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

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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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
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