United States v. Norton , 43 F. App'x 707 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4957
RICHARD CHARLES NORTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CR-99-78)
Submitted: August 20, 2002
Decided: August 30, 2002
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Monroe Jamison, Abingdon, Virginia, for Appellant. Thomas Jack
Bondurant, Jr., Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. NORTON
OPINION
PER CURIAM:
Richard Charles Norton was convicted of racketeering, racketeer-
ing conspiracy, mail fraud, illegal remunerations in violation of the
Medicare Anti-Kickback Act, federal program bribery, transportation
of fraudulently obtained funds, and money laundering conspiracy.
The district court sentenced him to sixty months imprisonment, three
years supervised release, a $25,000 fine, and $800,581.64 in restitu-
tion. On direct appeal, this court affirmed all of Norton’s convictions
except the conviction for racketeering, which the panel vacated due
to improper jury instructions. This court remanded the case to the dis-
trict court for entry of a new judgment. United States v. Norton, No.
00-4879, 2001 WL 939052 (4th Cir. Aug. 20, 2001) (unpublished).
While his appeal was pending, Norton filed a motion for a new trial
in the district court. Upon remand from this court, the district court
denied the motion for a new trial and entered an amended judgment
in light of this court’s instructions. Norton now appeals. His attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), stating that there are no meritorious issues for appeal, but
addressing whether the district court abused its discretion in denying
Norton’s motion for an evidentiary hearing in connection with his
motion for a new trial based on after-discovered evidence. Norton has
filed a pro se supplemental brief. We affirm.
This court reviews the denial of a Rule 33 motion for abuse of dis-
cretion. United States v. Russell, 221 F.3d 615, 619 (4th Cir. 2000).
In order to prevail on the motion, Norton would have to demonstrate:
(a) the evidence on which his motion is based was discovered after
trial; (b) diligence on his part in discovering the evidence; (c) the evi-
dence relied on is not merely cumulative or impeaching; (d) it is
material to the issues involved; and (e) it would be of sufficient
weight to probably produce an acquittal at a new trial. United States
v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987). Unless his motion sat-
isfies each of these requirements, a new trial is not warranted. United
States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989).
We have reviewed counsel’s brief, the record, and a transcript of
the hearing on the motion for a new trial, and find that the district
UNITED STATES v. NORTON 3
court did not abuse its discretion in finding that Norton’s motion
failed to satisfy the requirements for a new trial under Rule 33.
In accordance with the requirements of Anders, we have reviewed
the record for potential error and have found none. We further find
no merit to Norton’s claims raised in his pro se supplemental brief.
Therefore, we affirm the district court’s denial of Norton’s motion for
a new trial. This court requires that counsel inform his client, in writ-
ing, of his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed, but coun-
sel believes that such a petition would be frivolous, then counsel may
move this court for leave to withdraw from further representation.
Counsel’s motion must state that a copy thereof was served on the cli-
ent. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid in the decisional process.
AFFIRMED