Circuit Spilt recently reported that the Fourth Circuit joined a majority of its sister
circuits in holding that a convicted co-defendant’s exculpatory testimony given after their invocation of the Fifth Amendment does not constitute “newly discovered evidence” under Federal Rule of Criminal Procedure 33. Griffin v. United States, No. 11-7466 (4th Cir. July 24, 2012) (per curiam) (unpublished).

Other circuits have reached the same conclusion. See, e.g., United States v. Owen, 500 F.3d 83, 89 (2d Cir. 2007); United States v. Jasin, 280 F.3d 355, 367-68 (3d Cir. 2002); United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996); United States v. Theodosopoulos, 48 F.3d 1438, 1448-49 (7th Cir. 1995); United States v. Glover, 21 F.3d 133, 138 (6th Cir. 1994); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir.
1994); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992); United States v. DiBernardo, 880 F.2d 1216, 1224-25 (11th Cir. 1989).

Last month the petitioner in Griffin filed a cert. petition with the Supreme Court challenging the Fourth Circuit’s interpretation of Rule 33, which acknowledged that “[i]t is rare to find a circuit split as fully developed, or as lopsided, as this case presents. Ten circuits have adopted the Government’s interpretation of Rule 33(b)(1).¹ Only the First Circuit applies Griffin’s interpretation.²”

¹ United States v. Taylor, 600 F.3d 863, 869 (7th Cir. 2010); United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007); United States v. Jasin, 280 F.3d 355, 365 (3d Cir.
2002); United States v. Glover, 21 F.3d 133, 138 (6th Cir. 1994); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir. 1994); United States v. Dale, 991 F.[2]d 819, 839 (D.C. Cir. 1993); United States v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992); United States v. DiBernardo, 880 F.2d 1216, 1224–25 (11th Cir. 1989); United States v. Metz, 652 F.2d 478, 480 (5th Cir. 1981).

² United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir. 1997).

Notwithstanding the fact that this split is lopsided in favor of the Fourth Circuit’s interpretation of the Rule, the petitioner contends that “[t]he First Circuit’s skeptical approach preserves a district court’s discretion while better comporting with the text of Rule 33(b)(1).”

You can read the Fourth Circuit’s opinion here: Griffin v. United States, No. 11-7466 (4th Cir. July 24, 2012) (per curiam) (unpublished) and the petition for certiorari here: Griffin Petition for Certiorari, Griffin v. United States, No. 12-485 (U.S. Oct. 16, 2012).