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

                       FOR THE TENTH CIRCUIT                        April 26, 2017
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                 No. 16-8043
                                         (D.C. No. 1:09-CR-00030-ABJ-1)
WILLIAM BATTON,                                     (D. Wyo.)

       Defendant - Appellant.
                    _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges.
                _________________________________

      This appeal involves the timeliness of a motion for a new trial. The

case itself involves a criminal conviction in 2009 for transporting a minor

across state lines to engage in unlawful sexual acts. 18 U.S.C. § 2423.

Roughly 5 ½ years after the conviction, the defendant (Mr. William

Batton) moved for a new trial based on newly discovered evidence

involving the victim’s credibility. According to Mr. Batton, this evidence


*
      We do not believe that oral argument would be helpful. As a result,
we are deciding the appeal based on the briefs. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A).
had been withheld in violation of Brady v. Maryland, 373 U.S. 83 (1963).

The district court denied the motion for a new trial based on timeliness and

declined to alter the ruling when faced with a motion for reconsideration.

Mr. Batton challenges the rulings denying the motions for a new trial and

reconsideration. We affirm both rulings.

     Motions for a new trial, based on newly discovered evidence, are due

three years after the verdict. Fed. R. Crim. P. 33(b)(1). Mr. Batton missed

this deadline. Thus, the motion for a new trial would ordinarily be

considered untimely. But the district court had discretion to extend the

three-year deadline upon a showing of good cause and excusable neglect.

Fed. R. Crim. P. 45(b)(1)(B).

     The government moved to dismiss the motion for a new trial, arguing

that it had been untimely. In response, Mr. Batton argued that the district

court should extend the deadline based on excusable neglect. But in

denying the motion for a new trial, the district court may have overlooked

Mr. Batton’s argument involving excusable neglect, for the court stated

that “Defendant makes no claim that the three year time period should be

extended for excusable neglect or that there are circumstances that might

justify a determination that the Court should allow this claim to now go

forward.” Doc. 139 at 3.

     The potential oversight proved inconsequential, for the district court

later confirmed that it had “reviewed the materials submitted by the

                                      2
defendant” and adhered to the earlier ruling denying the motion for a new

trial. We take the district court at its word when the court confirmed that it

had reviewed Mr. Batton’s filings. See Livsey v. Salt Lake County, 275

F.3d 952, 957 (10th Cir. 2010).

      The resulting question is whether the district court erred in ruling

that Mr. Batton had not shown excusable neglect. In considering that

ruling, we must determine whether the district court abused its discretion.

United States v. Cates, 716 F.3d 445, 448 (7th Cir. 2013); United States v.

Munoz, 605 F.3d 359, 366 (6th Cir. 2010).

     In conducting this review, we consider four pertinent factors:

           the danger of unfair prejudice to the government,

           the length of the delay and its potential impact on the judicial
            proceedings,

           the reasons for the delay, and

           whether the movant acted in good faith.

United States v. Vogl, 474 F.3d 976, 981 (10th Cir. 2004). Fault for the

delay is “a very important factor—perhaps the most important single

factor—in determining whether neglect is excusable.” United States v.

Torres, 372 F.3d 1159, 1163 (10th Cir. 2004) (internal quotation marks

omitted). Thus, in United States v. Torres, we overturned a finding of

excusable neglect based solely on the movant’s fault. See id. at 1162-63.




                                      3
     The district court reasonably concluded that Mr. Batton was to blame

for the delay. He denied blame, contending that he had sought a new trial

quickly after obtaining the new evidence, consisting of handwritten notes

from the victim’s therapist, through a subpoena in a civil proceeding

brought by the victim. But the district court

          explained that Mr. Batton could have obtained the information
           years earlier and

          reasoned that the passage of roughly 5 ½ years was prejudicial
           to the government, as memories had likely faded with the
           passage of time.

As to Mr. Batton’s delay, the district court explained:

     [The victim’s therapist] was interviewed by law enforcement
     July 16, 2008 and that interview . . . was provided to defense
     counsel [before trial] with proper redactions to the interview
     report. [The therapist’s] report and her potential as a witness
     for either the defendant or the government was known. All
     litigants in the case knew of her professional involvement with
     and therapeutic treatment of the victim. Both sides could have
     sought her records and testimony by subpoena. It is not
     reasonable to think [she] had not recorded her professional
     impressions in some manner at times contemporaneous to her
     treatment of the victim. It is disingenuous to suggest the notes
     could not have been obtained prior to the trial in the face of the
     then-existing knowledge of [the therapist’s] treatment and
     professional relationship with the victim.
Doc. 139 at 5 (citation omitted). In short, the very process by which

Mr. Batton ultimately obtained the treatment notes had been available to

him years before. None of his arguments suggest otherwise. 1


1
     Mr. Batton does argue that prior availability of the notes through a
subpoena should not undercut his Brady claim, citing Banks v. Reynolds,
                                      4
      As for the length and prejudicial effect of the delay, the district court

noted that a delay of 5 ½ years—2 ½ years beyond that already allowed by

Rule 33 for the discovery of new evidence—was “obviously prejudicial to

the government.” Id. at 4. The passage of time impair[ed] the government’s

ability to effectively relitigate the case [because] . . . events occurred long

ago; witnesses bec[a]me unavailable; memories fade[d].” Id. at 5. The

delay also “impact[ed] the Court’s judicial proceedings, and the efficiency,

accuracy and the fairness of those proceedings.” Id. at 5-6.

      These considerations may be mitigated by the victim’s prosecution of

a civil suit in the interim. But the district court could reasonably rely on

the factors involving length of the delay and prejudice.

      Under these circumstances, we conclude that the district court did

not abuse its discretion in denying Mr. Batton’s motions for a new trial and

reconsideration. 2




54 F.3d 1508, 1517 (10th Cir. 1995) (“The fact that defense counsel knew
or should have known about [alleged exculpatory] information, is
irrelevant to whether the prosecution had an obligation to disclose the
information.” (internal quotation marks omitted)). But that is not the point
at issue. We are concerned not with the merits of the Brady claim, but with
the inadequacy of his showing of excusable neglect.
2
      Mr. Batton’s briefing touches on other matters not specifically
addressed here, but we have restricted our discussion to the points material
to our disposition.
                                       5
Affirmed.


            Entered for the Court


            Robert E. Bacharach
            Circuit Judge




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