Escobar

MEMORANDUM *

The government appeals the district court’s grant of a new trial to Carlos Alberto Escobar (“Escobar”). Because the district court did not abuse its discretion in granting a new trial, we affirm.

Because the parties are familiar with the history of this case, we will not recount it here. We review a decision to grant a new trial for abuse of discretion. United States v. Alston, 974 F.2d 1206, 1211 (9th Cir.1992). Here, after considering the five requisite factors for granting a new trial based upon newly discovered evidence, the district court acted well within its discretion in granting Escobar a new trial. United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.), as amended (1991).

The district court determined that the evidence was newly discovered and defense counsel acted with due diligence. Prior to trial, Escobar was evaluated by a psychiatrist, who told defense counsel that Escobar was of “low to average intelligence and that he had no mental defect.” The district court did not err, either in finding that the subsequent discovery that Escobar’s IQ fell within the lowest 2 percent for individuals of his age group was newly discovered, or in concluding that…

dissenting.

I respectfully dissent.

*838 The defense attorney became concerned about the defendant’s mental capacity during trial. The defense attorney did not attempt to alert the district court to her concerns. In fact, the attorney waited almost five months to request that Escobar be re-examined by a mental health professional. This is not “diligence,” under any reasonable definition of that word. The district court’s finding to the contrary was clear error. I would reverse on this basis alone because this circuit requires that the discovery of evidence not be on account of a lack of diligence.

More importantly, however, is the fact that there was no newly discovered evidence in this case. In order for evidence to be “newly-discovered,” it must have been discovered after trial. See United States v. McKinney, 952 F.2d 333, 335 (9th Cir.1991) (“We have long held that, in general, a defendant seeking a new trial on the basis of newly discovered evidence must show that the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial.”) (internal quotation marks and citations omitted). Before trial, defense counsel had Escobar interviewed by a psychiatrist…