The opinion of the court was delivered by: Honorable M. Margaret McKEOWN
ORDER DENYING DEFENDANT LOVE'S MOTION FOR A NEW TRIAL
Eighteen months after a jury convicted him of 10 counts related to the bombing of a federal courthouse, Defendant Donny Love ("Love") moved for a new trial, for the second time. The bulk of Love's claims are untimely under Federal Rule of Criminal Procedure 33 ("Rule 33") because they do not arise out of newly discovered evidence. Love's claims that are based on newly discovered evidence fail because Love has failed to show a new trial would probably result in acquittal. Accordingly, the motion is denied. This Order follows the court's denial of the motion at the hearing on February 15, 2013.
In the early morning hours of May 4, 2008, an improvised device consisting of three pipe-bombs, two pounds of explosive powder, and 100 nails exploded in front of the Edward J. Schwartz Federal Courthouse in downtown San Diego, California. The device propelled flying shrapnel and bomb material into the surrounding area, and the explosion caused significant damage to the building. The government's investigation of the bombing initially focused on Rachelle Carlock ("Carlock"), Ella Louise Sanders ("Sanders"), and Eric Robinson ("Robinson"). Carlock, Sanders, and Robinson later admitted to participating in the bombing and alerted the government to Love's role in orchestrating it as part of an elaborate scheme to receive a monetary reward and lenient treatment in pending state criminal cases in exchange for supplying the government with information on the bombing.
On December 9, 2010, the grand jury returned a 10-count superseding indictment charging Love with violating federal laws relating to the use of explosives and firearms, the destruction of property, witness tampering, and obstruction of justice.*fn1 (Dkt. No. 40.) Trial lasted 10 days. The government presented extensive evidence of Love's leadership of the plot, including multiple witnesses who testified to Love's masterminding of the bombing. Defense counsel vigorously represented Love, attempted to impeach the government witnesses, argued that Carlock, Sanders, and Robinson had acted independently in executing the explosion, and introduced evidence that suggested Love could not have participated because he was recovering from a recent thumb surgery. On June 6, 2011, a jury convicted Love of all 10 counts in the superseding indictment. (Dkt. No. 114.)
Following trial, in August 2011, Love moved to replace his trial counsel, Robert Boyce ("Boyce"), and, in October 2011, moved for a new trial on the basis of ineffective assistance of counsel. (Dkt. Nos. 127, 146.) The court granted Love's motion for new counsel and appointed Michael Berg ("Berg") as Love's counsel for post-trial proceedings.*fn2 (Dkt. No. 151 at 20.) After a hearing, the court determined that any conflict that Love claimed he had experienced with Boyce constituted a disagreement over tactics and trial strategy that had not warranted substitution of counsel, and the court denied the new trial motion. (Dkt. No. 160.) The court also noted that, at a hearing shortly before the beginning of trial, the court asked Love if he wanted Boyce to be his attorney at trial and Love explicitly stated that he wanted to proceed with Boyce as counsel. (Dkt. Nos. 150 at 2-4; 160 at 3.)
In May 2012, Love again moved for new counsel. (Dkt. No. 176.) The court appointed Mark Adams ("Adams") to replace Berg as Love's post-trial counsel. (Dkt. No. 184.) Adams advised the court that he would be filing a motion for a new trial based on evidence that Sanders had recanted her trial testimony and had signed a declaration stating that Love was not associated with the bombing plot ("the Sanders declaration"). The government responded with a declaration by Sanders stating that Love had asked her to sign a declaration recanting her testimony, but that she had refused because her testimony was true. (Dkt. No. 169, Exh. A.) Because of the dispute concerning the authenticity of the Sanders declaration, at Love's request, the court appointed a handwriting expert and ordered Sanders to produce handwriting exemplars. (Dkt. Nos. 191-93.) The court ordered Love to file his motion for a new trial based on the Sanders declaration by November 5, 2012. (Dkt. No. 191.)
After examining the Sanders declaration and her handwriting exemplars, the forensic document examiner appointed at Love's request determined that the signature on the Sanders declaration was "the result of a cut-and-paste or copy-and-paste." (Dkt. No. 217, Exh. 1, at 11.)
The day Love's new trial motion was due, no motion was filed. Love instead moved to represent himself because Adams declined to file a new trial motion. (Dkt. No. 196.) After conducting a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), the court granted Love's motion to represent himself, and Love now appears before the court pro se. (Dkt. No. 200.) The court ordered Sanders be returned to a facility within the Southern District of California so that she could be produced as a witness at the hearing on Love's new trial motion if necessary, set a new deadline for Love's new trial motion of December 19, 2012, and set a new motion hearing for January 16, 2013. (Id.) No motion was received by this deadline. At the January 16 motion hearing, Love claimed that he had mailed his motion to the court on December 18, 2012. Although the court never received this motion, it accepted Love's motion for filing at the January 16 hearing, giving him the benefit of the doubt regarding a timely mailing. (Dkt. Nos. 211-12.)
