US v. Moore: Tyrone Moore was charged with carjacking, using a firearm in furtherance of carjacking, and conspiracy. Police encountered Moore wearing Orioles gear, in the company of another individual, Walton, who had a key to the stolen car in his pocket. The vehicle in question had been stolen seven days earlier, and had been involved three days after the carjacking in a controlled buy, when it had been driven by another individual known to police, Michael Pollin. When the police took the key from Walton, they located the stolen vehicle nearby; inside the vehicle, police discovered an Orioles baseball hat. From Moore’s friendship with Walton, as well as his attire that evening, police photographed Moore. The owner of the stolen vehicle, who admittedly only saw the carjacker’s eyes and dreadlocks on the evening of the theft, later identified Moore as the car thief in a photo line-up (the perpetrator wore a hat and bandana covering his face).
As his defense at trial, Moore made the identity of the carjacker the main focus. Pollin was the first individual seen by police driving the stolen vehicle three days after the carjacking. The government had provided Moore with a picture of Pollin allegedly taken around the time of the car theft; the government presented at trial the photo of Pollin which showed that he did not have dreadlocks around that time. Additionally, a police detective familiar with Pollin testified at trial that he was not aware that Pollin had ever worn dreadlocks. A defense witness offered testimony that Pollin indeed had dreadlocks around this time, but this testimony was weak in comparison to the detective’s testimony and the government’s photos of Pollin. Moore was convicted.
Shortly after trial, Moore continued to insist that Pollin had dreadlocks at the time of the carjacking, and the government continued to insist that Moore was either mistaken or lying. Moore’s counsel met with a former attorney of Pollin’s, who was in possession of a properly dated booking photograph of Pollin with dreadlocks, taken around a month after the carjacking. Upon the basis of this photograph as newly discovered evidence and the government’s failure to disclose it as a Brady violation, Moore petitioned the district court for a new trial, which the district court denied. Moore appealed to the Fourth Circuit, which determined that Moore was entitled to a new trial.
In the Fourth Circuit, to succeed on a Rule 33 motion for a new trial, a defendant must satisfy a five-part test by demonstrating: 1) newly discovered evidence; 2) defendant exercised due diligence; 3) the newly discovered evidence is neither cumulative nor impeaching; 4) the evidence is material; and 5) the evidence would probably result in acquittal at a new trial. The district court did not believe that the newly discovered evidence Moore possessed was material; however, the Fourth Circuit determined that Moore had made the carjacker’s identity the chief focus of the trial, and thus, any newly discovered evidence relevant to the carjacker’s identity was “undoubtedly” material. The Fourth Circuit vacated Moore’s conviction and remanded to the district court.