United States of America v. Douglas Turns

*The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0001P (6th Cir.)
File Name: 00a0001p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellant,
v.
DOUGLAS TURNS,
Defendant-Appellee.
;>

1
No. 98-4474
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 98-00013—John D. Holschuh, District Judge.
Argued: December 7, 1999
Decided and Filed: January 5, 2000
Before: COLE and GILMAN, Circuit Judges; CARR,
District Judge.*

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2 United States v. Turns No. 98-4474
_________________
COUNSEL
ARGUED: J. Michael Marous, OFFICE OF THE U.S.
ATTORNEY, Columbus, Ohio, for Appellant. Gary W.
Deeds, Columbus, Ohio, for Appellee. ON BRIEF: J.
Michael Marous, OFFICE OF THE U.S. ATTORNEY,
Columbus, Ohio, for Appellant. Gary W. Deeds, Columbus,
Ohio, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. This is an appeal
from the district court’s order granting Douglas Turns’s
motion for a new trial. Turns was convicted on one count of
knowingly possessing and transferring a machine gun in
violation of 18 U.S.C. §§ 922(o)(1) and 924(a)(2). Pursuant
to Rule 33 of the Federal Rules of Criminal Procedure, Turns
timely filed a motion for a new trial, alleging that his sister,
Starlet Turns, possessed “newly discovered” evidence. In two
affidavits filed within days of Turns’s conviction, Starlet
Turns claimed that her former boyfriend was the owner of the
machine gun and that her brother was unaware of its nature
when he pawned it at her request. After reviewing both sides’
briefs and holding an evidentiary hearing, the district court
granted Turns’s motion. The government filed this timely
appeal. For the reasons set forth below, we REVERSE the
district court’s order granting a new trial, REINSTATE
Turns’s conviction, and REMAND for sentencing.
I. BACKGROUND
During the summer of 1995, Turns attended a gun show in
Hilliard, Ohio with his sister’s boyfriend, Anthony Rogers.
The government alleges that Turns knowingly purchased a
fully automatic M-16 rifle at the gun show and later sold it to
a pawn shop. Turns, however, claims that Rogers was the one

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No. 98-4474 United States v. Turns 3
who purchased the M-16, and that the next time that he saw
the rifle was when his sister asked him to pawn it on Rogers’s
behalf. He testified that he complied with his sister’s request
and sold the M-16 under the belief that it was a semi-
automatic firearm, not knowing that the internal mechanism
of the M-16 had been altered (the rifle was originally the non-
military version of the M-16) to convert it to a fully automatic
weapon. Turns claims that he first became aware that the M-
16 was fully automatic when his sister asked him to retrieve
the “automatic rifle” from the pawn shop. He was
unsuccessful in doing so. The M-16 eventually ended up in
the hands of the government, and Turns was charged with
knowingly possessing and transferring a machine gun.
Turns does not dispute that he possessed and eventually
transferred the firearm described in the indictment. Instead,
he argues that he was unaware at the time that the firearm was
a machine gun. At trial, the central issue was whether Turns
knew that the M-16 was a fully automatic weapon when he
sold it to the pawn shop.
Although Turns claimed that he was unaware of the M-16’s
automatic capabilities, five witnesses testified for the
government and directly contradicted Turns’s testimony
regarding ownership of the firearm and his knowledge that it
was a machine gun. Two were law enforcement officers who
testified that Turns’s statements during their separate
conversations with him revealed his knowledge that the rifle
in question was fully automatic. The clerk at the pawn shop
where Turns sold the fully automatic rifle also related that “he
[Turns] told me that the gun was fully automatic . . . [and] he
had test fired it.” In addition, one of Turns’s friends testified
that Turns had shown him the fully automatic rifle and had
explained how the weapon functioned, which Turns referred
to as a “machine gun.” Finally, Rogers took the stand to say
that Turns had shown him how to operate the selector switch
on the rifle, which enabled the rifle to be fired in fully
automatic mode. Even Turns’s own sworn affidavit, tendered
in 1995, states that he recognized that the weapon in question
was an M-16. This is significant because his former military

