US v. Kenneth Foster, No. 13-7016 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7016 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH LEE FOSTER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cr-00013-MR-DLH-8) Submitted: November 26, 2013 Decided: December 4, 2013 Before WILKINSON, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Kenneth Lee Foster, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Jill Westmoreland Rose, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina; Thomas A. O Malley, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth Lee Foster appeals the denial of his Fed. R. Crim. P. 33 motion for a new trial and the district court s refusal to reconsider that denial. We affirm. First, we find no abuse of discretion in the denial of Foster s motion for a new trial. F.3d 287, 292 (4th Cir. 2013). United States v. Moore, 709 To receive a new trial based on an alleged Brady * violation, a defendant must show that the undisclosed evidence was (1) favorable to him either because it is exculpatory, or because it is impeaching; (2) material to the defense, i.e., prejudice must have ensued; and (3) that the prosecution had [the] materials and failed to disclose them. United States v. Wilson, 624 F.3d (internal quotation marks omitted). 640, 661 (4th Cir. 2010) Similarly, to receive a new trial based simply on newly discovered evidence, a defendant must show that: (1) the evidence is newly discovered; (2) he has been diligent in uncovering it; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material to the issues involved; and (5) the evidence would probably produce an acquittal. Moore, 709 F.3d at 292. Here, the success of Foster s request for a new trial based on the Government s alleged violation of its disclosure * Brady v. Maryland, 373 U.S. 83 (1963). 2 obligations conclusion under that 18 U.S.C. the § 2518(9) wiretaps used (2012) in the turned on the investigation of Foster s crimes were not properly authorized by the Department of Justice. failure to appeal 18 U.S.C. properly prevented § 2516(1) raise the (2012). However, that issue at trial district court from 703 F.3d mandate rule). conclude that because the withheld 675, Having Foster evidence does 679-82 not (4th carefully failed Foster impugn to claims the 2013) reviewed the the such a (discussing the record, requisite Government validity direct United States v. Cir. make on reaching conclusion absent exceptional circumstances. Pileggi, or Foster s of the we showing improperly wiretaps in question. Because the district court also correctly found that it lacked authority to reconsider its final order denying Foster s motion for a new trial, see United States v. Breit, 754 F.2d 526, 530 (4th Cir. 1985), we affirm the district court s orders. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 3