[T][U] United States v. Kauwe

MEMORANDUM* Patten George Kauwe, Jr. appeals the district court's denial of his motion for a new trial based on newly discovered evidence. He contends that evidence of an indictment and on-going criminal investigation of a police officer who testified at Kauwe's suppression hearing and trial constitutes newly discovered evidence requiring a new trial. We reject this contention and affirm. In order to obtain a new trial Kauwe is required to show that ""(1) the evidence is newly discovered and was unknown to [him] at the time of trial, (2) the evidence is material, not merely cumulative or impeaching, (3) the evidence will probably produce an acquittal, and (4) failure to learn of the evidence sooner was not due to a lack of diligence."" United States v. Joelson, 7 F.3d 174, 178 (9th Cir.), cert. denied, 114 S. Ct. 620 (1993). The district court correctly found that Kauwe failed to satisfy the first three factors.