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In the United States Court of Appeals for the Fourth Circuit

Case No. 96-4826

UNITED STATES OF AMERICA, Appellee, v. VEE CHOONG CHIN, Appellant.

BRIEF OF AMICUS CURIAE, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

Of Counsel:

Barbara Bergman William J. Mertens University of New Mexico School of Law Jay T. Blount 1117 Stanford Drive, N.E. SWIDLER & BERLIN, Chartered Albuquerque, New Mexico 87131-1431 3000 K Street, NW, Suite 300 (505) 277-2146 Washington, DC 20007 (202) 424-7500 Attorneys for Amicus Curiae

TABLE OF CONTENTS PRELIMINARY STATEMENT AND INTEREST OF AMICUS CURIAE STATEMENT OF THE ISSUE PRESENTED FOR REVIEW SUMMARY OF ARGUMENT ARGUMENT I. A DISTRICT COURT SHOULD GRANT A DEFENDANT'S MOTION FOR A NEW TRIAL UNDER RULE 33, WHEN THE JUDGE, ON AN INDEPENDENT ASSESSMENT OF THE EVIDENCE, HAS A STRONG DOUBT AS TO THE DEFENDANT'S GUILT. II. THE DISTRICT COURT ERRED IN DENYING A NEW TRIAL SOLELY BECAUSE IT DID NOT HAVE AN "ABIDING CONVICTION" THAT A "MISCARRIAGE OF JUSTICE" HAD OCCURRED. CONCLUSION TABLE OF AUTHORITIES CASES Applebaum v. United States, 274 F. 43 (7th Cir. 1921) Colorado v. New Mexico, 467 U.S. 310 (1984) Dyer v. MacDougall, 201 F.2d 265 (2d Cir. 1952) Government of the Virgin Islands v. Commissiong, 706 F. Supp. 1172 (D.V.I. 1989) Jackson v. Virginia, 443 U.S. 307 (1979) Koon v. United States, ___ U.S. ___, 116 S.Ct. 2035 (1996) Schlup v. Delo, 513 U.S. 298 (1995) Smith v. Times Pub. Co., 36 A. 296 (Pa. 1897) Sparf v. United States, 156 U.S. 51 (1895) Strickland v. Washington, 466 U.S. 668 (1984)

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Supermarket of Marlinton, Inc. v. Meadow Gold Diaries, Inc., 71 F.3d 119 (4th Cir. 1995) Tibbs v. Florida, 457 U.S. 31 (1982) United States v. Arrington, 757 F.2d 1484 (4th Cir. 1985) United States v. Bagley, 473 U.S. 667 (1985) United States v. Campbell, 777 F. Supp. 1259 (W.D.N.C. 1991), aff'd in part, rev'd in part, 977 F.2d 854 (4th Cir. 1992) United States v. Campbell, 977 F.2d 854 (4th Cir. 1992) United States v. Chaffee, 25 F. Cas. 382 (C.C.D. Ohio 1868) (14,773) United States v. Chavis, 880 F.2d 788 (4th Cir. 1989) United States v. Conner, 25 F. Cas. 595 (C.C.D. Mich. 1845) (No. 14,847) United States v. Dixon, 658 F.2d 181 (3d Cir. 1981) United States v. Five Cases of Cloth, 25 F. Cas. 1093 (S.D.N.Y. 1842) (No. 15,110) United States v. Harding, 26 F. Cas. 131 (C.C.E.D. Pa. 1846) (No. 15,301) United States v. Kaadt, 31 F. Supp. 546 (N.D. Ind. 1940) United States v. Kimberlin, 527 F. Supp. 1010 (S.D. Ind. 1981), aff'd, 805 F.2d 210 (7th Cir. 1986) United States v. Lancaster, 26 F. Cas. 854 (C.C.D. Ill. 1841) (No. 15,556) United States v. Levy, 694 F. Supp. 1136 (D.N.J. 1988) United States v. Morales, 902 F.2d 604 (7th Cir.), amended by 910 F.2d 467 (7th Cir. 1990) United States v. Scotti, 47 F.3d 1237 (2d Cir. 1995) United States v. Shipp, 409 F.2d 33 (4th Cir. 1969) United States v. Smith, 62 F.3d 641 (4th Cir. 1995) United States v. Three Cases, Etc., 28 F. Cas. 109 (S.D.N.Y. 1845) (No. 16,497)

