United States District Court, D. Nevada
before the Court is Defendant Gregory P. Burleson's
(“Burleson's”) Motion for New Trial. (ECF No.
2078). Defendant Todd C. Engel (“Engel”) filed a
Motion for Joinder. (ECF No. 2099). The Government filed a
Response. (ECF No. 2132). Burleson did not file a reply, and
the time to do so has passed. For the reasons set forth
herein, the motion will be DENIED.
instant motion follows a thirty-two-day jury trial in which
Burleson was found guilty of the following eight counts from
the Superseding Indictment (ECF No. 27): Count 5,
Assault on a Federal Officer, in violation of 18 U.S.C.
§§ 111(a)(1), (b) and 2; Count 6, Use and
Carry of a Firearm in Relation to a Crime of Violence, in
violation of 18 U.S.C. §§ 924(c) and 2; Count
8, Threatening a Federal Law Enforcement Officer, in
violation of 18 U.S.C. §§ 115(a)(1)(B) and 2;
Count 9, Use and Carry of a Firearm in Relation to a
Crime of Violence, in violation of 18 U.S.C. §§
924(c) and 2; Count 12, Obstruction of the Due
Administration of Justice, in violation of 18 U.S.C.
§§ 1503 and 2; Count 14, Interference with
Interstate Commerce by Extortion, in violation of 18 U.S.C.
§§ 1951 and 2; Count 15, Use and Carry of
a Firearm in Relation to a Crime of Violence, in violation of
18 U.S.C. §§ 924(c) and 2; and Count 16,
Interstate Travel in Aid of Extortion, in violation of 18
U.S.C. §§ 1952 and 2. (See Jury Verdict,
ECF No. 1903). As a result of the same jury trial, Engel was
found guilty of Count 12, Obstruction of the Due
Administration of Justice, in violation of 18 U.S.C.
§§ 1503 and 2, and Count 16, Interstate
Travel in Aid of Extortion, in violation of 18 U.S.C.
§§ 1952 and 2. (Id.).
the trial, Federal Bureau of Investigation
(“FBI”) Special Agent Charles Johnson
(“Agent Johnson”) testified on behalf of the
Government. (See ECF Nos. 1750, 1754). Agent
Johnson ran an undercover operation subsequent to the April
12, 2014 incident in Bunkerville, Nevada, where he posed as a
documentarian and interviewed several of the defendants,
including Burleson. Portions of this interview were played
during Agent Johnson's testimony at trial.
instant motion, Burleson seeks a new trial based on an
article dated May 16, 2017, entitled “How an Undercover
FBI Agent Ended Up in Jail After Pretending to be a
Journalist” that appears to be from a website called
“The Intercept.” (See Ex. A to Mot. New
Trial, ECF No. 2078-1). The article discusses that Agent
Johnson “was arrested in Glendale, Colorado, while
acting undercover as a journalistic investigator, for
unauthorized practice of private investigations.” (Mot.
New Trial 1:23-24, ECF No. 2078). Burleson argues that the
Government “deliberately withheld” this evidence,
which he claims is a violation of Brady,
Giglio, and Henthorn. (Id.
3:22-4:18). He also requests an evidentiary hearing.
(Id. 2:4-8). Ultimately, Burleson argues that a new
trial is warranted pursuant to Federal Rule of Criminal
Procedure (“FRCP” or “Rule”) 33.
provides, “Upon the defendant's motion, the court
may vacate any judgment and grant a new trial if the interest
of justice so requires.” Fed. R. Crim. P. 33(a). A
motion for new trial based on new or newly discovery evidence
must be filed within three years after the verdict. Fed. R.
Crim. P. 33(b)(1). Although determining whether to grant a
motion for a new trial is left to the district court's
discretion, “it should be granted only in exceptional
cases in which the evidence preponderates heavily against the
verdict.” United States v. Pimentel, 654 F.2d
538, 545 (9th Cir. 1981) (internal quotation omitted).
Moreover, the defendant bears the burden of persuasion.
