                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                           January 3, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,                                   No. 12-5037
                                                   (D.C. No. 4:07-CR-00122-GKF-1)
 v.                                                           (N.D. Okla.)

 RICHARD DALE MONTGOMERY,

        Defendant-Appellant.


                              ORDER AND JUDGMENT*


Before MURPHY, EBEL and HARTZ, Circuit Judges.


       Richard Montgomery appeals the district court’s denial of his motion for a new

trial. As discussed below, we AFFIRM the denial of that motion.

       Mr. Montgomery was convicted by a jury of coercion and enticement of a minor,

in violation of 18 U.S.C. § 2422(b). The evidence presented at trial established that Mr.

Montgomery had engaged in a six-month online relationship with an undercover agent


        * After examining the parties’ briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
posing as a thirteen-year-old girl. Their communications involved sexually explicit

conversation, and the relationship culminated in Mr. Montgomery being apprehended as

he attempted to carry out a plan to meet and have sex with the undercover agent posing as

a young girl. Following his conviction, he was sentenced to a 120-month term of

imprisonment, which is the statutory minimum for his offense, to be followed by seven

years of supervised release.

       Mr. Montgomery did not file a direct appeal following his sentence and

conviction. But subsequently, he filed a pro se motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. The district

court appointed counsel to represent Mr. Montgomery on the § 2255 motion, issued an

order concluding that he was entitled to an evidentiary hearing on some of the issues

raised in the motion, and referred the matter to a magistrate judge. Following the

hearing, the magistrate judge recommended the denial of the motion. The district court

adopted the magistrate judge’s recommendation and denied the motion.1

       But while his § 2255 motion was pending before the court, Mr. Montgomery also

filed a pro se motion for a new trial under Fed. R. Crim. P. 33 based on allegedly newly

discovered evidence and prosecutorial misconduct. Specifically, he claimed (1) that the

1
 The district court denied that motion on the same day that it denied this motion for a
new trial. The district court also denied Mr. Montgomery’s motion for a certificate of
appealability (“COA”). Mr. Montgomery requested that this court issue a COA so that he
could appeal the denial of § 2255 relief. In a separate order, we deny his request for a
COA and dismiss his appeal.

                                             2
prosecution made misrepresentations to defense counsel concerning the status of

computer records that had been seized from Mr. Montgomery, (2) that the prosecution

ordered the destruction and cover up of evidence, and (3) that the Government had failed

to preserve chat records that would have been exculpatory, and had effectively destroyed

such records because the Government created a record but failed to preserve it.

       In support of his motion, Mr. Montgomery attached three documents that he had

obtained from the FBI by making requests under the Freedom of Information Act

(“FOIA”), which he claimed were “newly discovered evidence”: 1) an August 20, 2007

request for a Computer Analysis Response Team (“CART”) examination of computers

and hardware associated with Mr. Montgomery (“Request”); 2) a September 21, 2007

report containing the requested analysis (“Report”); and 3) a July 31, 2008 closing

memorandum confirming that the prosecution had reviewed the circumstances and status

of Mr. Montgomery’s case and that all remaining evidence could be destroyed or returned

(“Closing Memorandum”).

       Although the district court did not order a separate hearing for Mr. Montgomery’s

motion for a new trial, it did consider the evidence presented in the § 2255 evidentiary

hearing in making its decision to deny the motion for a new trial. Ultimately, the district

court denied the motion, concluding that a new trial was not warranted because Mr.

Montgomery had failed to demonstrate that he had newly discovered evidence that was

material, exculpatory, or likely would have resulted in acquittal. Mr. Montgomery

appeals the denial of his motion for a new trial.
                                              3
                                      DISCUSSION

                                  I. Standard of Review

       Because this is an appeal from a final judgment, this court has jurisdiction under

28 U.S.C. § 1291. Under Rule 33, “[u]pon the defendant’s motion, the court may vacate

any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P.

33(a). Under this Rule, “any motion for a new trial grounded on newly discovered

evidence must be filed within 3 years after the verdict,” while “[a]ny motion for a new

trial grounded on any other reason . . . must be filed within 14 days after the verdict.”

Fed. R. Crim. P. 33(b). In this case, Mr. Montgomery timely filed his motion for a new

trial pursuant to the newly-discovered evidence rule.

       “We review rulings on a motion under Rule 33 for an abuse of discretion.” United

States v. LaVallee, 439 F.3d 670, 700 (10th Cir. 2006). “We will reverse that decision

only if the district court made a clear error of judgment or exceeded the bounds of

permissible choice under the circumstances.” United States v. Trujillo, 136 F.3d 1388,

1394 (10th Cir. 1998). “A motion for new trial based on newly discovered evidence is

not favorably regarded and should be granted only with great caution.” Id. (internal

quotation marks omitted). “For [a defendant] to prevail on a motion for a new trial based

on newly discovered evidence, he must show” the following:

       (1) the evidence was discovered after trial; (2) the failure to learn of the
       evidence was not caused by his own lack of diligence; (3) the new evidence
       is not merely impeaching; (4) the new evidence is material to the principal
       issues involved; and (5) the new evidence is of such a nature that in a new
       trial it would probably produce an acquittal.
                                              4
United States v. Herrera, 481 F.3d 1266, 1270 (10th Cir. 2007).

       On the other hand, “[o]ur review of a Brady claim asserted in the context of a Rule

33 motion for a new trial is de novo, with any factual findings reviewed for clear error.”

