UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

SCHAFFER, ARCHIBALD


99-3153b

D.C. Cir. 2000


*	*	*


O R D E R


Upon consideration of appellee's petition for rehearing,  filed on July
19, 2000, and the response thereto, it is


ORDERED that the petition for rehearing be denied.


Per Curiam


For the Court:


Mark J. Langer, Clerk


Opinion filed by Chief Judge Edwards, concurring in the  denial of the
petition for rehearing.


Opinion filed by Circuit Judge Henderson, concurring sep- arately.


Edwards, Chief Judge, concurring in the denial of the  petition for
rehearing: In United States v. Schaffer, 214 F.3d  1359 (D.C. Cir.
2000) (Schaffer II), this court reversed a  judgment of the District
Court granting a new trial for  defendant Schaffer. The trial judge
had ruled that a new  trial was warranted under Rule 33 of the Federal
Rules of  Criminal Procedure because the testimony of Michael Espy, 
which was unavailable to the defendant during his first trial,  was
newly available and likely to result in an acquittal if  introduced in
a new trial. See id. at 1361. We rejected this  conclusion because the
record revealed that Schaffer had  failed to satisfy the requirements
of Thompson v. United  States, 188 F.2d 652 (D.C. Cir. 1951). See id.


In his petition for rehearing, Schaffer complains that, in  applying
the Thompson test of "diligence," the court in  Schaffer II unjustly
adopted a new per se rule with retroac- tive application. It is true
that, in rejecting Schaffer's claim  that he showed diligence in an
attempt to procure Espy's  testimony, the Schaffer II opinion states


[w]hen, as here, a defendant believes that a particular  person's
testimony would be vital to his defense but  either cannot locate the
witness or believes it would be  futile to subpoena him, the defendant
has the obligation  to seek a continuance of his trial or to explain
to the trial  court why the desired witness will not be produced.


Schaffer II, 214 F.3d at 1362. In retrospect, this could be  viewed as
a new per se rule, as Schaffer suggests. This was  not the intention
of the court in Schaffer II, however.


The dispositive holding in Schaffer II on the issue of  diligence is as
follows:


a [mere] belief in the futility of ... action will not satisfy  the
need for a concrete attempt either to compel the  production of
relevant evidence or to seek some accom- modation from the trial court
that would preserve the  defendant's right to present evidence that
was critical to  his case. Whatever the minimum requirement of dili-
gence, it cannot be a purely private evaluation of the  availability
of the testimony or the likelihood of relief  from the court. Such a
standard would seriously impair 


the important goal of finality that the diligence require- ment
serves.


Schaffer II, 214 F.3d at 1362 (emphasis added). This is not a  new per
se rule retroactively applied to Schaffer. It flows  directly from
Thompson and other cases construing Rule 33.  See id.


In order to invoke Rule 33, a "party seeking [a] new trial  must [have
shown] diligence in the attempt to procure the  newly discovered
evidence." Thompson, 188 F.2d at 653.  The District Court in the
instant case opined that the record  facts on diligence "are not in
dispute." United States v.  Schaffer, 83 F. Supp. 2d 52, 55 (D.D.C.
1999). The trial judge  went on to find "no basis on which to conclude
that counsel's  wish to have Espy testify was not genuine." Id. at 57 
(emphasis added). No one could suppose, however, that this  was a
finding of "diligence" as required by Thompson. The  District Court
then concluded that "diligent efforts were  made to adduce Espy's
testimony" when Schaffer's counsel  conferred with Espy's counsel and
then made forthright  representations to the District Court about the
unavailability  of Espy's testimony. Id. at 58. The problem, however,
as  the District Court seemed to recognize, is that Schaffer's 
decision not to take concrete action to procure Espy's testi- mony was
based on his personal surmise that any such action  would be futile.
We have no reason to doubt that Schaffer's  counsel intended to be
responsible and act professionally.  Nonetheless, there is no evidence
of "diligence in the attempt  to procure" Espy's testimony as Thompson
requires. The  District Court was simply wrong to conclude


Schaffer suggests that he failed to take concrete action  because he
subscribed to an untested belief that it would have  been futile to
subpoena Espy and an unverified view that a  continuance would not
have been granted. That is all that he  offered to show diligence, and
Schaffer II says that it is far  short of what is required by
Thompson. There is no mistake  in this conclusion. The suggestion in
the petition for rehear- ing that the court erred in adopting a new
per se rule in  Schaffer II is a red herring. In any event, lest there


confusion on this point, we make it clear now that the  judgment in
this case does not rest on any per se rule.


Schaffer also complains that, in reversing the District  Court, the
decision in Schaffer II fails to give due deference  to the trial
judge's view that Espy's testimony would likely  result in an
acquittal. There is merit to this contention, for it  has long been


findings on conflicting evidence by trial courts on motions  for new
trial based on newly discovered evidence remain  undisturbed except
for most extraordinary circum- stances.


