                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4804


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MARTIN F. SALAZAR,

                  Defendant - Appellant.

------------------------------------

ALLIANCE FOR PATIENT SAFETY; E-ACCOUNTABILITY FOUNDATION;
GOVERNMENT ACCOUNTABILITY PROJECT; INTEGRITY INTERNATIONAL;
NO   FEAR   COALITION;  OSC   WATCH;  OPENTHEGOVERNMENT.ORG;
PARENTADVOCATE.ORG; SEMMELWEIS SOCIETY; U.S. BILL OF RIGHTS
FOUNDATION,

                  Amici Supporting Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Aiken.   Margaret B Seymour, District Judge.
(1:06-cr-00123-MBS)


Submitted:    May 7, 2009                       Decided:   July 7, 2009


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mario A. Pacella, STROM LAW FIRM, LLC, Columbia, South Carolina,
for Appellant. W. Walter Wilkins, United States Attorney, Dean
A. Eichelberger, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.     Thomas M. Devine, GOVERNMENT
ACCOUNTABILITY PROJECT, Washington, D.C., for Amici Supporting
Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Martin Salazar appeals his conviction following a jury

trial     of      two       counts    of     making       false    statements       or

representations to the United States Government, in violation of

18 U.S.C. § 1001 (2000).              Salazar was convicted of Counts Two

and Four of the indictment against him.                 Count Two alleged that,

while   working        as   an   engineer    at   the   Department      of   Energy’s

(“DOE’s”) Savannah River Site (a nuclear facility near Aiken,

South Carolina), Salazar submitted a questionnaire to DOE, for

the purpose of maintaining his top secret security clearance, in

which he falsely stated that he was born in Nogales, Arizona,

rather than Nogales, Mexico.               Count Four alleged that, in 2005,

Salazar submitted an application for early retirement to DOE in

which he falsely stated that he was born on January 30, 1954,

rather than January 30, 1958.

            Salazar raises five issues on appeal: (1) whether the

district court abused its discretion in denying his motion for

new trial as to Count Two; (2) whether the district court abused

its discretion in denying his motion for new trial as to Count

Four; (3) whether the district court abused its discretion in

failing to hold an evidentiary hearing regarding his motion for

new trial; (4) whether the evidence at trial was sufficient to

support    his    conviction      under     Count   Two;   and    (5)   whether    the

district       court    erred    by   admitting     the    testimony     of    a   lay

                                            3
witness, Robert Ruple, due to the danger of unfair prejudice.

We affirm.



      I. Jurisdiction to Review Denial of Motion for New Trial

              In a criminal case, a defendant’s notice of appeal

must be filed within ten days after the entry of the judgment or

order being appealed.          Fed. R. App. P. 4(b)(1)(A)(i).              A notice

of appeal filed before the district court disposes of any of the

motions referred to in Rule 4(b)(3)(A) becomes effective upon

the   later    of   the   entry   of     the   order     denying   the    last   such

remaining      motion     or   the     judgment     of    conviction,      and     “is

effective      -    without    amendment       -   to    appeal    from   an     order

disposing of any of the motions referred to in Rule 4(b)(3)(A).”

Fed. R. App. P. 4(b)(3)(B), (C).               Rule 4(b)(3)(A)(ii) refers to

a motion “for a new trial under Rule 33, but if based on newly

discovered evidence, only if the motion is made no later than 10

days after the entry of the judgment.”

              The district court entered judgment against Salazar on

August 7, 2007, and he filed his notice of appeal on August 17,

2007,   thereby      perfecting      a   timely     appeal    of    the   judgment.

Salazar did not file his motion for a new trial until September

10, 2007, more than ten days after the entry of the judgment.

Because the motion for a new trial was not filed within ten days

after the judgment was entered, Salazar’s notice of appeal was

                                          4
not effective without amendment to appeal from the order denying

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

motion for a new trial on April 7, 2008, and Salazar did not

file an amended notice of appeal regarding that order.                                Salazar

did not indicate his intent to appeal the denial of his motion

for a new trial until he filed his appellate brief in this Court

on June 5, 2008.

