United States v. Samuel Steve , 1 F.3d 45 ( 1993 )

1 F.3d 45
Unpublished Disposition

NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.
UNITED STATES of America
v.
Samuel STEVE, Appellant

No. 91-3264.

United States Court of Appeals, District of Columbia Circuit.

July 22, 1993.
Rehearing and Suggestion for Rehearing En Banc
Denied Sept. 9, 1993.

Before MIKVA, Chief Judge, and SILBERMAN and RANDOLPH, Circuit Judges.

JUDGMENT

PER CURIAM.

1

This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. The court has determined that the issues presented occasion no need for an opinion. See D.C.Cir.Rule 14(c). It is

2

ORDERED AND ADJUDGED that the district court's order filed September 3, 1991, be affirmed. Appellant has not satisfied his burden of showing that the diagnosis of "genetic fatigue" constituted newly discovered evidence warranting a new trial. Thompson v. United States, 188 F.2d 652 (D.C.Cir.1951) (a new trial will not be granted unless the party seeking it shows past diligence in the attempt to procure the newly discovered evidence, and the evidence would probably produce an acquittal); United States v. Mangieri, 694 F.2d 1270, 1285 n. 16 (D.C.Cir.1982) (a new trial will not be granted unless due diligence would not have adduced the newly discovered evidence at or before trial). Moreover, appellant has not demonstrated that his counsel's performance was defective, nor that it prejudiced the outcome of his trial. Strickland v. Washington, 466 U.S. 668 (1984).

3

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15.