U.S. v. Kelly

• Decision Date: 14 August 2008
• Docket Number: No. 06-4080.,06-4080.
• Citation: 539 F.3d 172
• Parties: UNITED STATES of America, Appellant v. Jake KELLY.
• Court: U.S. Court of Appeals — Third Circuit

539 F.3d 172

UNITED STATES of America, Appellant v. Jake KELLY.

No. 06-4080.

United States Court of Appeals, Third Circuit.

Argued January 28, 2008.

Filed: August 14, 2008.

Leo R. Tsao, Esquire, [Argued], Office of United States Attorney, Philadelphia, PA, for Plaintiff-Appellant United States of America.

Mark E. Cedrone, Esq., [Argued], Cedrone & Janove, Philadelphia, PA, for Defendant-Appellee Jake Kelly.

Before SCIRICA, Chief Judge, and RENDELL and RODRIGUEZ,^* Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

In July 2005, a jury found Jake Kelly ("Kelly") guilty of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and § 924(e). Soon after the jury verdict, Kelly moved for a new trial, arguing, inter alia, that he had recently discovered new evidence of his innocence—the hearsay statement of Victor Jones, who purportedly admitted to possessing the gun for which Kelly was arrested. After an evidentiary hearing at which Jones testified, the District Court granted Kelly's motion in part and ordered a new trial. The Government appeals the District Court's order, arguing that the Court abused its discretion in granting Kelly's motion. Specifically, the Government contends that the District Court erred in concluding that (1) Kelly had exercised sufficient diligence in regard to the discovery of the new evidence and (2) the newly discovered evidence would "probably produce an acquittal" at a new trial. For the reasons stated below, we will reverse the order of the District Court granting Kelly's motion for a new trial and remand for the entry of a judgment of conviction and sentence.

BACKGROUND

I. The Record at Trial

On September 28, 2004, Kelly was charged in a one-count indictment with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On July 19, 2005, the matter proceeded to trial in the United States District Court for the Eastern District of Pennsylvania.

At trial, the jury heard testimony that, on May 1, 2004, approximately nineteen officers and inspectors from the Philadelphia Police Department's Vice Enforcement Unit and Narcotics Strike Force, the Philadelphia Department of Licenses and Inspections, and the Pennsylvania State Police conducted an "open inspection"¹ of Café Breezes, a row house bar located at 5131 Columbia Avenue. (App.81-82.) At about 1:00 a.m. that morning, two plainclothes "decoy" officers entered the bar to determine whether any illegal activity was taking place. (App.81.) After being inside for approximately fifteen to twenty minutes, the decoy officers contacted Corporal Raymond Drummond of the Vice Enforcement Unit, who then led the rest of the officers into the bar, announced their presence, and explained that they were there to conduct an open inspection. The Government called three of the officers present that morning, including Corporal Drummond, to recount the morning's events.

The officers testified that the bar within Café Breezes was in the shape of a backward "L," with the short side of the bar positioned closest to the establishment's front door. Officer Donna Stewart, a member of the Narcotics Strike Force, stated that once she entered Café Breezes, she placed herself between the bar and the front door and monitored the patrons closest to her, while other officers monitored the patrons at the other end of the bar. According to Officer Stewart, there were six people sitting toward the front of the bar, two of which were the decoy officers.² A man, later determined to be Kelly, was seated on the far right of the short section of the bar; two unidentified women sat to his left; and an unidentified man sat around the corner of the bar to Kelly's right. The unidentified man sat at the first barstool on the long section of the bar, and the decoy cops sat directly to his right.

Officer Stewart testified that, almost immediately, she took note of Kelly, as "he was looking around, kept looking over his shoulder, he looked in my direction, he looked in the direction of the door. He . . . appeared to be following the other officers as they walked into the bar with his eyes. He started to sweat, he was fidgeting on his barstool, he couldn't stay still." (App.125.) Officer Stewart eventually left the front of the bar to speak with her partner, Officer Brant Miles, another of the officers the Government called at trial. According to Officer Stewart, she returned to her post at the front of the bar—along the wall between Kelly and the female seated to his left—within "maybe ten seconds." (App.125.) At that point, Officer Stewart observed that Kelly "was leaned over, crunched over in his seat with his hands below the bar where I couldn't see them and he stopped fidgeting. He kept moving his head around, he kept looking around but he had stopped moving his body." (App.126.) Officer Stewart next described the following events:

When I returned to the front of the bar I stood there for maybe another minute or two, just keeping an eye on everyone, keeping an eye on the defendant. A Vice Officer asked someone for their ID much further down the bar. It was at that point that the defendant reached quickly towards his back. At that point I stopped him, I put my hands on him, I had him put his hands on the bar. I walked around behind the defendant so I was standing between the defendant and the female to his left and at that point I had him stand up. As he stood up[,] the gun fell from his lap, it was about mid-thigh. It fell down along his left leg, it hit the brass chair rail at the base of the bar with a loud metal clang and then it landed on the floor. I yelled "Gun." Other officers rushed up towards me, they placed handcuffs on the defendant and I recovered the weapon from the floor.

