                                UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                No. 04-4070



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

             versus


N’FAMARA SYLLA, a/k/a Famara Sylla, a/k/a
Camara A. Sidiki, a/k/a Mohamed Cheriff, a/k/a
Diaby Mohmed, a/k/a Syalla N. Famara, a/k/a
Diaby Mohamed, a/k/a Mohamed Diaby, a/k/a
Sylla Nfamara,

                                                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CR-03-6)


Submitted:    August 27, 2004                 Decided:   December 8, 2004


Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Douglas Fredericks, Virginia Beach, Virginia, for Appellant. Paul
J. McNulty, United States Attorney, Michael J. Elston, Howard J.
Zlotnick, Assistant United States Attorneys, Newport News,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           N’Famara Sylla appeals his conviction and sentence for

bank fraud, in violation of 18 U.S.C. §§ 344, 2 (2000), conspiracy

to commit bank fraud, in violation of 18 U.S.C. § 371 (2000), and

money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(I), 2

(2000).

           Sylla   contends   that   the   district   court   abused   its

discretion by denying his motion to continue the trial to allow him

time to obtain evidence that he was incarcerated in New York at the

time the Government alleged he was in Virginia committing bank

fraud.    This court reviews denials of continuance motions only to

determine whether the district court abused its broad discretion

and whether that abuse prejudiced the movant.          United States v.

Bakker, 925 F.2d 728, 735 (4th Cir. 1991).             The     denial of

continuance is an abuse of discretion only if the denial is “an

unreasoning and arbitrary ‘insistence upon expeditiousness in the

face of a justifiable request for delay.’”       Morris v. Slappy, 461

U.S. 1, 11-12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589

(1964)). In denying Sylla’s motion for a continuance, the district

court noted that Sylla had approximately ten months, from the date

of the indictment until trial, to develop and present an alibi

defense, yet counsel waited until the day of trial to assert an

alibi defense.     Additionally, the court noted that the Government

presented a verified computer printout of Sylla’s incarceration


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record showing that he was not placed in custody until two months

after the bank fraud offenses occurred.      We conclude that this

reasoning was not an arbitrary insistence upon expeditiousness in

the face of a justifiable request for delay.    Morris, 461 U.S. at

11-12.   Accordingly, we find that the district court did not abuse

its discretion in denying Sylla’s motion to continue the trial.

Bakker, 925 F.2d at 735.

           Sylla also contends that the district court abused its

discretion by denying his motion for a new trial based on the same

alibi evidence.    The district court’s denial of a motion for a new

trial is reviewed for abuse of discretion.        United States v.

Stokes, 261 F.3d 496, 502 (4th Cir. 2001).      A new trial will be

granted under the following circumstances: (1) intervening changes

in the law; (2) new evidence not available at trial; and (3) to

correct a clear error of law or prevent a miscarriage of justice.

See EEOC v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110,

112 (4th Cir. 1997).       After careful review of the record, we

conclude that Sylla’s motion for a new trial did not meet any of

these conditions. Accordingly, we conclude that the district court

did not abuse its discretion in denying Sylla’s motion.     Stokes,

261 F.3d at 502.

           Finally, Sylla contends that the district court erred by

denying his request, at sentencing, for a subpoena duces tecum

pursuant to Fed. R. Crim. P. 17.   The grant or denial of a request


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for subpoenas under Rule 17(b) is vested in the sound discretion of

the trial judge, and the denial of such is not tantamount to a

denial of rights guaranteed by the Sixth Amendment.    United States

v. Sellers, 520 F.2d 1281 (4th Cir. 1975).   As a threshold matter,

an indigent party seeking a Rule 17(b) subpoena must allege facts

that, if true, demonstrate "the necessity of the requested witness'

testimony."   The trial court may then exercise its discretion to

deny the subpoenas if the Government demonstrates that the movant's

averments are untrue, or if the requested testimony would be merely

cumulative or irrelevant.    United States v. Webster, 750 F.2d 307,

329-30 (5th Cir. 1984).     Sylla requested that the district court

issue a subpoena compelling the New York Adolescent Reception

Detention Center to produce a certified document showing that Sylla

was incarcerated at the time of the instant offense.   In response,

the Government produced compelling evidence demonstrating that

Sylla was not incarcerated at the time of the offense, so his alibi

defense was not supportable.    Accordingly, the district court did

not abuse its discretion by denying the motion for a subpoena.

Webster, 750 F.2d at 329-30; Sellers, 520 F.2d at 1281.

          For the foregoing reasons, we affirm Sylla’s conviction

and sentence. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

                                                           AFFIRMED


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