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United States v. White

United States District Court, W.D. Virginia, Roanoke Division

June 27, 2016

UNITED STATES OF AMERICA,
v.
WILLIAM A. WHITE, Defendant.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge

         The case is presently before the court on the defendant's pro se motion for a new trial. For the following reasons, the motion will be denied.

         Background

         William A. White was charged in a four-count indictment on February 7, 2013. Counts One through Four charged White with transmitting threats in interstate commerce with the intent to extort, in violation of 18 U.S.C. § 875(b). The factual background surrounding the threats was summarized by the United States Court of Appeals for the Fourth Circuit in United States v. White, 810 F.3d 212 (4th Cir. 2016).

         On November 1, 2013, after a three-day trial, a jury found White guilty of three counts under § 875(b) and one count of a lesser included offense of transmitting a threat in interstate commerce without an intent to extort, in violation of 18 U.S.C. § 875(c). On May 1, 2014, the court sentenced White to a term of imprisonment of 92 months.[1] The Fourth Circuit affirmed the criminal judgment against White on January 7, 2016.

         On April 1, 2016, White filed a motion for new trial based on newly discovered evidence. On April 13, 2016, the court stayed consideration of the motion pending a decision from the Supreme Court of the United States on White's petition for writ of certiorari. The Supreme Court denied White's petition on May 2, 2016. White v. United States, 136 S.Ct. 1833 (2016). On May 13, 2016, White filed a motion to supplement his motion for a new trial with additional grounds for relief. The motions are now ripe for disposition.[2]

         Discussion

         Rule 33 of the Federal Rules of Criminal Procedure provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). Rule 33 contemplates two grounds for a motion for a new trial. First, the defendant may move for a new trial based on newly discovered evidence within three years after the guilty verdict. Fed. R. Crim. P. 33(b)(1). Second, the defendant may move for a new trial for "any reason other than newly discovered evidence" within 14 days after the guilty verdict. Fed. R. Crim. P. 33(b)(2). Under either approach, the Fourth Circuit has observed that a trial court "should exercise its discretion to grant a new trial sparingly, and that it should do so only when the evidence weighs heavily against the verdict." United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003) (internal quotations omitted).

         I. Newly Discovered Evidence

         White moves for a new trial, in large part, based on newly discovered evidence. The Fourth Circuit applies a five-part test to determine whether newly discovered evidence warrants a new trial: (1) the evidence is newly discovered; (2) the defendant used due diligence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence would probably result in an acquittal at a new trial. United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993). A motion for a new trial must be denied if the defendant cannot establish all five factors. United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). In his motion, White argues that several pieces of newly discovered evidence entitle him to a new trial. The court will address each basis in turn.

         a. Virus

         White first argues that he is entitled to a new trial based on evidence that the email account from which the threatening emails were sent, dhyphen@yahoo.com, was infected with a "backdoor Trojan virus" and "keylogger." Def.'s Mot. For New Trial 3, Docket No. 239. White believes that this virus allowed an unknown third party to access his accounts during the relevant time period in this case. At White's subsequent criminal trial in the United States District Court for the Middle District of Florida (the "Florida trial"), White presented testimony of Richard Connor, an expert m computer forensics.[3] Connor examined the evidence that had been provided by the government in that case, which consisted, in part, of the entirely of the evidence collected in this case. Based on his analysis, Connor testified that an attachment in a single email sent to the dhyphen@yahoo.com account had contained a virus.

         The court concludes that this evidence does not meet the high standard necessary to warrant a new trial. First, the court does not believe that the information from Connor's testimony is "newly discovered, " as White admits that the materials Connor analyzed in preparation for the Florida trial had consisted of the same evidence in this case. See United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1989) (noting that newly discovered evidence is evidence that has been "discovered since the trial"). Second, White has not shown that he used due diligence to uncover this information. In fact, White concedes that he had retained an expert in computer forensics for this case, and that the expert did not find a virus on White's computer. A defendant is not entitled to a new trial "so that he may employ a different strategy" by offering testimony from a new expert witness. United States v. Melvin, 39 F.App'x 43, 49 (4th Cir. 2002) (unpublished); see also United States v. White, No. 7:08-cr-00054, 2010 WL 1462180, at *3 (W.D. Va. Apr. 12, 2010) (Turk, J.) ("White strategically decided to challenge the prosecution's version of events without presenting any witnesses or evidence; consequently he cannot be heard to demand a new trial to employ a new strategy."). Third, and most importantly, ' the court is not convinced that Connor's testimony is material or would probably result in White's acquittal at a new trial. Upon closer examination of Connor's testimony, the court notes that Connor conceded that the mere fact that an attachment to an email contains a virus does not necessarily mean that the computer itself is infected. In fact, Connor admitted that he did not know whether White's computer had been infected, as Connor had not analyzed the computer. In the court's view, despite White's characterization of Connor's testimony, such information concerns how computer viruses generally operate and does not establish whether a third party had access to White's accounts at the time of the instant offenses. During White's trial in this case, defense counsel argued that someone had hacked into White's computer and sent the threatening messages to White' estranged wife ("MW"). That argument was rejected by the jury, and the court is not convinced that a new jury will acquit White based on Connor's testimony.

         b. Affidavit of Brett Stephens

         White also contends that, after the trial in this case, an individual named Brett Stephens came forward with evidence that White's computer had been hacked. In Stephens' letter, he notes that he observed erratic and inconsistent use of White's Facebook account, which caused Stephens to believe that the account had been compromised. Stephens then details the susceptibility of White's computer to hackers. Specifically, Stephens points out that White visited websites that were easy to hack, and that White frequently used public Wi-Fi.

         Although Stephens' letter may qualify as "newly discovered" because White obtained it after trial, the court notes that the letter is not notarized nor sworn under the penalty of perjury under 28 U.S.C. § 1746. The court has previously declined to accept such information as "evidence." See United States v. Witasick. No. 4:07-cr-00030-001, 2014 WL 1355433, at *4 (W.D. Va. Apr. 7, 2014) (Kiser, J.) ("I cannot and will not accept the word of a purported witness who neither testifies in open court to his new assertions, nor will consent to signing a declaration under the penalties of perjury.").

         Even if the court could accept Stephens' letter as newly discovered evidence, White has not established that such evidence entitles him to a new trial. First, White has not demonstrated that he used due diligence to uncover this information, in that Stephens was "unknown to [White] or that [White] was somehow prevented from securing his testimony." Id In fact, White admits in his brief that records possessed by the government in this case at least referenced Stephens and his connection to White's Facebook account. Second, in the court's view, Stephens' letter is merely cumulative of the evidence presented in this case that revealed Sabrina Gnos' use of White's accounts. At trial, White presented testimony of Richard Sellers, Chief Deputy from the United States Marshals Service, who testified that a press release had indicated that White had been arrested at 3:00 p.m. on June 8, 2012[4] When questioned about certain activity on his Facebook account after this time, White testified that such activity was not initiated by him, as he had already been apprehended. White also stated that Gnos had access to his Facebook account, and that he had not used Facebook in Mexico. In the court's view, Stephens' letter would have been "additional evidence to that which was presented at trial as to a fact." United States v. Fulcher, 250 F.3d 244, 250 (4th Cir. 2001) (quoting United States v. White,972 F.2d 16, 21 (2d Cir. 1992)). Furthermore, Stephens' observations of activity on White's Facebook account add "very little to the probative force of the other evidence in the case." Id. (quoting United States v. Kizeart, 102 F.3d 320, 325 (7th Cir. 1996)). The court believes that ...


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