(App.127-28.) Both Corporal Drummond and Officer Miles testified that they heard Officer Stewart yell "gun" (App.83, 177); Officer Miles testified that he heard a preceding "thud" (App.177). Neither Corporal Drummond nor Officer Miles testified that he saw the gun fall from Kelly's lap, as both men were positioned at different locations along the bar. After recovering the gun, Officer Stewart gave it to Officer Miles, who removed the magazine and a bullet from the chamber.

The Government's final witness at trial, Officer Ernest Bottomer of the Philadelphia Police Department's Firearms Identification Unit, testified that the weapon in question was indeed a "firearm" as defined by federal law and that he could not retrieve a serial number from the firearm. The parties ultimately stipulated that (1) the gun qualified as a firearm for the purpose of the statute under which Kelly was charged; (2) the firearm had been manufactured outside of Pennsylvania; and (3) prior to May 1, 2004, Kelly had been convicted of a crime punishable by imprisonment for more than one year within the meaning of 18 U.S.C. § 922(g). United States v. Kelly ("Dist.Ct.Op."), Crim. A. No. 04-605, 2006 WL 2506353, at *2 (E.D.Pa. Aug.29, 2006). Kelly offered several photographs of Café Breezes into evidence, but called no witnesses on his behalf.³

On July 21, 2005, the jury found Kelly guilty of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and § 924(e).

II. Post-Trial Proceedings

Not long after the trial ended, Kelly retained new counsel, who, on August 1, 2005, filed a Motion for New Trial and Leave to Supplement pursuant to Federal Rule of Criminal Procedure 33 ("Rule 33") on Kelly's behalf.⁴ Leave to supplement was granted, and Kelly filed his counseled supplemental motion on October 6, 2005. In that motion, Kelly argued, inter alia, that he had recently discovered evidence of his innocence that justified the granting of a new trial. Kelly attached to the motion a statement from Kemahsiah Gant ("Gant"), a friend of Kelly's, that described a conversation between Gant and a mutual acquaintance, Victor Jones ("Jones"), who was at Café Breezes the night of Kelly's arrest. According to Gant's statement, sometime in the summer of 2005, she was talking to Jones about Kelly's gun charge, and Jones told her "that the gun was not Jake's gun the police found. . . . [Jones] said he had the gun. When the police came in[,] he got nervous and threw it down on the floor." (App.424.) When Gant asked Jones why he had not come forward earlier, Jones did not answer. A few weeks later, after struggling with the decision, Gant recounted the conversation to Kelly's girlfriend, Jackie Cephas ("Cephas"), who encouraged Gant to speak with Kelly's lawyer. About a month and a half later, Gant did so. Gant's statement was given just two days before Kelly filed his supplemental motion for a new trial.

On June 8, 2006, after briefing on the motion was complete, the District Court held an evidentiary hearing to address Kelly's newly discovered evidence claim. At the hearing, Kelly called three witnesses: Gant, Cephas, and Jones.⁵

A. Gant

As the first witness to take the stand, Gant testified that she had known Cephas, Kelly, and Jones each for approximately eight years as of the date of the hearing. In the past, Gant, Cephas, and Jones had all worked at the same company and lived on the same block (the 800 block of Wynnewood Road) in Philadelphia, about eleven blocks from Café Breezes. Though Gant eventually moved to another neighborhood within the city, Cephas and Jones—who Gant described as "good friends" (App.287)—remained. When asked by defense counsel how Kelly fit into the "circle of friends," Gant testified that she had known Kelly "as long as [she'd] known Jackie [Cephas]." (App.288.) Kelly and Cephas had been dating "[a]bout on and off for eight years." (App.288.)

According to Gant's testimony, the "circle of friends" would "all hang out at" Café Breezes, "a neighborhood bar" where Gant considered herself a "regular patron" and where Jones, Kelly, and Cephas would frequent "[e]very week." (App.289.) Though Gant...