                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-7930


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CHRISTOPHER C. MOORE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.        James P. Jones,
District Judge. (2:11-cr-00004-JPJ-1; 2:13-cv-80654-JPJ-RSB)


Submitted:   April 29, 2014                   Decided:   May 22, 2014


Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher C. Moore, Appellant Pro Se. Zachary T. Lee,
Assistant United States Attorney, Abingdon, Virginia; Kartic
Padmanabhan, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Christopher             C.   Moore       appeals   the   district          court’s

order denying his motion for a new trial pursuant to Fed. R.

Crim.    P.       33,    and     its   order      denying    reconsideration             of   that

order.    For the reasons that follow, we affirm.

              We        review    a    district        court’s   denial     of     a     Rule    33

motion for abuse of discretion.                        United States v. Robinson, 627

F.3d 941, 948 (4th Cir. 2010).                         Rule 33 permits the court to

vacate    a       criminal       judgment       and     grant    a   new     trial       on     the

defendant’s motion “if the interest of justice so requires.”

Fed. R. Crim. P. 33(a).                    To establish his entitlement to a new

trial based on newly-discovered evidence, * the defendant must

satisfy       a    five-prong          test    by      demonstrating        that       “(1)     the

evidence is newly discovered; (2) the defendant exercised due

diligence;         (3)    the     newly       discovered     evidence       is     not    merely

cumulative         or    impeaching;        (4)     the   evidence     is    material;          and

(5) the evidence would probably result in acquittal at a new

trial.”       United States v. Moore, 709 F.3d 287, 292 (4th Cir.

2013).

     *
       Moore does not assign error to the district court’s
construction of his motion as one seeking relief based on
newly-discovered evidence.  Insofar as Moore’s motion sought a
new trial on other grounds, it was properly denied as untimely.
See Fed. R. Crim. P. 33(b)(2) (requiring motion for new trial
not based on newly-discovered evidence to be filed within
fourteen days of verdict).


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              Moore’s      Rule      33    motion         primarily     relied    upon    a

December 3, 2009, investigatory memorandum, which states that

Moore invoked his right to counsel when officers attempted to

interview him following the incident that formed the basis for

his    conviction.         In     some     circumstances,          of   course,    further

custodial interrogation by government agents after an invocation

of the right to counsel constitutes a Fifth Amendment violation.

See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (holding

that, when suspect invokes right to counsel during custodial

interrogation,       he     may      not    be       questioned       further    until   he

reinitiates later discussions with police and waives right to

counsel).         However,        even     if       the    district     court    erred   in

concluding that Moore could not meet the Rule 33 requirements of

materiality and a likely effect on the verdict, Moore failed to

make the requisite showing for a new trial because he has not

demonstrated that the December 3 report was newly discovered.

To the contrary, the record shows that the Government attached

the report to a pretrial pleading to which Moore’s trial counsel

had access.        See United States v. Fulcher, 250 F.3d 244, 250

(4th   Cir.    2001)      (recognizing          that      “newly   discovered     evidence

means evidence discovered since the trial” (internal quotation

marks and citation omitted)).                       Moreover, because Moore should

have been aware of the factual predicate of his claim at the

time   of   his   trial,        he   cannot      demonstrate       that   he    diligently

                                                3
pursued his claim.           Our review of the record indicates that

Moore’s motion failed to make the requisite showing to obtain

relief under Rule 33 on any basis, and thus the district court

did not abuse its discretion in denying the motion.

           Turning          to    Moore’s        subsequent       motion        for

reconsideration, motions for reconsideration of final judgments

or orders in criminal cases are not authorized by either statute

or   the   Federal    Rules      of   Criminal    Procedure.          See     United

States v. Breit, 754 F.2d 526, 530 (4th Cir. 1985).                   Because the

court lacked authority to grant reconsideration of its order

denying a new trial, its denial of the motion was not error.

           Accordingly, we affirm both the district court’s order

denying a new trial and its order denying reconsideration.                       We

dispense    with     oral    argument    because       the    facts   and     legal

contentions   are    adequately       presented   in    the   materials       before

this court and argument would not aid the decisional process.



                                                                            AFFIRMED




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