Unpublished Disposition, 852 F.2d 572 (9th Cir. 1986)

MEMORANDUM^** 

James Atkinson, proceeding pro se, appeals the district court's denial of his motion for a new trial pursuant to Fed. R. Crim. P. 33. We affirm.

FACTS AND PROCEEDINGS BELOW

The Federal Drug Enforcement Administration (DEA) began investigating Atkinson in February, 1982. This was after government informant Robert Umphryes told DEA agents that Atkinson was dealing heroin in the Honolulu, Hawaii area. On three separate occasions, DEA agents taped telephone conversations between Umphryes and Atkinson in which Umphryes arranged to purchase heroin from Atkinson. Prior to each meeting, Umphryes was searched by DEA agents to ensure that he did not have any narcotics in his possession. The DEA agents then conducted surveillance of Umphryes' meetings with Atkinson. Umphryes purchased two grams of heroin from Atkinson during the first meeting, and four grams of heroin during the second meeting. During the third meeting, Atkinson saw the DEA agents who were conducting surveillance and cancelled the sale.

In May, 1982, another DEA informant, Peggy Sue Wray, placed an unrecorded telephone call to Atkinson and arranged to purchase one gram of heroin. As with Umphryes, Wray was searched by DEA agents prior to the arranged meeting. The DEA agents conducted surveillance as Wray met with Atkinson and purchased one gram of heroin.

On June 4, 1982, DEA agents, Honolulu police officers and federal postal inspectors searched Atkinson's home pursuant to a federal search warrant. The officers found two triple beam balance scales, an electric heat sealer and plastic bags, numerous unused money wrappers, 372.9 grams of manitol (a cutting agent for heroin and cocaine), 4.86 grams of heroin, and 38 illegally manufactured diazepam (valium) tablets.

On September 9, 1983, Atkinson was indicted on three counts of distributing heroin in violation of 21 U.S.C. § 841(a) (1), one count of possessing heroin with intent to distribute, also in violation of 21 U.S.C. § 841(a) (1), and one count of possessing diazepam in violation of 21 U.S.C. § 844. The first two distribution counts were based on Atkinson's sale of heroin to Umphryes. The third distribution count was based on Atkinson's sale of heroin to Wray. The fourth and fifth counts, alleging possession of heroin with intent to distribute and possession of diazepam, were based on the evidence seized during the search of Atkinson's home.

On March 16, 1984, after a four-day jury trial, Atkinson was convicted on all five counts. Atkinson received concurrent ten-year sentences on each of the first four counts, and a $5,000 fine on the fifth count. Atkinson appealed the judgment to this court, and we affirmed his conviction on all counts. United States v. Atkinson, No. 84-1190 (9th Cir. filed April 10, 1985) (Memorandum Opinion).

On June 19, 1986, Atkinson filed a motion for a new trial pursuant to Fed. R. Crim. P. 33. He based his motion on the interest of justice and newly discovered evidence. The district court denied the motion on August 25, 1986. Atkinson filed a notice of appeal on September 5, 1986. Since the appeal was not timely, this court remanded the case to the district court to allow Atkinson to move for an extension of time. On remand, the district court granted Atkinson's motion for an extension of time to file his notice of appeal. We do not believe that the district court abused its discretion in granting Atkinson's motion. Atkinson, proceeding pro se, miscalculated the amount of time he had to file his notice because, as explained to and accepted by the district court, he erroneously included the three-day period provided in certain circumstances under Rule 26(c) to the time to notice his appeal. Thus, he filed one day late. Although Rule 4(b) is considered mandatory and jurisdictional, Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978); United States v. Avendando-Camacho, 786 F.2d 1392, 1394 (9th Cir. 1986), where excusable neglect is demonstrated, the district court may grant an additional thirty days to make the filing. Excusable neglect has been found when the "appellant has done all he could do under the circumstances to perfect an appeal within the time prescribed by the rule." United States v. Houser, 804 F.2d 565, 569 (9th Cir. 1986); Avendando-Camacho, 786 F.2d at 1394. Although miscalculations of the time allotted for appeal do not generally fall within this statement of the rule, we do not believe finding excusable neglect in such a case constitutes an abuse of discretion in a criminal case as it might in a civil case. As once noticed by the Supreme Court, the Federal Rules "are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances." Fallen v. United States, 378 U.S. 139 (1964). In Professor Moore's phrase, "years in prison for a day's delay is payment in heavy coin." 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 204.19, at 4-130 (2d ed. 1987); see also United States v. Roberts, 749 F.2d 404, 408 (7th Cir. 1984), cert. denied, 470 U.S. 1058 (1985); United States v. Ford, 627 F.2d 807, 809-11 (7th Cir.), cert. denied, 449 U.S. 923 (1980).

