United States District Court, W.D. Virginia, Abingdon Division
Hawkins, Pro Se Defendant.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE.
defendant, proceeding pro se, seeks a new trial based on
newly discovered evidence. For the following reasons, the
motion will be denied.
defendant, Colin Hawkins, was charged in this court by
indictment with mailing from prison a threatening
communication to his former attorney, in violation of 18
U.S.C. § 876(c). On October 27, 2016, after a trial at
which Hawkins represented himself, a jury found him guilty.
On December 2, 2016, the court sentenced Hawkins to a term of
imprisonment of forty-eight months. The Fourth Circuit
affirmed. United States v. Hawkins, No. 16-4808,
2017 WL 3575243 (4th Cir. Aug. 18, 2017).
September 18, 2017, Hawkins filed a motion for a new trial
based on newly discovered evidence pursuant to Rule 33 of the
Federal Rules of Criminal Procedure.
Rules of Criminal Procedure provide 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). Under Rule 33, one
way a defendant may move for a new trial is based upon newly
discovered evidence, as long as such motion is filed within
three years after a guilty verdict. Fed. R. Crim. P.
33(b)(1). A court “should exercise its discretion to
grant a new trial sparingly, ” and “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 quotation marks and
determining whether a new trial should be granted based on
newly discovered evidence, the Fourth Circuit applies a
five-part test: (1) the evidence must be newly discovered;
(2) the defendant used due diligence to discover the
evidence; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material; and (5) the
evidence would probably result in acquittal at a new trial.
United States v. Chavis, 880 F.2d 788, 793 (4th Cir.
1989). “Unless the answer to each of these inquiries is
affirmative, a new trial is not appropriate.”
motion, Hawkins presents as newly discovered evidence an
envelope post-marked return to sender, which was sent by
Hawkins and stamped by the prison mail room using the
“Special/Legal Mail” stamp. See 28
C.F.R. § 540.18 (requiring prison staff to place a
specific stamp on the back of an inmate's outgoing
special mail). He argues that because the envelope in which
he sent the offending letter to his former attorney was not
marked with the same requisite mail room stamp, this
demonstrates the letter was never processed through the mail
room as the government alleged at trial. Hawkins claims this
“new” evidence shows that he “actually
mailed his legal mail from his prison cell while under the
influence, ” which is the same defense he presented at
trial. Mot. for New Trial, 4, ECF No. 126. Hawkins further
claims that this evidence would “prove that . . .
officer Pennington and officer Hudson gave false and
misleading testimony under oath at trial and that the
prosecutor . . . misled the jury. Id.
that this evidence does not satisfy the five-part test to
determine whether newly discovered evidence warrants a new
trial. First, this evidence is not “newly
discovered.” At any point in time leading up to the
trial, Hawkins could have acquired an envelope stamped with
the “Special/Legal Mail” stamp just as easily as
he did for the purposes of this motion.
this evidence would not likely result in an acquittal at a
new trial. During the trial, the government's evidence
showing that Hawkins was not intoxicated and had the
requisite intent to commit the crime included his neat
handwriting and logical organization of the letter, as well
as the fact that Hawkins chose to mark the letter as
“Legal Mail, ” thereby avoiding inspection by
prison correctional officers. Trial Tr. 71, ECF No. 121.
Significantly, the envelope housing the letter was admitted
into evidence. This envelope included Hawkins's name,
inmate number, and return address. The government argued that
Hawkins would not have included these identifying and
incriminating marks if mail room procedures had not required
him to do so. In addition, the government argued that there
was “no evidence that Mr. Hawkins was actually drinking
in October of 2015.” Id. at 77. Indeed, the
evidence presented at trial to prove intent and negate
Hawkins's intoxication argument was not limited to mail
room procedures and whether or not Hawkins took the letter to
the mail room. The evidence of Hawkins's guilt from other
sources was overwhelming. Even assuming for the purposes of
analysis that the evidence presented by Hawkins is
“newly discovered, ” I find that such evidence
would probably not result in an acquittal or “weigh
heavily against the verdict.” Perry, 335 F.3d at
foregoing reasons, it is ORDERED that the
Motion for a New ...