Love's second motion for a new trial alleges that newly discovered evidence undermines his conviction, that the government failed to disclose exculpatory evidence in violation of its obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963), and that his trial counsel was ineffective. (Dkt. No. 211.) In setting a briefing schedule, the court permitted Love to file evidence in support of the motion by January 30, 2013. (Dkt. No. 212.) Love timely filed two declarations by Johnathan Jamar Sanders. (Dkt. No. 216.) In his reply to the government's opposition, Love raised new arguments that the government failed to disclose additional exculpatory evidence and failed to correct a witness's allegedly false testimony in violation of Napue v. Illinois, 360 U.S. 264, 269 (1959). (Dkt. No. 219.) Love also appended to his reply brief six new declarations in support of his arguments. (Id.) A district court need not consider arguments raised for the first time in a reply brief, see Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007), and although the court deems these arguments untimely and waived, out of an abundance of caution the court nevertheless considered these new arguments and declarations in evaluating Love's claims.
The court held a hearing on Love's motion for a new trial on February 15, 2013, and allowed Love to call witnesses or submit evidence. At Love's request, the court ordered the U.S. Marshal's Service to produce Sanders as a potential witness, but Love declined to call her to testify. In support of the motion, Love submitted compact discs of electronic discovery that had been given to him by Boyce before trial. After hearing argument, the court ruled that Love's motion for a new trial was denied and that a written order would follow.
Rule 33 of the Federal Rules of Criminal Procedure vests the court with broad discretion to "vacate any judgment and grant a new trial if the interest of justice so requires." See United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). Where, as here, a defendant seeks a new trial on the basis of newly discovered evidence,*fn3 the defendant must satisfy a five-part test:
(1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of the defendant's lack of diligence; (3) the evidence must be "material" to the issues at trial; (4) the evidence may not be (a) cumulative or (b) "merely impeaching"; and (5) the evidence must indicate that a new trial would "probably" result in acquittal.
Hinkson, 585 F.3d at 1257 (quoting United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005)). The requirement that the newly discovered evidence be likely to produce an acquittal is "a stringent one." United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985). Newly discovered evidence is unlikely to indicate that a new trial would "probably" result in acquittal when it is outweighed by evidence sufficient to support the defendant's conviction. United States v. Berry, 624 F.3d 1031, 1043 (9th Cir. 2010). Newly discovered evidence that impeaches trial testimony does not establish a probability that a new trial would result in acquittal if the jury has sufficient evidence to convict the defendant even without the impeached testimony. Id.
NEWLY DISCOVERED EVIDENCE REGARDING CULPABILITY
A. Declaration of Ella Sanders
As part of his second motion for new trial, Love offered the Sanders declaration. He also submitted a declaration from Johnathan Jamar Sanders (no relation to Ella Sanders), with whom Love was incarcerated in 2012, discussing the Ella Sanders declaration ("the Johnathan Sanders declaration"). (Dkt. No. 216 at 3.) The court treats this evidence, discovered after the trial, as newly discovered and considers timely the motion for a new trial to the extent it rests on this evidence.
One of the government's key witnesses at trial was Ella Sanders, a close friend of Love and a co-conspirator in the bombing. Sanders testified that, at Love's instruction, she performed various activities in furtherance of the conspiracy, including purchasing gun powder and stealing items later used to make bombs. (Dkt. No. 136 at 44-47, 54-55.) Love often rewarded her with crack cocaine. (Id. at 43, 48, 58, 76.) Sanders also testified that Love directed her, Robinson, and Carlock to test multiple pipe bombs before the bombing of the federal courthouse. (Id. at 37-43, 62-65, 70-74.) Sanders further testified that on the night of the bombing, under Love's supervision, she helped him and Carlock wrap a pipe bomb in duct tape and later heard from Robinson that Carlock "blew up something." (Dkt. No. 104 at 77-79, 82.)
While incarcerated after trial, in June 2012, Love claimed to have received from Sanders the Sanders declaration, which stated that Sanders had testified falsely about Love and that Love had no involvement in the courthouse bombing. (Dkt. No. 219, Exh. K.) Love argues that this declaration constitutes newly discovered evidence warranting a new trial. After Love produced the Sanders declaration, the government obtained a signed declaration from Sanders stating that Love had asked her to sign the declaration he submitted to the court, but that she had refused because it was false. (Dkt. No. 169, Exh. A.) The government also introduced the original declaration that Sanders states Love asked her to sign, on which Sanders wrote "NO HELL NO," "because the statements contained in the declaration are not true." (Id. at 2, 4-5.)
At Love's request, the court authorized funds for a forensic document examiner chosen by Love to analyze the Sanders declaration and handwriting exemplars in order to determine whether the signature on the Sanders declaration was authentic. (Dkt. Nos. 191, 193.) After reviewing the documents, the expert opined that the "signature" appearing on the Sanders declaration was "the result of a cut-and-paste or copy-and-paste" of Sanders's signature taken from an advice of rights and waiver form signed by Sanders in May 2008. (Dkt. No. 217, Exh. 1, at 11.) Despite his earlier request that Sanders be produced as a witness for the hearing on this motion and despite her presence in the courthouse ...