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United States v. Troche, 213 F.2d 401 (2d Cir. 1954) United States v. Wilson, ___ F.3d ___, 1997 WL 362776 (4th Cir. July 2, 1997) Victor v. Nebraska, 511 U.S. 1 (1994) RULES AND STATUTES Fed. Rule Crim. Proc. 29 Fed. Rule Crim. Proc. 33 Fed. Rule Crim. Proc. 33 advisory committee's notes REPEALED RULES AND STATUTES 28 U.S.C. § 391 Judiciary Act, Ch. 20, § 17 1 Stat. 73, 83 (1789) Judiciary Act, Ch. 36, § 2, 1 Stat. 275, 276 (1792) Rule II of the Criminal Appeals Rules of 1933, 292 U.S. 661, 54 S. Ct. xxxvii (1934) BOOKS AND ARTICLES Joseph Chitty, A Practical Treatise on the Criminal Law (Philadelphia, Isaac Riley 1819) Lester B. Orfield, New Trial in Federal Criminal Cases, 2 Vill. L. Rev. 293 (1957) Michael Seward, Case Comment, The Sufficiency-Weight Distinction -- A Matter of Life or Death, 38 U. Miami L. Rev. 147 (1983) William Forsyth, History of Trial by Jury (London, John W. Parker & Son 1852) William R. Riddell, New Trial in Present Practice, 27 Yale L.J. 353 (1917)

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PRELIMINARY STATEMENT AND INTEREST OF AMICUS CURIAE Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, the National Association of Criminal Defense Lawyers (the "NACDL") submits this brief as amicus curiae in support of the defendant Vee Choong Chin (the "Defendant"). In the NACDL's view, the district court applied an incorrect standard in considering the Defendant's motion for a new trial, on the ground that the evidence did not support the jury's verdict of guilty. The district judge applied a standard that required him to have an "abiding conviction" that the jury's verdict was a "miscarriage of justice" before he could order the case retried. Instead, he should have asked whether the evidence left him with a strong doubt as to the Defendant's guilt. The NACDL is a nonprofit corporation with membership of more than 9,000 attorneys and 28,000 affiliate members in all fifty states. The American Bar Association recognizes the NACDL as an affiliate organization and awards it full representation in its House of Delegates. The NACDL was founded in 1958 to promote study and research in the field of criminal law; to disseminate and advance knowledge of the law in the area of criminal practice; and to encourage the integrity, independence and expertise of defense lawyers in criminal cases. Among the NACDL's objectives is to ensure due process in the administration of the criminal justice process, including preservation of protections against conviction of the innocent. One important protection against erroneous convictions in federal courts is the power of a district judge to grant a new trial when the jury's verdict is not supported by the evidence.

STATEMENT OF THE ISSUE PRESENTED FOR REVIEW

Whether the district court applied the correct standard in considering the Defendant's motion for a new trial on the ground that the evidence failed to support the jury's verdict of guilty. SUMMARY OF ARGUMENT

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The common law tradition that led to the adoption of Rule 33 of the Federal Rules of Criminal Procedure allowed a judge to grant a new trial when the judge, after an independent assessment of the evidence and the credibility of the witnesses, believed that the verdict was in error. Due respect for juries' verdicts certainly allows a judge to grant a new trial when the judge, viewing the evidence essentially as a thirteenth juror, has a strong doubt as to the defendant's guilt. The Seventh Circuit has adopted this standard. Although this formulation uses different words, it is in substance consistent with this Court's decisions that a new trial should be held when the evidence weighs heavily against the verdict, and it merits adoption in the Fourth Circuit as well. The trial judge here stated that he likely would have found the defendant not guilty but, despite this, held he was constrained to deny the Defendant's new trial motion because he lacked an "abiding conviction" that a "miscarriage of justice" had occurred. Joint Appendix, p. 409

(Sentencing Tr., p.13). This standard, in any event, is without precedent and is far too strict. The case should be remanded for the court's reconsideration under the appropriate standard, giving full scope to the district court's actual authority under Rule 33 to require a retrial based on disagreement with the jury's verdict. ARGUMENT I. A DISTRICT COURT SHOULD GRANT A DEFENDANT'S MOTION FOR A NEW TRIAL UNDER RULE 33, WHEN THE JUDGE, ON AN INDEPENDENT ASSESSMENT OF THE EVIDENCE, HAS A STRONG DOUBT AS TO THE DEFENDANT'S GUILT.