United States v. Endicott, 869 F.2d 452, 454 (9th
defendant who seeks a new trial based on new or newly
discovered evidence must show that (1) the evidence is newly
discovered; (2) the failure to discover the evidence is not
attributable to a lack of diligence by the defendant; (3) the
evidence is material to the issues at trial; (4) the evidence
is neither cumulative nor impeaching; and (5) the evidence
indicates that a new trial would probably result in an
acquittal.” United States v. Waggoner, 339
F.3d 915, 919 (9th Cir. 2003) (citing United States v.
Jackson, 209 F.3d 1103, 1106 (9th Cir. 2000)).
motion, Burleson argues that a new trial is necessary because
evidence of Agent Johnson's arrest would have “cast
grave doubt on [his] credibility.” (Mot. New Trial
4:11). He further asserts that the evidence and Agent
Johnson's personnel file should have been turned over
under United States v. Henthorn, 931 F.2d 29 (9th
Cir. 1991). (Id. 4:11-13). Alternatively, Burleson
contends the evidence “should have been turned over
under United States v. Giglio, 405 U.S. 150
(1972), because [Agent Johnson] had been given a promise to
resolve that arrest in exchange for his testimony in
trial.” (Id. 4:13-15).
Government responds that “neither the arrest nor the
alleged underlying conduct is admissible evidence and,
therefore, immaterial.” (Gov't Resp. 3:15-17, ECF
No. 2132). The Government asserts that the alleged arrest is
irrelevant to the instant case, as it was unrelated to Agent
Johnson's undercover activity here and occurred sixteen
months later. (Id. 4:18-21). The Government further
contends that the arrest would not be considered impeachment
evidence under Giglio because the regulatory
violation of conducting a private investigation without a
license is not probative of Agent Johnson's character for
truthfulness or untruthfulness, as would be required to
impeach him with extrinsic evidence under Federal Rule of
Evidence (“FRE”) 608(b). (See Id.
5:19-6:16). As to the Henthorn allegations, the
Government explains that it “conducted all appropriate
pre-trial Henthorn inquiries into [Agent]
Johnson's personnel record and no record of disciplinary
action or any history of misconduct was revealed or contained
therein.” (Id. 9:4-6). Lastly, the Government
argues: “Burleson makes no showing that even if this
information were somehow admissible, it would make any
difference in the outcome of the trial. The evidence against
Burleson was overwhelming . . . Burleson's admissions
were fully corroborated by video and photographic evidence
introduced at trial.” (Id. 6:22-7:1, 7:13-15).
Court finds that Burleson has failed to meet the
Waggoner standard. Burleson specifically argues that
this evidence would have been for impeachment purposes. He
indicates that its materiality would be to “cast grave
doubt on Agent Johnson's credibility.” (Mot. New
Trial 4:11). Therefore, it is apparent that even if relevant,
this evidence would merely impeach Agent Johnson's
credibility rather than independently support some aspect of
the defense. Additionally, the Court agrees that even if
“grave doubt” were cast upon Agent Johnson's
credibility, the extensive evidence against Burleson does not
indicate that a new trial would probably result in an
acquittal. See United States v. Kenny, 645 F.2d
1323, 1344 (9th Cir. 1981) (affirming a district court's
denial for a new trial because the newly discovered evidence
“lacked sufficient probative force to acquit”).
The Government presented other overwhelming evidence at trial
that supports Burleson's convictions, including
photographs and video of him during the April 12, 2014
incident, along with his admissions on internet postings.
Lastly, the Court finds no evidentiary hearing to be
necessary. See United States v. Navarro-Garcia, 926
F.2d 818, 822 (9th Cir. 1991) (explaining that the Court need
not conduct an evidentiary hearing if the Court “is
able to determine without a hearing that the allegations are
without credibility or that the allegations if true would not
warrant a new trial.”).
the Court finds that because the evidence raised in
Defendant's motion would serve no purpose other than
impeachment and a new trial probably would not result in an
acquittal, the motion must be denied pursuant to the standard
set forth in Waggoner. See 339 F.3d at 919.