United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DEFENDANT'S MOTION FOR NEW TRIAL)
HENRY E. HUDSON, District Judge.
On May 11, 2011, at the close of an eight day jury trial, the Defendant, Phillip A. Hamilton ("Hamilton"), was convicted of Bribery, in violation of 18 U.S.C. § 666(a)(1)(B), and Extortion Under Color of Official Right, in violation of 18 U.S.C. § 1951. His conviction was affirmed by the United States Court of Appeals for the Fourth Circuit on December 13, 2012, United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012). His Petition for Certiorari was denied by the United States Supreme Court on April 15, 2013, Hamilton v. United States, 133 S.Ct. 1838 (2013). Hamilton's Motion for a New Trial Pursuant to Federal Rule of Criminal Procedure 33,  which he filed pro se  and is presently before the Court, was timely filed on May 1, 2014. Both Hamilton and the United States have filed memoranda supporting their respective positions.
The government's evidence at trial revealed that Hamilton, an elected member of the Virginia House of Delegates, was instrumental in securing a $500, 000 appropriation for Old Dominion University, in Norfolk, Virginia, for the development of a Center for Teacher Quality and Education Leadership (the "Center"). The evidence further disclosed that, as a direct result of his facilitation of this appropriation, Hamilton was offered the position of Director of the Center with an annual salary of $40, 000. According to the government's evidence, but for Hamilton's shepherding of the appropriation through the Virginia General Assembly, he never would have been offered the job of director.
Hamilton's motion for a new trial focuses on the testimony of David A. Blackburn ("Blackburn"), a staff member at Old Dominion University. Blackburn was a key contact for Hamilton at the University in the acquisition of the requisite appropriation for development of the Center. Blackburn was a critical witness in proof of the government's case.
Hamilton's motion for a new trial is predicated on his contention that he has
(1) newly-discovered evidence by the defendant that the government's star, immunized witness, David Blackburn, repeated lied to the FBI during its I7-month investigation of the defendant, (2) lied, while under oath, to two different grand juries, (3) provided untruthful information to the House Ethics Advisory Committee, and (4) lied, while under oath, about a central material matter, to the trial jury during the cross examination by defense counsel.
(Def.'s Motion for New Trial 1.)
The standard to be applied in evaluating motions for new trial based on newly discovered evidence was restated by the Fourth Circuit in United States v. Robinson, 627 F.3d 941 (4th Cir. 2010):
In analyzing whether newly discovered evidence requires a new trial, we look to five factors: (a) the evidence must be, in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.
627 F.3d 941 , 948 (4th Cir. 2010) (citing United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993)). The court in Robinson also stressed that "[w]ithout ruling out the possibility that a rare example might exist, we have never allowed a new trial unless all five elements were established." 627 F.3d at 948 (quoting United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001)). The Fourth Circuit has cautioned district courts to exercise its discretion to grant new trials sparingly. United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003).
Critical to Hamilton's Rule 33 motion is fulfillment of the requirement that it be predicated on newly discovered evidence. As demonstrated by Hamilton's supporting memorandum of law, his allegations are based entirely on testimony presented during his trial. This is confirmed by specific verbatim recitation of Blackburn's testimony from the trial transcript. (Def.'s Mem. Support Mot. New Trial 6-20, ECF No. 160.) In fact, Hamilton makes the following contention:
The trial transcript of David Blackburn's testimony again demonstrates his knowing and willful intention to lie, while under oath, even during the trial and under an immunity agreement that requires that he provide the full truth. From the presented testimony of David Blackburn, one can conclude, beyond any reasonable doubt, that the government knowingly and willfully granted immunity to an admitted perjurer ...