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govinfo:USCOURTS-wvnd-1_23-cr-00069-2
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA,
Plaintiff,
v. CRIMINAL NO. 1:23-CR-69
(KLEEH)
CHRISTOPHER HARP,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S RENEWED MOTION
TO VACATE JUDGMENT AND/OR GRANT A NEW TRIAL [ECF NO. 97]
Pending is Defendant’s renewed motio n to vacate judgment
and/or grant a new trial [ECF No. 97]. The Court hereby
incorporates its Memorandum Opinion and Order Denying Motion for
Judgment of Acquittal Or, in the Alternative, for a New Trial [ECF
No. 92]. For the reasons discussed below, the renewed motion is
also DENIED.
I. PROCEDURAL HISTORY
On November 7, 2023, the grand jury returned a four-count
indictment charging Defendant Christopher Harp (“Christopher” or
“Defendant”) in Counts One through Three with Receipt of Child
Pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and
2252A(b)(1), and in Count Four with Possession of Child
Pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
2252A(b)(2). Following a three-day trial, the jury found Defendant
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guilty on all four counts. The jury rejected Defendant’s strategy
of blaming the crimes on his brother, Jeremy Harp (“Jeremy”). On
April 25, 2024, prior to the jury’s deliberations and at the close
of the Government’s case-in-chief, Defendant, by counsel, moved
for judgment of acquittal pursuant to Rule 29 of the Federal Rules
of Criminal Procedure. The Court denied the motion.
On June 13, 2024, counsel for Defendant filed a motion for
acquittal or, in the alternative, for a new trial. On December 9,
2024, the Court denied the motion. On December 16, 2024 (three
days before the scheduled sentencing hearing), Jeremy appeared at
the law office of Defendant’s counsel, Brian Edwards (“Edwards”).
Jeremy then provided a recorded “confession” and barricaded
himself in Edwards’s conference room with a firearm, all of which
is discussed in more detail below. Edwards filed a renewed Rule
33 motion based on the “confession.” See ECF No. 97. The Court
continued the sentencing hearing, ordered briefing on the renewed
motion, and scheduled an evidentiary hearing for March 10, 2025.
Leading up to the evidentiary hearing, the Court directed the
parties to file witness and exhibit lists, and the Court appointed
counsel for Jeremy. On March 7, 2025, three days before the
evidentiary hearing, Edwards moved to withdraw as counsel. The
Court then converted the evidentiary hearing into a hearing on the
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motion to withdraw, and the Court granted the motion to withdraw.
On March 11, 2025, the Court appointed Craig Erhard (“Erhard”) to
represent Defendant, and the Court scheduled sentencing for June
9, 2025. The Court denied Edwards’s renewed motion without
prejudice, with leave to refile. The sentencing hearing was then
continued multiple times for a variety of reasons.
On December 11, 2025, Erhard moved to renew Edwards’s renewed
Rule 33 motion. Erhard did not submit any additional information
for the Court to consider. The Court granted him leave to renew
the motion and, after a continuance, held the evidentiary hearing
on January 27, 2026. During the evidentiary hearing, the following
individuals testified: Jeremy Harp, Detective Joshua Ward,
Jonathan Suite, and FBI Agent Cory Thigpen.
II. FACTS
Summary of Jail Calls
In response to the renewed Rule 33 motion, the Government
attached recorded jail calls as an exhibit. The jail calls are
all between Christopher and Jeremy, and they span from May 22,
2024 (less than one month after Defendant’s convictions), through
June 30, 2024. The theme throughout the calls is that Christopher
is trying to push Jeremy to come to Morgantown, West Virginia, to
meet with Edwards. It is clear, through Jeremy’s comments, that
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the push is to get Jeremy to confess falsely to the charges in the
indictment. Jeremy repeatedly comments that he (Jeremy) “did not
do this” and that it would be a “false confession,” but he would
be willing to do it to save his brother from prison. Christopher
comments about how hard it is for him to be away from his family
and how much Amy (Christopher’s wife) and his children are
struggling. Jeremy repeatedly tells Christopher that he (Jeremy)
needs more time (to gather more money to travel, and to straighten
out his story so that it makes sense). Jeremy understands that
his “confession” needs details if it is going to be believed. At
times, Jeremy appears to be on a mission to find the real
perpetrator. He often asks Christopher to call back with more
details about certain evidence that was produced at trial.
