                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4585




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-4585


                           UNITED STATES OF AMERICA

                                            v.

                                THOMAS THORNTON,
                                         Appellant


                     Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Criminal No. 05-cr-00387)
                    District Judge: Honorable Thomas M. Hardiman


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 2, 2007

              Before: RENDELL, WEIS and NYGAARD, Circuit Judges

                              (Filed December 12, 2007 )


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Appellant Thomas Thornton (“Thornton”) appeals the District Court’s denial of his

motion for a new trial based upon newly discovered evidence under Federal Rule of

Criminal Procedure 33. He requests that his conviction be vacated and that this matter be
remanded for a new trial. Alternatively, Thornton aks that this matter be remanded for a

hearing on the motion for a new trial. For the reasons stated below, we will affirm.

                                      DISCUSSION 1

       This case involves a conviction following a bench trial for possession of a firearm

by a convicted felon, in violation of 18 U.S.C. 922(g)(1). After a 911 call reporting a

robbery, the police conducted a traffic stop of a vehicle, which matched the description of

the vehicle involved in the robbery. They observed the front seat passenger (Thornton)

dip his shoulder and later discovered a handgun under the front passenger seat. Based on

the testimony of eyewitnesses, including police officers who claimed to have seen

Thornton in actual or constructive possession of a handgun before, during, and after the

robbery, the District Court found Thornton guilty of possession of a firearm by a

convicted felon. Shortly after the trial, Thornton moved for a new trial under Federal

Rule of Criminal Procedure 33 on the basis of newly discovered evidence, namely a

Computer-Aided Dispatch (CAD) report of the 911 call describing the events surrounding

the robbery. Thornton argued that the evidence regarding the 911 call, not previously

available to him, contradicted the testimony of several witnesses who testified at trial.

The District Court denied the motion, and Thornton appealed to this Court.




  1
    As we write for the benefit of the parties alone, we need not undergo a lengthy
recitation of the facts.

                                              2
       We review the District Court’s denial for an abuse of discretion.2 United States v.

Jasin, 280 F.3d 355, 360 (3d Cir. 2002). To show an abuse of discretion, Thornton “must

show the district court’s action was ‘arbitrary, fanciful[,] or clearly unreasonable.’”

Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir.2002) (quoting Stich v.

United States, 730 F.2d 115, 118 (3d Cir.1984)). We will not disturb a trial court’s

exercise of discretion unless “no reasonable person would adopt the district court’s view.”

Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir.2000).

       In interpreting Rule 33, this Court has held that a district court may grant a new

trial based on newly discovered evidence only if five requirements are met:

       (a) the evidence must be in fact, newly discovered, i.e., discovered
       since the 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. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976). Although the decision to

grant or deny a motion for a new trial lies within the discretion of the district court, the

movant has a “heavy burden” of proving each of these requirements. United States v.



  2
   Thornton notes in his brief that if a motion for a new trial is based on a Brady v.
Maryland violation, a district court’s conclusions of law are reviewed de novo and the
findings of fact are subject to a clearly erroneous review standard. United States v.
Perdomo, 929 F.2d 967, 969 (3d Cir. 1991). Because Thornton (1) failed to raise Brady
before the District Court and (2) presents no evidence that the CAD information was
known to the Government at any time prior to his trial, we review Thornton’s claims
outside the Brady context.

                                               3
Saada, 212 F.3d 210, 216 (3d Cir. 2000). The failure of one element is a sufficient basis

to deny a motion for a new trial. Jasin, 280 F.3d at 365.

       Here, the District Court found that the newly discovered evidence would not

probably produce an acquittal and that Thornton could have discovered the evidence

through due diligence. As to the first point, the District Court reasoned that the

information in the CAD report would have only aided attempts to impeach the

government witnesses who testified regarding the robbery itself, for which Thornton was

not charged, rather than those who testified that they observed Thornton’s possession of a

firearm during the subsequent vehicle stop. Thus, while the CAD report might have

provided Thornton with additional modicum of impeachment material, we cannot

conclude that such evidence would probably produce an acquittal.3

       As to the issue of due diligence, the District Court observed that Thornton had

hired a private investigator to obtain the relevant 911 audio recording and found that it no

longer existed. The District Court concluded that once Thornton and his attorney learned

that the 911 audio recording was no longer available, they “reasonably could have asked .

. . whether CAD reports were available instead. The fact that 911 operating centers track

calls in the form of CAD reports or otherwise could have been discovered through due




  3
    We note further that because the evidence upon which a defendant bases his motion
for a new trial “must not be merely cumulative or impeaching,” Cimera, 459 F.3d at 458
(emphasis added), Thornton’s motion independently fails to satisfy the third prong of the
Cimera analysis in addition to those prongs identified by the District Court.

                                              4
diligence.” United States v. Thornton, No. 2:05-CR-0387, 2006 WL 2987747, at *2

(W.D. Pa. Oct. 17, 2006). We find no error in this reasoning and thus no abuse of

discretion.

       Finally, we find no error in District Court’s decision to deny Thornton’s motion for

a new trial without first holding a hearing. See United States v. Gilsenan, 949 F.2d 90, 97

(3d Cir. 1991) (holding that “a hearing need not be held at the behest of a party whose

allegations if established would not entitle it to relief”). Thornton attached as exhibits to

his motion the portions of the CAD report he planned to use and did not identify any

witness whose testimony would have aided the Court’s reading of the report.

Accordingly, it was within the District Court’s discretion to entertain Thornton’s motion

on the pleadings alone.

                                      CONCLUSION

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




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