Motions for new trials in criminal cases are considered under Rule 33 of the Federal Rules of Criminal Procedure, which provides: The court on motion of a defendant may grant a new trial to that defendant if required to in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct entry of a new judgment. A motion for a new trial based on the ground of

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newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period. Rule 33 allows new trials in at least three categories of cases: (1) those involving "newly discovered evidence," as the rule expressly provides; (2) cases involving trial irregularities, such as judicial error, misconduct by the prosecutor or a juror, or ineffective assistance of defense counsel, see, e.g., United States v. Scotti, 47 F.3d 1237, 1246 (2d Cir. 1995) (erroneous juror instruction); United States v. Dixon, 658 F.2d 181, 193 (3d Cir. 1981) (prosecutorial misconduct); United States v. Kimberlin, 527 F. Supp. 1010, 1011 (S.D. Ind. 1981) (juror misconduct), aff'd, 805 F.2d 210 (7th Cir. 1986); United States v. Smith, 62 F.3d 641, 650-51 (4th Cir. 1995) (ineffective assistance of counsel); and (3) cases where the jury's verdict is against the evidence. The duty of a district judge to grant a new trial on the ground that the verdict is against the evidence is in addition to the court's obligation, under Rule 29 of the Federal Rules of Criminal Procedure and the Fifth Amendment Due Process Clause, to enter judgment of acquittal when the prosecution's proof has failed completely. On a motion for judgment of acquittal, the court must decide whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) If not, judgment of acquittal should be granted. Id.; see also United States v. Campbell, 977 F.2d 854, 856 (4th Cir. 1992). There then will be no retrial, and the defendant must be discharged. A district court's power to grant a motion for a new trial is necessarily broader. For one thing, in considering a motion under Rule 33, the court is not bound to assess credibility and draw all inferences in favor of the prosecution, but should evaluate the evidence independently. United States v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985). To distinguish between these two types

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of motions, courts refer to motions for judgment of acquittal as attacking the sufficiency of the evidence and motions for new trial as attacking the weight of the evidence. See, e.g., Tibbs v. Florida, 457 U.S. 31, 42 (1982). "In determining sufficiency, the court measures the adequacy of the evidence; in determining weight, the court measures the probative value and credibility of evidence." Michael Seward, Case Comment, The Sufficiency-Weight Distinction -- A Matter of Life or Death, 38 U. Miami L. Rev. 147, 153 (1983). Rule 33 did not create the remedy of a new trial. Rather, it codified a remedy that predates even the founding of the Nation. When Rule 33 was adopted in 1944, the Advisory Committee's Notes explained that, except for regulating the timing of the motion, the new rule "substantially continue[d] existing practice." Rule 33 replaced Rule II of the Criminal Appeals Rules of 1933, which authorized new trials in criminal cases, 292 U.S. 661, 54 S. Ct. xxxvii (1934), and Title 28, Section 391 of the United States Code, which authorized new trials in both civil and criminal cases. These provisions were the lineal descendants of the Judiciary Act of 1789, which allowed federal judges to award a new trial for "reasons which new trials usually have been granted in courts of law," Ch. 20, § 17 1 Stat. 73, 83, and the Judiciary Act of 1792 affirming that practice after ratification of the Seventh Amendment, Ch. 36, § 2, 1 Stat. 275, 276. The power of English judges to grant new trials had been recognized as early as the fourteenth century in civil cases. Lester B. Orfield, New Trial in Federal Criminal Cases, 2 Vill. L. Rev. 293, 304 (1957). In the eighteenth century, Lord Mansfield wrote: "'Whatever might have been the origin of the practice, trials by jury in civil cases could not subsist now without a power somewhere to grant new trials.'" William Forsyth, History of Trial by Jury 187 (London, John W. Parker & Son 1852) (quoting Bright v. Eynon, 1 Burrows 390 (1757)). Although the court's power to grant a new trial was discretionary, there were a number of instances in which new trials were "hardly ever refused." Forsyth, History of Trial at 188. Among these were cases in which there was conflicting evidence with slight evidence for the prevailing party and "the judge