The calls indicate that Jeremy feels somewhat responsible for
Christopher’s situation. He believes that Christopher has been
set up by the people who are trying to “get” Jeremy. While Jeremy
vehemently denies downloading child pornography or doing anything
“depraved,” he believes that he is the cause of Christopher’s
problems, and he appears to believe that Christopher is innocent.
While Jeremy continues to try to figure out the true perpetrator
or come up with a more detailed plan, Christopher pushes him to go
meet with Edwards and says that everything can be sorted out later.
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Christopher acts as if he has a secret plan in place by which
neither of them will go to prison. At some point Christopher says
that Amy Harp will give Jeremy their “vest” if he wants it. Jeremy
expresses concern that he will face some type of criminal charge,
regardless of whether his “confession” is believed, and
Christopher responds that any charge against Jeremy would be more
minor than what he (Christopher) is facing. By June 22, 2024,
Jeremy was in Morgantown. After arriving in Morgantown, he became
more emboldened. He told Christopher that he had been consulting
with lawyers whom he knew, and he had decided that Christopher’s
plan was a bad one.
Private Investigator and Failed “Confessions”
At some point, Christopher’s family hired a private
investigator to find Jeremy. During the evidentiary hearing,
Christopher’s counsel represented that the family hired the
investigator in June 2024, despite the fact that Christopher had
been talking to Jeremy on the phone as early as May 2024.
Nonetheless, Defendant’s motion states that the private
investigator was “able to locate Jeremy,” who was homeless. On
August 6, 2024, the private investigator brought Jeremy to
Edwards’s office to be interviewed. During the interview, Jeremy
denied being the individual who was responsible for downloading
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child pornography on Defendant’s laptop. He did admit that he set
up Christopher’s laptop and used it when he was at Christopher’s
home, and that he was present at Christopher’s home on different
occasions when neither Christopher nor Amy were present. Jeremy
also admitted that he had helped Christopher and Amy move out of
a townhome into Amy’s parents’ home, and then he helped them move
out of Amy’s parents’ home into the home that Christopher and Amy
built.
On September 24, 2024, Jeremy reached out to Edwards and
stated that he was willing to confess to being the individual
responsible for downloading child pornography on Christopher’s
laptop and that he would provide a statement under oath. On
October 4, 2024, Jeremy was scheduled to give a recorded statement
under oath in London, Kentucky, but he failed to appear. Jeremy
called Edwards the next day and told him that he did not appear
because his father told him “it wouldn’t do any good.” Edwards
had no further contact with Jeremy until the incident on December
16, 2024.
“Confession” in December 2024
On December 16, 2024, Jeremy appeared unannounced at
Edwards’s law firm. He indicated that he wished to provide a sworn
statement, which Edwards (who was out of town) proceeded to record
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by Zoom, with a court reporter. The transcript is attached as an
exhibit to Christopher’s renewed motion. On the record, Edwards
asked Jeremy if it was correct that he (Jeremy) was “the one who
set up the subject Hewlett Packard computer and set the password
for Chris.” Jeremy responded, “I mean, I don’t remember any of
that because I’m having a lot of trouble remembering it.” Jeremy
stated that he used the laptop at Christopher’s “house and at his
townhouse.” Edwards asked him, “Did you download child pornography
and view it on that computer?” Jeremy responded, “It wasn’t for
viewing. It was to be used as a weapon.” Edwards clarified:
Q: Okay.
