United States v. Kenneth Foster , 547 F. App'x 305 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH LEE FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-DLH-8)
Submitted: November 26, 2013 Decided: December 4, 2013
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth Lee Foster, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Jill Westmoreland Rose, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina; Thomas
A. O’Malley, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Lee Foster appeals the denial of his Fed. R.
Crim. P. 33 motion for a new trial and the district court’s
refusal to reconsider that denial. We affirm.
First, we find no abuse of discretion in the denial of
Foster’s motion for a new trial. United States v. Moore, 709
F.3d 287, 292 (4th Cir. 2013). To receive a new trial based on
an alleged Brady * violation, a defendant must “show that the
undisclosed evidence was (1) favorable to him either because it
is exculpatory, or because it is impeaching; (2) material to the
defense, i.e., prejudice must have ensued; and (3) that the
prosecution had [the] materials and failed to disclose them.”
United States v. Wilson, 624 F.3d 640, 661 (4th Cir. 2010)
(internal quotation marks omitted). Similarly, to receive a new
trial based simply on newly discovered evidence, a defendant
must show that: (1) the evidence is newly discovered; (2) he has
been diligent in uncovering it; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material to the
issues involved; and (5) the evidence would probably produce an
acquittal. Moore, 709 F.3d at 292.
Here, the success of Foster’s request for a new trial
based on the Government’s alleged violation of its disclosure
*
Brady v. Maryland, 373 U.S. 83 (1963).
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obligations under 18 U.S.C. § 2518(9) (2012) turned on the
conclusion that the wiretaps used in the investigation of
Foster’s crimes were not properly authorized by the Department
of Justice. 18 U.S.C. § 2516(1) (2012). However, Foster’s
failure to properly raise that issue at trial or on direct
appeal prevented the district court from reaching such a
conclusion absent exceptional circumstances. United States v.
Pileggi, 703 F.3d 675, 679-82 (4th Cir. 2013) (discussing
mandate rule). Having carefully reviewed the record, we
conclude that Foster failed to make the requisite showing
because the evidence Foster claims the Government improperly
withheld does not impugn the validity of the wiretaps in
question.
Because the district court also correctly found that
it lacked authority to reconsider its final order denying
Foster’s motion for a new trial, see United States v. Breit, 754
F.2d 526, 530 (4th Cir. 1985), we affirm the district court’s
orders. 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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