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