                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                    No. 11-1072
                                    No. 12-4510
                                   ____________

                         UNITED STATES OF AMERICA

                                         v.

                              ROBERT MCKNIGHT
                                a/k/a Tweety Bird

                                 Robert McKnight,
                                           Appellant
                                  ____________

                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                           (D.C. No. 2-10-cr-00121-001)
                    District Judge: Honorable Juan R. Sanchez
                                  ____________

                    Submitted Under Third Circuit LAR 34.1(a)
                                 April 10, 2014

          Before: RENDELL, HARDIMAN and BARRY, Circuit Judges.

                               (Filed: June 12, 2014 )
                                   ____________

                                     OPINION
                                   ____________

HARDIMAN, Circuit Judge.

     Robert McKnight appeals orders of the District Court denying his motion for a
new trial and his motion for reconsideration. We will affirm.

                                              I

       On January 20, 2010, McKnight and co-defendant Lamont Paige stole $5,893.99

from the TruMark Financial Credit Union branch in Jenkintown, Pennsylvania. During

the robbery, a masked McKnight brandished a handgun and ordered patrons and

employees to remain silent, while Paige vaulted over the bank counter and removed cash

from two drawers. The robbery was captured on film by bank security cameras. Other

video recovered from nearby security cameras showed the two men, unmasked, standing

outside the bank moments before the robbery as well as later fleeing the scene. In the

latter video, McKnight was filmed tucking a gun into his waistband.

       Unbeknownst to Paige, the cash he took contained dye packs designed to spray dye

and teargas if it was removed a certain distance from the bank entrance. As McKnight and

Paige fled the bank, the dye packs detonated, emitting red smoke. Brittany Boggi, who

was riding in a car approximately 15 feet from the blast, saw the two men, who were then

unmasked, surrounded by a cloud of red smoke. In the days after the robbery, McKnight

enlisted two of his cousins to help him hide from the authorities, admitting his guilt to

both. One cousin called 911 on February 3, 2010, and reported McKnight’s admissions to

the Federal Bureau of Investigation (FBI).

       FBI Special Agent Joshua N. Sircus obtained an arrest warrant for McKnight the

next day. In the probable cause affidavit supporting the warrant application, Sircus stated

                                              2
that McKnight had been identified by two witnesses who viewed still photographs of

McKnight, unmasked, standing outside of and fleeing the bank. The affidavit noted that

the witnesses knew McKnight well enough to recognize and identify him. Further, the

affidavit stated that the witnesses informed Sircus that McKnight had previously resided

with his aunt and with his wife at two Philadelphia addresses. McKnight was arrested

four days later.

       On March 4, 2010, a grand jury returned a one-count indictment against

McKnight, charging him with armed bank robbery, in violation of 18 U.S.C. §§ 2113(d)

and 2. During the trial, the prosecution introduced video of the robbery, as well as still

photographs produced from the video. Boggi confirmed that the men in the images were

the same men she had seen when the dye packs exploded. McKnight’s cousins, who had

harbored him after the crime, also testified about his admissions of guilt. McKnight was

convicted by a jury, and the District Court sentenced him to 300 months’ imprisonment,

five years of supervised release, a special assessment of $100, and $40 restitution. He

filed a timely appeal, which was stayed to allow him to move for a new trial under Fed. R.

Crim. P. 33.

       On March 29, 2012, McKnight filed a pro se “Motion For New Trial (Or In the

Alternative), An Evidentiary Hearing” in the District Court, contending that he had newly

discovered evidence that warranted a new trial. Specifically, he claimed that Sircus’s

probable cause affidavit contained intentional falsehoods, which vitiated the probable

                                              3
cause that supported his arrest. Additionally, McKnight alleged that he received

ineffective assistance of counsel at trial, and claimed that he was entitled to a hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978), because of the purported

falsehoods in Sircus’s affidavit.

       The District Court denied McKnight’s motion, holding that the issues advanced

were not newly discovered because McKnight had known of them prior to trial. It also

found that McKnight’s ineffective assistance claim failed because it was not properly

raised in a motion for a new trial. The District Court denied McKnight’s subsequent

motion for reconsideration. Therein, it also ruled that McKnight was not entitled to a

Franks hearing despite the alleged discrepancies in Sircus’s warrant affidavit, as

McKnight had not demonstrated how the purported errors would undermine the

legitimacy of his arrest.

       McKnight timely appealed.1

                                              II

       McKnight contends that the probable cause affidavit supporting his arrest warrant

contained two errors which rendered his arrest illegitimate. First, he claims that the



       1
         The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We
have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s denial of a
motion for a new trial for abuse of discretion. Hook v. Ernst & Young, 28 F.3d 366, 370
(3d Cir. 1994). “We have not yet identified the standard of review for a district court’s
denial of a request for a Franks hearing, and our sister circuits are divided on the correct
approach.” United States v. Pavulak, 700 F.3d 651, 665 (3d Cir. 2012). We need not
                                              4
identification witnesses discussed in Sircus’s affidavit incorrectly reported that he had

once lived with his aunt at 1667 Haworth Street, Philadelphia, when he had in fact lived

with her at a different address. He thus alleges that the witnesses mentioned did not know

him well, and that Sircus had knowingly fabricated this portion of the affidavit. Second,

McKnight maintains that Sircus’s affidavit omitted material exculpatory information—

namely, the fact that three eyewitnesses to the crime described the bank robbers as men in

their late twenties or early thirties, when McKnight was fifty-one at the time. In sum,

McKnight contends that because his arrest was illegal, he is entitled to a new trial or to a

post-trial evidentiary hearing under Franks. We address each argument in turn.

