*Pursuant to 5

TH CIR. R. 47.5, the Court has determined that this opinion should not

be published and is not precedent except underthe limited circumstancessetforth in 5

TH

CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 97-50835 & 98-50364

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAID RUSHDI DARWISH, also

known as Sean Darwish,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(SA-96-CR-355-1)

February 11, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

POLITZ, Circuit Judge:*

Said Rushdi Darwish, also known as Sean Darwish, was convicted of

maliciously destroying, by means of fire, a store used in interstate commerce in

violation of 18 U.S.C. § 844(i). Darwish contends that the evidence was

insufficient to support his conviction. In these consolidated appeals he

challenges his conviction, the district court’s denial of his motion for a new trial,

and itsrefusal to hold a hearing thereon. For the reasons assigned, we affirm the
 

1 United States v. Pankhurst, 118 F.3d 345 (5th Cir.), cert. denied, 118 S.Ct. 630

(1997).

2

judgments appealed.

Darwish moved for judgment of acquittal at the close of the government’s

case and at the close of evidence; we therefore review the evidence in the light

most favorable to the verdict, inquiring whether a rational jury could have found

that the evidence established guilt beyond a reasonable doubt.1 Darwish

specifically challenges the sufficiency of the evidence with respect to his intent

to commit the crime. Our review of the record persuades that the evidence of

intent wassufficient. We note merely a portion thereof. The arson investigators

eliminated possible accidental causes of the fire, finding a “pour pattern” of

accelerant weaving throughout the store. Despite previously admonishing one

of his employees for bringing a gas can into the store, Darwish brought a new,

full, five-gallon gas can into the store the day before the incident. The clothing

that he wore on the night of the fire tested positive for gasoline. He suffered

burns that night and admitted being at the scene shortly before one of two

explosionsthat consumed the store in flames. When questioned by officers and

medical personnel, Darwish offered several, conflicting versions about the origin

of the fire. He had increased the insurance coverage on the store shortly before

the fire. Store employees testified that the business was struggling financially.

Just before the fire, Darwish removed some of his personal belongingsfrom the

store and urged a friend to remove items that the friend had stored there. We

conclude that the foregoing evidence wassufficient to support the jury’s verdict.
 

2 Brady v. Maryland, 373 U.S. 83 (1963).

 

3 United States v. Parker, 586 F.2d 422 (5th Cir. 1978).

 

4 United States v. Antone, 603 F.2d 566 (5th Cir. 1979).

 

5

Id.

3

There was other supportive evidence.

Darwish moved for a new trial, claiming newly discovered evidence and

a Brady2violation for failure to disclose same, doing so after he had filed his

notice of appeal. The motion was denied by the trial court. Rule 33 of the

Federal Rules of Criminal Procedure allows a district court to grant a motion for

a new trial based upon newly discovered evidence when an appeal is pending,

but only after remand of the case. Circuit precedent, however, permits the

district court to deny such a motion without remand while the appeal is pending.3

We review the denial of a motion for a new trial for abuse of discretion.4 To

prevail on a Rule 33 motion, the defendant must show, inter alia, that the

evidence truly is newly discovered and was unknown to the defendant at the

time of the trial.5

Darwish contendsthat newly discovered evidence underminesthe verdict.

This proffered evidence was, contrary to the government’s contentions, that:

(a) his car was parked in front of the store, not hidden behind it; (b) the cigarette

lighter that was later found in his vehicle on the night of the incident was not

used to start the fire; (c) he left the scene several minutes prior to the explosion

that consumed his store; and (d) he did not travel the wrong way down a one-
 

6 Castillo v. Johnson, 141 F.3d 218, 223 (5th Cir.)(“UnderBrady, the prosecution has

no obligation to produce evidence or information already known to the defendant

. . . .”), cert. denied, 119 S.Ct. 28 (1998).

 

7 United States v. MMR Corp., 954 F.2d 1040, 1046 (5th Cir. 1992) (“the acumen

gained by the trial judge in presiding overthe course of the trial makesRule 33 motions

directed to the same judge particularly suitable for ruling without a hearing”) (internal

quotes omitted).

4

way street while leaving the scene. These and the other asserted “newly

discovered” facts, however, were known to the defendant at the time of trial. By

definition, they were not “newly discovered.” Darwish’s Brady claim fails for

the same reason.6

Finally, Darwish complains that there was no hearing on his motion for a

new trial. None was required.7

The conviction is AFFIRMED; the ruling on the motion for new trial is

likewise AFFIRMED.