     15-366
     United States v. Jiau

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of March, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PETER W. HALL,
 8                              Circuit Judges.
 9                JANE A. RESTANI,*
10                              Judge.
11
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                    -v.-                                               15-366
18
19       WINIFRED JIAU, a/k/a Wini, DONALD
20       LONGUEUIL,
21                Defendants-Appellants,
22
23


                *
                  The Honorable Jane A. Restani, Judge for the
         United States Court of International Trade, sitting by
         designation.
                                                  1
 1   SON NGOC NGUYEN, a/k/a Sonny, STANLEY
 2   NG,
 3            Defendants.
 4   - - - - - - - - - - - - - - - - - - - -X
 5
 6   FOR APPELLANT:             Xavier R. Donaldson, New York,
 7                              New York.
 8
 9   FOR APPELLEES:             Richard A. Cooper (Anna M.
10                              Skotko on the brief) Assistant
11                              United States Attorneys, for
12                              Preet Bharara, United States
13                              Attorney for the Southern
14                              District of New York.
15
16        Appeal from an order of the United States District
17   Court for the Southern District of New York (Rakoff, J.).
18
19        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20   AND DECREED that the order of the district court be
21   AFFIRMED.
22
23        Defendant Winifred Jiau appeals from an order of the
24   United States District Court for the Southern District of
25   New York (Rakoff, J.), denying Jiau’s motion for a new trial
26   pursuant to Federal Rule of Criminal Procedure 33. We
27   assume the parties’ familiarity with the underlying facts,
28   the procedural history, and the issues presented for review.
29
30        A motion for a new trial based on newly discovered
31   evidence “must be filed within 3 years after the verdict or
32   finding of guilty.” Fed. R. Crim. P. 33(b)(1). A motion
33   for a new trial on any other grounds must be filed within 14
34   days. Fed R. Crim. P. 33(b)(2). Where a motion for a new
35   trial is based on a claim of newly discovered evidence, the
36   defendant bears the burden to establish (1) the evidence is
37   genuinely “new,” i.e., it was discovered after trial; (2)
38   the evidence could not, with the exercise of due diligence,
39   have been discovered before or during trial; and (3) the
40   evidence is “so material and noncumulative that its
41   admission ‘would probably lead to an acquittal.’” United
42   States v. Zagari, 111 F.3d 307, 322 (2d Cir. 1997) (quoting
43   United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir.
44   1992)).
45


                                  2
 1        Jiau moved for a new trial on the basis that her
 2   counsel had a conflict of interest. The allegedly “newly
 3   discovered” evidence consists of printouts of the online
 4   biographies of several attorneys involved in the case and
 5   excerpts from email communications between Jiau and her
 6   prior counsel from November and December 2011. As the
 7   district court recognized, the documents provide no support
 8   for her claims: they are not “evidence” under Rule 33; and
 9   the information (consisting of either emails that Jiau sent
10   or received, or printouts from Internet searches that were
11   readily available at the time of the jury’s verdict) was not
12   “newly discovered.” Because the motion was not based on
13   newly discovered evidence, and because it was filed eleven
14   months after the verdict, it was properly denied as
15   untimely.
16
17        Furthermore, Jiau has demonstrated no circumstances of
18   “excusable neglect” for the failure to file her motion on
19   time. See Fed. R. Crim. P. 33 advisory committee’s note to
20   2005 amendments (“the court may nonetheless consider that
21   untimely underlying motion if the court determines that the
22   failure to file it on time was the result of excusable
23   neglect.”). Accordingly, the district court did not abuse
24   its discretion in denying Jiau’s motion for a new trial.
25
26        For the foregoing reasons, and finding no merit in
27   Jiau’s other arguments, we hereby AFFIRM the order of the
28   district court.
29
30                              FOR THE COURT:
31                              CATHERINE O’HAGAN WOLFE, CLERK
32




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