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United States v. Fenn

United States District Court, E.D. Virginia, Alexandria Division

April 3, 2014

UNITED STATES,
v.
ROBERT C. FENN, Defendant.

MEMORANDUM OPINION

JAMES C. CACHERIS, District Judge.

This matter is before the Court on Defendant Robert Fenn's ("Defendant") Motion for New Trial ("Motion"). [Dkt. 93.] For the following reasons, the Court will deny Defendant's Motion.

I. Background

On December 6, 2012, a grand jury in the Eastern District of Virginia returned a two-count indictment against Defendant, charging him with receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) (Count I), and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count II). [Dkt. 1.] On December 14, 2012, Defendant waived formal arraignment, entered a plea of not guilty, and demanded a jury trial. Following this plea, Defendant filed a motion to suppress certain statements, which this Court denied on January 22, 2013. [Dkts. 17-18.]

The Court conducted a two-day jury trial on April 2 and 3, 2013. Following the presentation of the Government's case in chief, at a bench conference on April 2, 2013, Defendant made a Rule 29 motion for judgment of acquittal, which this Court denied. [Dkt. 46.] Following the presentation of his defense, Defendant renewed that motion at a bench conference on April 3, 2013, and this Court again denied the motion. [Dkt. 47.] On April 3, 2013, the jury found Defendant guilty beyond a reasonable doubt for Counts I and II. [Dkts. 47, 49.]

On April 17, 2013, Defendant filed his first motion for new trial. [Dkt. 51.] The Government filed its opposition on April 29, 2013. [Dkt. 54.] On May 9, 2013, the Court denied Defendant's first motion for new trial. [Dkts. 61-62.] On June 21, 2013, the Court sentenced Defendant to serve a term of 120 months' imprisonment as to each Count, with the sentences to run concurrently. [Dkt. 79.] On June 26, 2013, Defendant filed a notice of appeal with the United States Court of Appeals for the Fourth Circuit. [Dkt. 84.]

On February 3, 2014, Defendant filed this motion for new trial based on newly discovered evidence and accompanying memorandum. [Dkts. 93, 96.] On February 4, 2014, the Fourth Circuit affirmed this Court's order denying Defendant's motion to suppress and the judgment after trial. [Dkts. 94-95.] On February 11, 2014, Defendant filed a supplementary memorandum regarding his motion for new trial. [Dkt. 97.] The Government filed its opposition on February 14, 2014. [Dkt. 98.]

Defendant's Motion is now before the Court.

II. Standard of Review

Federal Rule of Criminal Procedure 33 provides, in relevant part, "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). Whether to grant or deny a motion for new trial rests within the broad discretion of the district court. See United States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 2006). The Fourth Circuit has instructed, "a trial court should exercise its discretion to award a new trial sparingly, and a jury verdict is not to be overturned except in the rare circumstance when the evidence weighs heavily' against it." Id. (citations omitted).

In determining whether to grant or deny a motion for new trial on grounds of newly discovered evidence, the Fourth Circuit uses a five-part test:

(i) is the evidence, in fact, newly discovered; (ii) are facts alleged from which the court may infer due diligence on the part of the movant; (iii) is the evidence relied upon not merely cumulative or impeaching; (iv) is the evidence material to the issues involved; and (v) would the evidence probably result in acquittal at a new trial?

United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). "Unless the answer to each of these inquiries is affirmative, a new ...


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