In U.S. v. Cimera, No. 05-2360, the court considered a claim under the "newly discovered evidence" rule that it set out in U.S. v. Ianelli, 528 F.2d 1290 (3d Cir. 1976). Cimera was convicted on fourteen counts that arose from his participation in an illegal check cashing scheme, and after his motion for judgment of acquittal was denied, he hired new counsel. Upon further investigation of the checks that were the subject of the charges, the new attorney discovered a discrepancy in the account numbers printed on the back of the checks -- they were not all deposited into the same account. Cimera moved for a new trial, arguing that this was newly discovered evidence under this circuit's formulation of the test. The problem -- these checks had been admitted into evidence at trial.
Nevertheless, the district court granted the motion, concluding that Cimera had met the five requirements for newly discovered evidence: (1) the evidence has been discovered since trial; (2) the movant alleges facts from which the court can infer diligence on his part; (3) the evidence cannot be merely cumulative or impeaching; (4) the evidence is material to the issues in the case; (5) it must be shown that the newly discovered evidence would probably produce an acquittal at a new trial.
The district court noted that the discrepancy in the account numbers was newly discovered, and found that "it frankly was the exercise of truly extraordinary diligence by [substitute defense counsel] in coming into this case that generated what really is newly discovered evidence." The evidence also fulfilled the other three requirements -- it probably would lead a jury to acquit Cimera on at least some of the counts, it was material to the issues, and it was not merely cumulative or impeaching.
On appeal, the Third Circuit disagreed. Cimera had failed to identify newly discovered evidence, and even if he had, he did not satisfy the first two prongs of the five-prong test. While the digits themselves were considered evidence, the significance or relevance of the discrepancy in the digits was not. The court noted that several other circuits have reached the same conclusion. When evidence is in the possession of the defendant before trial, the defendant's realization of the relevance of that evidence does not make it newly discovered. In addition, in this case, Cimera presented no evidence to show that he and his trial counsel were unaware of the discrepancy in the account numbers at trial. Even if he had done so, the court concluded that he could have discovered the discrepancy by exercising reasonable diligence.