Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^** 

The government appeals the district court's denial of its motion to reconsider the order granting a new trial to Janis Woodard following her conviction on four counts of misapplying bank funds. The government contends that the district court erred because the new evidence is merely cumulative of evidence introduced at trial, is immaterial to the question of Woodard's guilt, and would probably not produce an acquittal on retrial. We affirm.

The district court properly granted Woodard a new trial upon finding that the evidence she offered was newly discovered after trial with due diligence, is not merely cumulative or impeaching, is material to the issues involved in the case, and would probably produce an acquittal on retrial. See United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985); United States v. Krasny, 607 F.2d 840, 844 (9th Cir. 1979).

This court reviews the district court's decision granting a new trial pursuant to Fed. R. Crim. P. Rule 33 for abuse of discretion. United States v. Lopez, 803 F.2d 969, 977 (9th Cir. 1986); United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985). (the appellant carries a "significant burden" to establish abuse of discretion).

Upon review we find the government has not carried the significant burden of showing that the district court abused its discretion in granting a new trial. United States v. Steel, 759 F.2d at 713.

AFFIRMED.