185 F.3d 910 (D.C. Cir. 1999)
United States of America, Appelleev.Tyrone W. Gloster, Appellant
No. 98-3049
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 18, 1999Decided August 10, 1999

Appeal from the United States District Court for the District of Columbia(No. 96cr00375-01)
Damien J. Marshall, Student Counsel, argued the cause  for appellant.  With him on the briefs were Steven H. Goldblatt, appointed by the court, Catherine E. Lhamon, Supervisory Attorney, and Alexis W. Martin, Student Counsel.
Barton S. Aronson, Assistant U.S. Attorney, argued the  cause for appellee.  With him on the brief were Wilma A.
Lewis, U.S. Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Sima Sarrafan, Assistant U.S. Attorneys.
Before:  Williams, Sentelle and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland:
Garland, Circuit Judge:


1
On the night of September 18,  1996, Tyrone Gloster was sitting on the steps of a residential  building, drinking with a number of other men.  Police officers on routine patrol, having previously received complaints  regarding loitering and narcotics activity from the owner of a  nearby building, stopped to investigate.  The officers asked  Gloster to stand.  When he did, they discovered a loaded  semi-automatic handgun on the spot where he had been  sitting.  Gloster was immediately arrested, and was subsequently convicted of possession of a firearm by a felon in  violation of 18 U.S.C. § 922(g)(1).


2
Gloster appeals his conviction on two grounds.  First, he  contends that the district court improperly denied his motion  to exclude evidence of the ammunition found in the gun. Second, he contends that the district court improperly denied  his motion for a new trial based on newly discovered evidence.  Finding no abuse of discretion by the trial judge, we  affirm Gloster's conviction.


3
* Gloster was initially charged with two violations of 18  U.S.C. § 922(g)(1):  one for possessing the firearm and one  for possessing its ammunition.  Before trial, the district court  ordered the government to proceed on one count only.  See  generally United States v. Clark, No. 97-3168, 184 F.3d 858, 871 (D.C. Cir. Aug. 3, 1999) (holding that possession of loaded  firearm constitutes single offense).  The government elected to proceed on the  gun charge, and the ammunition count was dismissed.  Defense counsel then sought to exclude from trial any evidence  that the gun was loaded, arguing that it was irrelevant and  unduly prejudicial under Federal Rule of Evidence 403.  The  district court denied the motion.


4
At trial, the police officers testified that when they arrived  at the building, four men were on the steps.  All were  standing except Gloster, who was sitting on the top step. Officer Ernest Grant asked the four to show their hands "for  safety reasons."  10/24/97 Tr. at 25.  All complied, but Gloster remained seated.  Grant then asked Gloster to stand. Gloster, said Officer Grant, "seemed to hesitate[,] as if he  didn't want to stand up."  Id. at 98.  When he finally did  stand, the officers saw that Gloster had been sitting "on top  of" the gun.  Id. at 100;  see id. at 98 ("The gun was directly  underneath his buttocks.");  see also id. at 52-53, 69, 72.Both the gun and the ammunition were entered into evidence,  the ammunition over defense counsel's objection that it was  "cumulative."  Id. at 42-43.


5
Prior to the presentation of defendant's case, Gloster obtained a written statement from a witness, Gary Riddick, who  was the registered owner of the gun.  Riddick said that he  had been with Gloster and the others before the police  arrived, but had left to go to the bathroom, placing the gun  "near Mr. Gloster on the top stair."  10/27/97 Tr. at 97.  At  trial, however, Riddick refused to testify, asserting his Fifth  Amendment privilege against self-incrimination.  The district  court appointed an attorney for Riddick, held a hearing, and  concluded that Riddick had a good faith basis for asserting  the privilege.  The court then admitted Riddick's written  statement into evidence as a statement against his penal  interest, pursuant to Federal Rule of Evidence 804(b)(3).Gloster did not testify.


