Third Circuit sets standard for granting an evidentiary hearing when moving for new trial based on newly discovered evidence and considers extent to which the Confrontation Clause entitles defendant to cross-examine government witnesses regarding cooperation agreements

A defendant's appeal after trial for drug trafficking provided the Third Circuit with the opportunity to clarify its limitations on cross-examination of government cooperators and its standard for granting an evidentiary hearing when a defendant moves for a new trial based on newly discovered evidence. In United States v. Noel, Appeal No. 14-2042 (3d Cir. Sept. 26, 2018), the defendant first argued that his Confrontation Clause rights were violated when the district court precluded him from questioning his cooperating codefendants on their specific sentencing exposure. Relying on prior precedent, the Third Circuit clarified that "there is no absolute right to inquire into the precise sentence a government witness might face absent his cooperation and and that a district court may limit the scope of cross-examination to more general inquiries about his expected benefits." The district court's limitation will be permissible under the Confrontation Clause unless the jury might have "received a significantly different impression of [the witness's] credibility" had it not been imposed. Whether a jury might have received such an impression is evaluated using the two-part test announced in United States v. Chandler, 326 F.3d 210, 219 (3d Cir. 2003), which asks: (1) whether the limitation “significantly inhibited [the defendant’s] effective exercise of her right to inquire into [the] witness’s ‘motivation in testifying’” and (2) if so, whether the limitation fell within “those ‘reasonable limits’ which a trial court, in due exercise of its discretion, has authority to establish.”

Here, the Third Circuit concluded that the single, narrow limitation imposed by the district court - precluding the defendant from inquiring about specific sentencing exposure, like mandatory minimums - fell comfortably within constitutional bounds. The defendant was permitted to explore the cooperation agreements, elicit information indicating that the codefendants faced "a considerable amount of time," and suggest that they were getting a significant benefit for their testimony.

Next, the Third Circuit considered whether the district court abused its discretion by denying defendant's motion for a new trial based on newly discovered evidence of juror misconduct without granting a hearing. The Court upheld the district court's decision, finding that the defendant failed to meet the two criteria necessary for granting a hearing on the motion. First, no hearing was warranted because the evidence was not newly discovered because it would have been discovered by reasonably diligent counsel if promptly investigated at the time of trial. The Court took this opportunity to clarify what standard district courts should use in determining whether counsel was sufficiently diligent. To satisfy the diligence standard, "counsel must conduct further inquiry once the circumstances alert her to the existence of additional information that has a reasonable possibility of proving material to the defense." Here, counsel was on notice before the problematic juror was ever impaneled of the existence of additional information that suggested a reasonable possibility of a conflict or bias based on the juror's responses at voir dire. Counsel could have, but did not, ask any additional questions or further investigate the juror. Accordingly, the evidence was not newly discovered and the district court did not err in denying the motion without a hearing.

Nor did the defendant meet the second criteria for a hearing because he failed to show “clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred." The Third Circuit took the opportunity here to clarify what this showing requires. While the defendant need not provide literally incontrovertible evidence of juror misconduct, the evidence must still constitute “clear, strong, [and] substantial” evidence of a “specific, nonspeculative impropriety.” Conjecture is not enough. A district court does not abuse its discretion in denying a motion for a new trial without a hearing where the defendant “offers nothing more than speculation” of juror misconduct. Accordingly, the Court concluded that the district court did not abuse its discretion when it declined to hold an evidentiary hearing and denied defendant's motion for a new trial.