But you were the one who actually
downloaded it; is that correct?
I’m sorry, I didn’t hear an answer.
A: I said yes.
Q: Okay. I’m sorry.
And you did that on multiple occasions?
A: Yep.
Jeremy did not discuss when or how he downloaded or accessed child
pornography, or what type of child pornography was accessed. The
entire back-and-forth lasted just over four minutes. Jeremy was
slow to respond to many of Edwards’s questions and repeatedly
placed his head in his hands.
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After the “confession” was given, Jeremy retrieved a firearm
and effectively barricaded himself in the law firm’s conference
room. During that time, Jeremy communicated with law enforcement,
who pleaded with Jeremy to put the gun down and leave the office
without hurting himself. Much of the interaction was documented
on body camera. During the stand-off, Jeremy was provided a cell
phone so that he could communicate with Detective Joshua Ward
(“Detective Ward”) from the Monongalia County Sheriff’s Office.
The conversation occurred on speaker phone. The body camera
footage is split into three videos.
“Monongalia 1” (Body Camera)
Jeremy first explained that he believed his brother
Christopher was framed and should not have been convicted.
Detective Ward tried to provide Jeremy with a reason to stay alive
and told Jeremy that he could only help his brother if he was
alive, to which Jeremy responded, “This was a f***ing trap.”
Jeremy expressed his concern that “they’re gonna kill [his] entire
family.” Detective Ward attempted to talk Jeremy into putting the
gun down and walking out, and Jeremy said that there was “no way
out,” and Christopher would end up in prison or tortured for “shit”
he didn’t do. Jeremy said that he needed to talk to his dad “while
[he] still ha[d] the option to kill [him]self.” Detective Ward,
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trying to calm Jeremy down, told Jeremy that he was doing a
courageous thing, and Jeremy replied, “It wasn’t
courageous. . . . I hate this stupid circus, it’s just this
stupid sadistic circus.” He said, “I must have done something
horrible to deserve this.” He said that he is not a good person.
He said, “There’s something wrong. Ah, . . . no human being could
ever hate you that much unless you did something absolutely
terrible and you weren’t aware of it, and it’s killing me . . . .”
Detective Ward asked who hates him, and Jeremy said, “Whoever
orchestrated this.” He said, “Every single person I love became
this demented mirror image of themselves.”
“Monongalia 2” (Body Camera)
Jeremy stated that he was “far beyond self-preservation” and
that he “want[ed] them to stop hurting [him]” (hurting Jeremy, not
Christopher). Jeremy acknowledged that he sounded schizophrenic.
He indicated that maybe if he were dead, “they” would stop hurting
“them.” He said that he “received an improper and incorrect set
of signals that caused [him] to do increasingly depraved and insane
things out of fear that they’re going to continue hurting [his]
loved ones.” He indicated that “they” kept the information to use
against him later. He said, “Imagine a scenario where someone
wants to destroy you so they abuse your trust of them to get you
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to do something depraved or insane that they can then use as a
bargaining token to get somebody else to kill you.” Jeremy stated
that he was being used as a “human weapon,” speaking about
interpretation of signals, and told Detective Ward that his
“perception of reality [was] breaking down.” He said, “They
f***ing raped my mind and used me as a weapon.” Jeremy stated
that he was “truly afraid.” He said that he did not know who to
blame and that there was “definitely somebody to f***ing blame.”
Jeremy stated, “I don’t care if I’m safe. I want Chris to be safe.
Like the goal is to kill my f***ing family.” He acknowledged that
he sounded “insane” but continued, “They’re going to kill my
brother. They’re going to ruin his life. They’re going to destroy
his relationships. They’re going to keep going.” Jeremy expressed
the concerns that “they” were going to drive his father to suicide.
Jeremy wanted Detective Ward to help him find out if somebody “used
[him] to cause the suicide of a child” so that Jeremy could decide
whether to “off himself.”
