                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-8165


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MARK JAMES KONSAVICH,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:05-cr-00019-gec-1)


Submitted:    April 9, 2009                 Decided:   April 21, 2009


Before TRAXLER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark James Konsavich, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

             Mark       James     Konsavich       appeals      the    district       court’s

order denying his Fed. R. Crim. P. 33 motion for a new trial.

We have reviewed the record and find the district court did not

abuse its discretion in denying the motion.                           United States v.

Smith, 451 F.3d 209, 216 (4th Cir. 2006) (stating standard of

review).      In        order    to   warrant     a     new   trial    based     on    newly

discovered    evidence,           a   defendant       must    show    that:      (1)    the

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

diligence;        (3)     the     evidence    is      not     merely    cumulative       or

impeaching; (4) the evidence is material; and (5) the evidence

would probably result in an acquittal at a new trial.                                 United

States v. Lofton, 233 F.3d 313 (4th Cir. 2000).                                Unless the

defendant demonstrates all five of these factors, the motion

should be denied.               United States v. Chavis, 880 F.2d 788, 793

(4th Cir. 1989).           Konsavich failed to show the newly discovered

evidence would probably result in an acquittal at a new trial.

             Accordingly, we affirm the district court’s order.                          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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