Not Precedential

DLD-316
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1334
___________
UNITED STATES OF AMERICA
v.
LEWIS WHOOLERY,
Appellant
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 2-10-cr-00144-002)
District Judge: Honorable Joy Flowers Conti
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
August 27, 2015
Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges
(Opinion filed: September 14, 2015)
___________
OPINION*
___________
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Federal prisoner Lewis Whoolery appeals pro se from the District Courts January
23, 2015 order denying his motion for a new trial. For the reasons that follow, we will
summarily affirm the District Courts judgment.
I.
Because we write primarily for the parties, who are familiar with the background
of this case, we discuss that background only briefly. In January 2013, a jury found
Whoolery guilty of conspiring to commit wire fraud. The charge stemmed from his role
in a complex mortgage fraud scheme. The District Court sentenced him to ten years in
prison and three years of supervised release, and ordered him to pay restitution in the
amount of $1,746,561. He appealed, and we affirmed the District Courts judgment in
September 2014. See United States v. Whoolery, 579 F. Appx 78, 80 (3d Cir. 2014).
In late December 2014, Whoolery timely moved the District Court for a new trial
pursuant to Federal Rule of Criminal Procedure 33. This pro se motion alleged two
pieces of newly discovered evidence relating to Whoolerys sister, Kimberly Baldwin.
Baldwin, who pleaded guilty to conspiracy to commit wire fraud in 2011 for her role in
the mortgage fraud, was a prosecution witness at Whoolerys trial. The first piece of
evidence in support of the Rule 33 motion was an affidavit from Whoolerys and
Baldwins father. According to the affidavit, after Whoolerys trial, Baldwin told her
father that she had lied during her trial testimony to get the deal from the Government
2
that she hoped would result in a more lenient sentence for her role in the mortgage fraud.1
The second piece of evidence is the fact that, after Whoolerys trial, Baldwin was
convicted, in an unrelated case, of making false statements to the Government.
On January 23, 2015 (three days after the Government filed its opposition to
Whoolerys Rule 33 motion), the District Court denied the motion without an evidentiary
hearing, concluding that neither piece of evidence warranted a new trial. Shortly
thereafter, the District Court received from Whoolery a request for leave to file a reply to
the Governments opposition filing. That request was dated January 22nd and had been
mailed on January 23rd. While that request was pending, Whoolery timely filed a notice
of appeal challenging the District Courts January 23rd order. The District Court
subsequently denied his request for leave to file a reply as moot.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. 1291. We review
the denial of a motion for a new trial pursuant to Rule 33 for abuse of discretion, United
States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008), and we may summarily affirm the
District Courts judgment if this appeal fails to present a substantial question, see 3d Cir.
I.O.P. 10.6.
Rule 33 provides that [u]pon the defendants motion, the court may vacate any
judgment and grant a new trial if the interest of justice so requires. Fed. R. Crim. P.
Baldwin was not sentenced on her conspiracy-to-commit-wire-fraud conviction until