Detective Ward told Jeremy that the only way to help his
brother was to testify before the grand jury, to which Jeremy said,
“I did a stupid boneheaded move. Look, you have a confession, so
the State has no burden of proof, right? Go ahead and hurt me.
Hurt me instead. . . . But, oh, man, I didn’t I, oh God. I, I
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did not do what I just said I did. The only reason I, the only
reason I did that, ok is cause I thought it would stop. I thought
it would make everything stop.” Then he said, “I can’t be sure
that this is just another layer to this intimately complex plot to
maneuver me into position, to dispose of me. . . . I did not. I
did not frame my brother. I did not download this shit.” Jeremy
then told Detective Ward, “You understand how, how f***ed I am. I
couldn’t trust my own father.” He said that he exists every day
in “perpetual grief.” Jeremy told Detective Ward that the
“pressure, the release valve” got hit two or three days before.
He said, “I have regressed into a mental state I can’t even
describe.” Jeremy indicated that he wanted to speak to his father,
but Detective Ward refused to provide the phone number, and Jeremy
hung up on him.
“Monongalia 3” (Body Camera)
When Jeremy answered the phone again, he discussed concerns
that his mother’s death was a homicide and wondered if she tried
to cut off her own oxygen supply. She was sick with cancer, and
near the end, she was on an oxygen concentrator. One day or night,
both Jeremy and his dad caught her pinching her tube with one hand
to block off her own supply of oxygen. He said, “If my perception
of time is correct, she died last winter.” Then he said,
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“Obliterating the victim’s memory prevents them from relaying
information to anyone who can help them, which is another part of
this absolutely perfect plan.”
Jeremy discussed the concept of a “slow kill,” such as, for
instance, feeding someone small amounts of poison over time. He
stated that another type of slow kill is driving a person to commit
suicide. He wanted to determine why there was surveillance
equipment in his house and in his father’s house. He said that he
could not tell if his dad was acting or being “real.” He said
that his father is “soulless.” He said, “This was so perfectly
executed.” Jeremy told Detective Ward, “I’m scared of what Chris’s
sentence will be. And . . . that, that I can’t just get over that.
And that’s, that’s what drove me to, to f***ing do this boneheaded-
ass move because I, oh, God, God dammit. . . . I’m too
psychologically fu***ed to do anything right at this point because
I probably should have shot myself because then it would make me
look more guilty so that it would get him out of prison.”
Jeremy said, “I went through all this shit to not achieve my
goal of getting him out of jail.” He said that he fears the
“entire human race.” Jeremy said, “This whole thing was just a
f***ing trick, wasn’t it. . . . A trick by his lawyer. . . . His
lawyer told me that there’s a very good possibility that he’ll get
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out very quickly, almost immediately, if I did this.” Jeremy then
told Detective Ward, “I am having another epiphany. . . . He is
hostile counsel. I was tricked into giving his lawyer everything
his lawyer needs to frame me. . . . That means my dad, my dad was
in on it.” Jeremy explained that his father was angry with him
because Jeremy connected him with the “mastermind,” and Jeremy
suggested that his father was trying to manipulate him. He said
that he “can’t even form complete memories anymore,” and his
“recollection of events is becoming blurry.” He told Detective
Ward that he (Jeremy) needed to figure out who sent “Signal Zero,”
which ultimately caused his own family to attempt to kill him.
Jeremy told Detective Ward that he had not eaten for two days,
that he might be experiencing the onset of schizophrenia, and that
he could not tell what was real anymore. Shortly thereafter,
Jeremy exited the room, leaving the firearm behind. Jeremy was
then transported to a psychiatric facility.
Evidentiary Hearing Testimony
Jeremy Harp Testimony
Jeremy testified that at the time of the hearing, he was
thinking clearly and taking medications to address his
schizoaffective disorder and other issues. He testified that he
was not, however, thinking clearly when he gave his “confession.”
