                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-2099
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                     CALVIN HICKS,

                                                            Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 2-11-cr-00289-001)
                       District Judge: Honorable Juan R. Sanchez
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 23, 2015

           Before: HARDIMAN, GREENAWAY, Jr. and KRAUSE, Circuit Judges

                                  (Filed: April 14, 2015)
                                      ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge

       Calvin Hicks appeals the District Court’s order denying his motion for a new trial.

We will affirm.

                                              I

       Around 4:30 a.m. on December 27, 2008, four men broke into the Tam family

residence. After rousing Mr. Tam, Mrs. Tam, and their two children from their slumber,

the intruders pistol-whipped Mr. Tam and forced him and his 13-year-old son to strip off

their clothes. They then herded the family into a bathroom. The intruders looted the

Tams’ restaurant on the first floor as well as their residence on the second and third

floors, making off with about $10,000 in cash and various items of personal property

including a ring, cigars, and the children’s iPod.

       In May 2011, Hicks was indicted for conspiracy to commit robbery in violation of

18 U.S.C. § 1951(a), robbery in violation of 18 U.S.C. § 1951(a), using and carrying a

firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c),

and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In

November 2011, a jury convicted Hicks on the first three counts and the District Court

found him guilty on the fourth. Hicks was sentenced to 168 months’ imprisonment.

       One of the witnesses against Hicks at trial, and the only one to provide direct

evidence that he was involved in the robbery, was co-conspirator William Cooper. As part

of his cooperation with the Government, Cooper participated in proffer sessions during

which he stated that Hicks had also robbed a different restaurant—the China Moon.
                                              2
Based on that information, the Government filed a motion to admit evidence pursuant to

Federal Rule of Evidence 404(b). Significantly for this appeal, the District Court denied

that motion.

       After Hicks was convicted of robbing the Tams, he learned that Cooper had lied

about the China Moon robbery. Claiming this was newly discovered evidence, Hicks

moved for a new trial in June 2013. The District Court first concluded that Hicks’s

motion was partly based on new evidence because, though Hicks must have known that

he didn’t rob the China Moon restaurant, he apparently did not know that Cooper did.

Next, assuming but not deciding that all of the evidence was newly discovered, the Court

determined that it could qualify as more than mere impeachment evidence. Nevertheless,

because the evidence at trial was sufficient to sustain Hicks’s conviction without

Cooper’s testimony, the Court denied his motion.1

                                              II

                                              A

       A defendant seeking a new trial under Federal Rule of Criminal Procedure 33 must

show five things:

       [1] the evidence must be in fact newly discovered, i.e. discovered since trial;
       [2] facts must be alleged from which the court may infer diligence on the part
       of the movant; [3] the evidence relied on must not be merely cumulative or
       impeaching; [4] it must be material to the issues involved; and [5] it must be
       such, and of such nature, as that, on a new trial, the newly discovered evidence
       would probably produce an acquittal.

       1
       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
                                              3
United States v. Quiles, 618 F.3d 383, 388–89 (3d Cir. 2010) (quoting United States v.

Saada, 212 F.3d 210, 216 (3d Cir. 2000)). Motions for a new trial “are not favored and

should be ‘granted sparingly and only in exceptional cases.’” United States v. Silveus, 542

F.3d 993, 1005 (3d Cir. 2008) (quoting Gov’t of the V.I. v. Derricks, 810 F.2d 50, 55 (3d

Cir. 1987)). “We review the denial of a motion for a new trial pursuant to Rule 33 for

abuse of discretion.” Id.

                                              B

        Hicks focuses on two aspects of Cooper’s mendacity: first, the Government’s

failed Rule 404(b) motion to admit evidence of the China Moon robbery and, second, that

Cooper purportedly perjured himself at trial because his plea agreement required him to

tell the truth.

        Even if we assume that Hicks satisfied the first four requirements for a new trial,

the District Court did not err when it held that he failed to satisfy the fifth requirement.

Hicks argues that Cooper’s testimony was the “very heart” of the Government’s case.

Hicks Br. 18. Although Cooper’s testimony was helpful to the Government’s case, it was

not necessary to obtain Hicks’s convictions, largely for the reasons stated by Judge

Sanchez in his thorough and well-reasoned opinion.

        A brief review of the evidence shows, as the District Court held, that Hicks would

have not probably been acquitted without Cooper’s testimony. Hicks’s cousin, Khalil

Gissendanner, testified that on the night of the robbery, Hicks, Cooper, and two others left

                                               4
Hicks’s home in Hicks’s Range Rover. Two neighbors of the Tams saw four men climb

down from the Tams’ residence and run off—two of whom entered a Range Rover that

circled the block and beeped.2 Hicks’s girlfriend, Nyoshi Gleaves, testified that Hicks was

in bed with her around one or two in the morning but not a few hours later, which was

about the time the robbery occurred. Gleaves also heard Hicks enter the house around the

time of the robbery, and, once upstairs, he rushed her to get ready to leave for work.

While going to work in the Range Rover, Hicks directed Gleaves to drive in and around

the area where the Tams lived. When Gleaves commented on the police in the area, Hicks

told her that, if asked, she should tell the police that they were going to Walgreens, even

though that was a lie.

       One of the neighbors saw the Range Rover and alerted police that it was the same

one he had seen leave the scene of the robbery, so the vehicle was stopped. Mrs. Tam

looked into the back of the vehicle and saw clothes worn by the burglars and boxes of the

same type of cigars taken during the robbery. Police subsequently searched Hicks and

Gleaves’s home and in a walk-in closet in the master bedroom found a black bag and a

red envelope with Chinese characters on it, both containing cash. Gleaves testified that

before they left home she saw Hicks come out of the walk-in closet in the master

bedroom. Mr. and Mrs. Tam testified that Mrs. Tam made the black bag and kept money

from the business in it. Mrs. Tam stated that the bag was stolen in the robbery and then


       2
        Cooper and one accomplice are the two who ran but did not get into the Range
Rover. They were stopped by the police a few blocks from the Tams’ apartment.
                                             5
identified it as her bag. The Tams also identified the red envelope found in Hicks’s home

as theirs.

       In sum, circumstantial evidence (1) puts Hicks in the vehicle used in the robbery

(2) with the people who committed the robbery (3) around the time the robbery was

committed—(4) with corroborating evidence that he was not home at the time of the

robbery. The record also shows that (5) Hicks was in the closet where the stolen loot was

found and that (6) he directed Gleaves to go to the scene of the robbery (7) while stolen

merchandise and clothes used in the crime were in the backseat of his vehicle. In light of

this overwhelming circumstantial evidence, we perceive no error in the District Court’s

conclusion that the newly discovered evidence would not probably have resulted in an

acquittal.

                                            III

       After reviewing the record, we conclude that the District Court did not abuse its

discretion when it denied Hicks’s motion for a new trial under Rule 33. Accordingly, we

will affirm.




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