            Salazar      has     failed          to        file    a   timely      appeal    in

accordance with Rule 4(b).                  While Salazar’s appeal is clearly

untimely,       appeal        periods         in       criminal         cases       are     not

jurisdictional;         rather,        they          are     “claim-processing            rules”

adopted by the Supreme Court that do not affect this Court’s

subject-matter jurisdiction.                  See Bowles v. Russell, 551 U.S.

205, 208-13 (2007); United States v. Frias, 521 F.3d 229, 233

(2d Cir. 2008); United States v. Mitchell, 518 F.3d 740, 744

(10th Cir. 2008).             Despite the fact that the time limitations

imposed    by   Rule     4(b)    are       not       jurisdictional,        they    “must     be

enforced     by       th[e]     court       when           properly     invoked      by      the

government.”      Mitchell, 518 F.3d at 744.

            In the present case, we directed the parties to file

supplemental      briefs       addressing            the     timeliness      issue.         The

Government      has    not    filed    a    motion          to    dismiss   the    appeal     as

untimely and has acknowledged that it erroneously conceded the

timeliness of the appeal in its initial brief.                                  Accordingly,

                                                 5
because    Salazar’s           failure     to    comply      with    Rule     4(b)    does    not

remove this court’s jurisdiction to review the order denying his

motion    for       new    trial,        and    because      the    Government        does     not

request invocation of the rule, we consider it appropriate under

the particular facts of this case to exercise our jurisdiction

to review the merits of the order.



          II. Denial of Motion for New Trial as to Count Two

               A district court may grant a defendant’s motion for a

new trial “if the interest of justice so requires.”                                    Fed. R.

Crim.     P.     33(a).          A    district       court      “‘should       exercise       its

discretion to grant a new trial sparingly,’ and . . . should do

so ‘only when the evidence weighs heavily against the verdict.’”

 United    States         v.   Perry,      335    F.3d     316,     320     (4th    Cir.     2003)

(quoting United States v. Wilson, 118 F.3d 228, 237 (4th Cir.

1997)).        This Court reviews the denial of a Rule 33 motion for

abuse of discretion.                 United States v. Adam, 70 F.3d 776, 779

(4th Cir. 1995).           In order to warrant a new trial based on newly

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

evidence       is     newly      discovered;         (2)     the     defendant       used     due

diligence;          (3)    the       evidence     is     not       merely     cumulative       or

impeaching; (4) the evidence is material; and (5) the evidence

would probably result in an acquittal at a new trial.                                      United

States v. Lofton, 233 F.3d 313, 318 (4th Cir. 2000).                                 Unless the

                                                 6
defendant demonstrates all five of these factors, the motion

should be denied.         United States v. Chavis, 880 F.2d 788, 793

(4th Cir. 1989).

              Salazar’s   motion      for    new      trial    as    to    Count   Two   is

based upon his sister’s affidavit that she was present at his

birth in Nogales, Arizona.            The district court reasonably found

that Salazar was not diligent in seeking such evidence from his

family members during the year after he was indicted and before

his   trial     began.    Furthermore,          the    court     did      not   abuse    its

discretion      in   finding   that    the      new    evidence       was    unlikely    to

result in a judgment of acquittal, in light of the Government’s

evidence    that     Salazar   was    born      in    Mexico,       including:     (1)   an

official birth registration form showing that Salazar was born

in Nogales, Mexico; (2) a certified document reflecting that no

record exists of Salazar’s birth in Arizona; (3) Salazar’s 1970

application for a social security card in which he identified

Nogales, Mexico, as his place of birth; (4) an identification

card issued to Salazar in 1969 listing his place of birth as

Mexico; (5) testimony by Salazar’s ex-wife that Salazar admitted

to her that he was born in Mexico; (6) a “caddy spotlight”

written    by   an   employee   of     the      Augusta       National      Golf   Course,

where Salazar was employed as a caddy, identifying Salazar’s

place of birth as Mexico, based upon Salazar’s own statements;

and (7) Salazar’s written statement that “he had always said

                                            7
that he was born in Mexico.”                      In light of the weight of the

evidence    favoring        Salazar’s      conviction        on     Count    Two    and    his

failure    to    demonstrate        that   he      acted     with    due     diligence      in

obtaining his sister’s affidavit, the district court did not

abuse its discretion in denying his motion for new trial as to

Count Two.