6
The jury found Gloster guilty as charged.  Two months  later he moved for a new trial under Federal Rule of Criminal  Procedure 33, on the ground of newly discovered evidence. The motion advised the court that Riddick was now willing to  testify, and attached a letter from Riddick discussing the  events of the night of September 18, 1996.  Following a  hearing, the district court denied the motion, finding that  Riddick's proposed testimony was not newly discovered evidence, that it was "not significantly different from the statement" admitted at trial and therefore cumulative, and that  the evidence was not "of such a nature, given what the jury did have before it," that it would "probably produce an  acquittal."  3/6/98 Tr. at 39-40.

II

7
Gloster contends that the admission of the ammunition and  of the testimony that the gun was loaded was error because  the evidence was more prejudicial than probative under Federal Rule of Evidence 403.1  We review such claims solely to  determine whether the district court abused its discretion. United States v. Gartmon, 146 F.3d 1015, 1020 (D.C. Cir.  1998).  We find no such abuse here.


8
Gloster's first argument is that the fact that the gun was  loaded was "not relevant to any matter properly provable to  the court."  Def. Br. at 24.  We disagree. Under the Federal  Rules, " '[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence  to the determination of the action more probable or less  probable than it would be without the evidence."  Fed. R.  Evid. 401;  see United States v. Latney, 108 F.3d 1446, 1449  (D.C. Cir. 1997).  Gloster's defense was that the gun was  Riddick's, that Riddick had left it unattended on the steps of  the building while he went to the bathroom, and hence that it  was not within Gloster's possession.  The fact that the gun  was loaded and therefore dangerous made it substantially less  probable that Riddick had simply left it unattended, and more  probable either that he left it in the possession of Gloster or  that Gloster had it in the first place.  These were facts "of  consequence to the determination of the action," and the  evidence was therefore relevant within the meaning of Rule  401.


9
But, Gloster argues, the district court admitted evidence of  the ammunition before Riddick's statement was read to the  jury, and hence before it became relevant.  The fact that the gun was loaded, however, was relevant regardless whether  there was a statement from Riddick.  At a minimum, it was  relevant to support the government's claim that Gloster possessed the gun--by negating speculation that it may have  belonged to someone else, whether that "someone" was Riddick or not.  Indeed, while the defendant's opening statement  did not mention Riddick by name, it set forth the defense's  theory that someone other than Gloster put the gun on the  steps.  10/24/97 Tr. at 20 ("[T]he gun that the government is  now charging Mr. Gloster with having possessed that night  belonged to someone else.  He was the one who put that gun  on the steps, not Mr. Gloster.").  The Federal Rules of  Evidence give a trial court the authority to "exercise reasonable control over the ... order of ... presenting evidence so  as to (1) make the ... presentation effective for the ascertainment of the truth, [and] (2) avoid needless consumption of  time."  Fed. R. Evid. 611(a).  The court did not abuse that  authority by permitting the government to introduce evidence  that the gun was loaded as part of its case-in-chief.


10
Gloster's second argument is that as physical evidence, the  ammunition was merely cumulative of the officers' testimony  that the gun was loaded, particularly since Gloster did not  contest the point.  There is no question, however, that physical evidence is an important part of an effective trial presentation and that the "persuasive power of the concrete and  particular is often essential to the capacity of jurors to satisfy  the obligations that the law places on them."  Old Chief v.  United States, 519 U.S. 172, 187 (1997).  Indeed, as the  Supreme Court noted in Old Chief, even a defendant's willingness to stipulate to a fact (which Gloster did not offer to do)  does not generally deprive the prosecutor of the discretion to  prove it:  "[T]he familiar, standard rule [is] that ... a criminal defendant may not stipulate or admit his way out of the  full evidentiary force of the case as the government chooses  to present it."  Id. at 186-87;  see Gartmon, 146 F.3d at 1021  (holding that Rule 403 "does not generally require the government to sanitize its case ... or to tell its story in a  monotone").


11
Defendant also contends that the government's repeated  references to the ammunition during its witnesses' testimony  were cumulative.  But whether testimony should be truncated  on the ground that it constitutes "needless presentation of  cumulative evidence," Fed. R. Evid. 403, is quintessentially a  question we leave to the discretion of the trial court.  Nor  were the prosecutor's references to the ammunition, either in  direct examination or closing argument, any more than were  permissible to rebut defendant's theory of the case.  See  Clark, 184 F.3d at 866-67.


