United States v. Washington

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30907

Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

BETTY L. WASHINGTON, Defendant-Appellant.

Appeal from the United States District Court For the Eastern District of Louisiana USDC No. 97-CR-302-ALL-B

June 22, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Betty Washington appeals the denial of her motion for new

trial based upon newly discovered evidence.1 Washington challenges

her conviction for bankruptcy fraud, arguing that "newly discovered

evidence" destroyed the credibility of one of the Government's

witnesses. We are unpersuaded and now affirm.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 See Fed. R. Crim. P. 33 (2001). This Court reviews the denial of a motion for new trial for

abuse of discretion.2 To receive a new trial on the basis of newly

discovered evidence, Washington must prove that (1) the evidence

is newly discovered and was unknown to her at the time of trial;

(2) failure to detect the evidence was not due to a lack of

diligence on her part; (3) the evidence is not merely cumulative or

impeaching; (4) the evidence is material; and (5) the evidence

introduced at a new trial would probably produce an acquittal.3 A

motion for new trial must be denied if all parts of this test are

not satisfied.4

After a careful review of the applicable law and appellate

record, we find that the district court's ruling was not an abuse

of discretion.5

AFFIRMED.

2 See United States v. Sanchez-Sotelo, 8 F.3d 202, 212 (5th Cir. 1993). 3 See United States v. Jaramillo, 42 F.3d 920, 924-25 (5th Cir. 1995). 4 See id. 5 See id.