United States v. Robert Fenn , 584 F. App'x 114 ( 2014 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-6567
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    ROBERT FENN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria. James C. Cacheris, Senior
    District Judge. (1:12-cr-00510-JCC-1)
    Submitted:   September 26, 2014           Decided:   October 1, 2014
    Before KING, GREGORY, and THACKER, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    James W. Hundley, BRIGLIAHUNDLEY, P.C., Vienna, Virginia, for
    Appellant. Dana J. Boente, United States Attorney, Alicia J.
    Yass, Special Assistant United States Attorney, Lindsay A.
    Kelly, Assistant United States Attorney, Alexandria, Virginia,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Robert Fenn appeals from the district court’s order
    denying his motion for a new trial in his criminal conviction
    for   receipt     of       child    pornography,            in    violation      of    18   U.S.C.
    § 2252(a)(2)      (2012),          and    possession         of    child    pornography,         in
    violation of 18 U.S.C. § 2252(a)(4)(B) (2012).                                   After careful
    review, we affirm the denial of Fenn’s motion for a new trial.
    We review the district court’s denial of Fenn’s motion
    for   a   new    trial      for     abuse    of       discretion.          United      States v.
    Bartko, 
    728 F.3d 327
    , 334 (4th Cir. 2013), cert. denied, 134 S.
    Ct. 1043 (2014).              Generally speaking, the district court has
    broad discretion to grant or deny a motion for a new trial.
    United States v. Perry, 
    335 F.3d 316
    , 320 (4th Cir. 2003).
    The      court     may       vacate       its    judgment      and     grant    a   new
    trial if the interest of justice so requires.                               Fed. R. Crim. P.
    33(a).     To obtain a new trial due to newly discovered evidence,
    Fenn must show (1) the evidence is newly discovered, (2) the
    evidence could not have been discovered at trial through the
    exercise    of       due    diligence,       (3)       the       evidence     is      not   merely
    cumulative      or     impeaching,         (4)    the       evidence    is       material,      and
    (5) the evidence probably would result in acquittal at a new
    trial.     United States v. Chavis, 
    880 F.2d 788
    , 793 (4th Cir.
    1989).
    2
    We    have    reviewed    the   record     and    conclude    that   the
    newly   discovered      evidence    likely    would    not    have   resulted    in
    acquittal.      We thus conclude that the district court did not
    abuse its discretion in denying Fenn’s motion for a new trial.
    Accordingly, we affirm the district court’s decision.
    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
    3
    

Document Info

Docket Number: 14-6567

Citation Numbers: 584 F. App'x 114

Judges: King, Gregory, Thacker

Filed Date: 10/1/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024