United States v. Konsavich

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8165
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK JAMES KONSAVICH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:05-cr-00019-gec-1)
Submitted: April 9, 2009 Decided: April 21, 2009
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark James Konsavich, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark James Konsavich appeals the district court’s
order denying his Fed. R. Crim. P. 33 motion for a new trial.
We have reviewed the record and find the district court did not
abuse its discretion in denying the motion. United States v.
Smith, 451 F.3d 209, 216 (4th Cir. 2006) (stating standard of
review). In order to warrant a new trial based on newly
discovered evidence, a defendant must show that: (1) the
evidence is newly discovered; (2) the defendant used due
diligence; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material; and (5) the evidence
would probably result in an acquittal at a new trial. United
States v. Lofton, 233 F.3d 313 (4th Cir. 2000). Unless the
defendant demonstrates all five of these factors, the motion
should be denied. United States v. Chavis, 880 F.2d 788, 793
(4th Cir. 1989). Konsavich failed to show the newly discovered
evidence would probably result in an acquittal at a new trial.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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