12
Third, Gloster contends that the evidence the gun was  loaded was prejudicial, and that the potential for prejudice  outweighed its probative value.  It is true, as defendant  suggests, that a loaded gun may suggest a "different threat of  danger" than an unloaded one.  Def. Reply Br. at 15.  But it  is that very dangerousness that makes it less likely someone  simply left the gun unattended on a step.  Rule 403 focuses  not on "prejudice" but "on the 'danger of unfair prejudice,'  and gives the court discretion to exclude evidence only if that  danger 'substantially outweigh[s]' the evidence's probative  value."  Gartmon, 146 F.3d at 1021 (quoting Fed. R. Evid.  403).  The standard the Rule sets for exclusion of evidence  has not been met here.


13
Finally, defendant claims that the district court failed to  conduct the Rule 403 balancing on the record.  Although the  court's analysis was terse, stressing the relevance issue rather than the question of prejudice, so too was the defense  counsel's argument, which had the same emphasis.  See  10/23/97 Tr. at 9-11;  10/24/97 Tr. at 43-44.  In any event, in a  case like this, where "the considerations germane to balancing probative value versus prejudicial effect are readily apparent from the record," we will not reverse a conviction  merely for a failure to conduct an on-the-record balancing.United States v. Washington, 12 F.3d 1128, 1135 (D.C. Cir.  1994) (quoting United States v. Manner, 887 F.2d 317, 322  (D.C. Cir. 1989));  see United States v. Sutton, 801 F.2d 1346,  1362 (D.C. Cir. 1986).

III

14
Gloster also contends that the district court erred in denying his motion for a new trial under Federal Rule of Criminal  Procedure 33, which permits such motions on, inter alia, "the  ground of newly discovered evidence."2  Gloster argues that  the proffered testimony of Gary Riddick qualifies as newly  discovered evidence under the Rule.


15
This circuit follows a five-part test for granting a motion  for a new trial based on newly discovered evidence.  As we  said in United States v. Lafayette, a district court should  grant a new trial "only when the following five conditions are  met:


16
(1) the evidence [has] been discovered since trial;  (2) the party seeking the new trial [has] show[n] diligence in the attempt to procure the newly discovered evidence;  (3)the evidence relied on [is] not ... merely cumulative or impeaching;  (4) [the evidence is] material to the issues involved;  and (5) [the evidence is] of such nature that ina new trial it would probably produce an acquittal.


17
983 F.2d 1102, 1105 (D.C. Cir. 1993) (quoting Thompson v.  United States, 188 F.2d 652, 653 (D.C. Cir. 1951)).  We will  reverse a district court's decision whether to grant such a  motion "only if the court abused its discretion or misapplied  the law."  Id.  The court did neither here.


18
The district judge found Gloster's motion to founder upon  the first requirement of the Lafayette test, that the evidence  truly be newly discovered, because Gloster was aware of its  substance at the time of trial.  3/6/98 Tr. at 39-40.  Citing  United States v. Ortiz, 136 F.3d 161, 168 (D.C. Cir. 1998),  defendant concedes that "the general rule in this Circuit has  been that evidence known to the defendant at the time of trial  does not qualify as newly discovered."  Def. Br. at 10;  see  Ortiz, 136 F.3d at 168 ("The traditional definition of newly discovered evidence is evidence 'discovered since trial.' ").He also concedes that we have applied this rule to post-trial  proffers of testimony from witnesses who refused to testify at  trial.  He contends, however, that most of these cases involved witnesses who had been codefendants, and whose  changes-of-heart did not occur until after they were convicted  and no longer had anything left to lose.  Gloster urges us to  take a different view of a case like his, where the witness is a  nonparty whose testimony only became available post-trial.


19
Although it is true that some of the cases in which we have  applied the general rule involved codefendants, see, e.g., United States v. Dale, 991 F.2d 819, 839 (D.C. Cir. 1993), that was  not the situation in Ortiz itself, where the witness who  initially refused to testify was a nonparty.  Ortiz strongly  suggested that even a nonparty witness' post-trial offer to  testify would fail to qualify as newly discovered evidence  where the substance of the testimony was known to defendant at the time of trial.  Ortiz, 136 F.3d at 168;  see id. at  167 & n.12.  As in Ortiz, however, Gloster's claim fails so  many parts of the Lafayette test that we need not tarry over  the first.


