UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6640

OBED HOYTE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

Henry C. Morgan, Jr., District Judge, sitting by designation.

(CR-93-10)

Submitted: June 30, 1997

Decided: September 30, 1997

Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Obed Hoyte, Appellant Pro Se. Ruth Elizabeth Plagenhoef, Assistant

United States Attorney, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Obed Hoyte appeals from the district court's denial of his motion

for a new trial under Fed. R. Crim. P. 33 based on newly discovered

evidence.1 We affirm the district court's denial of the Rule 33 motion,

however, not because it was time-barred but on modified grounds that

Hoyte failed to demonstrate he was entitled to a new trial.

Hoyte and his co-defendants were convicted under 21 U.S.C.

§ 846, 18 U.S.C. §§ 2, 924(c), and§ 1959(a)(1) (1994), for conspiracy

to distribute and distribution of cocaine base, use of a firearm, and

murder for the purpose of improving or maintaining their positions in

a RICO enterprise. Hoyte was sentenced by the district court on

March 24, 1994, and filed a timely appeal to this Court. The mandate

of this Court affirming Hoyte's conviction and sentence issued on

June 12, 1995. See United States v. Hoyte, 51 F.3d 1239 (4th Cir.

1995). On October 22, 1996, Hoyte filed a motion for a new trial

based upon newly discovered evidence pursuant to Fed. R. Crim. P.

33 pro se.

The basis on which the district judge denied Hoyte's Rule 33

motion was that it was filed beyond the two-year period set forth in

Rule 33 and thus time-barred. In calculating the time period, the district judge failed to consider the time Hoyte's case was pending on

appeal, but rather measured the time period from the date the court

entered Hoyte's sentence. On appeal in a criminal case, the two-year

period for a new trial motion on grounds of newly discovered evidence runs from the date the mandate issued on appeal, that is, it runs

two years from final judgment following exhaustion of appellate remedies. United States v. Reyes, 49 F.3d 63, 65-66 (2d Cir. 1995);

United States v. Cook, 705 F.2d 350, 351 (9th Cir. 1983). Therefore,

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1 The rule states in relevant part:

A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after

final judgment, but if an appeal is pending the court may grant

the motion only on remand of the case.

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Hoyte's Rule 33 motion was timely filed, and the district court had

jurisdiction to consider the motion.

However, the movant must make a substantive showing that he is

entitled to a new trial based on newly discovered evidence by demonstrating that the evidence tends strongly to establish his innocence or

shows the jury to have been subjected to improper influence.2 Mills

v. United States, 281 F.2d 736, 738 (4th Cir. 1960); Holmes v. United

States, 284 F.2d 716, 719 (4th Cir. 1960). In evaluating the materiality of evidence which the prosecution has failed to disclose, the

Supreme Court has stated that: "The evidence is material only if there

is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. A

`reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682

(1985).

The basis of Hoyte's motion is the prosecution's failure to disclose

evidence of a newspaper article that reported that a police officer

allegedly stated a witness told him a man with a shoulder holster and

firearm was seen near the location of the body. Hoyte claims that on

the basis of this information, his attorney could have argued that an

improper investigation was conducted by police and that police disregarded information concerning other possible suspects. Hoyte asserts

that this evidence would have been sufficient to raise reasonable

doubt in the minds of the jurors such that they would have acquitted

him.

We find that, given the ample evidence against Hoyte, see Hoyte,

51 F.3d at 1242, Hoyte's new evidence claim is insufficient to support

the granting of his motion for a new trial. Accordingly, we affirm the

district court's denial of Hoyte's Rule 33 motion on that basis. We

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2 Specifically, a new trial may be granted on the basis of newly discovered evidence if: (1) the evidence is in fact newly discovered; (2) the

movant has exercised due diligence; (3) the evidence is not merely

cumulative or impeaching; (4) the evidence is material; and (5) the evidence would probably result in an acquittal at the new trial. All five

requirements must be met. United States v. Chavis, 880 F.2d 788, 793

(4th Cir. 1989).

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dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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