United States v. Johnson, 327 U.S. 106, 111 (1946). "If there  is an
issue of credibility of the newly discovered evidence, the  role of
the judge is that of fact finder, and his resolution of  the fact
issues is ordinarily not reviewable on appeal." 3  Charles Alan
Wright, Federal Practice and Procedure  s 557, at 336 (2d ed. 1982).
Thus, we review the District  Court's grant or denial of a new trial
for abuse of discretion.  See Langevine v. District of Columbia, 106
F.3d 1018, 1023  (D.C. Cir. 1997).


In cases in which a motion for a new trial is granted, "the  degree of
appellate scrutiny of new trial rulings should de- pend on the reasons
given for the awarding of a new trial."  Vander Zee v. Karabatsos, 589
F.2d 723, 728 (D.C. Cir. 1978).  When, for example, a motion is
granted on the ground that  the verdict is against the weight of the
evidence, a higher  degree of scrutiny will be applied by the
appellate court,  because of "the concern that a judge's nullification
of the  jury's verdict may encroach on the jury's important fact-
finding function." Tri County Indus. Inc. v. District of  Columbia,
200 F.3d 836, 840 (D.C. Cir. 2000) (quoting Lan- gevine, 106 F.3d at
1023 (quoting Vander Zee, 589 F.2d at  729)), cert. granted, 69
U.S.L.W. 3191 (U.S. Sept. 26, 2000)  (No. 99-1953). However, when the
District Court orders a  new trial "because confusing testimony and
events created a  potential for injustice, not because the jury's
verdict is  against the weight of the evidence[,] ... [o]nly the
grossest  abuse of discretion could justify reinstating the jury's
ver- dict." Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 


849 (D.C. Cir. 1981), cert. denied, 455 U.S. 994 (1982). In  light of
this highly deferential standard of review, I cannot  say that the
District Court erred in applying the "probably- produce-an-acquittal"
prong of the Thompson test.


The trial judge observed that,


[b]ecause the evidence of Schaffer's specific unlawful  intent was so
thin--it was an entirely circumstantial case  on which the jury could
have decided either way, Schaf- fer, 183 F.3d at 850--the proffered
evidence about the  nature of the [Arkansas Poultry Federation]
meeting and  Espy's reasons for attending has an important bearing  on
the "intent question." I find it indeed to be of such  nature that, in
a new trial, it would probably produce an  acquittal.


United States v. Schaffer, 83 F. Supp. 2d at 54-55. The  Schaffer II
opinion mistakenly doubts the relevance of the  Espy testimony and,
therefore, concludes that its introduction  in a new trial "would do
little to undermine the independent  counsel's case." Schaffer II, 214
F.3d at 1363. However,  because the Espy testimony cannot fairly be
rejected as  irrelevant, and because the District Court was in the
best  position to evaluate Espy's believability and the likely effect 
of Espy's testimony on the rest of the evidence, it was a  mistake for
this court to second-guess the trial judge on this  point.


This court's failure to give deference to the District Court  on the
probably-produce-an-acquittal prong of Thompson  does not save the day
for Schaffer, however. Even assuming,  arguendo, that Rule 33 may be
applied in the absence of  "newly discovered" evidence, Schaffer's
demand for a new  trial nonetheless fails for want of diligence.
Furthermore,  although the decision in Schaffer II expresses
skepticism  regarding the applicability of Rule 33 in cases involving 
"newly available" (as opposed to "newly discovered") evi- dence, see
Schaffer II, 214 F.2d at 1363, Schaffer's petition  has not persuaded
this court to perform a juridic tour de force  as regards the contours


This result, admittedly, produces a curious disposition,  indeed, one
that is somewhat troublesome. Traditionally, we  defer to the trial
judge's exercise of discretion to grant a new  trial on grounds that
there is a fair likelihood of acquittal. In  this case, however, we
are obliged to ignore this powerful  consideration. Defendant simply
failed to act with the dili- gence required by Thompson, and such
failure is fatal. My  concern over this curious application of the
Thompson factors  is, in my view, noteworthy, though not peremptory.
In the  end analysis, it is far from clear that this case involves
newly  discovered evidence which Rule 33 absolutely requires, so 
Schaffer's case fails in any event under the existing Federal  Rules


In short, I can find no basis upon which to set aside the  judgment of
the court in Schaffer II. The petition for  rehearing must therefore
be denied.


Karen LeCraft Henderson, Circuit Judge, concurring sepa- rately:


While I agree that Schaffer's petition for rehearing should  be denied
on the ground that the panel decision correctly held  defense counsel
failed to exercise due diligence in attempting  to procure Espy's
testimony, I do not believe we should  uphold the district court's
finding that Espy's testimony, had  the jury heard it, would likely
have led to Schaffer's acquittal.  This trial record reveals no
"confusing testimony and events."  See Edwards Op. at 3-4 (quoting
Schneider v. Lockheed  Aircraft Corp., 659 F.2d 835, 848 (D.C. Cir.
1981), cert.  denied, 455 U.S. 994 (1982)). Nor was the district court
 called upon to assess the "believability" or "credibility" of  Espy's
testimony. See id. at 3, 4. The district court's role  was simply to
determine whether largely irrelevant evidence  would have persuaded
the jury to render a different verdict.  And I continue to believe the
district court got it wrong.