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United States v. Kemp

United States District Court, N.D. Florida, Panama City Division

April 18, 2018

UNITED STATES OF AMERICA
v.
LEWIS JONES, III, LARRY BERNARD GILMORE, and MICHAEL BERNARD GILMORE, Defendants.

          ORDER DENYING THE MOTIONS FOR A NEW TRIAL

          Robert L. Hinkle, United States District Judge

         Four 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.

         The 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.

         Meanwhile, 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.

         Federal 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.

         “Motions 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 five-part test:

(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 payments.

         Here 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.

         The defendants have not met the five-part test.

         First, 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.

         Second, 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.

         Third, 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 credibility.

         Fourth, 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 robbery ...


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