US v. Mark Konsavich, No. 08-8165 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8165 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARK JAMES KONSAVICH, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 discovered evidence, a defendant evidence diligence; is newly (3) discovered; the evidence a new must (2) is trial show the not based on newly that: (1) the defendant used due merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence would probably result in an acquittal at a new trial. States v. Lofton, 233 F.3d 313 (4th Cir. 2000). United Unless the defendant demonstrates all five of these factors, the motion should be denied. (4th Cir. 1989). United States v. Chavis, 880 F.2d 788, 793 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. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2
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