US v. Robert Fenn, No. 14-6567 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6567 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROBERT FENN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:12-cr-00510-JCC-1) Submitted: September 26, 2014 Decided: October 1, 2014 Before KING, GREGORY, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. James W. Hundley, BRIGLIAHUNDLEY, P.C., Vienna, Virginia, for Appellant. Dana J. Boente, United States Attorney, Alicia J. Yass, Special Assistant United States Attorney, Lindsay A. Kelly, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Fenn appeals from the district court s order denying his motion for a new trial in his criminal conviction for receipt of § 2252(a)(2) child (2012), pornography, and in possession violation of child of 18 U.S.C. pornography, violation of 18 U.S.C. § 2252(a)(4)(B) (2012). in After careful review, we affirm the denial of Fenn s motion for a new trial. We review the district court s denial of Fenn s motion for a new trial for abuse of discretion. United States v. Bartko, 728 F.3d 327, 334 (4th Cir. 2013), cert. denied, 134 S. Ct. 1043 (2014). Generally speaking, the district court has broad discretion to grant or deny a motion for a new trial. United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003). The court may vacate its judgment and trial if the interest of justice so requires. 33(a). grant a new Fed. R. Crim. P. To obtain a new trial due to newly discovered evidence, Fenn must show (1) the evidence is newly discovered, (2) the evidence could not have been discovered at trial through the exercise of cumulative or due diligence, impeaching, (3) (4) the the evidence evidence is is not merely material, and (5) the evidence probably would result in acquittal at a new trial. United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). 2 We newly have discovered acquittal. reviewed evidence the record likely and would conclude not have that resulted the in We thus conclude that the district court did not abuse its discretion in denying Fenn s motion for a new trial. Accordingly, we affirm the district court s decision. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 3
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