after Whoolerys trial.
3
33(a). As we have previously explained, [t]here are five requirements that must be met
before a court may grant a new trial on the basis of newly discovered evidence. United
States v. Quiles, 618 F.3d 383, 388 (3d Cir. 2010). They are as follows:
(a) the evidence must be in fact newly discovered, i.e.
discovered since trial; (b) facts must be alleged from which
the court may infer diligence on the part of the movant;
(c) the evidence relied on must not be merely cumulative or
impeaching; (d) it must be material to the issues involved;
and (e) it must be such, and of such nature, as that, on a new
trial, the newly discovered evidence would probably produce
an acquittal.
Id. at 388-89 (quoting United States v. Saada, 212 F.3d 210, 216 (3d Cir. 2000)).2 A
movant bears a heavy burden in proving each of these requirements. United States v.
Brown, 595 F.3d 498, 511 (3d Cir. 2010) (internal quotation marks omitted). If just one
of the requirements is not satisfied, a defendants Rule 33 motion must fail. United
States v. Kelly, 539 F.3d 172, 182 (3d Cir. 2008).
Whoolery argues that his Rule 33 motion should be governed by the three-part test set
forth by the United States Court of Appeals for the Seventh Circuit in Larrison v. United
States, 24 F.2d 82 (7th Cir. 1928). That test requires a showing that (1) the witness is
material and the testimony false; (2) the jury might have reached a different verdict if it
knew the testimony was false or if it hadnt heard the testimony; and (3) the defense was
taken by surprise by the false testimony or didnt learn of its falsity until after trial.
United States v. Mitrione, 357 F.3d 712, 717 (7th Cir. 2004), vacated on other grounds,
543 U.S. 1097 (2005). The District Court rejected this argument (though the court went
on to conclude that Whoolerys Rule 33 motion failed regardless of which test governed),
and we agree with the District Court that our Circuits five-part test controls here. As we
have previously noted, we have not adopted the Larrison test. Govt of V.I. v. Lima, 774
F.2d 1245, 1251 n.4 (3d Cir. 1985). Although we did apply that test in United States v.
Massac, 867 F.2d 174 (3d Cir. 1989), that case is distinguishable from Whoolerys case
because the parties there agreed to apply that test, id. at 178. We note that the Seventh
Circuit itself has since overruled the Larrison test. See Mitrione, 357 F.3d at 718.
4
In this case, the District Court did not abuse its discretion in concluding that
Whoolery failed to satisfy the five-part test. The evidence submitted in support of his
Rule 33 motion was merely impeachment evidence, and he failed to show that the jury
probably would have reached a different verdict if it had been privy to this evidence. As
the District Court explained,
[t]he evidence of [Whoolerys] guilt admitted at trial,
independent of Baldwins testimony, was overwhelming.
Many co-conspirators, in addition to Baldwin, testified that
[Whoolery] was involved in the mortgage fraud scheme.
Volumes of documentary evidence were admitted into the
record showing [Whoolerys] involvement in the fraud of
which he was convicted. There can be no denying that
Baldwin was a witness against [Whoolery], but she was by no
means the only, or even an especially crucial, witness against
him.
(Dist. Ct. Op. entered Jan. 23, 2015, at 5.)3
As indicated above, the District Court denied Whoolerys Rule 33 motion before
he was able to file a reply to the Governments opposition response. We need not
remand on that basis. Whoolery has submitted his proposed reply brief to this Court.
Whoolery argues that the District Courts statement that the evidence at trial was
overwhelming violated the law-of-the-case doctrine because we noted in our opinion
on direct appeal that the evidence against him was sufficient. This argument is creative
but meritless. Under the law of the case doctrine, once an issue has been decided,
parties may not relitigate that issue in the same case. Waldorf v. Shuta, 142 F.3d 601,
616 n.4 (3d Cir. 1998). The District Court did not violate that doctrine here, for our
opinion on direct appeal did not consider, let alone decide, whether the evidence against
Whoolery was overwhelming or merely sufficient. Rather, our brief reference to the
sufficiency of the evidence ([t]here was sufficient evidence for the jury to find pecuniary
fraud, Whoolery, 579 F. Appx at 81) was made in the context of determining that
Whoolery was not prejudiced by the inclusion of a jury instruction on honest services
fraud. See id.
3
Having reviewed that reply, we cannot conclude that the resolution of his Rule 33 motion
may have been different if the District Court had the benefit of that submission.
Additionally, although Whoolery claims that the District Court failed to consider his two
pieces of evidence collectively when ruling on his Rule 33 motion, we have considered
the cumulative impact of this evidence and conclude that the motion still fails for the
reasons stated in the immediately preceding paragraph. Finally, Whoolery has not
demonstrated that the District Court abused its discretion by not holding an evidentiary
hearing before ruling on the motion. See United States v. Herman, 614 F.2d 369, 372 (3d
Cir. 1980) (explaining that an evidentiary hearing need not be held in every case in which
a defendant moves for a new trial).
Because this appeal does not present a substantial question, we will summarily
affirm the District Courts judgment. Whoolerys motion for appointment of counsel and
oral argument is denied. His request for a scheduling order, as well as his request that
we reassign this case to a different District Judge on remand, are denied as moot.4
In making this latter request, Whoolery appears to claim that the presiding District
Judge was biased against him. Such a claim is unsupported by the record and meritless.
6

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Baldwin was not sentenced on her conspiracy-to-commit-wire-fraud conviction until

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