                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-7466


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

DONALD GRIFFIN,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:08-cr-00033-JFM-1)


Submitted:   June 15, 2012                  Decided:   July 24, 2012


Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Steven M. Klepper, KRAMON & GRAHAM, PA, Baltimore, Maryland, for
Appellant.   Rod J. Rosenstein, United States Attorney, Michael
C. Hanlon, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Following a jury trial, Donald Griffin (Griffin) was

convicted    of     carjacking,       18    U.S.C.        § 2119,       possession    of    a

firearm in furtherance of a crime of violence, id. § 924(c), and

possession of a firearm by a convicted felon, id. § 922(g)(1),

and sentenced to 360 months’ imprisonment.                         On direct appeal, we

affirmed the judgment below in toto.                      United States v. Griffin,

391 F. App’x 311 (4th Cir. 2010).                      Subsequently, Griffin timely

moved for a new trial under Federal Rule of Criminal Procedure

33 (Rule 33), based upon information that he characterizes as

newly discovered evidence.                The district court denied Griffin’s

Rule 33 motion.        We affirm.

            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).                Rule

33 further provides that “[a]ny motion for a new trial grounded

on newly discovered evidence must be filed within 3 years after

the   verdict     or    finding      of    guilty.”          Id.      33(b)(1)    (emphasis

added).      To   receive       a    new    trial      based      on   newly     discovered

evidence under Rule 33, a defendant must demonstrate: (1) the

evidence    is    newly      discovered;         (2)    he      has    been    diligent    in

uncovering    it;      (3)    the    evidence     is      not    merely       cumulative   or

impeaching; (4) the evidence is material to the issues involved;

and   (5)   the     evidence        would    probably         produce     an     acquittal.

                                             2
United States v. Lighty, 616 F.3d 321, 374 (4th Cir. 2010).                              We

review a district court’s denial of a motion for a new trial

under Rule 33 for abuse of discretion.                       Id.

                Griffin’s       proffer     of       newly    discovered    evidence     in

support of his Rule 33 motion consisted of a sworn declaration

containing a single sentence by Griffin’s former codefendant,

Darrick Fraling (Fraling), stating that “I MR. Darrick Fraling

JR. would testify that MR. Griffin did not take part in the

October 31, event that me and two other individuals took part

in.” *       (J.A. 15).      Fraling executed the declaration approximately

two and one-half years after he pled guilty to one count of

carjacking on the third day of his and Griffin’s joint trial.

Moreover,           immediately     after        Fraling       pled     guilty,    Griffin

notified the district court of his intention to call Fraling as

a   witness         for   the    defense.        The    record     is   undisputed     that

Fraling promptly informed both the district court and Griffin

that, if        called     to    testify    during       Griffin’s      trial,    he   would

invoke        his    Fifth      Amendment    right       against      self-incrimination

under the United States Constitution and refuse to testify.

                The district court denied Griffin’s Rule 33 motion on

the ground that Fraling’s sworn declaration does not constitute

         *
       The indictment in this case charged that all of                                  the
offense conduct occurred on or about October 31, 2007.                                  The
evidence at trial was wholly consistent with this date.



                                                 3
newly discovered evidence within the meaning of Rule 33.                               We

agree.     First, the record is undisputed that Griffin knew of

Fraling when he went to trial and tried to call Fraling as a

defense witness during his trial after Fraling’s guilty plea.

Second, based upon Griffin’s testimony during his trial in which

he   denied     any    participation        in    the   carjacking      and    related

criminal      activity      on   October     31,    2007,    as      charged    in    the

indictment, logic dictates that Griffin sought to call Fraling

as a witness during his trial to give the very same exculpatory

testimony (i.e., denial of Griffin’s involvement) that he now

argues   should       afford     him   a    new    trial.        A   fortiori,       such

testimony is not newly discovered evidence.

           The       fact   that   Fraling        invoked   his      Fifth   Amendment

right against self-incrimination and refused to testify during

Griffin’s trial, but approximately two and one half years later

expressed his willingness to do so does not transform Fraling’s

single-sentence        declaration         into    newly    discovered        evidence.

Based    upon    a    plain      language        reading    of    the   term    “newly

discovered” in Rule 33(b)(1), the overwhelming majority of our

sister circuits that have considered the issue agree that when a

defendant is aware of the substance of exculpatory testimony

that a codefendant could provide during the defendant’s trial,

the codefendant refuses to testify at the defendant’s trial by

invoking the Fifth Amendment, and, post-trial, the codefendant

                                            4
expresses a willingness to testify, the codefendant’s potential

testimony is not newly discovered evidence within the meaning of

Rule 33.      See, e.g., United States v. Owen, 500 F.3d 83, 89 (2d

Cir. 2007); United States v. Jasin, 280 F.3d 355, 367-68 (3d

Cir. 2002); United States v. Freeman, 77 F.3d 812, 817 (5th Cir.

1996); United States v. Theodosopoulos, 48 F.3d 1438, 1448-49

(7th Cir. 1995); United States v. Glover, 21 F.3d 133, 138 (6th

Cir. 1994); United States v. Muldrow, 19 F.3d 1332, 1339 (10th

Cir. 1994); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188

(9th Cir. 1992); United States v. DiBernardo, 880 F.2d 1216,

1224-25 (11th Cir. 1989).              We have approved of this principle in

the context of considering a habeas petition under 28 U.S.C.

§ 2254.       See Cagle v. Branker, 520 F.3d 320, 325-26 (4th Cir.

2008) (state court’s decision not to reopen defendant’s capital

sentencing in order to hear exculpatory testimony of codefendant

who   invoked      his   Fifth    Amendment      right    not       to       testify   during

trial because, inter alia, codefendant’s potential testimony was

not   newly    discovered        was   reasonable,       and    nothing         about     such

decision      involved     deficient      fact-finding          or       a    violation    of

clearly established federal law).

              Griffin acknowledges that the weight of authority is

against      him   regarding     the    “newly    discovered         evidence”         issue.

However, he urges us to adopt the approach of the United States

Court   of    Appeals     for    the    First    Circuit       in    United      States    v.

                                           5
Montilla–Rivera, 115 F.3d 1060 (1st Cir. 1997), in which the

First Circuit held that “newly available evidence” constitutes

“newly discovered evidence” within the meaning of Rule 33.                            We

decline to follow the First Circuit’s approach because it is

inconsistent         with     the   plain       and    unambiguous       term     “newly

discovered evidence” found in Rule 33(b)(1).                         If the defendant

knew about the evidence prior to the conclusion of his trial, by

definition, the evidence cannot be newly discovered after such

trial.     See, e.g., Jasin, 280 F.3d at 368 (rejecting defendant’s

argument      that    “newly     available      evidence”       is   synonymous     with

“newly discovered evidence” for purposes of Rule 33 on ground

that such argument “cannot overcome the unambiguous language of

Rule 33, which contemplates granting of new trial on the ground

of   ‘newly    discovered        evidence’      but    says    nothing   about     newly

available evidence”).

              Because       we   agree   with         the     district    court     that

Griffin’s proffered evidence was not “newly discovered” within

the meaning of Rule 33, we hold the district court did not abuse

its discretion in denying Griffin’s Rule 33 motion.                             We also

reject   Griffin’s          argument   that     the    district      court   committed

reversible error by refusing to hold an evidentiary hearing on

his Rule 33 motion.

              For the reasons stated, we affirm the judgment below

in toto.      We dispense with oral argument because the facts and

                                            6
legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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