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4 United States v. Turns No. 98-4474
training had taught him that the M-16 is fully automatic. In
addition to its direct evidence, the government also
impeached Turns by noting numerous inconsistencies
between Turns’s pretrial statements and his testimony at trial.
The jury found the government’s evidence convincing and
convicted Turns on April 23, 1998.
Turns filed a motion for a new trial three weeks later, based
on what he characterized as newly discovered evidence.
Specifically, he submitted two affidavits from his sister that
tended to exonerate him, both of which were prepared within
a few days after his conviction. The district court held a
hearing on the motion on September 15, 1998. At that
hearing, Turns’s sister testified that the M-16 belonged to
Rogers, and that she had asked Turns to pawn it on Rogers’s
behalf. Turns’s sister also stated that after she had given the
firearm to Turns, Rogers told her that the M-16 was a
machine gun and that he wanted it back.
Starlet Turns further said that at the time of her brother’s
trial, she had told Turns that she would not testify truthfully
on his behalf because she was involved in an intimate
relationship with Rogers and did not want to place her
boyfriend in jeopardy. In countering the testimony of Turns’s
sister, the government argued that the contents of her
affidavits were at best “newly available” evidence, not “newly
discovered” evidence, and thus were not sufficient to warrant
a new trial.
The district court found that Turns was aware of the
information contained in his sister’s affidavits at the time of
his trial, but that he did not “discover” her willingness to
testify truthfully until afterwards. In so ruling, the district
court reasoned as follows:
Prior to trial, not only did Starlet refuse to testify, she
told the Defendant that she would perjure herself if she
were forced to testify. While the Court recognizes that
this is not a case in which the Defendant has discovered
the identity of a new witness, in a realistic sense and as
a practical matter, this is a case in which there is newly
No. 98-4474 United States v. Turns 9
The Ninth Circuit dealt with these policy concerns in
Baumann v. United States, 692 F.2d 565 (9th Cir. 1982),
where the defendant sought a new trial based upon an
uncalled witness’s “newly discovered” evidence. In denying
the defendant’s motion for a new trial, the court reasoned as
follows:
Baumann’s evidence is not newly discovered because
allowing criminal defendants to raise such allegations
after a judgment of conviction has been entered . . .
would permit them to “sandbag” the fairness of the trial
by withholding or failing to seek material, probative
evidence and later attempting to collaterally attack their
convictions under Fed. R. Crim. P. 33 . . . .
Id. at 580. For the same reasons, allowing Turns a new trial
on the basis of his sister’s affidavits would constitute a
“sandbagging” of the judicial process.
In summary, Turns failed to meet his burden of proof on the
first prong of Barlow as a matter of law. The district court
thus clearly abused its discretion when it granted Turns’s
motion for a new trial. We therefore reverse the district
court’s order on this basis and need not address the
government’s remaining arguments.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
district court’s order granting a new trial, REINSTATE
Turns’s conviction, and REMAND for sentencing.

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8 United States v. Turns No. 98-4474
than it would be without the evidence.” The only fact that
was of consequence at Turns’s trial was whether Turns knew
that the M-16 was an automatic rifle on the day he pawned it.
What Turns’s sister would or would not have said on the
witness stand about this key fact was certainly relevant to
Turns’s decision on whether to call her, but is not itself
“newly discovered” evidence under Rule 33.
In the instant case, Turns was aware at the time of trial that
his sister possessed the information set forth in the two
affidavits she submitted in support of his motion for a new
trial. Turns had even notified his attorney prior to trial about
the information his sister possessed and “had implored his
sister to come forward and testify truthfully.” Because Turns
and his counsel believed that she would not tell the truth, they
made a strategic decision not to call her. Based on the
reasoning in Glover, the proposed testimony of Turns’s sister
is at best “newly available” evidence, not “newly discovered”
evidence. Turns had the option of subpoenaing his sister and,
if necessary, he could have attempted to discredit any perjured
testimony.
Moreover, it is not clear that the proposed testimony was
even “newly available,” because Turns’s sister testified at the
motion hearing that she would have told the truth if she had
been called to the stand at trial, despite having told Turns she
would not do so. The fact that Turns’s sister now claims that
she wants to testify for her brother does not mitigate Turns’s
deliberate choice of omitting her testimony at trial. If the
district court’s decision was allowed to stand, then other
defendants would be encouraged to file motions for new trials
based solely upon the existence of previously uncalled
witnesses who, after learning of the defendant’s conviction,
state for the first time that they are willing to testify truthfully
on the defendant’s behalf. Such a precedent would also
encourage defendants to hold a witness or two in reserve,
knowing that if they lost at trial, they might get another
chance by producing sworn affidavits from their reserve
witnesses.
No. 98-4474 United States v. Turns 5
discovered evidence: to wit, the truthful testimony of a
key witness for the defense, evidence that was not
previously available to Defendant. Accordingly, the
Court finds that the first requirement of Barlow has been
met.
After finding that Turns had also met all of the remaining
requirements set forth in United States v. Barlow, 693 F.2d
954 (6th Cir. 1982), to establish a proper foundation for
newly discovered evidence, the district court granted his
motion for a new trial. The government timely appealed.
II. ANALYSIS
A. Standard of review
Motions for a new trial based upon newly discovered
evidence are disfavored and should be granted with caution.
See United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991).
When such a motion is granted, however, the decision will
not be disturbed unless the district court clearly abused its
discretion. See United States v. Pierce, 62 F.3d 818, 823 (6th
Cir. 1995). A district court clearly abuses its discretion when
it “applies the wrong legal standard, misapplies the correct
legal standard, or relies on clearly erroneous findings of fact.”
Schachner v. Blue Cross & Blue Shield, 77 F.3d 889, 895 (6th
Cir. 1996) (internal quotation marks and citation omitted); see
Steinhoff v. Harris, 698 F.2d 270 (6th Cir. 1983) (addressing
a Rule 60(b) motion in a social security case and treating the
phrases “abuse of discretion” and “clear abuse of discretion”
the same for the purpose of review).
B. The district court clearly abused its discretion when
it granted Turns’s motion for a new trial
When a defendant makes a motion for a new trial based
upon newly discovered evidence, he must show that (1) the
evidence was discovered after the trial, (2) it could not have
been discovered earlier with due diligence, (3) it is material
and not merely cumulative or impeaching, and (4) it would
likely produce an acquittal if the case was retried. See

