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United States of America v. Don Ellingford

September 6, 2011


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



The Court has before it Defendant Don Ellingford's motion for a new trial. Ellingford was charged and convicted of two counts of possession of methamphetamine with intent to distribute. He claims that newly discovered evidence requires a new trial. The motion is fully briefed and at issue. For the reasons explained below, the Court will deny the motion.


A new trial may be granted by the district court when the "interest of justice so requires." Fed. R. Crim. P. 33(a). A defendant seeking a new trial on the basis of newly discovered evidence must prove:

(1) the evidence is newly discovered; (2) the defendant was diligent in seeking the evidence; (3) the evidence is material to the issues at trial; (4) the evidence is not (a) cumulative or (b) merely impeaching; and (5) the evidence indicates the defendant would probably be acquitted in a new trial.

United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009) (en banc).


Newly Discovered Evidence

The newly discovered evidence in this case is a recent Idaho State Police administrative investigation of several employees of the Idaho State Forensic Laboratory located in Pocatello. Laboratory employees admitted to maintaining a box of undocumented "display drugs." The box contained a cache of unusual controlled substances that lab scientists kept to train new employees and to show students during tours. Employees kept the box after changes to laboratory accreditation regulations in 2007 should have led to its destruction. See Exhibit E (Dkt. 122-2) at p. 2. Rocklan McDowell, a former Laboratory employee who processed the drug samples in this case and testified as a Government witness, admitted that he knew of the existence of the box, and hid the box to prevent its discovery and destructionduring annual audits.Id. at pp. 14-18.

This evidence does not justify vacating the Ellingford's conviction. Though it meets the first and second prongs of the Hinkson test,it does not reach the standard required under the third, fourth, or fifth prong.

First, the newly discovered evidence is not material to an "essential element of the [G]overnment's case." United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992). The Idaho State Police report did not unearth evidence that any Laboratory employee tampered with evidence samples in individual cases, much less the evidence in Ellingford's case. There is no evidence that the box even contained methamphetamine samples. Id. at ¶ G, p. 10 ("The box contains ecstasy tablets, LSD, Heroine [sic], Marijuana, and it also contained non controlled substances . . . .").*fn1 The evidence is therefore not material to the admissibility of the controlled substance in this case, nor to the chain of custody issues Ellingford probed during trial.

The primary import of the new evidence is as impeachment of McDowell's character for truthfulness. Evidence that is merely impeaching is generally not grounds for a new trial. Hinkson, 585 F.3d at 1266. Impeachment evidence may be so powerful that it "would do more than merely impeach [the witness]; it would render his testimony useless." Davis, 960 F.2d at 825. The new evidence in this case does not reach that level. McDowell's willingness to flout administrative regulations, while certainly troubling, does not render his testimony describing the handling and testing of the controlled substances in this case "totally incredible." Id.; see also United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005) (concluding that new evidence impeaching a portion of police officers' testimony did not "render their testimony wholly incredible.").

Finally, even if the new evidence is material, Defendant "cannot show that a new trial would probably result in acquittal." Harrington, 410 F.3d at 601.At best, the report bolsters other evidence highlighted by Ellingford at trial suggesting that Laboratory personnel did not fully comply with proper procedures for handling evidence. See Opening Brief (Dkt. 122) at 18 (listing evidence highlighted during trial to show McDowell's deviation from proper procedure). Like the rest of this evidence, the improprieties disclosed in the report do not amount to evidence of actual tampering with drug samples. Beyond the fact that cumulative evidence does not justify a new trial, Hinkson, 585 F.3d at 1266, the report is less probative than the evidence already presented to the jury because it does not concern the samples at issue in this case. Further, significant evidence in the record corroborates McDowell's test results showing that the controlled substance was ...

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