UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Crim. Action No. 05-100-2 (RWR) ) DAVID WILSON, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION AND ORDER

After being found guilty of two counts of aiding and

abetting first-degree murder, in addition to other charges, the

defendant moved for a new trial on the basis of newly discovered

evidence. Because the evidence is not of the type that would

probably produce an acquittal in a new trial, the defendant’s

motion will be denied.

BACKGROUND

The background of this case is discussed fully in United

States v. Wilson,

(D.D.C. 2010). Briefly, the

defendant was a member of a group who sold crack cocaine in the

Congress Park neighborhood of Southeast Washington, D.C.

. One of Wilson’s childhood friends was shot and killed, and

members of the Congress Park group believed that Ronnie Middleton

was the shooter. Wilson committed himself to avenging the death

of his friend. Witnesses testified that in 1998, Wilson and two

other members of the Congress Park group, Antonio Roberson and

Antoine Draine, spotted Middleton and his girlfriend, Sabrina -2-

Bradley, sitting in a white Ford Bronco. Wilson drove to

Roberson’s house to obtain a gun, and drove back with Roberson

and Draine to where Middleton had parked his car. Roberson

opened fire on the car, and Middleton and Bradley both died as a

result of the gunshot wounds they sustained.

.

On November 28, 2007, the defendant was found guilty of

aiding and abetting the first-degree murders while armed of

Sabrina Bradley and Ronnie Middleton (Counts 31 and 33), in

addition to counts of distribution of crack cocaine and unlawful

use of a communication facility.

. The defendant filed

a motion for a new trial alleging that the government failed to

disclose exculpatory Brady material and that the government

sponsored false testimony. That motion was denied because the

testimony was not demonstrably false and neither that nor the

undisclosed information could reasonably have affected the

outcome or the fairness of the trial.

On November 27, 2010, the defendant filed an additional

motion under Federal Rule of Criminal Procedure 33 for a new

trial, arguing that newly discovered evidence shows that another

individual –– not the defendant –– aided and abetted the murders

of Bradley and Middleton.1 (Def.’s Nov. 27, 2010 Mot. for a New

1 The government argues that the motion is untimely. “Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(1). The defendant timely filed his motion on November 27, 2010, which is within three years after the jury -3-

Trial (“Def.’s Mot.”) at 2-3.) The newly discovered evidence is

an affidavit of Dorian Von Holt, who swore to it while

incarcerated at the District of Columbia jail in July 2009.

(Id., Ex. 11 ¶ 2.) Wilson was incarcerated in the same jail

during that time. Holt’s affidavit claims the following. During

a summer night in 1998, he went to Congress Park to purchase

crack. Roberson brandished a gun, and induced Holt to drive

Roberson and another man to a white Ford truck. Roberson shot at

the truck, and then Holt drove Roberson and the other individual

back to Congress Park. Holt knew Wilson at the time, Holt did

not see Wilson in Congress Park that night, and Wilson was not at

the shooting nor did he ride in the car to or from the shooting.

(Id. ¶ 3.)

The government opposes the defendant’s motion, arguing that

Holt’s affidavit is not credible. (Gov’t Mem. in Opp’n to Def.’s

Mot. for a New Trial at 3.)

DISCUSSION

Under Rule 33, a court may “grant a new trial if the

interest of justice so requires.” To obtain a retrial because of

newly discovered evidence,

(1) the evidence must have been discovered since trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely

returned its verdict on November 28, 2007. -4-

cumulative or impeaching; (4) it must be material to the issues involved; and (5) [it must be] of such nature that in a new trial it would probably produce an acquittal.

Thompson v. United States,

(D.C. Cir. 1951);

see also United States v. Johnson,

(D.C. Cir.

2008) (citing Thompson). The showing required to obtain a new

trial on the basis of newly discovered evidence poses “a high bar

to cross[.]” United States v. Celis,

(D.C.

Cir. 2010). If a defendant cannot demonstrate that a new trial

would probably produce an acquittal, his motion may be denied on

that ground alone. See, e.g., United States v. Sensi,

(D.C. Cir. 1989) (assuming defendant met first four

factors and affirming denial of motion for new trial for failure

to meet the fifth factor). No evidentiary hearing is required;

such a motion may be decided on the basis of affidavits. United

States v. Kearney,

(D.C. Cir. 1982).