JURISDICTION; SCOPE AND STANDARDS OF REVIEW

Atkinson's motion for a new trial was based on two grounds: 1) newly discovered evidence, and 2) the interest of justice. The district court held that it did not have jurisdiction to rule on the motion insofar as it was based on the interest of justice, and considered only the newly discovered evidence ground. A district court's ruling on subject matter jurisdiction presents a question of law which this court reviews de novo. Atkinson v. United States, 825 F.2d 202, 204 (9th Cir. 1987).

Under Rule 33, a motion for a new trial based on any ground other than newly discovered evidence must be made within seven days of the verdict. This time limit is jurisdictional. United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir. 1978) (per curiam). Atkinson was convicted on March 16, 1984. He filed his motion for a new trial on June 19, 1986, over two years later. Since he clearly did not meet the requisite time limit, the district court was correct in concluding that it did not have jurisdiction to consider Atkinson's motion insofar as it was based on the interest of justice.

A motion for a new trial based on newly discovered evidence, however, may be made up to two years after final judgment. Fed. R. Crim. P. 33. For purposes of Rule 33, final judgment occurs when the appellate process is terminated. United States v. Cook, 705 F.2d 350, 351 (9th Cir. 1983). Atkinson's conviction was affirmed on April 10, 1985. Since his motion for a new trial was filed on June 19, 1986, less than two years later, the motion is timely insofar as it is based on newly discovered evidence. This court reviews a district court's ruling on a motion for new trial based on newly discovered evidence for abuse of discretion. United States v. Kenny, 645 F.2d 1323, 1343 (9th Cir.), cert. denied, 452 U.S. 920 (1981).

DISCUSSION

The newly discovered evidence upon which Atkinson bases his motion consists of: 1) Umphryes' admission in a newspaper article that he committed perjury before a grand jury in an unrelated state drug prosecution case, and 2) an affidavit executed by Eileen Ellis, in which she alleges that prosecution witnesses Umphryes and Wray testified falsely against Atkinson.

Atkinson bases his motion upon newspaper articles discussing government informant Umphryes' admission that he perjured himself while testifying before a grand jury in an unrelated state case. As a result of Umphryes' testimony in that case, Reinhard Mohr, Umphryes' former attorney, was indicted on cocaine charges. Umphryes later admitted that he set Mohr up in order to gain favorable treatment for himself and his wife, who was facing robbery charges. Atkinson argues that he should be granted a new trial because Umphryes' admission that he perjured himself in the Mohr case could be used to impeach his testimony in Atkinson's case.

Atkinson claims that the district court applied the wrong legal standard in denying his motion. The district court applied the standard articulated by this court in United States v. Krasny, 607 F.2d 840, 843 (9th Cir. 1979), cert. denied, 445 U.S. 942 (1980). Under Krasny, a defendant seeking a new trial on the basis of newly discovered evidence must demonstrate that: 1) the evidence is in fact newly discovered, that is, discovered after the trial; 2) the movant has been diligent in seeking the evidence; 3) the evidence is not merely cumulative or impeaching; 4) the evidence is material to the issues involved; and 5) the evidence is such that a new trial would probably produce an acquittal. Id.