20
The district court found the substance of Riddick's proffered testimony to fail the third element of Lafayette as well  as the first, concluding that the new evidence was cumulative  because it was "not significantly different from the statement  that was offered and received at trial."  3/6/98 Tr. at 43.  In  reply, Gloster contends that Riddick's testimony "could provide more details" about the night of the arrest than the  statement read at trial.  Def. Br. at 19.3  But to the extent  Riddick's proffered testimony was not cumulative, it fails the  second prong of Lafayette because it was not "diligen[tly]" discovered.  The original Riddick statement was the product  of an interview conducted by Gloster's defense counsel and  her investigator.  Riddick initiated the contact;  he called the  defense, volunteered to talk, and said he wanted to make a  statement.  12/27/97 Tr. at 104.  Defense counsel typed the  statement herself, id. at 99, and the court admitted the  statement in its entirety.  See 3/6/98 Tr. at 35-36.  If the  newly proffered details truly were important, they could and  should have been included in the original statement.4


21
Defendant further contests the district court's conclusion  that the testimony was cumulative by arguing that the opportunity to observe Riddick's demeanor would permit the jury  "to assess more accurately the credibility of Riddick's testimony" than did the mere antiseptic reading of his written  statement.  Although we agree that live testimony can convey  considerably more than a cold record, in this case Riddick's  presence would represent the proverbial two-edged sword. While it is possible Riddick's demeanor would make him more  credible to the jury, it is also possible it would make him less. Moreover, unlike the unchallenged and unedited written  statement, live testimony would subject Riddick to cross examination on a host of issues, ranging from his relationship with Gloster to the credibility of his claim that he left a  loaded gun on the steps while he disappeared to use the  bathroom.  Because we have no way to know whether Riddick's live testimony would put Gloster in a better or worse  position, we have no basis to conclude that the fifth element  of Lafayette is satisfied--that in a new trial the evidence  "would probably produce an acquittal."  Lafayette, 983 F.2d  at 1105;  see United States v. McCord, 509 F.2d 334, 342-43  (D.C. Cir. 1974) (en banc).

IV

22
Finding no error on the part of the district court, we affirm  the judgment below.



Notes:


1
 "Although relevant, evidence may be excluded if its probative  value is substantially outweighed by the danger of unfair prejudice,  confusion of the issues, or misleading the jury, or by consideration  of undue delay, waste of time, or needless presentation of cumulative evidence."  Fed. R. Evid. 403.


2
 "The court on motion of a defendant may grant a new trial to  that defendant if required in the interest of justice....  A motion  for a new trial based on the ground of newly discovered evidence  may be made only before or within two years after final judgment...."  Fed. R. Crim. P. 33.


3
 At a later point, Gloster also suggests that the testimony would  include more details of Riddick's personal history, including the fact  that he is a "married father of three children with a very steady  employment history," which would assertedly enhance his credibility with the jury.  Def. Br. at 20.  As noted below, there was no  reason this information could not have been included in the original  written statement.


4
 Defendant does not dispute that he had a full opportunity to  question Riddick before trial and to include whatever information  he wanted in the written statement admitted into evidence.  Indeed,  he does not even dispute that he was aware of the details about  which Riddick now offers to testify.  Instead, at oral argument  defendant suggested that his counsel may have intentionally failed  to include greater detail in Riddick's statement as a matter of trial  strategy:  she expected him to testify, and may not have wanted to  subject him to cross-examination based on any inconsistencies that  might develop between the written and oral testimony.  But if that  is true, Riddick's additional details are neither newly discovered nor  newly available.  Rather, they are simply newly proffered, having  been intentionally withheld as a result of the defense's tactical  calculations.  Events may have turned those calculations into miscalculations, but that is insufficient to save the proffered evidence  from failing the first prong of the Lafayette test.