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6 United States v. Turns No. 98-4474
Barlow, 693 F.2d at 966. In the case at bar, the main focus is
on the first prong of Barlow.
In United States v. Glover, 21 F.3d 133 (6th Cir. 1994), this
court elaborated on what it means for evidence to be newly
discovered after trial. The defendant in Glover was convicted
of possessing cocaine with the intent to distribute. He then
filed a motion for a new trial based upon newly discovered
evidence. To support his motion, the defendant submitted an
affidavit from a witness who claimed to have placed the
cocaine in the defendant’s kitchen stove where it was
eventually found by the police (the witness allegedly had a
key to the defendant’s apartment). At the defendant’s trial,
the witness had asserted his Fifth Amendment privilege
against self-incrimination and had refused to testify.
Following the witness’s conviction on separate drug-related
charges, the witness changed his mind and decided to testify
on the defendant’s behalf. In affirming the district court’s
denial of the defendant’s motion for a new trial, the court in
Glover held as follows:
Glover is unable to establish that the evidence offered by
[the witness] “was discovered after the trial” and thus he
fails to carry his burden of proof. Glover acknowledges
that he was well aware of [the witness]’s testimony prior
to trial. . . . While [the witness]’s testimony may have
been newly available, it was not in fact “newly
discovered evidence” within the meaning of Rule 33.
Id. at 138. For other cases reaching the same conclusion, see
Pierce, 62 F.3d at 825 (“Evidence is not newly discovered
when it is necessarily known by the defendant at the time of
trial.”); United States v. Hawkins, 969 F.2d 169, 175 (6th Cir.
1992) (holding that if a defendant knew about the evidence at
the time of trial, he cannot satisfy the newly discovered
evidence requirement of Rule 33); Seago, 930 F.2d at 489
(holding that evidence known by the defendant at the time of
trial cannot constitute “newly discovered” evidence); United
States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989)
(“Here, both [defendants] were well aware of [the witness]’s
No. 98-4474 United States v. Turns 7
proposed testimony prior to trial. Therefore, the testimony
cannot be deemed ‘newly discovered evidence’ within the
meaning of Rule 33.”).
In all of the above cases, co-defendants or other witnesses
threatened to plead or did plead the Fifth Amendment in order
to avoid testifying, and then changed their minds after the
defendant was convicted. Although the present case has
slightly different facts, the same logic should apply where a
witness threatens to lie if called as a witness and then, after
trial, decides to testify truthfully on the defendant’s behalf. In
fact, it strikes us that a defendant has a stronger argument
(although still unavailing) for a new trial when a witness
refuses to testify because of the witness’s Fifth Amendment
privilege than when a witness threatens to lie if called to the
stand. In the latter instance, the witness can still be
subpoenaed and forced to answer questions under penalties of
perjury, whereas a witness asserting his or her Fifth
Amendment privilege cannot be forced to answer any
questions that may be self-incriminating.
The key to deciding whether evidence is “newly
discovered” or only “newly available” is to ascertain when the
defendant found out about the information at issue. A
witness’s shifting desire to testify truthfully does not make
that witness’s testimony “newly discovered” evidence. See,
e.g., Glover, 21 F.3d at 138. Defendants and their counsel
frequently have to make strategic choices as to whether to call
certain witnesses who have credibility problems or might not
testify truthfully. Our system of justice relies, in large part, on
the theory that when a person takes the witness stand and
swears to tell the truth, that he or she will in fact do so.
Whether or not a witness will testify truthfully if called to
the stand is simply not “evidence” that can be used as a basis
to invoke Rule 33 of the Federal Rules of Criminal Procedure.
“Relevant evidence” is defined by Rule 401 of the Federal
Rules of Evidence as “evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable

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