Should a district court automatically exclude exculpatory testimony from a non-testifying codefendant as not newly discovered evidence or should that court determine whether such testimony requires a new trial in the interest of justice?

Question Presented In Petitioner’s jury trial on federal drug offenses, the district court allowed a prosecution witness to testify under Fed. R. Evid. 801(d)(2)(E) to out-of-court statements made by a non-testifying codefendant that implicated Petitioner in a heroin conspiracy. Ten months after Petitioner’s trial, the non-testifying codefendant executed an affidavit exonerating Petitioner by stating (i) that statements attributed to him in Petitioner’s trial were false and (ii) that he was not present on the night of the alleged drug transaction with Petitioner. The Eighth Circuit affirmed the district court’s denial of Petitioner’s Rule 33(b)(1) motion for new trial based on newly discovered evidence without a hearing on the non-testifying codefendant’s affidavit. Ten circuits, including the Eighth in Petitioner’s case, have held that testimony from a non-testifying codefendant does not qualify as newly discovered evidence for purposes of Fed. R. Crim. P. 33(b)(1). In conflict, the First Circuit allows district courts to consider such testimony as newly discovered evidence. This conflict raises an important question: Should a district court automatically exclude exculpatory testimony from a non-testifying codefendant as not newly discovered evidence or should that court determine whether such testimony requires a new trial in the interest of justice? i