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declare[d] himself dissatisfied with the verdict." Id. at 190 (emphasis in original). Until the mid-seventeenth century, the power of English judges to grant new trials was limited to civil cases. It then was extended to misdemeanor cases. Orfield, New Trial at 304 (after 1673); Joseph Chitty, A Practical Treatise on the Criminal Law 533 (Philadelphia, Isaac Riley 1819) (first reported instance was in 1655, although practice probably existed earlier). English law, however, never extended the power to felony cases. Orfield, New Trial at 304. Like many English common law practices, the power of courts to grant new trials became incorporated into American jurisprudence. As one commentator noted: The common law of England became the common law of the United States as it had been the common law of the thirteen colonies: while there is no report of any decisions in the colonies before the Revolution granting a new trial, there is no doubt that the courts of general jurisdiction exercised the power of granting new trials in proper cases. William R. Riddell, New Trial in Present Practice, 27 Yale L.J. 353, 360 (1917). Unlike the English courts, however, American courts early on granted new trials in felony cases. United States v. Harding, 26 F. Cas. 131, 136 (C.C.E.D. Pa. 1846) (No. 15,301) (noting well-established American practice of permitting new trials in felony cases); see also United States v. Conner, 25 F. Cas. 595, 595 (C.C.D. Mich. 1845) (No. 14,847) ("There can be no doubt that the court may, on cause, grant a new trial in any criminal case.").(1) This difference arose because whereas an English judge's recommendation for a pardon invariably would be followed, it was not so in America, where the relationship between the judiciary and the executive was different. Harding, 26 F. Cas. at 137. In America, "therefore, the new trial bec[ame] an indispensable resort." Id. On the historical understanding of a judge's obligation to award a new trial on the ground that the verdict was against the weight of the evidence, the judge did not need to have an abiding conviction that a miscarriage of justice had occurred. The threshold was substantially lower, and the judge's role was essentially that of a thirteenth juror. See, e.g., Applebaum v. United States,

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274 F. 43, 46 (7th Cir. 1921) (when considering new trial motion, judge "is sitting as a thirteenth juror"); United States v. Kaadt, 31 F. Supp. 546, 547 (N.D. Ind. 1940) (judge's duty is "to grant a new trial unless [he was] satisfied beyond a reasonable doubt that the verdict is justified under the evidence"); United States v. Troche, 213 F.2d 401, 404 (2d Cir. 1954) (Frank, J., dissenting) (judge may grant new trial "if he has serious doubts about the credibility of a major witness"); Dyer v. MacDougall, 201 F.2d 265, 272 (2d Cir. 1952) (Frank, J. concurring) ("On motion for new trial the judge acts as 'thirteenth juror' . . . ."); see also United States v. Lancaster, 26 F. Cas. 854, 859 (C.C.D. Ill. 1841) (No. 15,556) (denying new trial motion because "independently of the testimony of [a discredited witness], the evidence proved guilt of the defendant, in [the court's] opinion beyond a reasonable doubt"); cf. Smith v. Times Pub. Co., 36 A. 296, 308 (Pa. 1897) (Williams, J., concurring) (judge "has a responsibility for the result no less than the jury"). The judge's role as thirteenth juror is well-illustrated by United States v. Harding, 26 F. Cas. 131 (C.C.E.D. Pa. 1846) (No. 15,301), in which the Pennsylvania Circuit Court had to consider whether new trials should be ordered, because the trial judge died before ruling on the defendants' motions. The Circuit Court found that new trials must be held, because it could not step into the shoes of the trial judge. The Circuit Court plainly saw the trial judge's role as coequal with that of the jury: [T]he principle of the law is clear. The defendant, before sentence can be pronounced on him, has a right to the judicial determination of his guilt by the court, as well as the jury. If the verdict does not satisfy the conscience of the judge, the prisoner is entitled to a new trial. Id. at 136. In other words, the jury's verdict could not stand without the concurrence of the trial judge who heard the same evidence. This is not to say that all judges perceived themselves as thirteenth jurors. See, e.g., United States v. Chaffee, 25 F. Cas. 382, 385-86 (C.C.D. Ohio 1868) (14,773); United States v. Five Cases of Cloth, 25 F. Cas. 1093, 1094 (S.D.N.Y. 1842) (No. 15,110) (Betts, J.); United States v. Three

