United States of America, Plaintiff-appellee, v. Randy D. Lucia, Defendant-appellant, 996 F.2d 1213 (4th Cir. 1993)

OPINION

Randy D. Lucia was convicted by a jury of conspiracy to counterfeit United States obligations, 18 U.S.C. § 371 (1988), and making counterfeit United States obligations, 18 U.S.C.s 471, 2 (1988). His attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), arguing that the district court applied the wrong standard in evaluating Lucia's motion for a new trial, but stating that in his view there are no other arguable issues of merit. Lucia has filed a supplemental brief which is a duplicate of the pro se appellate brief filed by his co-defendant, Earl Bessent.

We find that the district court did not abuse its discretion in denying a new trial. The newly discovered evidence submitted by Lucia and Bessent in support of their motions merely impeached the testimony of two government witnesses. The district court properly applied the five-factor test for granting a new trial on newly discovered evidence which is set out in United States v. Chavis, 880 F.2d 788 (4th Cir. 1989). Only in very narrow circumstances, not present in this case, may a new trial be granted when the newly discovered evidence is merely impeaching. United States v. Custis, 988 F.2d 1355 (4th Cir. 1993). No issues of merit are raised in the supplemental brief.

In accord with the requirements of Anders, we have examined the entire record in this case and find no other meritorious issues for appeal. We therefore affirm the conviction and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the record and briefs, and oral argument would not aid the decisional process.

Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964 (18 U.S.C. § 3006A), this Court requires that counsel inform his client, in writing, of his right to petition the Supreme Court for further review. If requested by his client to do so, counsel should prepare a timely petition for a writ of certiorari.

AFFIRMED