       III. Denial of Motion for New Trial as to Count Four

             Salazar’s motion for new trial as to Count Four is

based upon the sworn statement by Doris Hixon, a human resource

specialist at the Savannah River Site who prepared Salazar’s

application      for      early   retirement        based     upon    the     January      30,

1954, date of birth that was listed in his personnel records, in

which she indicated that she was aware in April 2004 of the

discrepancies concerning Salazar’s date of birth, contrary to

her   testimony      at    trial.       The       district    court       found     that   the

evidence was not newly discovered because it was provided to

Salazar, in substance, before trial and he attempted to impeach

Hixon’s testimony with it when she testified.                             Furthermore, the

evidence     was     merely       impeaching        and    was      not     sufficient      to

establish       an   affirmative      defense        of     entrapment        by    estoppel

because it established at most only that Hixon, not other DOE

employees who proposed Salazar’s early retirement, was aware of

the   discrepancies        between    Salazar’s           reported    dates        of   birth.

                                              8
Accordingly, we conclude the district court did not abuse its

discretion in denying Salazar’s motion for a new trial as to

Count Four.



 IV. Failure to Hold Evidentiary Hearing on Motion for New Trial

           A    district     court’s        denial   of     a    motion   for    an

evidentiary hearing on a motion for new trial is reviewed for

abuse of discretion.        United States v. Smith, 62 F.3d 641, 651

(4th   Cir.    1995).      The      district    court      did   not   abuse    its

discretion in failing to hold an evidentiary hearing because the

district court based its denial of the motion for new trial upon

Salazar’s lack of diligence in obtaining his sister’s affidavit

and the weight of the evidence that he was born in Mexico, as to

Count Two, and upon the fact that Hixon’s affidavit was not

newly discovered and was merely impeaching, as to Count Four.

Accordingly, there was no need for the district court to hold a

hearing to evaluate the evidence presented in connection with

the motion for new trial.



           V. Sufficiency of the Evidence as to Count Two

           When    a    defendant    challenges      the   sufficiency    of    the

evidence, we consider whether substantial evidence, viewed in

the light most favorable to the Government, supports the jury’s

verdict.      Burks v. United States, 437 U.S. 1, 17 (1978); United

                                        9
States     v.    Stewart,       256    F.3d            231,       249    (4th     Cir.      2001).

“[S]ubstantial evidence is evidence that a reasonable finder of

fact   could     accept    as    adequate             and     sufficient        to   support     a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

United    States    v.    Burgos,      94        F.3d       849,    862    (4th      Cir.     1996)

(citations omitted).            “[W]e do not review the credibility of

witnesses and assume the jury resolved all contradictions in the

testimony in favor of the government.”                             United States v. Sun,

278 F.3d 302, 313 (4th Cir. 2002).

             The   jury’s       verdict          on    Count       Two    was   supported       by

substantial evidence.           Salazar does not contest that he claimed

to have been born in Nogales, Arizona, on the questionnaire he

submitted to DOE for the purpose of maintaining his security

clearance.         The    evidence          that        Salazar’s         statement      on    the

questionnaire was knowingly false is persuasive, as previously

recounted.          Salazar       challenged                the     reliability          of     the

Government’s evidence and the credibility of its witnesses at

trial, but did not present any affirmative evidence that he was

born in Arizona, rather than Mexico.                              Assuming that the jury

credited     the    testimony         of     the        Government’s         witnesses,        and

viewing    the     evidence      in        the        light    most       favorable      to    the

Government, the evidence was sufficient for a reasonable jury to

find Salazar guilty beyond a reasonable doubt on Count Two.                                     We

therefore affirm Salazar’s conviction on Count Two.

                                                 10
                            VI. Admission of Testimony

            Because Salazar did not object to the district court's

admission of Ruple’s testimony at trial, we review for plain

error.    Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.

