Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Willie Howard AVERY, Defendant-Appellant.

No. 87-1130.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 29, 1988.Decided Sept. 1, 1988.

Before CHAMBERS and CANBY, Circuit Judges and SAMUEL D. KING^*  United States District Judge.

MEMORANDUM^** 

Willie Howard Avery appeals the district court's denial of his motion for new trial. Avery contends that an exculpatory post-trial admission by a third party constitutes newly discovered evidence requiring a new trial under Fed. R. Crim. P. 33.

Avery was charged with four counts of conspiracy to distribute, and the distribution of, cocaine. Undercover police officers testified at trial that they arranged to buy cocaine on four separate occasions from Avery's co-defendant, James Johnson. Although Johnson denied that Avery was his source of cocaine, police officers observed Johnson meeting with Avery immediately prior to each sale of cocaine. A jury convicted Avery on all counts.

Several months after the trial, Avery was contacted by Charles Dozier, who stated that he had supplied Johnson with the cocaine purchased by the police in 1985. In a sworn affidavit and at an evidentiary hearing, Dozier explained how he had supplied Johnson with cocaine in at least three of the four cocaine sales arranged by police officers. Dozier further testified that to his knowledge, the only business dealing between Avery and Johnson involved personal loans to Johnson. The district court denied Avery's motion for new trial on the grounds that Dozier's testimony was cumulative of the evidence presented at trial, and that the evidence probably would not result in an acquittal even if a new trial were granted.

A motion for new trial under Fed. R. Crim. P. 33 must be based on newly discovered evidence and allege due diligence on the part of the movant to discover the evidence. United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert. denied, 454 U.S. 970 (1981). In addition, the evidence must be material to the issues involved, and not merely cumulative or impeaching. Id. Finally, the evidence must indicate that a new trial probably would result in an acquittal. Id. We review the district court's denial of a motion for new trial for an abuse of discretion. United States v. Lopez, 803 F.2d 969, 977 (9th Cir. 1986), cert. denied, 107 S. Ct. 1958 (1987).

The district court properly concluded that Dozier's testimony is newly discovered, that Avery has established the requisite diligence, and that the evidence is material to the issues involved. We disagree, however, with the district court's ruling that the new evidence is cumulative because Dozier's testimony is not probative. The fact that Dozier's alleged cocaine source is "conveniently and suspiciously" dead goes to the weight of the new evidence rather than its cumulative nature. Nor do we agree that the evidence is cumulative because some of Dozier's testimony is contradictory. Although the evidence generally corroborates the defense theory that Avery was not Johnson's source, it was not cumulative because, if believed, it establishes that a third party was the source of the cocaine purchased by Johnson in at least three of the four transactions underlying Avery's conviction.

We also are of the opinion that the new evidence would probably result in an acquittal in the event of a new trial. "In passing on this test the court must evaluate the new evidence, not just in and of itself on a unit or cumulative basis, but in light of the entire record made at the trial and on the motion." 3 Wright, Federal Practice and Procedure: Criminal 2d Sec. 557 (1982). Dozier's admission that he was Johnson's drug source, which entails a risk of criminal prosecution for Dozier himself, is likely to raise a reasonable doubt of Avery's guilt at a new trial in light of the absence of direct evidence linking Avery to the cocaine ultimately sold by Johnson.

The district court abused its discretion in denying Avery's motion, since Avery has met all of the requirements of Fed. R. Crim. P. 33. He is therefore entitled to a new trial.

REVERSED AND REMANDED.