ALONZO GIBSON-BEY, PETITIONER V. UNITED STATES OF AMERICA No. 90-6097 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The District Of Columbia Court Of Appeals Brief For The United States In Opposition OPINION BELOW The opinion of the District of Columbia Court of Appeals (Pet. App. 1-3) is not reported. JURISDICTION The judgment of the court of appeals was entered on September 18, 1990. The petition for a writ of certiorari was filed on October 29, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1257(3). QUESTION PRESENTED Whether petitioner was entitled to a new trial on the basis of newly discovered evidence. STATEMENT Following a jury trial in the Superior Court of the District of Columbia, petitioner was convicted of armed robbery, in violation of D.C. Code 22-2901 and 22-3202, and two counts of armed kidnapping, in violation of D.C. Code 22-2101 and 22-3202. He was sentenced to nine to twenty-seven years' imprisonment. The court of appeals affirmed. Pet. App. 1-3. On January 5, 1983, petitioner and an accomplice accosted Gary Perry as he was entering his car in a convenience store parking lot. They forced Perry into his car at gunpoint and demanded money. Petitioner and his accomplice took Perry's watch, which was valued at $500, after discovering that Perry had only $10 in cash. Petitioner also threatened to kill Perry. After driving around for about twenty minutes, petitioner and his accomplice let Perry out of his car and drove off. Gov't C.A. Br. 2-3. On January 17, 1983, Perry's car was recovered in Montgomery County, Maryland, after it was stopped by police. The driver of the car, Marcus Banks, was a friend of petitioner. Banks falsely identified himself to the police as petitioner. Thereafter, Perry identified petitioner from a photo array and at a pretrial lineup. Perry also identified petitioner at trial. Gov't C.A. Br. 4-6. Prior to trial, petitioner informed his attorney that Nathaniel Washington had confessed to petitioner's sister that Washington had committed the robbery and kidnapping. The lawyer interviewed Washington, who refused to state who had committed the offenses. In light of Washington's evasiveness, the lawyer decided not call him as a witness at petitioner's trial. For similar reasons, and because of her obvious interest in the case, the lawyer determined not to call petitioner's sister as a witness. Gov't C.A. Br. 8. After trial, petitioner moved to vacate his sentence, contending, inter alia, that his lawyer had been ineffective by not presenting Washington's statements to the jury. Following an evidentiary hearing, the trial court denied the motion. Gov't. C.A. Br. App. A22-A23. The court of appeals affirmed petitioner's conviction and the denial of his motion to vacate. Id. at B26. This Court denied certiorari. 109 S. Ct. 3171 (1989). Meanwhile, petitioner obtained a new attorney. In June 1988, Washington -- who was in prison with petitioner serving sentences for two unrelated armed robberies -- told a private investigator that Washington and another man had kidnapped and robbed Perry, and that petitioner was not the other man. In August, Washington repeated his story to the investigator and petitioner's new attorney. Washington's statement was tape recorded. Gov't C.A. Br. 9. In October 1988, petitioner filed a motion for a new trial on the ground that Washington's statements, coupled with evidence that Washington had committed several armed robberies using the modus operandi that had been employed in this case, constituted newly discovered evidence. The trial court denied the motion. It held that Washington's 1988 statements were not "new" evidence because the substance of Washington's statements was known to petitioner before his trial. The court further concluded that the evidence would not have resulted in an acquittal. The court said that Washington's statement was uncorroborated because Washington did not present a sworn statement confessing to the crimes, and found that the evidence of Washington's own armed robberies would not have led to an acquittal. The court reiterated its prior finding that petitioner's trial attorney had acted conscientiously in not presenting Washington's evidence at trial. Gov't C.A. Br. App. C31-C33. The court of appeals affirmed. Pet. App. 1-3. It held that the district court did not abuse its discretion in denying petitioner's motion for a new trial. The court noted that, at the evidentiary hearing on petitioner's motion to vacate his sentence, both petitioner and his attorney testified that Washington had told them that Washington and another person, not petitioner, had committed the crimes. The court also observed that petitioner did not assert that Washington would testify in court to what he told the investigator, nor did he corroborate Washington's statement. Pet. App. 1-3. ARGUMENT Petitioner does not assert