United States v. Lowery ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-1-2008
USA v. Lowery
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2709
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Recommended Citation
"USA v. Lowery" (2008). 2008 Decisions. Paper 424.
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ALD-297 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2709
___________
UNITED STATES OF AMERICA,
Appellant
v.
WILLIAM LOWERY
____________________________________
On Appeal from the United States District Court
for the Easter District of Pennsylvania
(D.C. Crim No. 04-cr-00814)
District Judge: Honorable Petrese B. Tucker
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 25, 2008
Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges
(Opinion filed: October 1, 2008)
_________
OPINION
_________
PER CURIAM
In September 2006, the District Court for the Eastern District of Pennsylvania
sentenced Lowery to seventy-two months in prison after a jury convicted him of one
count of possession of a firearm by a felon. We affirmed Lowery’s conviction and
sentence in February 2008. See United States v. Lowery, 265 Fed. Appx. 111 (3d Cir.
2008). In May 2008, Lowery filed a pro se motion pursuant to Federal Rule of Criminal
Procedure 33, based on a claim of newly discovered evidence. The District Court denied
the motion, and Lowery filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s order
for an abuse of discretion. See United States v. Kelly, 539 F.3d 172, 181 (3d Cir. 2008).
The test we apply to determine whether to grant a new trial based on newly discovered
evidence has five parts:
(a) the evidence must be[,] in fact, newly discovered, i.e., discovered since
trial; (b) facts must be alleged from which the court may infer diligence on
the part of the movant; (c) evidence relied on[ ] 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. Jasin, 280 F.3d 355, 361 (3d Cir. 2002) (quoting United States v.
Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976)).
Lowery was arrested after his state parole agent, Harry Gaab, discovered a firearm
under a mattress at 301 Linden Avenue, North Hills, Pennsylvania, a home that was
leased to Lowery’s girlfriend through the Montgomery County Housing Authority. In his
motion for a new trial, Lowery argued that the search of 301 Linden Avenue was illegal
because that home was not his “approved” residence. The purportedly new evidence
consisted of two documents: (1) a lease termination notice from the Montgomery County
Housing Authority to Lowery’s girlfriend, indicating that Lowery’s arrest violated the
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terms of her lease; and (2) a letter from the Montgomery County Housing Authority to
Lowery, stating that “[h]ousing will be denied if an Applicant is or has been engaged in
Violent and/or Drug related activity for a minimum of 5 years” and that “[a]pplicant[s]
must be off Parole/Probation at least one full year without incident.” Lowery contends
that his ineligibility for public housing, as evidenced by these documents, demonstrates
that Gaab falsely testified that he had followed proper procedures in approving 301
Linden Avenue as an acceptable residence. According to Lowery, 301 Linden Avenue
could never have been an “approved” residence because Housing Authority rules
prohibited him from living there.
Even if Lowery’s evidence could be considered “newly discovered” within the
meaning of Rule 33 (which we doubt), it is clear that he has failed to show that it would
probably produce an acquittal. Notably, Lowery cites no authority for two propositions
central to his claim, namely, that 301 Linden Avenue could not have been approved as an
acceptable residence because it was leased through the Housing Authority and that only
an “approved” residence may be legally searched by parole agents. Thus, the District
Court did not abuse its discretion in denying Lowery’s Rule 33 motion.
For the above reasons, we will summarily affirm the District Court’s order. See
Third Circuit I.O.P. 10.6.
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