           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0001P (6th Cir.)
                    File Name: 00a0001p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                            ;
                             
 UNITED STATES OF AMERICA,
                             
          Plaintiff-Appellant,
                             
                             
                                              No. 98-4474
          v.
                             
                              >
 DOUGLAS TURNS,              
        Defendant-Appellee. 
                            1

          Appeal from the United States District Court
         for the Southern District of Ohio at Columbus.
        No. 98-00013—John D. Holschuh, District Judge.
                  Argued: December 7, 1999
              Decided and Filed: January 5, 2000
   Before: COLE and GILMAN, Circuit Judges; CARR,
                   District Judge.*




    *
     The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.


                                  1
2    United States v. Turns                       No. 98-4474

                    _________________
                         COUNSEL
ARGUED: J. Michael Marous, OFFICE OF THE U.S.
ATTORNEY, Columbus, Ohio, for Appellant. Gary W.
Deeds, Columbus, Ohio, for Appellee. ON BRIEF: J.
Michael Marous, OFFICE OF THE U.S. ATTORNEY,
Columbus, Ohio, for Appellant. Gary W. Deeds, Columbus,
Ohio, for Appellee.
                    _________________
                        OPINION
                    _________________
   RONALD LEE GILMAN, Circuit Judge. This is an appeal
from the district court’s order granting Douglas Turns’s
motion for a new trial. Turns was convicted on one count of
knowingly possessing and transferring a machine gun in
violation of 18 U.S.C. §§ 922(o)(1) and 924(a)(2). Pursuant
to Rule 33 of the Federal Rules of Criminal Procedure, Turns
timely filed a motion for a new trial, alleging that his sister,
Starlet Turns, possessed “newly discovered” evidence. In two
affidavits filed within days of Turns’s conviction, Starlet
Turns claimed that her former boyfriend was the owner of the
machine gun and that her brother was unaware of its nature
when he pawned it at her request. After reviewing both sides’
briefs and holding an evidentiary hearing, the district court
granted Turns’s motion. The government filed this timely
appeal. For the reasons set forth below, we REVERSE the
district court’s order granting a new trial, REINSTATE
Turns’s conviction, and REMAND for sentencing.
                    I. BACKGROUND
   During the summer of 1995, Turns attended a gun show in
Hilliard, Ohio with his sister’s boyfriend, Anthony Rogers.
The government alleges that Turns knowingly purchased a
fully automatic M-16 rifle at the gun show and later sold it to
a pawn shop. Turns, however, claims that Rogers was the one
No. 98-4474                       United States v. Turns       3

who purchased the M-16, and that the next time that he saw
the rifle was when his sister asked him to pawn it on Rogers’s
behalf. He testified that he complied with his sister’s request
and sold the M-16 under the belief that it was a semi-
automatic firearm, not knowing that the internal mechanism
of the M-16 had been altered (the rifle was originally the non-
military version of the M-16) to convert it to a fully automatic
weapon. Turns claims that he first became aware that the M-
16 was fully automatic when his sister asked him to retrieve
the “automatic rifle” from the pawn shop. He was
unsuccessful in doing so. The M-16 eventually ended up in
the hands of the government, and Turns was charged with
knowingly possessing and transferring a machine gun.
   Turns does not dispute that he possessed and eventually
transferred the firearm described in the indictment. Instead,
he argues that he was unaware at the time that the firearm was
a machine gun. At trial, the central issue was whether Turns
knew that the M-16 was a fully automatic weapon when he
sold it to the pawn shop.
   Although Turns claimed that he was unaware of the M-16’s
automatic capabilities, five witnesses testified for the
government and directly contradicted Turns’s testimony
regarding ownership of the firearm and his knowledge that it
was a machine gun. Two were law enforcement officers who
testified that Turns’s statements during their separate
conversations with him revealed his knowledge that the rifle
in question was fully automatic. The clerk at the pawn shop
where Turns sold the fully automatic rifle also related that “he
[Turns] told me that the gun was fully automatic . . . [and] he
had test fired it.” In addition, one of Turns’s friends testified
that Turns had shown him the fully automatic rifle and had
explained how the weapon functioned, which Turns referred
to as a “machine gun.” Finally, Rogers took the stand to say
that Turns had shown him how to operate the selector switch
on the rifle, which enabled the rifle to be fired in fully
automatic mode. Even Turns’s own sworn affidavit, tendered
in 1995, states that he recognized that the weapon in question
was an M-16. This is significant because his former military
4      United States v. Turns                      No. 98-4474     No. 98-4474                      United States v. Turns        9

