UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 00-4003

ARNOLD CHARLES CABARRIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-98-271)

Submitted: June 30, 2000

Decided: July 19, 2000

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

David L. Epperly, Jr., EPPERLY, FOLLIS & SCHORK, P.C., Rich-
mond, Virginia, for Appellant. Helen F. Fahey, United States Attor-
ney, James B. Comey, Assistant United States Attorney, Richmond,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Arnold Charles Cabarris* appeals the district court's denial of his
motion for a new trial based on newly discovered evidence following
his jury convictions for conspiracy to possess with the intent to dis-
tribute cocaine base and distribution of cocaine base. Finding no
abuse of discretion, we affirm.

Cabarris asserts newly discovered evidence demonstrates the key
government witness at his trial, Frantwand Lewis, is unworthy of
being believed and requires a new trial. This court applies a five-part
test in determining whether a Fed. R. Crim. P. 33 motion for new trial
based upon newly discovered evidence should be granted: "(i) is the
evidence, in fact, newly discovered; (ii) are facts alleged from which
the court may infer due diligence on the part of the movant; (iii) is
the evidence relied upon not merely cumulative or impeaching; (iv)
is the evidence material to the issues involved; and (v) would the evi-
dence probably result in acquittal at a new trial?" United States v.
Rhynes, 206 F.3d at 360 (4th Cir. 1999) (en banc), cert. denied, ___
U.S. ___, 2000 WL 622939, 622949, 626304 (U.S. June 5, 2000)
(Nos. 99-9386, 99-9393, 99-9458) (quoting United States v. Chavis,
880 F.2d 788, 792 (4th Cir. 1989)). Except in rare circumstances not
present in this case, this court generally requires the appellant to sat-
isfy all five elements before a new trial is awarded. See Rhynes, 206
F.3d at 360 (citation omitted). We review the denial of a motion for
new trial for abuse of discretion. See id.

Cabarris admits the newly discovered evidence in his case does not
meet all five Rhynes requirements, but asserts that his is a rare case
wherein the new evidence, which is of impeachment value only, dem-
onstrates Lewis is utterly unworthy of being believed. We agree with
the district court that, even if the newly discovered evidence were
admissible, Cabarris fails to satisfy the third and fifth elements of the
test, and his is not the "rare case" wherein a new trial should be
_________________________________________________________________
*We have maintained the spelling of Appellant's name as it appears
in the district court's docket and in his own appellate brief.

                     2
awarded based solely upon newly discovered impeachment evidence.
See Rhynes, 206 F.3d at 360.

Based on the foregoing, we find the district court did not abuse its
discretion when it denied Cabarris' motion for a new trial based on
newly discovered evidence. Accordingly, we affirm the denial of his
motion for new trial on the reasoning of the district court. See United
States v. Cabarris, No. CR-98-271 (E.D. Va. Dec. 16, 1999). We dis-
pense 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

                    3
4
