United States District Court, N.D. Florida, Panama City Division
ORDER DENYING THE MOTIONS FOR A NEW TRIAL
L. Hinkle, United States District Judge
individuals participated in a series of jewelry-store
robberies. Following their indictment, one of the defendants,
Abigail Kemp, entered a guilty plea and cooperated with
prosecutors. The other three, Lewis Jones III, Larry Bernard
Gilmore, and Michael Bernard Gilmore, went to trial. The
evidence of their guilt was overwhelming. The jury convicted
all three on all charges.
three defendants promptly moved for a new trial. They
asserted the verdict was against the great weight of the
evidence. The motion was denied. The defendants were
sentenced. They appealed. The appeals are pending.
back in the district court, each of the three defendants has
filed another motion for a new trial. The motions are nearly
identical. The defendants say they have newly discovered
evidence that Ms. Kemp participated in a different crime-a
grocery-store robbery-prior to the bank robberies. This is
important, the defendants say, because on cross-examination
during the trial of this bank-robbery case, Ms. Kemp denied
having previously participated in any other robbery. She
testified that the defendants trained her on how to commit
the bank robberies- training that, they now seem to assert,
would have been unnecessary for a person who committed an
earlier grocery-store robbery.
Rule of Criminal Procedure 33 allows a court to grant a new
trial based on newly discovered evidence. But a new trial
should not be granted lightly.
for a new trial based on newly discovered evidence are highly
disfavored in the Eleventh Circuit and should be granted only
with great caution.” United States v.
Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc).
To obtain a new trial based on newly discovered evidence, the
defendant must demonstrate that the evidence satisfies this
(1) the evidence must be discovered following the trial; (2)
the movant must show due diligence to discover the evidence;
(3) the evidence must not be merely cumulative or impeaching;
(4) the evidence must be material to issues before the court;
and (5) the evidence must be of such a nature that a new
trial would probably produce a new result.
United States v. Taohim, 817 F.3d 1215, 1223 (11th
Cir. 2013). In Taohim, the court affirmed the denial
of a motion for a new trial based on newly discovered
evidence that several key witnesses received whistleblower
the defendants' allegedly new evidence falls far short.
The evidence is a crime-stoppers photograph taken at the
scene of the unrelated grocery-store robbery-a photograph the
defendants say shows Ms. Kemp. The defendants say the
photograph also shows Lewis Jones III-one of the three
defendants who went to trial in the bank-robbery case. The
defendants have not explained how Ms. Kemp's
participation in the grocery-store robbery could have been
unknown to Mr. Jones. Nor have they explained how admitting
evidence of the grocery-store robbery could have helped the
defendants-the evidence would have further incriminated Mr.
Jones and would not have helped the Gilmores, who, the
evidence showed, were closely associated with Mr. Jones. The
prejudicial impact of the grocery-store evidence likely would
have dwarfed its comparatively minor impeachment value.
defendants have not met the five-part test.
it is unclear that the evidence was actually discovered after
the trial. If the photograph depicts what the defendants say
it depicts-both Ms. Kemp and Mr. Jones as participants in the
grocery-store robbery-then Mr. Jones knew of Ms. Kemp's
role in that robbery. Given the close cooperation among the
defendants and their attorneys in defense of the bank-robbery
trial, it is likely the other defendants knew about this,
too. If the defendants knew about the grocery-store robbery,
they may have known about the crime-stoppers photo.
in light of Mr. Jones's knowledge of the grocery-store
robbery, with diligence he surely could have discovered the
crime-stoppers photo and perhaps other evidence of the
robbery. The other defendants, through their cooperation with
Mr. Jones, probably could have discovered this, too.
evidence of Ms. Kemp's participation in the grocery-store
robbery would have been primarily if not entirely impeaching.
Indeed, the defendants characterize it that way, asserting
the evidence would have undermined Ms. Kemp's
the evidence was barely material, if material at all. That
Ms. Kemp participated in a grocery-store robbery with Mr.
Jones tells one nothing about whether Ms. Kemp later
participated in a series of bank robberies with Mr. Jones and
the Gilmores. Nor does participation in a grocery-store