NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 12-3553

____________ UNITED STATES OF AMERICA

v. CHARLES A. WEBSTER, JR., Appellant

________________ __________________ On Appeal from the United States District Court for the District of Delaware (D.C. Crim. No. 07-cr-00115) District Judge: Honorable Sue L. Robinson

________________ __________________ Submitted Pursuant to Third Circuit LAR 34.1(a) March 22, 2013 Before: RENDELL, FISHER and GARTH, Circuit Judges (Opinion filed: March 27, 2013)

____________ OPINION

____________ PER CURIAM Appellant Charles Webster, Jr. appeals from an order of the District Court denying his Rule 33 motion for a new trial. For th e reasons that follow, we will affirm. On August 23, 2007, wh ile Webster was on intensive probation requiring strict supervision, probation officers and others went to the residence he shared with his father,2 Charles Webster, Sr., to condu ct an administrative search. After placing Webster under arrest, the officers conducted the search a nd discovered two firearms, a Ruger handgun found inside a boot in the hall closet and a Ta urus handgun found hidden in the living room couch. Webster was indicted on tw o counts of possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922( g)(1) and 18 U.S.C. § 924(e)(1). He moved for suppression of the firearms. A hearing was held on the motion, and the District Court denied it. At the start of Webster’s tr ial, an issue arose concerni ng whether his father would be called as a witness. The Government w as considering calling him to testify, as he had before the grand jury, that he did not own any guns or hav e any knowledge of guns in his apartment. Webster, on the other hand, wanted to call his father to su pport his theory that the guns belonged to, and we re solely possessed by, his fath er. Webster, Sr.’s attorney informed both parties that Web ster, Sr. would invoke his Fi fth Amendment privilege if either party called him as a witness. During a proffer taken outside of the jury’s presence later that day, Webster, Sr. testified that he intended to assert his Fifth Amendment right not to answer any questions about the guns found in the apartment or his prior testimony regarding the guns. Despite the absence of his father’s testimony, Webster built his defense on the theory that the guns belonged to his relatives, in cluding his father. For example, his counsel sought to and was ab le to establish through the Go vernment’s witnesses that it was Webster, Sr. who was sitting on the couch right where the Taurus handgun was3 concealed. 1

Webster appealed, contending that : (1) the District Cour t improperly admitted the firearms found during a search of his apartment; (2) the ju ry’s verdict was not supported by sufficient evidence of con structive possession of the Ruger firearm; and (3) the District Court erred in not granting a new trial based on improper comments made by the prosecutor during closing argument. We d etermined that these contentions were lacking in merit and affirmed. See United States v. Webster , 400 Fed. Appx. 66 6 (3d Cir. 2010). With respect to the constru ctive possession issue, we explained: A jury found Webster not guilty on the count involving the Taurus handgun hidden in the couch, but guilty on the count involving the Ruger handgun that was hidden in the boot. Webster was sen tenced to a term of imprisonmen t of 188 months, and three years of supervised release.

We find that a reasonable jury cou ld conclude based on the evidence that Webster knowingly had the power a nd intent to ex ercise dominion and control over the firearm. The r ecord establishes the fo llowing evidence that the jury could have considered to support its verdict that Webster constructively possessed the firearm: We bster lived in th e apartment where the firearm was found; Webster had full and unfettered access to the small apartment, including th e common area that contain ed the unlocked hallway closet where the firearm was found; the apartment had recently been robbed, which a reasonab le jury could infer pr ovided Webster with a motive to get a gun to protect himself; We bster lived in th e apartment at the time it was robbed and was familiar with the various items stolen during the robbery, which could lead a reasona ble jury to infe r that Webster was familiar with the contents of the apartment; and Webster admitted knowing that his father, who also lived in the apartment, had a firearm in the apartment similar in description to the one found in the apartment.

