     Case: 12-30576       Document: 00512098794         Page: 1     Date Filed: 01/02/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 2, 2013
                                     No. 12-30576
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHARLES NEUMAN,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:08-CR-24-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Charles Neuman, now federal prisoner # 90449-079,
appeals the district court’s orders denying his motions for (1) a new trial based
on newly discovered evidence related to his conviction of being a felon in
possession of a firearm and (2) reconsideration of that order. We review a
district court’s order denying a motion for abuse of discretion. United States v.
Wall, 389 F.3d 457, 465 (5th Cir. 2004). In so doing, we “must not revisit
evidence, reevaluate witness credibility, or attempt to reconcile seemingly

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-30576     Document: 00512098794      Page: 2    Date Filed: 01/02/2013

                                  No. 12-30576

contradictory evidence.” United States v. Tarango, 396 F.3d 666, 672 (5th Cir.
2005).
      Although a motion for a new trial based on newly discovered evidence may
be granted in the interests of justice, United States v. Villarreal, 324 F.3d 319,
325 (5th Cir. 2003) (citing FED. R. CRIM. P. 33(a)), such motions are “disfavored
and reviewed with great caution.” Wall, 389 F.3d at 467 (internal quotation
marks and citation omitted). To prevail, a defendant must show that:
      (1) the evidence is newly discovered and was unknown to the
      defendant at the time of trial; (2) the failure to detect the evidence
      was not due to a lack of diligence by the defendant; (3) the evidence
      is not merely cumulative or impeaching; (4) the evidence is material;
      and (5) the evidence if introduced at a new trial would probably
      produce an acquittal.
Id. All five requirements must be met. Id. The motion should not be granted
unless failing to do so “would be a miscarriage of justice or the weight of evidence
preponderates against the verdict.” Id. at 466. The defendant also must
demonstrate that his substantial rights were affected. Id. A motion for a new
trial may not be based on inadmissible hearsay. Id. at 470-71 (citing United
States v. Parker, 903 F.2d 91, 102-03 (2d Cir. 1990) (requirement that newly
discovered evidence would produce an acquittal in a new trial presupposes that
the evidence would be admissible)).
      Neuman does not dispute that the two affidavits he filed in support of his
motion for a new trial presented hearsay testimony. Neither does he challenge
the district court’s determination that the statement of John Sterling, also filed
in support of the motion, was unsworn and therefore inadmissible. Instead, he
contends that the district court should have deemed the affidavits admissible
pursuant to Federal Rule of Evidence 804(b)(6), as the out-of-court declarants
were unavailable because they had been threatened by the government.
Neuman contends conclusionally that one investigator’s affidavit reflects that
Justin Nichols refused to sign an affidavit because he feared retaliation by the


                                         2
    Case: 12-30576     Document: 00512098794      Page: 3   Date Filed: 01/02/2013

                                  No. 12-30576

government, but he provides no citation to the record in support of this
conclusional assertion. The affidavit states only that Nichols refused to sign an
affidavit because he “‘did not wish to participate in this matter’”; it provides no
factual information why Nichols refused to participate. Although Neuman
contends that the district court should have convened an evidentiary hearing,
his contention is based on the same unsupported and conclusional assertion.
Neuman presents no argument with respect to the district court’s conclusions
that the evidence was not newly discovered, and he fails to show that admission
of the evidence at a new trial would result in an acquittal. Neither does he
present any other argument with respect to the district court’s order denying his
motion for reconsideration.
      As the district court reasoned, to obtain a conviction, the government
needed to show only that Neuman was in possession of the firearm. See United
States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005). The affidavits and unsworn
statement filed with his motion for a new trial tend to support, rather than
refute, the jury’s finding that Neuman possessed a firearm, and ample evidence
of such possession was introduced at trial. Neuman has not shown that his
substantial rights were affected. See Wall, 389 F.3d at 466. The district court’s
orders are AFFIRMED.




                                        3