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Cases, Etc., 28 F. Cas. 109, 110 (S.D.N.Y. 1845) (No. 16,497) (Betts, J.). However, even these judges recognized their province to grant new trials if the verdict was "plainly against evidence," Chaffee, 25 F. Cas. at 385, or "manifestly against the evidence," Five Cases, 25 F. Cas. at 1094, or to avert a "manifest injustice," Three Cases, 28 F. Cas. at 109. More recently, the U. S. Supreme Court's decision in Tibbs v. Florida, 457 U.S. 31, 42 (1982), concerning the double jeopardy implications of the award of a new trial, acknowledged the traditional power of a judge, acting as "thirteenth juror," to grant a new trial when a verdict is against the weight of the evidence, even if that evidence is sufficient under Jackson v. Virginia. See Tibbs, 457 U.S. at 45 n.22 ("Although [the defendant] limits his argument to appellate reversals, his contentions apply to a trial judge's finding that a conviction was against the weight of the evidence."). We recognize, however, that more recent cases have not uniformly accepted a federal district judge's role as that of a coequal thirteenth juror. This Court's decision in United States v. Arrington, 757 F.2d 1485 (4th Cir. 1985), used different language to describe the judge's duty under a Rule 33 motion, saying that a new trial should be granted "when the evidence weighs heavily against the verdict" and that this power should be exercised "sparingly," id. at 1486,(2) even though the judge "is not constrained by the requirement that it view the evidence in the light most favorable to the government," and "may evaluate the credibility of the witnesses," id. at 1485. See also United States v. Campbell, 777 F. Supp. 1259, 1268 (W.D.N.C. 1991) ("[T]he court is not merely sitting as a 'thirteenth juror,' to determine whether it would have acquitted or convicted the defendant."), aff'd in relevant part without discussion, 977 F.2d 854, 860 (4th Cir. 1992); Government of the Virgin Islands v. Commissiong, 706 F. Supp. 1172, 1184 (D.V.I. 1989); United States v. Levy, 694 F. Supp. 1136, 1145 (D.N.J. 1988). The Seventh Circuit considered the standard for a motion for new trial on the ground that the verdict was against the weight of the evidence in United States v. Morales, 902 F.2d 604 (7th

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Cir.), amended by 910 F.2d 467 (7th Cir. 1990). The court concluded that on balance, with due consideration of the risk of erroneous conviction even when the prosecution's evidence can survive a Rule 29 motion, this standard should apply: If the complete record, testimonial and physical, leaves a strong doubt as to the defendant's guilt, even though not so strong a doubt as to require a judgment of acquittal, the district judge may be obliged to grant a new trial. Morales, 910 F.2d at 467. This standard preserves a judge's traditional role on a new trial motion to view the evidence independently. It also is consistent with this Court's caution that new trials should be ordered "sparingly." Arrington, 757 F.2d at 1486. We do not expect a flood of cases where the district judge finds sufficient evidence to withstand a Rule 29 motion for judgment of acquittal, but still has "strong doubt" to merit a new trial. Such cases will be few. Indeed, the district judge in the present case stated that this was the first time when he disagreed as he did with a jury's verdict. Joint Appendix, p. 408 (Sentencing Tr., p. 12). The Seventh Circuit's standard also shows due regard for the jury's verdict. And, as it explained, the jury is likely to be able to make a better informed, and hence more accurate, determination of guilt or innocence at a second trial because counsel on both sides are apt to be better prepared and the case more fully investigated. Morales, 902 F.2d at 608-09. Moreover, the Seventh Circuit's standard is consistent with the language in this Court's Arrington decision, that a new trial should be granted "when the evidence weighs heavily against the verdict," in the context of criminal cases, where the government bears the burden of proving guilt beyond a reasonable doubt. If the evidence raises a strong doubt, then it weighs heavily against the verdict. Additionally, the Seventh Circuit's language from Morales may be less likely to mislead, as it focuses on the question of whether the evidence -- which, in some cases, may be only that of the prosecution -- establishes guilt beyond a reasonable doubt. The language in