that the denial of his motion for a new trial violated any provision of the United States Code or the Constitution. Instead, he asserts that the District of Columbia courts misapplied their own rules of criminal procedure. "(T)he administration of criminal law in matters not affected by constitutional limitations or a general federal law is a matter peculiarly of local concern." Fisher v. United States, 328 U.S. 463, 476 (1946). Thus, the petition should be denied under this Court's "longstanding practice of not overruling the courts of the District on local law matters 'save in exceptional situations where egregious error has been committed.'" Pernell v. Southall Realty, 416 U.S. 363, 369 (1974) (quoting Fisher, 328 U.S. at 476). There was no error in this case. Petitioner accepts (Pet. 16) the legal standard applied by the District of Columbia courts. To obtain a new trial on the basis of newly-discovered evidence under Rule 33 of the Superior Court Rules of Criminal Procedure, a defendant must show that (1) the evidence was discovered after trial; (2) he exercised due diligence in obtaining the evidence; (3) the evidence is material, not merely cumulative or impeaching; and (4) the evidence probably would produce an acquittal. Pet. 16 (citing Smith v. United States, 466 A.2d 429, 432-433 (D.C. 1983); Heard v. United States, 245 A.2d 125, 126 (D.C. 1968)). /1/ Such motions are granted only in exceptional circumstances, Huggins v. United States, 333 A.2d 385, 387 (D.C. 1975), and their denial is reviewed only for abuse of discretion, Derrington v. United States, 488 A.2d 1314, 1339 (D.C. 1985), cert. denied, 486 U.S. 1009 (1988). The trial court did not abuse its discretion by denying petitioner's motion for a new trial. First, the substance of Washington's exculpatory statement was not "new," but was known to petitioner and his lawyer before trial. Petitioner was told by his sister that Washington had confessed to the crimes. Petitioner's attorney, acting on that information, interviewed Washington and was told by him that petitioner did not commit the crime. /2/ Thus, Washington's repetition of his story to the private investigator did not constitute newly discovered evidence. See, e.g., United States v. DiBernardo, 880 F.2d 1216, 1224-1225 (11th Cir. 1989); United States v. Metz, 652 F.2d 478, 480 (5th Cir. 1981). Second, Washington's statement to the investigator was not likely to produce an acquittal. Indeed, it probably was not even admissible. In Laumer v. United States, 409 A.2d 190, 199 (D.C. 1979), the District of Columbia Court of Appeals adopted the standard of Fed. R. Evid. 804(b)(3) for admitting extrajudicial statements that expose the declarant to criminal liability but exculpate the defendant. Rule 804(b)(3) states that such statements are admissible only where "corroborating circumstances clearly indicate the trustworthiness of the statement." There is no such corroboration in this case. The tape recording corroborates only petitioner's assertion that Washington made the statements attributed to him, not the truth of the statements themselves. /3/ Washington was not under oath when he made his statement to the investigator, and there is no indication that he would have repeated his statement in court. Nor was Washington willing to identify his accomplice. In addition, petitioner and Washington are fellow prison inmates who have discussed the case. Pet. 15 n.3. Because Washington is already serving a prison sentence on other armed robbery charges, he may feel that he has little to lose by confessing to an additional robbery. The government presented a substantial case against petitioner. The victim identified petitioner as one of his assailants from a photo array, at a pretrial lineup, and at trial. Accordingly, the trial court's decision to deny the motion for a new trial was not an abuse of its discretion. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney JANUARY 1991 /1/ The same standard applies under Fed. R. Crim. P. 33, which is identical to Rule 33 of the Superior Court. See, e.g., United States v. Alvarado, 898 F.2d 987, 994 (5th Cir. 1990); United States v. O'Dell, 805 F.2d 637, 640 (6th Cir. 1986), cert. denied, 484 U.S. 859 (1987); United States v. Adams, 759 F.2d 1099, 1108 (3d Cir.), cert. denied, 474 U.S. 906 (1985). /2/ The court of appeals stated that petitioner talked directly with Washington prior to trial. Pet. App. 2 n.3. It appears, however, that Washington's statement was conveyed to him by petitioner's sister. See Gov't. C.A. Br. 8. In any case, both petitioner and his lawyer knew of the evidence before trial. /3/ Petitioner's reliance (Pet. 20) on Laumer v. United States, 409 A.2d 190 (D.C. 1979) is misplaced. Laumer held that a declaration against penal interest is admissible only when corroborated. Here, Washington's statement was not corroborated.