The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION FOR NEW TRIAL
Defendant Ralph Inzunza moves to have this court certify to the Ninth Circuit its intention to grant his most recently filed motion for new trial. The Government opposes the motion. For the reasons set forth below, the court denies the motion for new trial and therefore declines to certify to the Ninth Circuit that it would entertain the motion for new trial.
On November 10, 2005 the court denied Defendant's motion for a new trial.*fn1 Defendant now claims that newly discovered evidence warrants the grant of a new trial motion. Specifically, Defendant claims that the Government failed to disclose impeaching and exculpatory material relating to Michael Galardi, Nevita Thompson and John D'Intino and to correct Galardi's alleged perjury (or suspected alleged perjury) in violation of its obligations under Brady v. Maryland. Defendant also argues that post-trial statements of co-defendants Malone and Zucchet constitute newly discovered evidence warranting relief under Rule 33. Each argument is discussed in turn.
"The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Trulis v. Barton, 107 F.3d 685, 694-95 (9th Cir. 1995). " The District Court ha[s] jurisdiction to entertain the motion [for new trial] and either deny the motion on its merits or certify its intention to grant the motion to the Court of Appeals, which c[an] then entertain a motion to remand the case." United States v. Cronic, 466 U.S. 648, 667 n.42 (1984).
Here, as set forth below, the court denies the motion for new trial on the merits. Accordingly, the court declines to issue a certification to the Ninth Circuit for purposes of remanding the case to district court.
A motion for new trial based on newly discovered evidence must be made within three years after verdict. If an appeal is pending, the district court may deny a motion for new trial but it cannot grant the motion unless the case is remanded by the Court of Appeals. Fed.R.Crim.P. 33(b)(1).
Under Rule 33(a) the court has broad authority to grant a motion for new trial whenever "the interest of justice so requires." Fed.R.Crim.P. 33(a); United States v. Young, 17 F.3d 1201, 1205 (9th Cir. 1994). The court considers the following five-part test to determine whether to grant a new trial based on newly discovered evidence: (1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendants part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result in acquittal. Untied States v. Sarno, 73 F.3d 1470, 1507 (9th Cir. 1995).
Where the Government knowingly uses perjured testimony, the standard is whether "there is any reasonable likelihood that the false testimony could have affected the jury verdict." United States v. Endicott, 869 F.2d 452, 455 (9th Cir. 1989). In the absence of a showing that the Government knowingly used perjured testimony, "the correct standard for granting a new trial when newly discovered evidence reveals that a Government witness committed perjury during the trial" is that the evidence probably would result in an acquittal. Untied States v. Krasny, 607 F.2d 840, 842 (9th Cir. 1979).
The O'Melveny & Meyers Memoranda: About one year ago, on March 28, 2006, the Government disclosed two memoranda written by an attorney at the law firm of O'Melveny & Meyers ("O & M"), dated June 28, 2003 and August 4, 2003. The memoranda, discovered post-trial by the Government, were drafted by an ...