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Arrington could be misapplied to suggest that unless the defense presents its own evidence to "weigh against" that of the government, then a motion for a new trial always should be denied. The Seventh Circuit's standard makes clear that, in an appropriate case, a district judge should grant a new trial motion based only on the prosecution's evidence, when that evidence leaves the judge with strong doubt as to guilt. We therefore suggest that this Court should declare that when a district court is left with a strong doubt as to the defendant's guilt, after its own evaluation of the evidence, then the court should grant a timely new trial motion under Rule 33. II. THE DISTRICT COURT ERRED IN DENYING A NEW TRIAL SOLELY BECAUSE IT DID NOT HAVE AN "ABIDING CONVICTION" THAT A "MISCARRIAGE OF JUSTICE" HAD OCCURRED. Even if the Court does not adopt the Seventh Circuit's formulation from Morales, it should hold that the court below applied too harsh a standard. The district court raised the bar far too high, by requiring an "abiding conviction" of a "miscarriage of justice" before it would order a new trial. The judge admitted that because he found the government's principal witness incredible, and the government's circumstantial evidence by itself unconvincing, he would have found the Defendant not guilty. Nonetheless, because his own doubts about the Defendant's guilt fell short of an "abiding conviction" that there was a "miscarriage of justice," the judge evidently felt constrained to deny the Defendant's Rule 33 motion.(3) Sentencing Trans., p. 13. The judge evidently thought he must be presented with clear and convincing evidence of innocence, or even proof beyond a reasonable doubt of innocence, to require a new trial, for that is what the words "abiding conviction" imply. See Victor v. Nebraska, 511 U.S. 1, 21 (1994) (equating "abiding conviction" of guilt with proof beyond a reasonable doubt); Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (explaining "clear and convincing" standard as requiring an

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"abiding conviction" of the probability of certain facts). The district court applied a manifestly incorrect standard. We have found no prior federal case employing so strict a standard on a Rule 33 motion. In United States v. Shipp, 409 F.2d 33

(4th Cir. 1969), this Court stated, in the alternative, that a trial court may grant a new trial if the "verdict is against the weight of the evidence," and that it must grant a new trial if "permitting the verdict to stand would result in a miscarriage of justice." Id. at 36-37. As we have explained, the first of these tests, whether the verdict was "against the weight of the evidence," is consistent with the Seventh Circuit's statement in Morales that a new trial motion may be granted if the judge has a strong doubt as to guilt. The Court in Shipp did not also require a showing of a "miscarriage of justice" -- rather, a finding of "miscarriage of justice" constituted an independent ground for a new trial. Even on this second alternative, the Court did not require the judge to have an "abiding conviction" that a miscarriage had occurred before it could allow a case to be retried. The district court's "abiding conviction of a miscarriage of justice" standard also is more stringent than the standard applied in other contexts when a court must decide whether a verdict should stand. And in these other contexts, society's interest in preserving the verdict is even stronger than on a Rule 33 motion filed within seven days of the verdict. For example, when a federal court reviews a state court conviction on habeas corpus, it is required to consider defaulted claims on the merits, notwithstanding the petitioner's inability to demonstrate "cause and prejudice," when the error "probably resulted" in conviction of the innocent. Schlup v. Delo, 513 U.S. 298, 326 (1995). This is a lower standard than one that required an "abiding conviction" that an innocent person had been convicted. It would be a peculiar system that gave district judges less freedom when they are exercising their traditional power under Rule 33 to grant new trials in federal cases, than when reviewing claims that were defaulted in state court. Likewise, lapses in defense counsel's performance require a new trial on grounds of ineffective assistance, when there is a "reasonable probability that, but for counsel's unprofessional