725, 732 (1993).            Under the plain error standard, Salazar must

show:    (1) there was error; (2) the error was plain; and (3) the

error affected his substantial rights.                 Olano, 507 U.S. at 732-

34.     Even when these conditions are satisfied, we may exercise

our discretion to notice the error only if the error "seriously

affect[s]      the    fairness,    integrity     or     public   reputation   of

judicial proceedings."            Id. at 736 (internal quotation marks

omitted).

            A district court’s decision to admit evidence is given

broad deference and will be overruled only under extraordinary

circumstances        that    constitute    a   plain    abuse    of   discretion.

United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998).                      In

reviewing the admission of evidence, we construe the evidence in

the   “light    most    favorable    to    its   proponent,      maximizing   its

probative value and minimizing its prejudicial effect.”                    United

States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990) (quoting

Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1135

(4th Cir. 1988)).

            Ruple testified that he worked at the Augusta National

during the 2004 and 2005 seasons, and put together a written

                                          11
“spotlight”      about      Salazar,      who       was    working    at     the   Augusta

National    as    a    caddy     during     that          time.      Ruple    prepared     a

spotlight of a different caddy approximately once per week in

order for the caddies to “get to know everybody else.”                             Salazar

approached Ruple and asked to be highlighted in a spotlight.

The   spotlight       was    based   upon       a    fifteen-minute          interview     of

Salazar    conducted        by   Ruple.     The       spotlight      was     posted   on    a

bulletin board where Salazar could see it, and Salazar did not

complain      that       the      spotlight          contained        any      inaccurate

information.      The spotlight, which was meant to be entertaining,

read in relevant part as follows:

           Marteen Salazar has graced us with his presence
      at the Augusta National for five years now. He is 60
      years old.   Marteen was born in Nogales, Mexico, the
      land of Tequila and Senoritas.   At three, his family
      moved to Los Angeles and little Marteen became a
      citizen of the United States.

                Marteen has one daughter and a son from a
      previous marriage.   His son is a captain in the U.S.
      Army Rangers.   Marteen’s first love is rugby.  He is
      also an accomplished tennis player, at one point
      holding the third seed in the California State tennis
      rankings.

                As we all know, Marteen has had a highly-
      decorated military career, as well as a stellar
      academic record.   One unknown fact is that Marteen
      also possess [sic] a black belt, beware his fists of
      fury.

                Marteen started his academic career at Long
      Beach State with a BS in mechanical engineering.
      Moving from that, he received his masters in nuclear
      physics. At this point he is working on his doctorate
      from Georgia Tech in nuclear physics.


                                            12
                  In between all his upper education, Marteen
        still found time to become a naval officer.    He was
        the executive officer on multiple boats, mostly fast-
        attack submarines.   The executive officer, for those
        that don’t know, is the second man in charge. If his
        commanding officer had ever taken a bullet from a
        Russian, Mr. Salazar would have been in charge of a
        billion dollar war machine lurking in the depths
        protecting us all.

Upon cross-examination, Ruple acknowledged that he and his co-

workers “didn’t really take [the spotlights] seriously” and did

not check the facts that the caddies reported to them.                                 Upon

redirect     examination,          Ruple        testified       that     the      factual

assertions in the spotlight were based upon Salazar’s answers to

Ruple’s questions.

            The district court did not err in admitting Ruple’s

testimony.         Ruple        acknowledged      that    the     spotlight       was     a

lighthearted piece of writing and that he did not attempt to

verify    the     facts     contained      in    it.     Ruple’s        testimony       was

probative as to the issue of where Salazar was born, and this

probative       value     outweighed     any     prejudicial      effect        upon    the

jury’s evaluation of Salazar’s character for truthfulness.                               We

therefore affirm the district court’s decision to admit Ruple’s

testimony.

            For the reasons stated above, we affirm the district

court’s    judgment       and    its   denial    of    Salazar’s       motion    for    new

trial.     We dispense with oral argument because the facts and

legal    conclusions       are    adequately      presented      in     the     materials

                                           13
before   the   court   and   argument    would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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