ALD-222                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2064
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                  RICHARD CORBIN,
                                    a/k/a RASHEED,
                                      a/k/a SHEED,
                          a/k/a RICHARD RASHEED CORBIN

                                   Richard Corbin,
                                            Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (D.C. Crim. No. 2-10-cr-00352-002)
                     District Judge: Honorable Michael M. Baylson
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     May 28, 2015

             Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges

                              (Opinion filed: June 22, 2015)
                                       _________

                                        OPINION*
                                        _________


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Richard Corbin appeals the District Court’s order denying his motion for a new

trial. For the reasons below, we will summarily affirm the District Court’s order.

       In June 2011, Corbin was convicted of several counts of robbery, drug trafficking,

and using firearms during a crime of violence. He was subsequently sentenced to 1284

months in prison. He filed a pro se notice of appeal, and we affirmed his conviction and

sentence in April 2015. See C.A. No. 11-2767. In February 2014, while his appeal was

pending, Corbin filed a pro se motion for a new trial pursuant to Fed. R. Crim. P. 33. The

Government argued that the motion should be dismissed because Corbin’s direct appeal

was pending. Instead, the District Court denied the motion as untimely, and Corbin filed

a notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291, and we review the District Court’s

order for an abuse of discretion. United States v. Brennan, 326 F.3d 176, 189 (3d Cir.

2003). Rule 33 allows for a motion for a new trial to be filed within three years of a

verdict if based on newly discovered evidence or within fourteen days if based on any

other reason. Fed. R. Crim. P. 33(b). We may affirm a correct decision by the District

Court even if it is based on an inappropriate ground. United States v. Jasin, 280 F.3d

355, 362 (3d Cir. 2002).

       Corbin argues that his motion is based on newly discovered evidence. The test we

apply to determine whether to grant a new trial based on newly discovered evidence has

five parts:
                                             2
       (a) the evidence must be[,] in fact, newly discovered, i.e., discovered since trial;
       (b) facts must be alleged from which the court may infer diligence on the part of
       the movant; (c) 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 would
       probably produce an acquittal.

Id. at 361 (alterations in original) (quoting United States v. Iannelli, 528 F.2d 1290, 1292

(3d Cir. 1976)). If one of these requirements is not met, the motion fails. Id. at 365.

       Corbin bases his Rule 33 motion on an affidavit from a codefendant, Jamil Lloyd.

In a statement to police, Lloyd had admitted to the armed robberies of two pharmacies,

both with Corbin. Lloyd also told the FBI that Corbin bragged about other pharmacy

robberies. Before the grand jury, Lloyd gave detailed testimony of how he and Corbin

had robbed the two pharmacies. Lloyd was going to testify against Corbin at trial but

then invoked his Fifth Amendment rights against self-incrimination after stating that his

prior statements were false.

       Corbin asserted in his Rule 33 motion that Lloyd has provided him with a four-

page exculpatory affidavit. In the affidavit, Lloyd admitted that he participated in the

robbery of one pharmacy but never robbed any pharmacies with Corbin. Lloyd also

stated that law enforcement officials threatened him and fed him the answers they wanted

when they questioned him.

       As noted above, the first question is whether the evidence is newly discovered.

Corbin admits that he knew about the evidence on the first two pages of Lloyd’s affidavit




                                             3
before trial1 but contends that he did not know of the evidence on the third and fourth

pages. On those last two pages of the affidavit, Lloyd alleges that law enforcement

officials threatened him into giving a false statement against Corbin.

       We will limit our analysis to the evidence on the third and fourth pages of the

affidavit and assume arguendo that the evidence is newly discovered and Corbin was

diligent. However, evidence that law enforcement coerced a statement from Lloyd would

not be material since Lloyd did not testify. Moreover, Corbin has not shown that Lloyd’s

proposed testimony would probably produce an acquittal. Lloyd did not testify against

Corbin at trial, and Corbin was convicted based on the other evidence against him.

Evidence of a coerced statement by a non-testifying codefendant would not change this

result.2 Thus, Corbin’s motion for a new trial fails because it does not meet several of the

requirements for such motions.

       Although we affirm for different reasons, the District Court did not abuse its

discretion in denying Corbin’s Rule 33 motion. Summary action is appropriate if there is


1
  We agree. While he gave inculpatory testimony against Corbin at the grand jury, at trial
Lloyd stated that his prior statements were false before invoking his Fifth Amendment
privilege. Thus, Corbin knew at the time of trial that Lloyd would disavow his previous
testimony. See also Jasin, 280 F.3d at 368 (“a codefendant’s testimony known to the
defendant at the time of trial cannot be considered ‘newly discovered evidence’ under
Rule 33, regardless of the codefendant’s unavailability during trial because of invocation
of his Fifth Amendment privilege.”)
2
  Even considering the entirety of Lloyd’s affidavit, Corbin has not shown he would be
acquitted. Lloyd’s purportedly exculpatory testimony would be undermined and likely
outweighed by his inculpatory testimony at the grand jury and his statement to law
enforcement, both of which could be used to impeach him if he testified. See Fed. R.
Evid. 613.
                                             4
no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the

above reasons, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.




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