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Jeremy testified that he only remembers “bits and pieces” of the
“confession” at Edwards’s office. At the time, he was still using
drugs, had not slept in two days, and was “tweaking.”
Jeremy testified that he was not aware that Christopher was
facing federal criminal charges until after the trial. He
testified that between 2018 and 2020, he lived in Toledo, Ohio,
and was homeless for a “while.” He lived in Morgantown briefly
during that time. When he lived in Morgantown, he would set up a
tent by the old Mountaineer Mall. Occasionally, he would go to
Christopher’s residence and would visit or housesit, but it was
infrequent. He testified that he did not know where Christopher’s
laptop was in the house. He testified that he used Christopher’s
laptop once to apply for a job, that Christopher watched him do
it, and that the laptop was already logged in. Jeremy also
testified that he previously sold a laptop to his father, and when
he noticed it had malware on it, he (Jeremy) destroyed the laptop
by throwing it in the river. Jeremy testified that he saw
Christopher at his mother’s funeral in January 2024, and
Christopher told him that the FBI was investigating him, but Jeremy
did not know that there had been a raid or any criminal charges.
Jeremy testified that Amy Harp had, more than once, offered
him money to confess to the child pornography offenses charged
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against Christopher. The highest amount that Amy offered him was
$10,000.00. He also testified that she offered him a plane ticket,
firearms, and ammunition. Jeremy testified that at the time of
the “confession,” he believed that his brother was innocent and
had been framed. Jeremy testified that he (Jeremy) never
downloaded child pornography onto Christopher’s laptop and never
downloaded child pornography onto Christopher’s thumb drives when
Christopher was in college. He also testified that his family
always knew how to reach him and that he had a phone. He testified
that he told Christopher, Amy, and the investigator that he did
not commit the child pornography crimes at issue. Jeremy feels
that he has been betrayed by his family.
Detective Ward
Detective Ward handles, among other things, crisis
negotiations for the Monongalia County Sheriff’s Department. He
was called to handle the report of an individual barricaded at
Edwards’s office on December 16, 2024. After Jeremy gave Edwards
his statement, Jeremy brandished a firearm, sat down in the
conference room, and refused to leave.
Detective Ward testified that during the “stand-off,” Jeremy
asked him to check records for him in Kentucky. Detective Ward
did not remember exact details, but he believed Jeremy’s request
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related to a child committing suicide in Kentucky. Jeremy also
talked about his mother being murdered. Detective Ward testified
that Jeremy appeared to be experiencing a mental health crisis on
the day of the “confession.” Jeremy told law enforcement that he
never downloaded child pornography and was being framed to take
responsibility for his brother’s crimes. Detective Ward spent six
hours with Jeremy before Jeremy put down the firearm and walked
out of the conference room.
Jonathan Suite
Jonathan Suite (“Suite”) is a third-year law student at the
West Virginia University College of Law. He has known Jeremy since
2009, when they were both in high school. He and Jeremy were good
friends in high school and college and have remained in contact
off and on since then. Suite testified that he was in contact
with Jeremy in the summer of 2024. At the time, Jeremy was
interested in using Suite as an alibi. After Suite and Jeremy
spoke on the phone, Jeremy came to Morgantown and stayed at Suite’s
house for two or three days. Jeremy told Suite that he was
considering making a false admission. Jeremy told Suite that he
was not convinced of his brother’s guilt, and he (Jeremy) had less
to lose than Christopher did. Jeremy was also offered money and
firearms to confess. Suite overheard a conversation on speaker
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phone in July 2024 in which Jeremy was offered $10,000.00 and guns.
Jeremy told Suite that the caller was Amy Harp and repeatedly
referred to her as “Amy” during the call. Amy told Jeremy that he
would not be charged if he confessed. She told Jeremy that if he
confessed, the prosecutors would be “embarrassed” and would not
choose to pursue charges against him. Suite also overheard a
conversation between Jeremy and Chri stopher on speaker phone.
