                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-5182


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

YANNICK PIERRE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:11-cr-00297-LMB-1)


Submitted:   April 18, 2013                      Decided:   May 24, 2013


Before WYNN and      DIAZ,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


John L. Machado, LAW OFFICE OF JOHN MACHADO, Washington, D.C.,
for Appellant. Neil H. MacBride, United States Attorney,
Timothy    D.  Belevetz,   Assistant United  States  Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Yannick    Pierre    was     found    guilty,     following     a    jury

trial, on twelve counts of health care fraud in violation of 18

U.S.C. §§ 2, 1347 (2006).         After Pierre’s case had been docketed

for appeal, the Government disclosed evidence that had not been

presented    to    Pierre    before     trial,    and   we    remanded     for   the

limited   purpose     of    directing    the     district    court   to    consider

Pierre’s motion for a new trial.               The district court denied the

motion, and Pierre filed a new notice of appeal to encompass

this decision.       On appeal, Pierre argues that the district court

erred when it denied her motions for acquittal and a new trial.

We affirm.

            First,     Pierre     contends       that   the     district        court

improperly used its power to take judicial notice of the fact

that Woodbridge, Virginia, is within the Eastern District of

Virginia.     Pierre argues that the Government was required to

prove venue during its case in chief, and that the district

court erred by supplying an element of the Government’s case sua

sponte.      For   this    reason,    Pierre     contends    that    the   district

court erred when it denied her motion for judgment of acquittal

filed pursuant to Fed. R. Crim. P. 29.

            We review a district court’s decision to deny a Rule

29 motion de novo.          United States v. Osborne, 514 F.3d 377, 385

(4th Cir. 2008).           We note that “[a]s a general proposition,

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venue is proper in any district where the subject crime was

committed.”        United States v. Ebersole, 411 F.3d 517, 524 (4th

Cir. 2005); see U.S. Const. art. III, § 2, cl. 3 (guaranteeing

right    of   an    accused     person     to   be   tried    where   crime          was

committed); U.S. Const. amend. VI (guaranteeing speedy trial in

the district where the crime was committed); Fed. R. Crim. P. 18

(requiring prosecution to take place in the district where the

crime was committed).           Because venue is not an element of the

offense,      the    government      must       establish     it    only        by     a

preponderance       of   the   evidence.        Ebersole,    411   F.3d    at    542;

United States v. Smith, 198 F.3d 377, 382 (2d Cir. 1999).                             A

district court may take judicial notice that venue is proper in

a particular district.           United States v. Kelly, 535 F.3d 1229,

1235-36 (10th Cir. 2008); United States v. Greer, 440 F.3d 1267,

1272 (11th Cir. 2006); cf. United States v. Lavender, 602 F.2d

639, 641 (4th Cir. 1979) (finding that court may take judicial

notice     that     crime      occurred    within    federal       jurisdiction).

Because venue is not an element of the Government’s case, we

conclude that the district court did not err when it denied the

motion for judgment of acquittal.               See United States v. Troupe,

307 F. App’x 715, 717 (4th Cir. 2008) (noting that a district

court may take judicial notice of venue even after the close of

the government’s evidence).



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              Pierre    also        contends           that    the    district         court       erred

when   it     denied    her     motion         for      a     new    trial       based    on       newly

discovered evidence pursuant to Fed. R. Crim. P. 33.                                      We review

a district court’s denial of a Rule 33 motion for a new trial

for abuse of discretion.                     United States v. Fulcher, 250 F.3d

244, 249 (4th Cir. 2001).                   To receive a new trial based on newly

discovered         evidence,       a    defendant             must    show       that:     (1)       the

evidence      is    newly     discovered;              (2)    she    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.                                            See

id.      Unless       the    defendant         demonstrates               all    five     of       these

factors, the motion should be denied.                              United States v. Chavis,

880    F.2d    788,    793     (4th         Cir.       1989).         Alternatively,            Pierre

alleges that she is entitled to a new trial under Brady v.

Maryland, 373 U.S. 83 (1963).

              Under either ground for relief, the issue in this case

is whether the new evidence, which tends to impeach a Government

witness, is material.               Undisclosed evidence is material when its

cumulative         effect     is        such       that        “there       is     a     reasonable

probability        that,      had      the     evidence            been     disclosed         to     the

defense,      the      result          of    the        proceeding          would        have       been

different.”           Kyles     v.      Whitley,             514     U.S.    419,       433     (1995)

(internal citations and quotation marks omitted).                                      A reasonable

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probability is one sufficient to “undermine confidence” in the

outcome.     Id. at 434 (“The question is not whether the defendant

would more likely than not have received a different verdict

with the evidence, but whether in its absence he received a fair

trial, understood as a trial resulting in a verdict worthy of

confidence.”).      Upon review of the record, we conclude that the

district   court    did    not    abuse   its   discretion       when    it   denied

Pierre’s motion for a new trial because, considering the wealth

of evidence pointing to Pierre’s guilt, the newly discovered

evidence does not undermine confidence in the verdict.

            Accordingly, we affirm the district court’s judgment

and order.      We dispense with oral argument because the facts and

legal    contentions      are    adequately     presented    in    the    material

before   this    court    and    argument     will   not   aid    the   decisional

process.

                                                                          AFFIRMED




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