     Case: 09-60383     Document: 00511084590          Page: 1    Date Filed: 04/19/2010




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

                                                  FILED
                                                                            April 19, 2010
                                     No. 09-60383
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RICHARD MOORE,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:05-CR-18-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Richard Moore, federal prisoner # 12153-042, was convicted of possession
of child pornography and now appeals the denial of his new-trial motion based
on newly discovered evidence. He also moves for the appointment of counsel and
to expedite his appeal or, in the alternative, for bail pending appeal. Moore
argues that he is entitled to a new trial based on the recently obtained affidavit
testimony and alleged confession of Sophian Blanc. We review the district
court’s ruling for an abuse of discretion. See United States v. Holmes, 406 F.3d

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-60383

337, 359 (5th Cir. 2005). To be entitled to a new trial on the basis of newly-
discovered evidence, Moore must show: “(1) the evidence is newly discovered and
was unknown to him at the time of trial; (2) the failure to discover the evidence
was not due to his lack of diligence; (3) the evidence is not merely cumulative or
impeaching, but is material; and (4) the evidence would probably produce an
acquittal.” Id.
      For the first time on appeal, Moore has adduced a letter purportedly
written by Blanc, which Moore construes as a confession to the offense for which
Moore was convicted. However, we “may not consider new evidence furnished
for the first time on appeal and may not consider facts which were not before the
[court below] at the time of the challenged ruling.” Theriot v. Parish of Jefferson,
185 F.3d 477, 491 n.26 (5th Cir. 1999).          That evidence is therefore not
considered.
      The only “new evidence” properly before this court is Blanc’s affidavit, in
which Blanc states that another foreign exchange student, Holger Setzer, viewed
and downloaded the images of child pornography on Moore’s computer. Our
review of the trial record reveals that Blanc’s affidavit testimony is cumulative
of defense witness testimony suggesting that the images on Moore’s computer
were viewed and downloaded by Setzer. Justin Peters, a friend of Blanc and
Setzer, testified that he witnessed Setzer access pornographic websites featuring
images of “underage girls” on Moore’s computer. Peters further testified that
Setzer digitally created one of the images of child pornography introduced at
trial by the Government.     Another defense witness, Elbert Hudson, testified
that he witnessed Setzer visit pornographic websites of all types: “girls, guys,
young, old.” Moore points to nothing unique about Blanc’s knowledge that might
be different from the eyewitnesses to Setzer’s conduct who did testify. In short,
Blanc’s affidavit testimony duplicates testimony already introduced to—and
rejected by—the jury. As such, Moore has not shown that he was entitled to a
new trial on the basis of newly-discovered evidence. See Holmes, 406 F.3d at

                                         2
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                                   No. 09-60383

359. Consequently, the district court’s ruling was not an abuse of discretion. See
id.
         AFFIRMED; MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR
EXPEDITED APPEAL OR, ALTERNATIVELY, BAIL PENDING APPEAL
DENIED.




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