                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-13-2008

USA v. Rottschaefer
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1142




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"USA v. Rottschaefer" (2008). 2008 Decisions. Paper 1607.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1607


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                               NOS. 07-1142 & 07-1673



                           UNITED STATES OF AMERICA

                                            v.

                         BERNARD ROTTSCHAEFER, M.D.,

                                                                    Appellant


                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                        (D.C. Crim. Action No. 03-cr-00162-1)
                        District Judge: Hon. Gary L. Lancaster


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 12, 2008

           BEFORE: SLOVITER, SMITH and STAPLETON, Circuit Judges

                           (Opinion Filed: February 13, 2008)



                              OPINION OF THE COURT



STAPLETON, Circuit Judge:

      Appellant Bernard Rottschaefer appeals the District Court’s denial of his motion

for a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons stated
below, we will affirm.

                                             I.

       Because we write only for the parties who are familiar with the factual context and

procedural history of the case, we set forth only those facts necessary to our analysis.

       On March 9, 2004, Rottschaefer was convicted of 153 counts of unlawful

distribution of a controlled substance based on his practice of over-prescribing painkillers

until his patients became addicted, and then demanding sexual favors in exchange for

subsequent refills. In his instant motion, Rottschaefer argues that he is entitled to a new

trial because the recent deposition testimony of his former patients proves that some of

them had been suffering from medical conditions that merited the treatment that he

provided. Further, he argues that he deserves a new trial because two former patients lied

by testifying that they had not been promised leniency in exchange for their cooperation,

an allegation he supports by the fact that these patients ultimately received lenient

sentences on the charges that they were facing.

       After considering these arguments, the District Court denied Rottschaefer’s motion

on December 29, 2006. This appeal followed.1

                                            II.



   1
    Although this appeal was premature when it was filed on January 12, 2007, this defect
was cured once the District Court entered the judgment of sentence on February 18, 2006.
E.g., United States v. Cottman, 142 F.3d 160, 164 n.5 (3d Cir. 1998); United States v.
Hashagen, 816 F.2d 899, 901 (3d Cir. 1987). Our jurisdiction is therefore proper
pursuant to 28 U.S.C. § 1291.

                                              2
         “Our case law makes clear that five requirements must be met before a trial court

may grant a new trial on the basis of newly discovered evidence: (a) the evidence must be

in fact newly discovered, i.e. discovered since trial; (b) facts must be alleged from which

the court may infer diligence on the part of the movant; (c) the evidence relied on must

not be merely cumulative or impeaching; (d) it must be material to the issues involved;

and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered

evidence would probably produce an acquittal.” United States v. Saada, 212 F.3d 210,

216 (3d Cir. 2000). Because “Rule 33 motions for a new trial are directed to the district

court’s discretion,” our review is limited to “decid[ing] whether the trial judge abused that

discretion or failed to exercise it.” United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir.

1976).

         What Rottschaefer offers as new evidence is in reality nothing more than

cumulative impeachment evidence that is unlikely to produce an acquittal. Therefore, we

agree with the District Court’s conclusion:

         “Defendant was given ample opportunity to cross examine these witnesses
         and call their testimony into question, and he did so. Veracity of witnesses
         may not be tested for a second time. The testimony is merely cumulative
         and impeaching . . . . The overall circumstances, and evidence, of this case
         are such that regardless of what the patient witnesses may have told
         defendant about their symptoms, the prescriptions were not written for
         medical purposes. As such, defendant cannot satisfy the elements
         warranting a new trial based on newly discovered evidence.”

United States v. Rottschaefer, No. CRIM 03-0162, 2006 WL 3840997, *2 (W.D. Pa. Dec.

29, 2006) (internal citations omitted).


                                               3
       By the same token, although it is well settled that a defendant’s Due Process rights

are violated when “(1) evidence was suppressed; (2) the evidence was favorable to the

defense; and (3) the evidence was material to guilt or punishment,” we agree with the

District Court’s conclusion that there is nothing in the record indicating that evidence was

suppressed, as one “cannot infer from the fact that these two witnesses have now received

leniency, that they had been promised leniency at the time of trial, but lied about it on the

stand.” United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006); Rottschaefer, 2006 WL

3840997, at *2.

       Accordingly, Rottschaefer has not carried the “heavy burden” necessary to warrant

a new trial pursuant to Rule 33. Saada, 212 F.3d at 216.

                                             III.

       For the reasons set forth above, we will affirm the District Court on all grounds.




                                              4
