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United States v. Barton

United States District Court, M.D. Florida, Tampa Division

November 26, 2019

UNITED STATES OF AMERICA,
v.
ROBERT WILLIAM BARTON.

          ORDER

          ELIZABETH A. KOVACHEVICH United States District Judge.

         This 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

         Defendant 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.

         The United States opposes Defendant Barton's Motion for New Trial, and argues that the Motion should be denied without an evidentiary hearing.

         1. Background

         A grand 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).

         Defendant 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).

         Defendant 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.

         Defendant 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).

         2. Discussion

         A 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, 575 ...


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