1 Both guns were stolen; a trace on the firearms rev ealed that no member of the Webster family was the record owner.4 Id. at 668-69. On December 6, 2011, Webster moved pr o se for a new trial pursuant to criminal Rule 33(b)(1), claiming newly discovered evidence. The ev idence Webster submitted in support was an undated statement signed by his father in which his father claimed that he owned the guns found during the August 23, 2007 search, and that he was the only person with knowledge that the guns were in the ap artment. The statement in its entirety is: I, Charles Webster, Sr., would like to state that they were my guns, and the only one who knew they were there at that present day and time was me on August 23, 2007 all by my self. See, I had brough t them back into the apartment earlier that day for my ow n personal reasons and nobody knew of any of it. I should’ve come forwar d a long time ago but I was afraid. So, I’m saying sorry for this big inconv enience, but this horrible truth has to finally come out. Supp. App. 13. After the Government responded to the Ru le 33 motion, the District Court, in an order entered on August 20, 20 12, denied it. The court determined that the evidence was not new in that the information was known to Webster at the time of trial, and, under those circumstances, although the evidence was newly “av ailable,” it did not satisfy the newly “discovered” test for granting a Rule 33 motion. The court also determined that the newly proffered evidence in any event probably w ould not have produced an acquittal. Webster appeals pro se. We have jurisdictio n under 28 U.S.C. § 1291. A District Court’s decision to grant or deny a motion fo r a new trial under Rule 33 is reviewed for5 an abuse of discretion. See Gov’t of the Virgin Islands v. Lima , 774 F.2d 1245, 1250 (3d Cir. 1985). In his brief on appeal, Webster argues that his father’s newly proffered statement was sufficient to su pport reversal of his convicti on, there was no evidence that he was previously aware of the presence of the Ruger in the closet, and there was insufficient eviden ce of constructive possession. See Petitioner’s Brief, at 7. He argues that the District Court impeded hi s ability at trial to s how that the guns we re solely in the possession of his father, see id. at 10, and he further ar gues that the District Court’s Rule 33 determination that his fathe r’s new statement lacked credib ility is flawed because it is equally likely that his father lied to the grand jury but is now telling the truth, see id. at 12. Webster also points out that the Govern ment failed to produce any fingerprint evidence or any witness who could link him to the Ruger. See id. We will affirm. Rule 33( b)(2) provides that a motion for a new trial may be brought up to three years after the verdict if the moti on is grounded upon newly discovered evidence. Fed. R. Crim. Pro. 33(b)(2). In or der to grant a new trial on the basis of newly discovered evid ence, the District Court must find that the following five requirements have been met: (a) the eviden ce must have been discovered since the trial; (b) facts must be alleged from w hich diligence on the part of the movant may be inferred; (c) the evidence must not be merely cumulative or impeaching; (d) the evidence must be material; and (e) the evidence mu st be of such nature that in a new trial it would probably produce an acquittal. See United States v. Iannelli , 528 F.2d 1290, 1292 (3d Cir. 1976). The burden of pr oving each of the elements is on the movant. See United States v.6 Cimera , 459 F.3d 452, 458 (3d Cir. 2006)). If any one of the five elements is not satisfied, the Rule 33 moti on must be denied. See United States v. Jasin , 280 F.3d 355, 365 (3d Cir. 2002). We agree with the District Court that the information contain ed in Webster’s father’s newly proffered statement – that the Ruger was his and that he alone possessed it – is not newly discovered evid ence. This information was kn own to Webster at the time of trial, and explains why he sought to call his father in su pport of his defense. In addition, the record shows that Webster claimed, in a vide otaped interview which was shown to the jury, that his f ather owned a gun that fit the description of the Ruger and that his father kept the gu n in the apartment. See United States v. Bujese , 371 F.2d 120, 125 (3d Cir. 1967) (evidence is not newly discovered when it was known or could have been known through the exercise of diligence on the part of the defendant or his counsel). Moreover, the fact that Web ster’s father, who invoked his Fifth Amendment right at trial, is now willing to testify does not make his newly proffered statement “newly discovered” evidence w ithin the meaning of Rule 33. In Jasin , 280 F.3d 355, we held that evidence known but unav ailable at trial because a Fifth Amendment privilege was invoked is not “newly discove red evidence” within the meaning of Rule 33. As in Jasin , Webster knew at the time of tr ial the facts that he seeks to pr ove in a new trial through his father’s newly proffered testimony. See id. at 362-63. The jury watched Webster state in his videotaped interv iew that the gun had “been there;” th at it was “like an old revolver type, big ugly, old thing;” and that it w as “[b]rown, beige, or black.” N.T. , 12/08/08, at7 108-09. There is nothing in the record to establish that Webster and his counsel were either subjectively unaware that bo th guns belonged to Web ster’s father, or that, as an objective matter, such ev idence could not have been discovered th rough the exercise of diligence before the close of trial. See Cimera , 459 F.3d at 461. Webster’s contention that he was impeded by the trial court in pursuing h is defense that the guns were solely in the possession of others is meritless. See , e.g. , N.T. , 12/08/08, at 133-34; N.T. , 12/09/08, at 26-27, 32, 35-36. Because Webster can not satisfy Ianelli’s first requirement that the newly proffered evidence be newly discovered, the District Cour t’s order denying the Rule 33 motion will be affirmed. See Jasin , 280 F.3d at 365. We would a dd, however, that we agree with the District Court that the proffere d evidence would probably not produce an acquittal, and thus there was a second basis for denying the Rule 33 moti on. The District Court is required to determine whether the proffere d new evidence is credible, United States v. Kelly , 539 F.3d 172, 189 (3d Ci r. 2008); that is, the D istrict Court must determine whether a jury at a second trial would likely believe the pro ffered evidence, see id. In making this determination, the court must wei gh the proffered evidence against all of the other evidence in the record. See id. The District Court in Webster’s case pr operly determined that several things weighed against a finding of cr edibility, including that the ne wly proffered evidence was a direct contradiction of Webster, Sr.’s swor n testimony before a grand jury and Webster, Sr. could thus be impeached on this basis; th at it contained inform ation that Webster, Sr.8 could not have known with any certainty (that no one else knew he had guns in the apartment on that day); and that Webster, Sr. likely was biased in fa vor of his son and would want to see him exonerated. In a ddition, we note that there would still be the considerable evidence of constructive possession described in our opinion affirming the criminal judgment, see Webster , 400 Fed. Appx. at 668-69. Accordingly, in light of the complete evidentiary r ecord and the inconsisten cy between Webster’s father’s sworn grand jury testimony and his newly proffered statement, Webster did not meet his burden to show that the newly pro ffered statement probably would resu lt in his acquittal in a new trial. For the foregoing reasons, we will affirm the order of the District Court denying Webster’s Rule 33 motion. The Governm ent’s motion to lodge under seal the Sealed Supplemental Appendix containing the grand jury testimony of Charles A. Webster, Sr. is granted. 2

2 Pursuant to Federal Rule of Criminal Pr ocedure 6(e), the grand jury transcript was filed as a sealed exhib it to the Government’s Memo randum in Opposition to Webster’s Rule 33 motion. Local Appellate Rule 30.3(b) dir ects that any exhibit filed under seal in the District Court and not unsealed by order of this Court shall be filed “in a separate sealed envelope.”