                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-1-2008

USA v. Lowery
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2709




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Recommended Citation
"USA v. Lowery" (2008). 2008 Decisions. Paper 424.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/424


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ALD-297                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-2709
                                     ___________

                          UNITED STATES OF AMERICA,
                                             Appellant

                                           v.

                               WILLIAM LOWERY
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Easter District of Pennsylvania
                             (D.C. Crim No. 04-cr-00814)
                     District Judge: Honorable Petrese B. Tucker
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 September 25, 2008
            Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges

                           (Opinion filed: October 1, 2008)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      In September 2006, the District Court for the Eastern District of Pennsylvania

sentenced Lowery to seventy-two months in prison after a jury convicted him of one

count of possession of a firearm by a felon. We affirmed Lowery’s conviction and
sentence in February 2008. See United States v. Lowery, 265 Fed. Appx. 111 (3d Cir.

2008). In May 2008, Lowery filed a pro se motion pursuant to Federal Rule of Criminal

Procedure 33, based on a claim of newly discovered evidence. The District Court denied

the motion, and Lowery filed a timely notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s order

for an abuse of discretion. See United States v. Kelly, 539 F.3d 172, 181 (3d Cir. 2008).

The test we apply to determine whether to grant a new trial based on newly discovered

evidence has five parts:

       (a) the evidence must be[,] in fact, newly discovered, i.e., discovered since
       trial; (b) facts must be alleged from which the court may infer diligence on
       the part of the movant; (c) evidence relied on[ ] must not be merely
       cumulative or impeaching; (d) it must be material to the issues involved;
       and (e) it must be such, and of such nature, as that, on a new trial, the newly
       discovered evidence would probably produce an acquittal.

United States v. Jasin, 280 F.3d 355, 361 (3d Cir. 2002) (quoting United States v.

Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976)).

       Lowery was arrested after his state parole agent, Harry Gaab, discovered a firearm

under a mattress at 301 Linden Avenue, North Hills, Pennsylvania, a home that was

leased to Lowery’s girlfriend through the Montgomery County Housing Authority. In his

motion for a new trial, Lowery argued that the search of 301 Linden Avenue was illegal

because that home was not his “approved” residence. The purportedly new evidence

consisted of two documents: (1) a lease termination notice from the Montgomery County

Housing Authority to Lowery’s girlfriend, indicating that Lowery’s arrest violated the

                                              2
terms of her lease; and (2) a letter from the Montgomery County Housing Authority to

Lowery, stating that “[h]ousing will be denied if an Applicant is or has been engaged in

Violent and/or Drug related activity for a minimum of 5 years” and that “[a]pplicant[s]

must be off Parole/Probation at least one full year without incident.” Lowery contends

that his ineligibility for public housing, as evidenced by these documents, demonstrates

that Gaab falsely testified that he had followed proper procedures in approving 301

Linden Avenue as an acceptable residence. According to Lowery, 301 Linden Avenue

could never have been an “approved” residence because Housing Authority rules

prohibited him from living there.

       Even if Lowery’s evidence could be considered “newly discovered” within the

meaning of Rule 33 (which we doubt), it is clear that he has failed to show that it would

probably produce an acquittal. Notably, Lowery cites no authority for two propositions

central to his claim, namely, that 301 Linden Avenue could not have been approved as an

acceptable residence because it was leased through the Housing Authority and that only

an “approved” residence may be legally searched by parole agents. Thus, the District

Court did not abuse its discretion in denying Lowery’s Rule 33 motion.

       For the above reasons, we will summarily affirm the District Court’s order. See

Third Circuit I.O.P. 10.6.




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