UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-6640

OBED HOYTE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Henry C. Morgan, Jr., District Judge, sitting by designation.
(CR-93-10)

Submitted: June 30, 1997

Decided: September 30, 1997

Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Obed Hoyte, Appellant Pro Se. Ruth Elizabeth Plagenhoef, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Obed Hoyte appeals from the district court's denial of his motion
for a new trial under Fed. R. Crim. P. 33 based on newly discovered
evidence.1 We affirm the district court's denial of the Rule 33 motion,
however, not because it was time-barred but on modified grounds that
Hoyte failed to demonstrate he was entitled to a new trial.

Hoyte and his co-defendants were convicted under 21 U.S.C.
§ 846, 18 U.S.C. §§ 2, 924(c), and§ 1959(a)(1) (1994), for conspiracy
to distribute and distribution of cocaine base, use of a firearm, and
murder for the purpose of improving or maintaining their positions in
a RICO enterprise. Hoyte was sentenced by the district court on
March 24, 1994, and filed a timely appeal to this Court. The mandate
of this Court affirming Hoyte's conviction and sentence issued on
June 12, 1995. See United States v. Hoyte, 51 F.3d 1239 (4th Cir.
1995). On October 22, 1996, Hoyte filed a motion for a new trial
based upon newly discovered evidence pursuant to Fed. R. Crim. P.
33 pro se.

The basis on which the district judge denied Hoyte's Rule 33
motion was that it was filed beyond the two-year period set forth in
Rule 33 and thus time-barred. In calculating the time period, the dis-
trict judge failed to consider the time Hoyte's case was pending on
appeal, but rather measured the time period from the date the court
entered Hoyte's sentence. On appeal in a criminal case, the two-year
period for a new trial motion on grounds of newly discovered evi-
dence runs from the date the mandate issued on appeal, that is, it runs
two years from final judgment following exhaustion of appellate rem-
edies. United States v. Reyes, 49 F.3d 63, 65-66 (2d Cir. 1995);
United States v. Cook, 705 F.2d 350, 351 (9th Cir. 1983). Therefore,
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1 The rule states in relevant part:

          A motion for a new trial based on the ground of newly discov-
          ered evidence may be made only before or within two years after
          final judgment, but if an appeal is pending the court may grant
          the motion only on remand of the case.

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Hoyte's Rule 33 motion was timely filed, and the district court had
jurisdiction to consider the motion.

However, the movant must make a substantive showing that he is
entitled to a new trial based on newly discovered evidence by demon-
strating that the evidence tends strongly to establish his innocence or
shows the jury to have been subjected to improper influence.2 Mills
v. United States, 281 F.2d 736, 738 (4th Cir. 1960); Holmes v. United
States, 284 F.2d 716, 719 (4th Cir. 1960). In evaluating the material-
ity of evidence which the prosecution has failed to disclose, the
Supreme Court has stated that: "The evidence is material only if there
is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A
`reasonable probability' is a probability sufficient to undermine confi-
dence in the outcome." United States v. Bagley, 473 U.S. 667, 682
(1985).

The basis of Hoyte's motion is the prosecution's failure to disclose
evidence of a newspaper article that reported that a police officer
allegedly stated a witness told him a man with a shoulder holster and
firearm was seen near the location of the body. Hoyte claims that on
the basis of this information, his attorney could have argued that an
improper investigation was conducted by police and that police disre-
garded information concerning other possible suspects. Hoyte asserts
that this evidence would have been sufficient to raise reasonable
doubt in the minds of the jurors such that they would have acquitted
him.

We find that, given the ample evidence against Hoyte, see Hoyte,
51 F.3d at 1242, Hoyte's new evidence claim is insufficient to support
the granting of his motion for a new trial. Accordingly, we affirm the
district court's denial of Hoyte's Rule 33 motion on that basis. We
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2 Specifically, a new trial may be granted on the basis of newly discov-
ered evidence if: (1) the evidence is in fact newly discovered; (2) the
movant has exercised due diligence; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material; and (5) the evi-
dence would probably result in an acquittal at the new trial. All five
requirements must be met. United States v. Chavis, 880 F.2d 788, 793
(4th Cir. 1989).

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dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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