                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-3329
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the Southern
Warren Allen Dittrich,                  * District of Iowa.
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: January 12, 2000

                                  Filed: February 23, 2000
                                   ___________

Before BOWMAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                          ___________

FLOYD R. GIBSON, Circuit Judge.

      Warren Dittrich appeals from the district court's1 order denying his motion for
a new trial. We affirm.

I.    BACKGROUND




      1
       The HONORABLE CHARLES R. WOLLE, United States District Judge for
the Southern District of Iowa.
              On April 28, 1995, a man entered the Jubilee Foods grocery store in
Council Bluffs, Iowa and approached the service counter. A sign above the service
counter identified the store as a United States Postal Substation. The man pulled a gun
and demanded money. The grocery clerk complied and gave him cash and three postal
money orders. The postal money orders were "bait" money orders, that is, money
orders which are specially marked to aid in apprehending thieves. Postal employees
are instructed to give the "bait" money orders to the perpetrator in the event of a postal
robbery. Dittrich was arrested within days after the robbery after causing the postal
money orders to be cashed.

      On February 1, 1996, a jury found Dittrich guilty of armed robbery of a United
States Postal Substation, in violation of 18 U.S.C. § 2114(a) (1994).2 He was
sentenced to life imprisonment pursuant to 18 U.S.C. § 3559(c). Dittrich appealed and
a panel of this Court affirmed his conviction. See United States v. Dittrich, 100 F.3d
84 (8th Cir. 1996).

       On March 31, 1998, Dittrich filed a motion with the district court for a new trial
based on newly discovered evidence pursuant to Rule 33 of the Federal Rules of
Criminal Procedure. The district court denied the motion and Dittrich appeals. Dittrich
argues, in support of his motion, that the prosecution failed to establish an essential
element of the crime and withheld material and exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963). After careful review, we find these contentions
to be without merit.

II.   DISCUSSION



      2
        18 U.S.C. § 2114(a) prohibits the assault or robbery of "any person having
lawful charge, control, or custody of any mail matter or of any money or other property
of the United States."

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      We review the district court's denial of a motion for a new trial based on newly
discovered evidence for an abuse of discretion. See United States v. Womack, 191
F.3d 879, 885 (8th Cir. 1999). A new trial will be granted based on newly discovered
evidence only if the following five elements are met:

      1) the evidence must have been discovered after the trial; 2) the failure to
      discover must not be attributable to a lack of due diligence on the part of
      the movant; 3) the evidence must not be merely cumulative or
      impeaching; 4) the evidence must be material; and 5) the evidence must
      be likely to produce an acquittal if a new trial is granted.

United States v. Ryan, 153 F.3d 708, 713 (8th Cir. 1998).



       Dittrich argues that the prosecution failed to establish an essential element of the
crime, i.e., that the victim of the robbery was a "person in lawful charge, control or
custody" of United States property. Dittrich bases this contention on the status of the
contract between the Postal Service and Jubilee Foods which established the latter as
a United States Postal Substation. Dittrich maintains that Jubilee's contract with the
Postal Service had expired at the time of the robbery, thereby precluding the robbery
victim from being a "person in lawful charge, control, or custody" of property of the
United States for purposes of applying the statute. Dittrich argues that his post-trial
discovery of the expired contract constitutes new evidence which entitles him to a new
trial. We disagree.

       Although factual circumstances have rarely arisen in which we are called upon
to determine the meaning of "lawful charge, control, or custody" in the context of 18
U.S.C. § 2114(a), the issue is not one of first impression before this Court. See
Lockhart v. United States, 293 F.2d 314 (8th Cir. 1961) (holding that theft of United
States' funds from Post Office Contract Station clerk at 5:15 p.m. satisfied "lawful
charge, control, or custody" element of statute even though contract between

                                           –3–
government and robbery victim required conduct of postal matters between the hours
of 10:00 a.m. and 5:00 p.m.); Randazzo v. United States, 300 F. 794 (8th Cir. 1924)
(holding that theft of mailbags from postmaster's son who was transporting mail
satisfies "lawful charge, control, or custody" element of statute). Previous panels of
this court have agreed that the words "lawful charge, control, or custody" should be
given their ordinary meaning and significance. See Lockhart, 293 F.2d at 316;
Randazzo, 300 F. at 796 (stating that "[i]f [the victim] had stolen [United States'
property], and thereafter had been by defendants robbed of it, there might arise some
question as to the jurisdiction of a federal court . . . , for in such case [the victim's]
custody would have been unlawful and not lawful.")3 This logic applies equally today.
Giving the phrase "person in lawful charge, control, or custody" its ordinary meaning,
we have no difficulty finding the phrase applicable to the victim in this case.

       The Council Bluffs' Postmaster testified at Dittrich's trial that, at the time of the
robbery, Jubilee Foods operated a United States Postal Substation under the authority
of the Postal Service. A sign on the wall behind the service counter identified Jubilee
Foods as a Postal Substation. Furthermore, the government maintains that the contract
between Jubilee Foods and the Postal Service was valid. As the Lockhart court stated,
"the robbery offense is . . . committed by a taking from the victim's . . . possession .
. . the mail matter, money or other property of the Government [which] is subject to
his control." Lockhart, 293 F.2d at 316. The victim of this crime gave an armed man
property of the United States Postal Service when threatened with a gun. Irrespective
of the status of the contract between Jubilee Foods and the Postal Service, she was a
person with lawful charge, control, or custody of the postal money orders for the
purpose of charging Dittrich with violating § 2114(a).




       3
        The Randazzo court was applying the predecessor of 18 U.S.C. § 2114, § 197
of the Penal Code, 35 Stat. 1126 (1909).

                                           –4–
        Consequently, Dittrich has failed to satisfy the fourth and fifth elements
necessary to justify a new trial: that the newly discovered evidence be material and
likely to produce an acquittal. The status of the contract, even if expired, is immaterial
to Dittrich's guilt. Accordingly, the district court did not abuse its discretion in denying
Dittrich's motion.

        Our disposition of Dittrich's motion for a new trial based on newly discovered
evidence informs our consideration of his Brady motion. Denials of motions for new
trials based on alleged Brady violations are reviewed under the abuse of discretion
standard. See Ryan 153 F.3d at 711. A defendant establishes a Brady violation by
demonstrating: 1) that the government suppressed evidence; 2) that the evidence was
exculpatory; and 3) that the evidence was material either to guilt or punishment. Id.
For Brady purposes, evidence is material when a "reasonable probability exists that,
had the evidence been disclosed to the defense, the result of the proceeding would have
been different." Lingle v. Iowa, 195 F.3d 1023, 1026 (8th Cir. 1999) (quotations
omitted). As stated above, we find the status of the contract between the Postal Service
and Jubilee Foods immaterial to Dittrich's guilt or punishment and therefore insufficient
to satisfy the requirements of a new trial based on alleged Brady violations.4 The
district court did not abuse its discretion in denying Dittrich's motion based on this
issue.

       Dittrich's remaining arguments lack merit and do not warrant further discussion.

III.   CONCLUSION

        For the foregoing reasons, the district court's decision denying Dittrich's motion
for a new trial based on newly discovered evidence and Brady violations is affirmed.


       4
     Finding this, we also deny Dittrich's corollary motion for the production of
documents.

                                           –5–
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   –6–