                                              A

       Under Rule 33, “the court may vacate any judgment and grant a new trial if the

interest of justice so requires.” Fed. R. Crim. P. 33. Motions under Rule 33 are “not

favored and should be granted sparingly and only in exceptional cases.” United States v.

Silveus, 542 F.3d 993, 1005 (3d Cir. 2008) (internal quotation marks and citation

omitted). To succeed on a Rule 33 motion, the movant has the “heavy burden” of proving

five criteria:

       (a) the evidence must be in fact, newly discovered, i.e., discovered since the
       trial; (b) facts must be alleged from which the court may infer diligence on the
       part of the movant; (c) the 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

resolve this question, however, as under de novo review, none of alleged errors McKnight
identifies would have altered the probable-cause determination. See id.
                                              5
         would probably produce an acquittal.

United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006) (quoting United States v.

Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976)). If any one of these requirements is not

satisfied, the Rule 33 motion fails. United States v. Jasin, 280 F.3d 355, 365 (3d Cir.

2002).

         McKnight requested a new trial based on “newly discovered evidence”—his

discovery that a part of Sircus’s probable cause affidavit contained false information

about his residence. “Evidence is not ‘newly discovered’ if it ‘was [actually] known or

could have been known by the diligence of the defendant or his counsel.’” Cimera, 459

F.3d at 461 (quoting United States v. Bujese, 371 F.2d 120, 125 (3d Cir. 1967)). As the

District Court noted, McKnight averred in his Rule 33 motion that he had known of the

misstatement before his trial, and had unsuccessfully asked his counsel to pursue this

concern at the suppression hearing held five days before trial. Further, the docket shows

McKnight and his counsel could have accessed the arrest warrant seven months before

trial, and thus he should have known of any false information in the warrant well before

his sentencing hearing. Accordingly, McKnight cannot satisfy the first requirement for a

new trial, and the District Court did not err in denying his motion.2




         2
         McKnight has not satisfied the other requirements for a new trial: he neither
provides evidence of his diligence nor explains how the misstatement about his address in
the affidavit could be probative of his innocence at trial.
                                                6
                                             B

       We next consider whether the District Court erred when it denied McKnight’s

request for a Franks hearing. Under Franks, a criminal defendant is entitled to challenge

the validity of a warrant if he makes a “substantial preliminary showing” that (1) the

affiant in the warrant affidavit made a “false statement knowingly and intentionally, or

with reckless disregard for the truth,” and (2) the statement was necessary for finding

probable cause. 438 U.S. at 155–56. McKnight fails the first prong, as he provided no

evidence that Sircus knowingly, intentionally, or recklessly misstated in the affidavit that

witnesses informed him McKnight had resided at 1667 Haworth Street.

       Nor has McKnight shown how Sircus’s errors might have been relevant to a

finding of probable cause. In a Franks proceeding, the court assesses materiality by

removing allegedly false statements, inserting omissions, and determining whether

probable cause nonetheless remains. See, e.g., United States v. Yusuf, 461 F.3d 374, 383–

84 (3d Cir. 2006). Here, even if one removes the alleged false statement—McKnight’s

address when he lived with his aunt—it remains that two individuals who know

McKnight identified him as one of the robbers. Similarly, inserting the omitted

information—that three eyewitnesses to the crime described the robbers as being in their

twenties or thirties, while McKnight was in fact in his fifties—does not undermine the

magistrate’s finding of probable cause. Though the eyewitnesses did not provide a correct

estimate of McKnight’s age, they noted other characteristics (i.e., race, height, weight)

                                              7
that were consistent with McKnight’s appearance. Further, one of the witnesses in

question, Brittany Boggi, confirmed that McKnight was one of the men she observed

surrounded by smoke on the day of the robbery.

       Because McKnight did not establish the two elements required by Franks, the

District Court did not abuse its discretion in denying him an evidentiary hearing regarding

the validity of his arrest warrant.3

                                             III

       For the foregoing reasons, we will affirm the District Court’s orders denying

McKnight’s motion for a new trial and his motion for reconsideration of that decision.




       3
         Even if the District Court erred in denying McKnight a Franks hearing, he
suffered no prejudice because the arrest yielded no evidence to suppress. During the trial,
the prosecution submitted video of the crime, eyewitness accounts, and testimony from
McKnight’s two cousins that he had confessed to the crime. At no point did the
prosecution offer evidence that constituted “fruits” of the arrest. Further, the accuracy of
Sircus’s affidavit and the adequacy of probable cause, and thus the lawfulness of
McKnight’s arrest, are irrelevant to his conviction. See, e.g., Gerstein v. Pugh, 420 U.S.
103, 119 (1975) (adhering to “the established rule that illegal arrest or detention does not
void a subsequent conviction”).
                                             8
