1The HONORABLE CHARLES R. WOLLE, United States District Judge for

the Southern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3329

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United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the Southern

Warren Allen Dittrich, * District of Iowa.

*

Appellant. *

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Submitted: January 12, 2000

Filed: February 23, 2000

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Before BOWMAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

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FLOYD R. GIBSON, Circuit Judge.

Warren Dittrich appeals from the district court's1 order denying his motion for

a new trial. We affirm.

I. BACKGROUND
2

18 U.S.C. § 2114(a) prohibits the assault or robbery of "any person having

lawful charge, control, or custody of any mail matter or of any money or other property

of the United States."

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On April 28, 1995, a man entered the Jubilee Foods grocery store in

Council Bluffs, Iowa and approached the service counter. A sign above the service

counter identified the store as a United States Postal Substation. The man pulled a gun

and demanded money. The grocery clerk complied and gave him cash and three postal

money orders. The postal money orders were "bait" money orders, that is, money

orders which are specially marked to aid in apprehending thieves. Postal employees

are instructed to give the "bait" money orders to the perpetrator in the event of a postal

robbery. Dittrich was arrested within days after the robbery after causing the postal

money orders to be cashed.

On February 1, 1996, a jury found Dittrich guilty of armed robbery of a United

States Postal Substation, in violation of 18 U.S.C. § 2114(a) (1994).2 He was

sentenced to life imprisonment pursuant to 18 U.S.C. § 3559(c). Dittrich appealed and

a panel of this Court affirmed his conviction. See United States v. Dittrich, 100 F.3d

84 (8th Cir. 1996).

On March 31, 1998, Dittrich filed a motion with the district court for a new trial

based on newly discovered evidence pursuant to Rule 33 of the Federal Rules of

Criminal Procedure. The district court denied the motion and Dittrich appeals. Dittrich

argues, in support of his motion, that the prosecution failed to establish an essential

element of the crime and withheld material and exculpatory evidence in violation of

Brady v. Maryland, 373 U.S. 83 (1963). After careful review, we find these contentions

to be without merit.

II. DISCUSSION
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We review the district court's denial of a motion for a new trial based on newly

discovered evidence for an abuse of discretion. See United States v. Womack, 191

F.3d 879, 885 (8th Cir. 1999). A new trial will be granted based on newly discovered

evidence only if the following five elements are met: 

1) the evidence must have been discovered after the trial; 2) the failure to

discover must not be attributable to a lack of due diligence on the part of

the movant; 3) the evidence must not be merely cumulative or

impeaching; 4) the evidence must be material; and 5) the evidence must

be likely to produce an acquittal if a new trial is granted.

United States v. Ryan, 153 F.3d 708, 713 (8th Cir. 1998).

Dittrich argues that the prosecution failed to establish an essential element of the

crime, i.e., that the victim of the robbery was a "person in lawful charge, control or

custody" of United States property. Dittrich bases this contention on the status of the

contract between the Postal Service and Jubilee Foods which established the latter as

a United States Postal Substation. Dittrich maintains that Jubilee's contract with the

Postal Service had expired at the time of the robbery, thereby precluding the robbery

victim from being a "person in lawful charge, control, or custody" of property of the

United States for purposes of applying the statute. Dittrich argues that his post-trial

discovery of the expired contract constitutes new evidence which entitles him to a new

trial. We disagree.

Although factual circumstances have rarely arisen in which we are called upon

to determine the meaning of "lawful charge, control, or custody" in the context of 18

U.S.C. § 2114(a), the issue is not one of first impression before this Court. See

Lockhart v. United States, 293 F.2d 314 (8th Cir. 1961) (holding that theft of United

States' funds from Post Office Contract Station clerk at 5:15 p.m. satisfied "lawful

charge, control, or custody" element of statute even though contract between
3The Randazzo court was applying the predecessor of 18 U.S.C. § 2114, § 197

of the Penal Code, 35 Stat. 1126 (1909).

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government and robbery victim required conduct of postal matters between the hours

of 10:00 a.m. and 5:00 p.m.); Randazzo v. United States, 300 F. 794 (8th Cir. 1924)

(holding that theft of mailbags from postmaster's son who was transporting mail

satisfies "lawful charge, control, or custody" element of statute). Previous panels of

this court have agreed that the words "lawful charge, control, or custody" should be

given their ordinary meaning and significance. See Lockhart, 293 F.2d at 316;

Randazzo, 300 F. at 796 (stating that "[i]f [the victim] had stolen [United States'

property], and thereafter had been by defendants robbed of it, there might arise some

question as to the jurisdiction of a federal court . . . , for in such case [the victim's]

custody would have been unlawful and not lawful.")3 This logic applies equally today.

Giving the phrase "person in lawful charge, control, or custody" its ordinary meaning,

we have no difficulty finding the phrase applicable to the victim in this case. 

The Council Bluffs' Postmaster testified at Dittrich's trial that, at the time of the

robbery, Jubilee Foods operated a United States Postal Substation under the authority

of the Postal Service. A sign on the wall behind the service counter identified Jubilee

Foods as a Postal Substation. Furthermore, the government maintains that the contract

between Jubilee Foods and the Postal Service was valid. As the Lockhart court stated,

"the robbery offense is . . . committed by a taking from the victim's . . . possession .

. . the mail matter, money or other property of the Government [which] is subject to

his control." Lockhart, 293 F.2d at 316. The victim of this crime gave an armed man

property of the United States Postal Service when threatened with a gun. Irrespective

of the status of the contract between Jubilee Foods and the Postal Service, she was a

person with lawful charge, control, or custody of the postal money orders for the

purpose of charging Dittrich with violating § 2114(a).
4Finding this, we also deny Dittrich's corollary motion for the production of

documents.

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Consequently, Dittrich has failed to satisfy the fourth and fifth elements

necessary to justify a new trial: that the newly discovered evidence be material and

likely to produce an acquittal. The status of the contract, even if expired, is immaterial

to Dittrich's guilt. Accordingly, the district court did not abuse its discretion in denying

Dittrich's motion.

Our disposition of Dittrich's motion for a new trial based on newly discovered

evidence informs our consideration of his Brady motion. Denials of motions for new

trials based on alleged Brady violations are reviewed under the abuse of discretion

standard. See Ryan 153 F.3d at 711. A defendant establishes a Brady violation by

demonstrating: 1) that the government suppressed evidence; 2) that the evidence was

exculpatory; and 3) that the evidence was material either to guilt or punishment. Id. 

For Brady purposes, evidence is material when a "reasonable probability exists that,

had the evidence been disclosed to the defense, the result of the proceeding would have

been different." Lingle v. Iowa, 195 F.3d 1023, 1026 (8th Cir. 1999) (quotations

omitted). As stated above, we find the status of the contract between the Postal Service

and Jubilee Foods immaterial to Dittrich's guilt or punishment and therefore insufficient

to satisfy the requirements of a new trial based on alleged Brady violations.4

 The

district court did not abuse its discretion in denying Dittrich's motion based on this

issue. 

Dittrich's remaining arguments lack merit and do not warrant further discussion.

III. CONCLUSION

For the foregoing reasons, the district court's decision denying Dittrich's motion

for a new trial based on newly discovered evidence and Brady violations is affirmed. 
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.