     Case: 17-10721      Document: 00514529754         Page: 1    Date Filed: 06/26/2018




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

                                    No. 17-10721                             FILED
                                  Summary Calendar                       June 26, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ATUL NANDA; JITEN JAY NANDA,

                                                 Defendants-Appellants


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CR-65-1
                             USDC No. 3:13-CR-65-2



Before DAVIS, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Atul Nanda and Jiten “Jay” Nanda (the Nandas) appeal the denial of
their motion for a new trial based on newly discovered evidence under Federal
Rule of Criminal Procedure 33. On direct appeal, we affirmed the Nandas’
convictions for crimes arising from a conspiracy to commit visa fraud. United
States v. Nanda, 867 F.3d 522, 525 (5th Cir. 2017), cert. denied, 2018 WL


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-10721     Document: 00514529754      Page: 2   Date Filed: 06/26/2018


                                  No. 17-10721

1317816 (Apr. 16, 2018) (No. 17-8114). The new-trial motion was filed while
the direct appeal was pending.
      We review the denial of a new-trial motion for abuse of discretion.
United States v. Pratt, 807 F.3d 641, 645 (5th Cir. 2015). “Questions of law are
reviewed de novo, but the district court’s findings of fact must be upheld unless
they are clearly erroneous.”      Id. (internal quotation marks and citation
omitted). Rule 33 motions are not favored. Id.
      The Nandas argue that the Government promised two testifying
codefendants that they would not be immediately deported and that the
promise was not revealed until sentencing, when the Government sought to
modify a restitution award to preclude the codefendants’ convictions from
qualifying as “aggravated felonies.”        The Nandas also assert that the
codefendants testified falsely, with the Government’s knowledge, that they had
not been promised a particular immigration result.
      The codefendants’ plea agreements stated that the Government could
not promise a particular immigration result. Moreover, prior to trial, the
Government accurately disclosed the intent of the agreements. Thus, the
district court did not clearly err by concluding that there was no undisclosed
promise. Further, the district court did not clearly err by finding that the
codefendants did not testify falsely as to their understanding of their plea
agreements, even if that understanding may have been incomplete in some
respects. See Pratt, 807 F.3d at 645; see also United States v. Dunnigan, 507
U.S. 87, 94 (1993); United States v. Simpson, 741 F.3d 539, 555 (5th Cir. 2014).
Finally, even were we to assume there was undisclosed impeachment evidence
or false testimony, there is no reasonable likelihood that it affected the verdict.
See United States v. Stanford, 823 F.3d 814, 838-39 (5th Cir. 2016).
      The judgment is AFFIRMED.



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