training had taught him that the M-16 is fully automatic. In         The Ninth Circuit dealt with these policy concerns in
addition to its direct evidence, the government also               Baumann v. United States, 692 F.2d 565 (9th Cir. 1982),
impeached Turns by noting numerous inconsistencies                 where the defendant sought a new trial based upon an
between Turns’s pretrial statements and his testimony at trial.    uncalled witness’s “newly discovered” evidence. In denying
The jury found the government’s evidence convincing and            the defendant’s motion for a new trial, the court reasoned as
convicted Turns on April 23, 1998.                                 follows:
   Turns filed a motion for a new trial three weeks later, based     Baumann’s evidence is not newly discovered because
on what he characterized as newly discovered evidence.               allowing criminal defendants to raise such allegations
Specifically, he submitted two affidavits from his sister that       after a judgment of conviction has been entered . . .
tended to exonerate him, both of which were prepared within          would permit them to “sandbag” the fairness of the trial
a few days after his conviction. The district court held a           by withholding or failing to seek material, probative
hearing on the motion on September 15, 1998. At that                 evidence and later attempting to collaterally attack their
hearing, Turns’s sister testified that the M-16 belonged to          convictions under Fed. R. Crim. P. 33 . . . .
Rogers, and that she had asked Turns to pawn it on Rogers’s
behalf. Turns’s sister also stated that after she had given the    Id. at 580. For the same reasons, allowing Turns a new trial
firearm to Turns, Rogers told her that the M-16 was a              on the basis of his sister’s affidavits would constitute a
machine gun and that he wanted it back.                            “sandbagging” of the judicial process.
   Starlet Turns further said that at the time of her brother’s       In summary, Turns failed to meet his burden of proof on the
trial, she had told Turns that she would not testify truthfully    first prong of Barlow as a matter of law. The district court
on his behalf because she was involved in an intimate              thus clearly abused its discretion when it granted Turns’s
relationship with Rogers and did not want to place her             motion for a new trial. We therefore reverse the district
boyfriend in jeopardy. In countering the testimony of Turns’s      court’s order on this basis and need not address the
sister, the government argued that the contents of her             government’s remaining arguments.
affidavits were at best “newly available” evidence, not “newly
discovered” evidence, and thus were not sufficient to warrant                         III. CONCLUSION
a new trial.
                                                                     For all of the reasons set forth above, we REVERSE the
  The district court found that Turns was aware of the             district court’s order granting a new trial, REINSTATE
information contained in his sister’s affidavits at the time of    Turns’s conviction, and REMAND for sentencing.
his trial, but that he did not “discover” her willingness to
testify truthfully until afterwards. In so ruling, the district
court reasoned as follows:
    Prior to trial, not only did Starlet refuse to testify, she
    told the Defendant that she would perjure herself if she
    were forced to testify. While the Court recognizes that
    this is not a case in which the Defendant has discovered
    the identity of a new witness, in a realistic sense and as
    a practical matter, this is a case in which there is newly
8     United States v. Turns                         No. 98-4474       No. 98-4474                       United States v. Turns       5

than it would be without the evidence.” The only fact that               discovered evidence: to wit, the truthful testimony of a
was of consequence at Turns’s trial was whether Turns knew               key witness for the defense, evidence that was not
that the M-16 was an automatic rifle on the day he pawned it.            previously available to Defendant. Accordingly, the
What Turns’s sister would or would not have said on the                  Court finds that the first requirement of Barlow has been
witness stand about this key fact was certainly relevant to              met.
Turns’s decision on whether to call her, but is not itself
“newly discovered” evidence under Rule 33.                             After finding that Turns had also met all of the remaining
                                                                       requirements set forth in United States v. Barlow, 693 F.2d
   In the instant case, Turns was aware at the time of trial that      954 (6th Cir. 1982), to establish a proper foundation for
his sister possessed the information set forth in the two              newly discovered evidence, the district court granted his
affidavits she submitted in support of his motion for a new            motion for a new trial. The government timely appealed.
trial. Turns had even notified his attorney prior to trial about
the information his sister possessed and “had implored his                                    II. ANALYSIS
sister to come forward and testify truthfully.” Because Turns
and his counsel believed that she would not tell the truth, they       A. Standard of review
made a strategic decision not to call her. Based on the
reasoning in Glover, the proposed testimony of Turns’s sister             Motions for a new trial based upon newly discovered
is at best “newly available” evidence, not “newly discovered”          evidence are disfavored and should be granted with caution.
evidence. Turns had the option of subpoenaing his sister and,          See United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991).
if necessary, he could have attempted to discredit any perjured        When such a motion is granted, however, the decision will
testimony.                                                             not be disturbed unless the district court clearly abused its
                                                                       discretion. See United States v. Pierce, 62 F.3d 818, 823 (6th
   Moreover, it is not clear that the proposed testimony was           Cir. 1995). A district court clearly abuses its discretion when
even “newly available,” because Turns’s sister testified at the        it “applies the wrong legal standard, misapplies the correct
motion hearing that she would have told the truth if she had           legal standard, or relies on clearly erroneous findings of fact.”
been called to the stand at trial, despite having told Turns she       Schachner v. Blue Cross & Blue Shield, 77 F.3d 889, 895 (6th
would not do so. The fact that Turns’s sister now claims that          Cir. 1996) (internal quotation marks and citation omitted); see
she wants to testify for her brother does not mitigate Turns’s         Steinhoff v. Harris, 698 F.2d 270 (6th Cir. 1983) (addressing
deliberate choice of omitting her testimony at trial. If the           a Rule 60(b) motion in a social security case and treating the
district court’s decision was allowed to stand, then other             phrases “abuse of discretion” and “clear abuse of discretion”
defendants would be encouraged to file motions for new trials          the same for the purpose of review).
based solely upon the existence of previously uncalled
witnesses who, after learning of the defendant’s conviction,           B. The district court clearly abused its discretion when
state for the first time that they are willing to testify truthfully      it granted Turns’s motion for a new trial
on the defendant’s behalf. Such a precedent would also
encourage defendants to hold a witness or two in reserve,                 When a defendant makes a motion for a new trial based
knowing that if they lost at trial, they might get another             upon newly discovered evidence, he must show that (1) the
chance by producing sworn affidavits from their reserve                evidence was discovered after the trial, (2) it could not have
witnesses.                                                             been discovered earlier with due diligence, (3) it is material
                                                                       and not merely cumulative or impeaching, and (4) it would
                                                                       likely produce an acquittal if the case was retried. See
6      United States v. Turns                      No. 98-4474     No. 98-4474                        United States v. Turns        7

