CLD-401                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 13-2522
                                   ___________

                        UNITED STATES OF AMERICA

                                         v.

                             KENNETH MITAN
                                   a/k/a
                                JOHN HILL
                                   a/k/a
                     POLICE OFFICER SGT. JOHN MILLER
                                   a/k/a
                             JOHN THOMPSON
                                   a/k/a
                               JOHN ADAMS

                                   Kenneth Mitan,
                                             Appellant
                    ____________________________________

                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                      (D.C. Criminal No. 2-08-cr-00760-001)
                  District Judge: Honorable Michael M. Baylson
                   ____________________________________

  Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                August 22, 2013

           Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                        (Opinion filed: September 13, 2013 )
                                        _________

                                        OPINION
                                        _________


PER CURIAM

       Kenneth Mitan was convicted following a jury trial in the United States District

Court for the Eastern District of Pennsylvania of mail fraud, wire fraud, conspiracy, and

using a fictitious name in the course of fraud. He was sentenced to 262 months in prison.

We affirmed on direct appeal. United States v. Mitan, 499 F. App’x 187 (3d Cir. 2012).

Mitan filed a pro se post-trial motion in the District Court pursuant to Fed. R. Crim. P.

45(b)(1)(A), seeking an extension of time to file a motion for a new trial under Fed. R.

Crim. P. 33. On March 19, 2013, the District Court denied the Rule 45 motion. Mitan

timely moved for reconsideration, which the District Court denied on May 8, 2013.

Mitan filed a timely notice of appeal from the order denying reconsideration.

       We have jurisdiction under 28 U.S.C. § 1291 with respect to both the District

Court’s March 19, 2013 order denying Mitan’s motion for an extension of time and its

May 8, 2013 order denying reconsideration. See United States v. Dieter, 429 U.S. 6, 8

(1976). We review both orders for an abuse of discretion. See Ramseur v. Beyer, 921

F.2d 504, 506 (3d Cir. 1990) (motion to extend time); Max’s Seafood Cafe ex rel. Lou-

Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999) (motion for reconsideration).

       We will summarily affirm the District Court’s orders because we conclude that the

Court did not abuse its discretion by finding that Mitan did not make the requisite

showing of “good cause” to extend the deadline for filing a motion under Rule 33. See



                                           2
Fed. R. Crim. P. 45(b)(1)(A). We agree with the District Court that Mitan’s alleged

“newly discovered evidence,” which consists of approximately 100 boxes of documents

seized by the Government from one of Mitan’s homes in 2009, were not in fact newly

discovered. The record reflects that Mitan knew about the seizure of the boxes before

trial and declined, on the record, opportunities to review them or make use of them

during trial. See United States v. Cimera, 459 F.3d 452, 461 (3d Cir. 2006) (citing

United States v. Bujese, 371 F.2d 120, 125 (3d Cir. 1967) (explaining that evidence is not

“newly discovered” when it was known or could have been known through the exercise

of diligence on the part of the defendant or his counsel)). We further note that Mitan

failed to discuss the content of the boxes on direct appeal.

       Accordingly, we will affirm the District Court’s orders.




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