Christopher told Jeremy about what jail was like, and Jeremy was
deeply affected by it. Suite’s impression of the conversation was
that Christopher was trying to pull on Jeremy’s heartstrings.
When Jeremy stayed with Suite in the summer of 2024, Jeremy’s
mental state varied. Oftentimes he was lucid and intelligent, and
at other times, he was unwell. Jeremy, however, maintained to
Suite that he had not downloaded child pornography. Jeremy had
told Suite that he would make a false confession to help his
brother. Suite disagreed with that approach and told Jeremy that
he could be charged. Jeremy made it sound to Suite as if his only
option was to confess falsely and then end his own life because he
did not want to go to prison. Suite called in a tip to the
Morgantown Police Department to make a record in case Jeremy
ultimately did make a false confession. At some point Suite became
aware that Jeremy had barricaded himself at Edwards’s conference
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room, and Suite called the police again.
On cross examination, Suite testified that Jeremy had never
lied to him. He admitted that Jeremy’s talk can “err on the side
of conspiratorial” and that Jeremy did believe himself to be the
victim of a conspiracy. Suite testified that prior to the summer
of 2024, Jeremy’s mental health was much better. In 2024 Jeremy
began wearing a full length camouflage outfit because he was
homeless and saw it as a way to protect himself.
Agent Thigpen
Agent Thigpen is the lead case agent on Christopher’s case.
At some point Agent Thigpen became aware that Jeremy had gone to
Edwards’s office to “confess” and was barricaded in the conference
room. He kept in contact with the detectives on the scene. Later,
Agent Thigpen set up an interview with Jeremy and his attorney.
During the interview, Jeremy indicated that he had been stabilized.
The first thing Jeremy did during the interview was unequivocally
deny that he committed the crimes to which he had “confessed.”
Jeremy indicated to Agent Thigpen that Amy and Christopher had
asked him to confess falsely and that Amy had offered him
$10,000.00 and a plane ticket to do so. Agent Thigpen then
testified about the contents of specific jail calls, which are
discussed above and also part of the record. Agent Thigpen
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testified that the content of the jail calls is consistent with
what Jeremy told him during the interview. He testified that when
the evidence in the case was collected from Christopher’s home and
submitted to the CART unit, there was nothing in it that linked
Jeremy to the child pornography.
III. DISCUSSION
Christopher has renewed his motion for a new trial under Rule
33 on the basis of newly discovered evidence. The supposed newly
discovered evidence is Jeremy’s sworn “confession,” described
above. Rule 33(a) of the Federal Rules of Criminal Procedure
permits the Court to vacate a criminal conviction and “grant a new
trial if the interest of justice so requires.” However, “a trial
court should exercise its discretion to award a new trial
sparingly, and a jury verdict is not to be overturned except in
the rare circumstance when the evidence weighs heavily against
it.” United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006)
(citation and quotation marks omitted).
In order to succeed on a motion for a new trial based on newly
discovered evidence, Christopher must establish each of the
following:
(a) The evidence must be, in fact, newly
discovered, i.e., discovered since the
trial;
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(b) facts must be alleged from which the
court may infer diligence on the part of
the movant;
(c) the evidence relied upon 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.
United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001)
(citation omitted). The United States Court of Appeals for the
Fourth Circuit has “never allowed a new trial unless all five
elements were established.” Id. Here, all five factors are not
established, and a new trial is not warranted.
A. Newly-discovered
“If the defendant knew about the evidence prior to the
conclusion of his trial, by definition, the evidence cannot be
newly discovered after such trial.” United States v. Griffin, 489
F. App’x 679, 681 (4th Cir. 2012) (unpublished) (citation omitted).
For example, when a defendant is aware of the substance of a
possibly exculpatory testimony a witness could provide, but the
witness refuses to testify at trial and later states that he would
be willing to testify, that is “newly available” evidence, not
“newly discovered” evidence. See id.
