge, concurring separately:


25
While I agree that Schaffer's petition for rehearing should  be denied on the ground that the panel decision correctly held  defense counsel failed to exercise due diligence in attempting  to procure Espy's testimony, I do not believe we should  uphold the district court's finding that Espy's testimony, had  the jury heard it, would likely have led to Schaffer's acquittal. This trial record reveals no "confusing testimony and events."See Edwards Op. at 286 (quoting Schneider v. Lockheed  Aircraft Corp., 659 F.2d 835, 848 (D.C. Cir. 1981), cert.  denied, 455 U.S. 994 (1982)).  Nor was the district court  called upon to assess the "believability" or "credibility" of  Espy's testimony.  See id. at 286.  The district court's role  was simply to determine whether largely irrelevant evidence  would have persuaded the jury to render a different verdict. And I continue to believe the district court got it wrong.