Barlow, 693 F.2d at 966. In the case at bar, the main focus is     proposed testimony prior to trial. Therefore, the testimony
on the first prong of Barlow.                                      cannot be deemed ‘newly discovered evidence’ within the
                                                                   meaning of Rule 33.”).
   In United States v. Glover, 21 F.3d 133 (6th Cir. 1994), this
court elaborated on what it means for evidence to be newly            In all of the above cases, co-defendants or other witnesses
discovered after trial. The defendant in Glover was convicted      threatened to plead or did plead the Fifth Amendment in order
of possessing cocaine with the intent to distribute. He then       to avoid testifying, and then changed their minds after the
filed a motion for a new trial based upon newly discovered         defendant was convicted. Although the present case has
evidence. To support his motion, the defendant submitted an        slightly different facts, the same logic should apply where a
affidavit from a witness who claimed to have placed the            witness threatens to lie if called as a witness and then, after
cocaine in the defendant’s kitchen stove where it was              trial, decides to testify truthfully on the defendant’s behalf. In
eventually found by the police (the witness allegedly had a        fact, it strikes us that a defendant has a stronger argument
key to the defendant’s apartment). At the defendant’s trial,       (although still unavailing) for a new trial when a witness
the witness had asserted his Fifth Amendment privilege             refuses to testify because of the witness’s Fifth Amendment
against self-incrimination and had refused to testify.             privilege than when a witness threatens to lie if called to the
Following the witness’s conviction on separate drug-related        stand. In the latter instance, the witness can still be
charges, the witness changed his mind and decided to testify       subpoenaed and forced to answer questions under penalties of
on the defendant’s behalf. In affirming the district court’s       perjury, whereas a witness asserting his or her Fifth
denial of the defendant’s motion for a new trial, the court in     Amendment privilege cannot be forced to answer any
Glover held as follows:                                            questions that may be self-incriminating.
    Glover is unable to establish that the evidence offered by        The key to deciding whether evidence is “newly
    [the witness] “was discovered after the trial” and thus he     discovered” or only “newly available” is to ascertain when the
    fails to carry his burden of proof. Glover acknowledges        defendant found out about the information at issue. A
    that he was well aware of [the witness]’s testimony prior      witness’s shifting desire to testify truthfully does not make
    to trial. . . . While [the witness]’s testimony may have       that witness’s testimony “newly discovered” evidence. See,
    been newly available, it was not in fact “newly                e.g., Glover, 21 F.3d at 138. Defendants and their counsel
    discovered evidence” within the meaning of Rule 33.            frequently have to make strategic choices as to whether to call
                                                                   certain witnesses who have credibility problems or might not
Id. at 138. For other cases reaching the same conclusion, see      testify truthfully. Our system of justice relies, in large part, on
Pierce, 62 F.3d at 825 (“Evidence is not newly discovered          the theory that when a person takes the witness stand and
when it is necessarily known by the defendant at the time of       swears to tell the truth, that he or she will in fact do so.
trial.”); United States v. Hawkins, 969 F.2d 169, 175 (6th Cir.
1992) (holding that if a defendant knew about the evidence at         Whether or not a witness will testify truthfully if called to
the time of trial, he cannot satisfy the newly discovered          the stand is simply not “evidence” that can be used as a basis
evidence requirement of Rule 33); Seago, 930 F.2d at 489           to invoke Rule 33 of the Federal Rules of Criminal Procedure.
(holding that evidence known by the defendant at the time of       “Relevant evidence” is defined by Rule 401 of the Federal
trial cannot constitute “newly discovered” evidence); United       Rules of Evidence as “evidence having any tendency to make
States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989)         the existence of any fact that is of consequence to the
(“Here, both [defendants] were well aware of [the witness]’s       determination of the action more probable or less probable