Other circuits have held that newly discovered evidence

consisting solely of an affidavit of a prisoner who spent time

incarcerated with a defendant in which the prisoner claimed

responsibility for the crime for which the defendant had been

convicted, or attributed it to someone other than the defendant,

did not satisfy the standard that it would probably produce an

acquittal. For instance, in Jones v. United States,

(4th Cir. 1960), a third party confessed to committing

the robbery for which two defendants had been convicted. Both -5-

defendants were incarcerated for more than two months with the

confessor, and they spoke during exercise periods. The confessor

spent another two months incarcerated with one of the two

defendants before he prepared a written statement in which he

took responsibility for the robbery. The court affirmed the

trial court’s denial of a motion for a new trial on the ground

that the confession was “improbable and unworthy of belief[.]”

. In Evans v. United States,

(10th

Cir. 1941), the appellant had been convicted of the first-degree

murder of a fellow prisoner. A third fellow prisoner swore an

affidavit stating that the victim’s injuries were self-inflicted.

. The Tenth Circuit refused to remand for a new trial

on the basis of newly discovered evidence, concluding that the

affidavit was “of very doubtful credibility” because the affiant

“was a fellow prisoner with appellant . . . and did not disclose

his information” until nearly two years after the alleged murder.

. The court further reasoned that the affidavit

appeared to be “a last effort scheme . . . in order that

appellant may escape punishment for his crime, and is certainly

not of that character of testimony which, if placed in evidence

on a new trial, would probably produce an acquittal.”

Here, too, Holt’s account is of questionable reliability.

As in Jones and Evans, the new witness and the defendant were

incarcerated in the same facility at the same time. -6-

Additionally, Holt communicated his version of the events of the

night at issue to the defendant’s lawyer nearly eleven years

later, and more than a year and a half after the jury returned

its verdict. That delay further reduces the affidavit’s

credibility since the timing suggests, like in Evans, a last

ditch effort for the defendant to escape punishment.

Even if Holt were to testify consistently with his affidavit

at a new trial, his testimony is not such that it would probably

produce an acquittal in light of the force of the evidence of

Wilson’s involvement in the murders that the government presented

at trial. Bobby Capies and Kairi Kelliebrew testified that the

defendant admitted to driving Roberson and Antoine Draine to the

site where Middleton had parked his Ford Bronco. Wilson,

. Renne Cottingham, to whom Wilson was like a son

and whom Wilson would sometimes call “Mom,” testified that Wilson

admitted to her that he had a role in Bradley’s death.

. Her testimony “was particularly compelling given her

relationship with Wilson and the fact that she . . . was not

testifying under any deal she had cut with the government.”

at 65 n.6.

The defendant argues that the witnesses based their

testimony on alleged admissions by the defendant, and that all

three witnesses “were extensively impeached.” (Def.’s Mot. at

3.) However, the jury was entitled to credit testimony that -7-

recounted the defendant’s admissions. See Fed. R. Evid.

801(d)(2)(A). Additionally, although defense counsel did attempt

to impeach the witnesses who testified about Wilson’s admissions

of his involvement in the murders, the witnesses’ testimony

ultimately was “corroborated and credible[.]” Wilson,

. Even considering any weaknesses in the

government’s case, a jury would likely be at pain to credit

Holt’s recitation of the events of that night in light of the

absence of corroboration in Wilson’s motion of Holt’s presence on

the murder scene, viewed against the consistent details provided

independently by Capies, Kelliebrew, and Cottingham corroborating

Wilson’s culpable conduct. The newly discovered evidence,

therefore, would be unlikely to produce an acquittal in a new

trial.

CONCLUSION AND ORDER

Holt’s affidavit is not of such a nature that it would

probably produce an acquittal in a new trial. Accordingly, it is

hereby

ORDERED that the defendant’s motion [1410] for a new trial

be, and hereby is, DENIED.

SIGNED this 23rd day of February, 2011.

/s/ RICHARD W. ROBERTS United States District Judge