Atkinson contends that the district court should have analyzed his motion under one of the more lenient standards set forth in either Larrison v. United States, 24 F.2d 82 (7th Cir. 1928), or Mesarosh v. United States, 352 U.S. 1 (1956). Under Larrison, a district court is required to grant a motion for a new trial based on newly discovered evidence of prosecution witness perjury if the evidence might result in an acquittal. Id. at 87. In contrast, under Krasny, a new trial is required only if the evidence is of such character that it would probably produce an acquittal if a new trial was granted. This court, concerned by the vagaries of determining what might affect a jury's verdict, has expressly rejected the Larrison test. See Krasny, 607 F.2d at 843-45.

In Mesarosh, the petitioners had been convicted of conspiring to violate the Smith Act by advocating the overthrow of the government by force. While their convictions were pending review before the Supreme Court, the Solicitor General revealed that a key government witness had testified untruthfully in numerous other similar proceedings. The Court distinguished the case from one where a defendant moves for a new trial under Rule 33, noting that the government had initiated the inquiry into the witness' credibility, and the witness had given what appeared to be fabricated testimony in other cases. Mesarosh, 352 U.S. at 9-10. The Court held that the testimony of the witness had been "wholly discredited," and that, in order to maintain the "integrity of the judicial process," the petitioners must be granted a new trial. Id. at 9, 28.

Later cases, however, have interpreted Mesarosh narrowly. One court, for example, has described Mesarosh as a sui generis case, involving "that rare situation where a key witness ... [has] been conceded by the government to have testified ... in such a bizarre fashion as to raise the inference that he was either an inveterate perjurer or a disordered mind." United States v. Stofsky, 527 F.2d 237, 246 (2d Cir. 1975), cert. denied, 429 U.S. 819 (1976) (citation omitted). In Krasny, we described Mesarosh as limited to "those rare cases where the credibility of a key government witness has been 'wholly discredited' by the witness' commission of perjury in other cases involving substantially similar subject matter." Krasny, 607 F.2d at 845; see also United States v. Flake, 746 F.2d 535, 538 (9th Cir. 1984), cert. denied, 469 U.S. 1225 (1985).

In this case, the credibility of the government witness, Umphryes, has not been "wholly discredited." Although Umphryes did commit perjury in another case involving similar subject matter, his testimony in Atkinson's case was corroborated by other evidence. In tape recorded telephone conversations, Atkinson referred to contemplated and consummated drug deals with Umphryes. Testimony of DEA agents showed that Umphryes was searched prior to meeting with Atkinson and had no drugs on his person. DEA agents observed Umphryes' meetings with Atkinson, and Umphryes returned from these meetings with quantities of heroin which he turned over to the DEA agents. Thus, Umphryes' testimony in Atkinson's case is not unreliable.

We conclude that the district court properly rejected the standards of both Larrison and Mersarosh. Krasny provided the proper standard. We also conclude that Atkinson failed to meet his burden under that standard.

Atkinson's trial took place in March, 1984, and he was sentenced in June, 1984. Umphryes' affidavit, in which he recanted his grand jury testimony in the Mohr case, was executed some four months later, on October 17, 1984. Elliot Enoki, counsel for the government in Atkinson's case, has stated in an affidavit that he was not aware of Umphryes' recantation until he read about it in the local newspaper. Atkinson states that he also learned of Umphryes' perjury through the newspaper articles, which were apparently published in November of 1984. Given these circumstances, we find that Atkinson has fulfilled the first two Krasny requirements: the evidence was not discovered until after the trial, and Atkinson was diligent in finding and bringing forth the evidence.

