United States District Court, M.D. Florida, Tampa Division
ELIZABETH A. KOVACHEVICH SENIOR UNITED STATES DISTRICT JUDGE
cause is before the Court on:
104 Motion for New Trial
Edward Bright, pro se, moves for a new trial based
on newly discovered evidence, pursuant to Rule 59(b).
Defendant Bright contends his sentence should be vacated and
remanded based on an intervening change in the law, the
decision of the United States Supreme Court in Rehaif v.
United States, 139 S.Ct. 2191 (2019),
which renders Defendant Bright actually innocent of
Defendant's convictions for possession of a firearm by a
Count 1 of the Indictment, Defendant Bright was charged with
being a felon in possession of a firearm, in violation of 18
U.S.C. Sees. 922(g)(1) and 924(e).
Bright filed a Motion to Suppress, which was referred to
Magistrate Judge Sneed for a hearing and a Report and
Recommendation. (Dkt. 25). A Report and Recommendation was
entered in which it was recommended that the Motion to
Suppress be denied. (Dkt. 46). The Court overruled the
objections to the Report and Recommendation, and adopted it;
the Court denied the Motion to Suppress.
case was set for a bench trial; the Government and Defendant
Bright filed a Joint Stipulation of facts. (Dkt. 52). The
Joint Stipulation includes a stipulation that when Defendant
Bright possessed a firearm, Defendant was a convicted felon.
On April 21, 2017, Defendant Bright was adjudicated guilty on
Count 1. (Dkt. 55). Defendant Bright was sentenced on July
27, 2018. (Dkts. 91. 94). At sentencing, the Government made
a motion for a 4-level downward departure pursuant to USSG
5K1.1. (Dkt. 77). Defendant Bright requested two additional
levels, which the Government did not oppose. The Court
granted Defendant's Motion, and departed a total of 6
levels. The U.S. Probation Office determined that Defendant
Bright was an armed career criminal, USSG Sec. 4B1.4, based
on three prior state drug convictions listed in the
Indictment. With a Criminal History Category VI, Defendant
Bright's advisory guidelines range was 188 to 255 months
imprisonment. Defendant Bright faced a statutory mandatory
minimum term of fifteen years on Count 1. Defendant Bright
was sentenced to a term of imprisonment of 84 months; a term
of supervised release of 60 months, and a special assessment
fee of $100.00.
Bright did not file a direct appeal of his conviction and
sentence, nor did Defendant Bright seek post-conviction
Defendant Bright has brought the Motion for New Trial under
Fed.R.Civ.P. 59, the Court construes Defendant's Motion
to be brought under Fed. R. Crim. P. 33.
motion for new trial based on newly discovered evidence must
be filed within three years of the verdict or the finding of
guilty Fed. R. Crim. P. 33(b)(1). In order to obtain a new
trial based on newly discovered evidence, Defendant must show
the following: 1) the evidence was discovered after the
trial; 2) Defendant exercised due diligence in discovering
the evidence; 3) the evidence is not merely cumulative or
impeaching; 4) the evidence is material; and 5) based on the
evidence a new trial would probably produce a different
result. 'The failure to satisfy any one of these elements
is fatal to a motion for new trial." United States
v. Ochoa-Vasquez, 179 Fed.Appx. 572, 575
(11th Cir. 2006)(citation omitted). Motions for
new trial based on newly discovered evidence are highly
disfavored. United States v. Campa, 459 F.3d 1121,
1151 (11th Cir. 2006).
response to Defendant Bright's Motion, the Government
argues that Defendant Bright does not cite any evidence that
was discovered after trial, but bases his Motion on a new
legal decision. The Government argues that a change in the
law does not constitute newly discovered evidence for
purposes of Rule 33. United States v. King, 735 ...