United States District Court, M.D. Florida, Tampa Division
ELIZABETH A. KOVACHEVICH United States District Judge.
cause is before the Court on:
Dkt. 169 Motion for New Trial Pursuant to Federal Rules of
Criminal Procedure 33(a)(1)
Dkt. 173 Response in Opposition
Dkt. 176 Reply
Robert William Barton, pro se, moves for a new trial
pursuant to Fed. R. Crim. P. 33(a)(1). The basis for
Defendant Barton's Motion is newly discovered evidence,
consisting of guidelines issued by the Scientific Working
Group on DNA Analysis (SWGDAM), whose most recent publication
is dated in 2017. The publication was not available to the
Court at the time of trial.
United States opposes Defendant Barton's Motion for New
Trial, and argues that the Motion should be denied without an
jury indicted Defendant Robert William Barton for possession
of a firearm by a convicted felon, in violation of 18 U.S.C
Sees. 922(g) and 924(e). (Dkt. 1).
moved to exclude DNA evidence before trial. (Dkt. 67).
Magistrate Judge Porcelli conducted an evidentiary hearing
and issued a Report and Recommendation recommending denial of
Defendant's Motion. (Dkt. 103). Defendant Barton objected
to the Report and Recommendation. (Dkt. 104). The Court
overruled Defendant Barton's objections, and adopted the
Report and Recommendation. (Dkt. 111).
Barton proceeded to trial. The trial began on September 12,
2016 and concluded on September 14, 2016. (Dkts. 106, 109,
113, 115). The jury found Defendant Barton guilty, and the
Court adjudicated Defendant Barton guilty. (Dkt. 113). On
January 20, 2017, the Court sentenced Defendant Barton to a
term of imprisonment of 120 months, a term of supervised
release of 36 months; fine waived, and a special assessment
fee of $100.00.
Barton appealed the Judgment. (Dkt. 140). The Eleventh
Circuit affirmed. (Dkt. 167). United States v.
Barton, 909 F.3d 1323 (11th Cir. 2018). (Dkt.
167). The Eleventh Circuit issued the mandate on January 4,
2019. (Dkt. 168).
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 Barton
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,