United States v. Christopher Moore , 572 F. App'x 214 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7930
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTOPHER C. MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:11-cr-00004-JPJ-1; 2:13-cv-80654-JPJ-RSB)
Submitted: April 29, 2014 Decided: May 22, 2014
Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher C. Moore, Appellant Pro Se. Zachary T. Lee,
Assistant United States Attorney, Abingdon, Virginia; Kartic
Padmanabhan, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher C. Moore appeals the district court’s
order denying his motion for a new trial pursuant to Fed. R.
Crim. P. 33, and its order denying reconsideration of that
order. For the reasons that follow, we affirm.
We review a district court’s denial of a Rule 33
motion for abuse of discretion. United States v. Robinson, 627
F.3d 941, 948 (4th Cir. 2010). Rule 33 permits the court to
vacate a criminal judgment and grant a new trial on the
defendant’s motion “if the interest of justice so requires.”
Fed. R. Crim. P. 33(a). To establish his entitlement to a new
trial based on newly-discovered evidence, * the defendant must
satisfy a five-prong test by demonstrating that “(1) the
evidence is newly discovered; (2) the defendant exercised due
diligence; (3) the newly discovered evidence is not merely
cumulative or impeaching; (4) the evidence is material; and
(5) the evidence would probably result in acquittal at a new
trial.” United States v. Moore, 709 F.3d 287, 292 (4th Cir.
2013).
*
Moore does not assign error to the district court’s
construction of his motion as one seeking relief based on
newly-discovered evidence. Insofar as Moore’s motion sought a
new trial on other grounds, it was properly denied as untimely.
See Fed. R. Crim. P. 33(b)(2) (requiring motion for new trial
not based on newly-discovered evidence to be filed within
fourteen days of verdict).
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Moore’s Rule 33 motion primarily relied upon a
December 3, 2009, investigatory memorandum, which states that
Moore invoked his right to counsel when officers attempted to
interview him following the incident that formed the basis for
his conviction. In some circumstances, of course, further
custodial interrogation by government agents after an invocation
of the right to counsel constitutes a Fifth Amendment violation.
See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (holding
that, when suspect invokes right to counsel during custodial
interrogation, he may not be questioned further until he
reinitiates later discussions with police and waives right to
counsel). However, even if the district court erred in
concluding that Moore could not meet the Rule 33 requirements of
materiality and a likely effect on the verdict, Moore failed to
make the requisite showing for a new trial because he has not
demonstrated that the December 3 report was newly discovered.
To the contrary, the record shows that the Government attached
the report to a pretrial pleading to which Moore’s trial counsel
had access. See United States v. Fulcher, 250 F.3d 244, 250
(4th Cir. 2001) (recognizing that “newly discovered evidence
means evidence discovered since the trial” (internal quotation
marks and citation omitted)). Moreover, because Moore should
have been aware of the factual predicate of his claim at the
time of his trial, he cannot demonstrate that he diligently
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pursued his claim. Our review of the record indicates that
Moore’s motion failed to make the requisite showing to obtain
relief under Rule 33 on any basis, and thus the district court
did not abuse its discretion in denying the motion.
Turning to Moore’s subsequent motion for
reconsideration, motions for reconsideration of final judgments
or orders in criminal cases are not authorized by either statute
or the Federal Rules of Criminal Procedure. See United
States v. Breit, 754 F.2d 526, 530 (4th Cir. 1985). Because the
court lacked authority to grant reconsideration of its order
denying a new trial, its denial of the motion was not error.
Accordingly, we affirm both the district court’s order
denying a new trial and its order denying reconsideration. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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