                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6332


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOHN LAWTON LEDINGHAM,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of    Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:07-cr-00007-nkm-1)


Submitted:   February 3, 2010             Decided:   March 17, 2011


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph A. Sanzone, SANZONE & BAKER, P.C., Lynchburg, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney, Craig
J.   Jacobsen,  Assistant  United  States   Attorney,  Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               John Lawton Ledingham was convicted of being a felon

in     possession          of     a     firearm,        in   violation         of    18    U.S.C.

§ 922(g)(1) (2006).               He moved for a new trial based on a diary

belonging to his wife, which suggested that, contrary to her

trial testimony, the firearms found in Ledingham’s home belonged

to her.     The district court denied Ledingham’s motion.                                 Finding

no reversible error, we affirm.

               We review a district court’s denial of a motion for a

new trial under Fed. R. Crim. P. 33 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) he 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.                          United States v. Chavis, 880

F.2d 788, 793 (4th Cir. 1989).                          The district court should deny

the motion unless the defendant demonstrates all five of these

factors.       Id.

               We    hold       that       the    district      court    did   not    abuse     its

discretion when it denied Ledingham’s motion for a new trial.

First, the diary is cumulative of ownership claims Ledingham’s

wife    initially          made       to    the    police    before      trial,      which     were

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presented to the jury at trial.                It is also impeaching, going

directly to Ledingham’s wife’s credibility.                   Because Ledingham’s

conviction    was     supported   by    evidence      other     than       his   wife’s

testimony, we conclude that this is not the kind of rare case in

which a new trial based on newly discovered impeachment evidence

is warranted.       See United States v. Custis, 988 F.2d 1355, 1359

(4th Cir. 1993).

             Moreover, the diary entries would not result in a jury

being more likely than not to acquit Ledingham.                    Again, we note

Ledingham’s wife’s trial testimony was not the only evidence

presented that Ledingham possessed firearms.                   Additionally, the

diary merely calls into question the ownership of the firearms.

Ownership,    however,     is   not    required    to    sustain       a   conviction

under   18   U.S.C.    § 922(g)(1),      and    the   jury     heard       significant

evidence that Ledingham constructively possessed the firearms.

See United States v. Branch, 547 F.3d 328, 343 (4th Cir. 2008).

             Accordingly, we affirm the district court’s order.                     We

dispense     with   oral    argument     because        the    facts       and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                              AFFIRMED




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