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In Christopher’s renewed motion, he argues that Jeremy’s
“confession” “could not have been discovered earlier through the
exercise of due diligence” because “Jeremy’s homelessness during
the prosecution made him difficult to locate, further preventing
the defense from securing his testimony during trial.” A look at
the entire record discredits this argument.
At trial, it was established that the defense had knowledge
of where Jeremy sometimes stayed and locations where he could be
found. If the defense wished to subpoena Jeremy, they could have
utilized the United States Marshals Service to serve the subpoena
on him. It was also established during the trial and in Jeremy’s
hearing testimony that Jeremy and Christopher saw one another at
their mother’s funeral in January 2024. Christopher was speaking
to Jeremy on the phone in May 2024 (within one month of his
convictions) and yet hired an “investigator” in June 2024 to locate
Jeremy. It appears that the investigator found him with ease.
Jeremy also testified during the evidentiary hearing that his
family could always reach him and that he had a phone. It does
not appear that hiring an investigator was necessary in order to
locate Jeremy, but even if it were, Christopher could have hired
an investigator prior to trial. The record does not indicate that
Christopher ever attempted to locate Jeremy prior to trial. For
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all of these reasons, the Court finds that Jeremy could have been
located prior to trial. The “confession” is newly available, not
newly discovered.
B. Diligence
The law requires Christopher to allege facts “from which the
court may infer diligence” on his part. Defendant argues that the
evidence “could not have been discovered earlier through the
exercise of due diligence” because “Jeremy’s homelessness during
the prosecution made him difficult to locate, further preventing
the defense from securing his testimony during trial.” The
Government argues that the defense “knew about Jeremy Harp prior
to trial” but made the tactical choice not to call him as a witness.
Again, the Court finds Defendant’s arguments unconvincing.
As discussed, the Harp family took it upon itself to hire a
private investigator to locate Jeremy in June 2024, after
Christopher was convicted. Christopher could have hired an
investigator before trial, and he has presented no evidence as to
why he did not. Further, Christopher has presented no evidence of
attempts to contact Jeremy before trial. The jail calls to Jeremy
in May 2024 (less than one month after the convictions and before
hiring a private investigator) also undermine the idea that Jeremy
was difficult to locate. Jeremy testified that his family always
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knew how to reach him. Christopher saw Jeremy in January 2024,
which was post-indictment and pre-trial. Accordingly, the Court
finds that Christopher has not alleged facts from which the Court
may infer diligence on his part, and the diligence prong is not
satisfied.
C. Cumulative or Impeaching
To grant a new trial, the law requires that the newly-
discovered evidence not be merely cumulative or impeaching.
Christopher argues that the evidence is not merely cumulative or
impeaching because it “directly exonerates Christopher and
identifies the true perpetrator.” The Government argues that it
is cumulative, given the amount of evidence and argument regarding
Jeremy that was produced at trial. While the jury heard much about
Jeremy at trial, it did not hear a “confession.” Accordingly, the
Court agrees with Christopher that the evidence would not be
cumulative, and the third prong is satisfied.
D. Materiality
To grant a new trial, the law require that the newly-
discovered evidence be material to the issues involved.
Christopher argues that it is material because it directly impacts
the core issue in this case: whether Christopher knowingly received
and possessed child pornography. The Government agrees that the
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“confession” is material. The Court agrees as well and finds that
the materiality prong is satisfied.
E. Likelihood of Producing an Acquittal
The law requires that the evidence is “such, and of such
nature, as that, on a new trial, the newly discovered evidence
would probably produce an acquittal.” “[T]he district court is
required to make a credibility determination as part of its
probability-of-acquittal determination.” United States v. Wilson,
624 F.3d 640, 663 (4th Cir. 2010). “Of course, if the district
court does not find a witness credible, it follows that the
district court would not find the witness sufficiently persuasive
to enable the district court to conclude that the witness’s
testimony would probably produce an acquittal at a new trial.”