United States v. Torres, 569 F.3d 1277, 1281 (10th Cir. 2009). “A defendant who seeks a

new trial based on an alleged Brady violation must show that (1) the prosecution

suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the

evidence was material.” Id.

       Concluding that the evidence did not support a Brady claim, the district court

analyzed the motion under the Herrera standard and concluded that a new trial was not

warranted. Under either standard, because Mr. Montgomery has not demonstrated the

existence of any evidence that is favorable and material, this court agrees that it was

proper for the district court to deny his motion for a new trial

   II. Claim that the Prosecution Misrepresented Status of Hard Drive Analysis

       In support of his argument that the prosecution misrepresented the status of the

hard drive analysis, Mr. Montgomery presents two documents obtained from the FBI

through a FOIA request—the Request for a CART examination of the computer (dated

August 20, 2007) and the Report on that examination (dated September 21, 2007). He

argues that the Report, in conjunction with the Request, demonstrate that the prosecution

misrepresented the status of the CART examination to the defense. Specifically, in his

motion, Mr. Montgomery alleged that the prosecution had misrepresented “the existence

                                              5
of status of computer records seized from Defendant’s computer, stating that the forensic

analysis had not been done because the FBI’s . . . CART . . . office in Oklahoma City was

backlogged for over 6 months.”

       As to the Request, because it only indicates that the CART examination had been

requested, the district court concluded that the Request did not contain any evidence that

was exculpatory or likely to result in acquittal. As to the Report, the district court

determined that nothing in the report or brought forth in the evidentiary hearing regarding

Mr. Montgomery’s motion pursuant to § 2255 supported that the prosecution had

misrepresented the status of the examination of the hard drive.

       Specifically, the evidence produced at the § 2255 hearing showed that, although

the office was normally back-logged for six months, an examiner completed an initial

examination of the hard drive prior to trial and advised an agent of the initial

examination. After the trial, the agent informed the examiner that he did not need any

results from the hard drive because the trial was complete. At the evidentiary hearing

regarding the § 2255 motion, the prosecution testified that he believed at the time of trial

that an examiner had conducted a “cursory forensic examination,” but that he did not

think that anyone had ever looked at everything on the computer.

       Moreover, at a pretrial hearing, when defense counsel requested the hard drive to

perform an analysis seeking exculpatory evidence, the prosecution informed defense

counsel of the lack of child pornography found on the computer and agreed to stipulate to

that at trial. And as explained in the district court order denying the §2255 motion, the
                                              6
examiner performing the CART examination testified that there were no chat logs

recovered during the examination of Mr. Montgomery’s hard drive, and that although he

found references to the screen names, the references were in chat fragments contained in

the hard drive’s random access memory rather than in cohesive chat logs. Thus, the

testimony established that no favorable or material evidence was retrieved from Mr.

Montgomery’s computer during the CART analysis, other than the lack of child

pornography, which was shared with defense counsel at trial.

       Accordingly, the court rejected the claim that the Request and Report indicated

that the prosecution had misrepresented the status of the CART analysis. We agree.

               III.    Claim that the Prosecution Ordered Destruction and
                                      Cover Up of Evidence

       Mr. Montgomery contends that one of his FOIA documents, the Closing

Memorandum, demonstrates that the prosecution improperly ordered the destruction and

cover up of evidence relevant to Mr. Montgomery’s face. The Closing Memorandum is

dated several months after Mr. Montgomery’s conviction was final and the period for

direct appeal had ended without Mr. Montgomery filing an appeal. Moreover, the

Closing Memorandum stated that the evidence could be destroyed or returned. And

indeed, the Government returned the hard drive it had confiscated from Mr. Montgomery

to Ms. Montgomery. Although defense counsel was unable to retrieve useful information

from the hard drive for the §2255 hearing, there is no indication that the Government was

responsible for the condition of the hard drive at that time. Thus, the district court

                                              7
rejected the claim that the Closing Memorandum indicated that the prosecution had

improperly ordered the destruction and cover up of evidence. We agree.

    II. Claim that the Government’s Failed to Preserve & Effectively Destroyed
                               Chat Log Records

       Without providing any newly discovered evidence to support his claims, Mr.

Montgomery alleges that the Government failed to preserve several chat logs that were

allegedly in the Government’s possession. Specifically, he contends that the government

failed to preserve a record of the original chat, and that it failed to preserve chat logs from

some forty days between January 23 and May 24, 2007.

       Based on the evidence brought forth in the evidentiary hearing regarding Mr.

Montgomery’s motion pursuant to § 2255, the district court found that no chat log had

been created in the initial chat, but that the undercover agent had subsequently prepared a

report of the chat. As to the other alleged missing chat records, Mr. Montgomery

provided no proof that chats took place on the dates in question. Moreover, the forensic

examination of Mr. Montgomery’s hard drive yielded no record of the alleged missing

chats. Finally, the undercover agent testified that for every chat following the initial chat,

he created a record and prepared a report. Accordingly, the district court rejected this

claim. Because Mr. Montgomery has not produced any newly discovered evidence that

the Government failed to preserved or destroyed chat records, we agree with the district

court’s conclusion.

                                      CONCLUSION

                                              8
      We AFFIRM the district court’s denial of Mr. Montgomery’s motion for a new

trial. Appellant’s motion to proceed in forma pauperis is GRANTED.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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