DO NOT PUBLISH
Ricky Denton, proceeding
In March 2011 Denton was charged with armed bank robbery and brandishing a firearm during and in relation to a crime of violence. He chose to represent himself and proceeded to a jury trial. Before the trial began, Denton wrote letters to Jonathon suggesting that he testify falsely and perjure himself at trial. Denton also threatened the life of Jonathon's wife, Hollie.
At trial, the government called as witnesses Hollie, Jonathon, and Denton's other son, Jamie. It also called Forrest Sims, an eyewitness who saw the robber fleeing the bank. Jonathon testified that the bank robber shown in the bank's security footage walked like Denton and that he had not been promised anything in exchange for testifying against Denton. Hollie also testified against Denton, after which Denton asked the court to permit him to interview her. The district court would allow Denton to conduct that interview if Hollie agreed to speak to him, but she refused. Sims testified that the driver of the car that fled the bank after the robbery was a "black man with a gold grill." Denton is a white male.
The jury found Denton guilty of both charges, and the district court sentenced him to 244 months imprisonment. Denton appealed that conviction and we affirmed it.
We review for an abuse of discretion both the district court's denial of a motion for a new trial and its denial of an evidentiary hearing.
"In determining whether a motion for a new trial based on newly discovered evidence was properly denied, . . . `the acumen gained by a trial judge over the course of the proceedings [makes her] well qualified to rule on the basis of affidavits without a hearing.'"
Denton first contends that newly discovered evidence shows that the government improperly interfered with his right to establish a defense by instructing his sons, Jamie and Jonathon, and his daughter-in-law, Hollie, not to have any contact with him before his trial.
As evidence of the government's interference with his defense, Denton first points to a request that Jamie made after he testified at trial, asking to speak to Denton. Even if Jamie's request were evidence of government interference, which we seriously doubt, it is not newly discovered evidence because Denton heard what Jamie said at trial when he said it. "Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(2). Because the motion for new trial was not filed until more than nine months after the trial had ended, it is untimely under Rule 33.
The evidence Denton says shows that the government interfered with his right to establish a defense by preventing Jonathon and Hollie from testifying on his behalf came from Jonathon and Hollie's post-trial affidavit; those affidavits included statements that law enforcement had instructed them not to have contact with Denton before the trial.
The district court did not abuse its discretion in finding that those statements in Jonathon and Hollie's affidavits were not credible. The court noted that it was apparent at trial that neither Jonathon nor Hollie wanted to speak to Denton. It based that finding on the fact that Denton had written letters to Jonathon suggesting that he testify falsely; Denton had made statements about trying to have Hollie murdered; and as a result Jonathon and Hollie chose (as opposed to having been instructed) not to speak to Denton. The district court noted that at trial it had given Hollie an opportunity to speak to Denton, and she had refused to do so. The court did not abuse its discretion in finding unfounded Denton's claims that the government interfered with his right to establish a defense.
Denton also contends that the newly discovered evidence demonstrates constitutional violations under
When law enforcement was investigating Denton for the bank robbery, they interviewed Hollie and, during one of those interviews, Hollie gave consent to search the apartment where she lived with Jonathon and Denton. In her post-trial affidavit Hollie stated that she did not freely go to the police station to be interviewed about Denton and that investigators told her that she had no choice but to go to the station. Denton contends that those statements demonstrate
In his affidavit, Jonathon stated that investigators had told him he would not be charged for any crimes related to the bank robbery if he testified against his father by identifying his father in the bank security camera footage. Denton contends that Jonathon's affidavit demonstrates
The district court found that those statements in Jonathon's affidavit were not credible. It noted that Jonathon's testimony against Denton at trial — that the man in the bank security video walked like Denton — was consistent with the court's own observations of Denton's gait during the trial. The court also noted that Denton had attempted to have Jonathon testify falsely in Denton's favor at trial, which further undermined the credibility of Jonathon's post-trial statements in the affidavit. As a result the district court did not abuse its discretion in concluding that the newly discovered evidence did not demonstrate either a
Denton also contends that the district court abused its discretion in failing to hold an evidentiary hearing on his newly discovered evidence claims. The district court found that, based on the record and insight gained from presiding at trial, the relevant statements in the affidavits were not credible and Denton's claims lacked merit. It was permitted to make that finding under our