United States v. Lighty, 616 F.3d 321, 374 (4th Cir. 2010)
(citation omitted). “To make a determination under this standard,
the district court cannot view the proffered testimony in a vacuum;
it must weigh the testimony against all of the other evidence in
the record, including the evidence already weighed and considered
by the jury in the defendant’s first trial.” Id. (citation
omitted).
Here, first, at a new trial, the recorded “confession” is
hearsay because “the declarant [did] not make [it] while testifying
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at the current trial,” and Christopher would be “offer[ing] [it]
in evidence to prove the truth of the matter asserted in the
statement” (that Jeremy committed the child pornography offenses).
See Fed. R. Evid. 801(c). Accordingly, for Christopher to
introduce Jeremy’s “confession,” Jeremy would need to take the
stand at trial and “confess” again. This is unlikely, given that
Jeremy recanted his “confession” the same day that he gave it, and
since then, he has unequivocally denied committing any child
pornography offenses multiple times. Even if Jeremy did confess
on the stand at trial, or even if the recorded “confession” were
admitted, the confession is impeachable with the many instances in
which he denied responsibility for the offenses. Any confession
played or produced at trial would not be credible for many reasons:
(1) The content of the jail calls, in which
Christopher pushes Jeremy to confess, and
Jeremy states multiple times that any
confession would be “false”;
(2) Jeremy’s and Suite’s testimony that Amy
Harp offered Jeremy a plane ticket,
firearms, and $10,000.00 to confess;
(3) Jeremy’s refusal to confess on August 6,
2024;
(4) Jeremy’s refusal to confess on October 4,
2024;
(5) Jeremy’s obvious psychological distress
and memory issues during the “confession”
on December 16, 2024;
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(6) Jeremy’s statements to law enforcement on
December 16, 2024 (including “I did not
do what I just said I did.”);
(7) Jeremy’s interview with Agent Thigpen, in
which Jeremy denied committing child
pornography offenses;
(8) Jeremy’s testimony that he was on drugs
and “tweaking” at the time of his
“confession” but clear-headed during the
evidentiary hearing;
(9) Jeremy’s clear-headed testimony during
the evidentiary hearing that he never
committed child pornography offenses;
and
(10) The evidence at trial, which did not
prove that Jeremy was at the Harps’ home
on the dates charged in the indictment,
which did not prove that anyone saw
Jeremy viewing child pornography or even
using the laptop after the date he set it
up, which included Rule 404(b) evidence
tying Christopher to child pornography
for over 10 years, and which included
other circumstantial evidence against
Christopher (e.g., he kept an old laptop
in his office, plugged in and ready to
use, despite having newer devices in his
home; the laptop was kept through at
least two moves; Christopher repeatedly
looked up to the loft while law
enforcement executed search warrant).
During the evidentiary hearing, the Court asked defense
counsel how this factor, the likelihood of acquittal, is satisfied.
Counsel responded that the “confession” in December 2024 was given
under oath, and the other denials were not. Jeremy’s testimony at
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the evidentiary hearing was also, of course, provided under oath.
Counsel also asked the Court to consider the laptop that Jeremy
threw into the river in Kentucky because it had malware on it.
The laptop in Kentucky, however, bears no connection to the child
pornography offenses charged here. It is insufficient to overcome
the many reasons why Jermey Harp’s “confession” in December 2024
is unconvincing.
For all of these reasons, Jeremy’s “confession” on December
16, 2024, as well as any “confession” that could be (but would be
unlikely to be) procured on the stand, is highly unpersuasive.
Such a “confession” would not “probably” produce an acquittal. To
the contrary, the Court finds that any “confession” admitted into
evidence would not change the jury’s verdict in this case.
IV. CONCLUSION
For the reasons discussed above, Defendant’s renewed motion
is DENIED [ECF No. 97].
It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record.
DATED: February 25, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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