The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
After Brent Wilkes was convicted of conspiracy, honest-services fraud, money laundering, and bribing a public official, and sentenced to 12 years in prison, on November 4, 2010 he filed a motion for a new trial on the basis of newly discovered evidence. The Court denied that motion. Mr. Wilkes now asks the Court to reconsider that denial.
The Federal Rules of Criminal Procedure don't specifically authorize motions for reconsideration, but "numerous circuit courts have held that motions for reconsideration may be filed in criminal cases." United States v. Hector, 368 F.Supp.2d 1060, 1063 (C.D. Cal. 2005), rev'd on other grounds, 474 F.3d 1150 (9th Cir. 2007). They are considered under the standard applicable to equivalent motions in civil proceedings. Id. Here, the relevant standard appears in Fed. R. Civ. P. 60(b):
[T]he court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
In addition, this Court's Standing Order in Civil Cases 4(j) provides: "Motions for reconsideration are disfavored unless a party shows there is new evidence, a change in controlling law, or establishes that the Court committed clear error in the earlier ruling." Wilkes asserts that his motion for reconsideration is based on Fed. R. Crim. P. 33, but that Rule governs motions for a new trial, not motions to reconsider the denial of such a motion.*fn1
The essence of Wilkes' motion for reconsideration is that the Court erred in rejecting the exculpatory testimony of Duke Cunningham without holding an evidentiary hearing. He argues that "an evidentiary hearing is appropriate before deciding contested issues of witness credibility." (Mot. at 2.) No, it isn't. As Wilkes' concedes, "[t]he decision whether or not to conduct an evidentiary hearing to consider a motion for a new trial is a matter of discretion." United States v. Thompson, 493 F.2d 305, 310 (9th Cir. 1974).
When the Court denied Wilkes' motion for a new trial, it discounted the testimony of Cunningham for the following reason:
Not only do his own crimes strip him of credibility in the eyes of the Court, but his declaration statements flatly contradict the substance of his plea agreement, statements he made at the plea hearing, the overwhelming evidence that lef to his and Wilkes's conviction, the sworn testimony of federal agents who investigated Cunningham's corruption, and even statements made by Cunningham's own lawyers.
(Doc. No. 410 at 6.) Wilkes now argues that "[w]e are left to determine whether Cunningham was lying then or if he is lying now. This is precisely the type of situation where live witness testimony is appropriate and necessary to resolve the conflicting ...