Atkinson fails with respect to the other three Krasny requirements, however. First, Atkinson has not shown that the evidence is not merely cumulative or impeaching. Atkinson acknowledges in his brief that the evidence of Umpryes' perjury would be used to impeach Umphryes' credibility. Umphryes' credibility was drawn into question on numerous occasions throughout the trial. The jury was told that Umphryes had been convicted of robbery and theft; that Umphryes had been arrested for detaining stolen property, disorderly conduct, contempt, and burglary; that Umphryes had fraudulently used credit cards; that Umphryes was a heroin addict; that Umphryes had been a paid informant for the DEA since 1974; and that Umphryes had acted as a pimp for his own wife. The jury was certainly aware that Umphryes had limited regard for the truth. Further evidence to prove this characteristic of Umphryes would merely be cumulative.

Secondly, Atkinson has not shown that Umphryes' recantation is material to the issues in his case. Umphryes' testimony was only relevant to the first two counts of a five count indictment. As discussed earlier, Umphryes' testimony about the drug transactions which formed the basis of the first two counts was independently documented by the DEA agents who recorded Umphryes' telephone calls to Atkinson and conducted surveillance of Umphryes' meetings with Atkinson. Thus, the recantation evidence does not serve to exculpate Atkinson from guilt. In view of the foregoing, it cannot be said that a new trial would probably result in Atkinson's acquittal.

We now turn to the Eileen Ellis affidavit that charged Umphryes and Wray with perjury. This is not the first time that Atkinson has attempted to use Ellis' testimony on his behalf. After the noon recess on the first day of Atkinson's trial, Atkinson's counsel informed the court that they had just learned of three potential witnesses, one of whom was Eileen Ellis. The trial court granted a continuance so that Ellis, a prisoner at the local women's prison, could be transported to the courthouse to testify. By 9:30 the next morning, however, Ellis had not yet arrived at the courthouse and was refusing to testify without first conferring with her lawyer. Atkinson's counsel had not spoken with Ellis or her attorney. The trial judge refused to grant a further continuance to determine if Ellis would in fact testify, and the trial concluded without her testimony.

In appealing his conviction, Atkinson claimed that the district court had abused its discretion and violated his Sixth Amendment right to compulsory process by denying his request for a second continuance to obtain Ellis' testimony. In affirming the district court on the direct appeal, this court stated, " [i]n this case Ellis refused to appear without her attorney, and it was not clear that she would ever appear, the attorney had not been contacted by Atkinson's attorney, Ellis' testimony was of questionable competence, and Atkinson's diligence in discovering Ellis was doubtful." Atkinson, Memorandum Opinion at 2. Given this history, we find that Ellis' affidavit does not meet the first Krasny requirement; it is not in fact "newly discovered" evidence.

Nor does it meet the second Krasny requirement. When newly discovered evidence is the basis for a new trial motion, the movant must demonstrate that the evidence could not have been discovered with due diligence in time to present it at trial. United States v. Conforte, 624 F.2d 869, 879 (9th Cir.), cert. denied, 449 U.S. 1012 (1980). If a potential witness who initially refused to testify later comes forward with exculpatory evidence, that evidence is neither "newly discovered," cf. United States v. Diggs, 649 F.2d 731, 740 (9th Cir.), cert. denied, 454 U.S. 970 (1981), nor can it be said that the demands of diligence were honored. Nor is evidence newly discovered when the underlying facts were within the defendant's knowledge at the time of trial. Baumann v. United States, 692 F.2d 565, 580 (9th Cir. 1982).

Finally, even if Ellis' affidavit were considered to be newly discovered evidence, it is merely cumulative impeachment evidence, and thus fails to meet the third Krasny requirement. See also Kenny, 645 F.2d at 1343, United States v. Brashier, 548 F.2d 1315, 1327 (9th Cir. 1976), cert. denied, 429 U.S. 1111 (1977).

AFFIRMED.

WALLACE, Circuit Judge, dissenting:

Atkinson did not establish that he did all he could do to perfect his appeal within the ten-day period prescribed by Rule 4(b). United States v. Houser, 804 F.2d 565, 569 (9th Cir. 1986). I would, therefore, dismiss his appeal for lack of appellate jurisdiction. Because I believe that this court lacks appellate jurisdiction over Atkinson's appeal, I express no view on the merits of this case.