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errors, the result of the proceedings would be different." Strickland v. Washington, 466 U.S. 668, 694 (1984). This again is a lower standard. And a new trial is constitutionally required on the ground that the prosecution withheld exculpatory evidence, when "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985) (Blackmun, J.). To "undermine confidence" in a verdict is a less onerous burden than creating an "abiding conviction" that the verdict was a "miscarriage of justice." The standard the trial judge used in the present case also was more stringent than the standard applicable to motions for a new trial based on newly discovered evidence, which may be made as late as two years after the verdict. Even long after verdict, a new trial may be awarded on that ground, when the evidence probably would result in an acquittal (assuming that other requirements also are met). United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). The Court should not find that Rule 33 imposes a more difficult standard for new trial motions filed within seven days of verdict, when a prompt retrial is the likely result. Especially in view of the breadth of the authority of trial judges under our common law tradition to grant new trials when they disagree with the verdict, the Rule 33 standard for a new trial cannot be stricter than the standard applied in these other contexts. CONCLUSION We respectfully suggest that this Court should join the Seventh Circuit in expressly stating that a district court may grant a motion for a new trial under Rule 33 when the court, after independently weighing the evidence and assessing credibility, is left with a strong doubt as to the defendant's guilt. This would not mark a substantive change in the standard in this Circuit so much as a clarification. In any event, the district court applied a wrong standard, which conflicts with this Court's precedents, when it required an "abiding conviction" of a "miscarriage of justice" before

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it would order a new trial on the ground that the verdict was against the weight of the evidence.

Dated: August 11, 1997 Respectfully submitted, Of counsel: Barbara E. Bergman William J. Mertens University of New Mexico Jay T. Blount School of Law SWIDLER & BERLIN, CHARTERED 1117 Stanford Drive, N.E. 3000 K Street, NW, Suite 300 Albuquerque, New Mexico 87131-1431 Washington, D.C. 20007 (505) 277-2146 (202) 424-7500 Attorneys for Amicus Curiae National Association of Criminal Defense Lawyers CERTIFICATE OF SERVICE I certify that on August 8, 1997, I served the foregoing Brief of Amicus Curiae, by causing two copies to be mailed by overnight delivery to each of the following parties: John Zwerling Zwerling & Kemler, P.C. 108 North Alfred Street Alexandria, VA 22320 Joseph William Mott United States Attorney's Office Thomas B. Mason Building 105 Franklin Road, SW, Suite One Roanoke, VA 24011-2305 William J. Mertens Notes 1. Although Justice Story at one point opined that the Double Jeopardy Clause prohibited new trials

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in criminal cases, even at the defendant's request, the practice of federal courts from the beginning was otherwise, and Justice Story's view soon was abandoned. By the early nineteenth century, it was well recognized that judges could order new trials in both civil and criminal cases. See Sparf v. United States, 156 U.S. 51, 175 (1895) (Gray, J., dissenting) (citing cases). 2. This Court recently reiterated this standard in United States v. Wilson, ___ F.3d ___, 1997 WL 362776, at *9 (4th Cir. July 2, 1997). 3. Of course we recognize that the district judge's power to grant or deny a new trial motion is discretionary. Arrington, 757 F.2d at 1486. However, when the district judge applies a legally erroneous standard, the Circuit Court should vacate the decision and remand the case for application of the correct standard. See, e.g., Koon v. United States, ___ U.S. ___, 116 S.Ct. 2035, 2047 (1996) ("A district court by definition abuses its discretion when it makes an error of law."); cf. Supermarket of Marlinton, Inc. v. Meadow Gold Diaries, Inc., 71 F.3d 119, 126-27 (4th Cir. 1995) (Although district court's evidentiary rulings are reviewed for abuse of discretion, "[t]he legal standards the district court applies in making its evidentiary rulings, however, are reviewed de novo.").

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