THE ROBING ROOM

3rd Circuit reversed Judge Dubois after he granted a new trial based on flaky testimony that didn’t have merit. Case no: 06-4080 US vs Kelly. The District Court abused its discretion in granting Kelly’s motion. Specifically, the government contends that the District Court erred in concluding that (1) Kelly had exercised sufficient diligence in regard to the discovery of the new evidence and (2) the newly discovered evidence would “probably produce an acquittal” at a new trial. The Government urged the District Court to conclude that the testimony was not credible and that, accordingly, Kelly could not satisfy the fifth prong of Iannelli. The Court declared, at the outset of its discussion, that “Jones’s prospective testimony, if believed, would probably produce an acquittal, and the jury is the appropriate fact-finder.” The testimony of a drunk and two that were never present at the bar in the first place. For the foregoing reasons, we will REVERSE the order of the District Court granting Kelly’s motion for a new trial and REMAND for the entry of a judgment of conviction and for sentencing.