United States Third Circuit

Following defendant's conviction for being a felon in possession of a firearm, grant of a motion for a new trial on the basis of newly discovered evidence is reversed and case remanded for entry of a judgment of conviction where: 1) defendant failed to exercise diligence prior to trial in attempting to obtain the evidence, and his post-trial diligence did not satisfy the diligence requirement for granting a new trial on the basis of newly-discovered evidence; and 2) in determining the likelihood of acquittal if a new trial were to be granted on the basis of newly-discovered evidence, a district court must make a determination as to the credibility of the new evidence, taking into account all of the evidence that a jury would be likely to hear and consider in a new trial.

Appellate Information

• Argued 01/28/2008
• Decided 08/14/2008
• Published 08/14/2008

Judges

• Before SCIRICA, Chief Judge, and RENDELL and RODRIGUEZ, Circuit Judges.

Court

• United States Third Circuit

Counsel

• For Appellant:
  
• Leo R. Tsao, Esquire, [Argued], Office of United States Attorney, Philadelphia, PA, for Plaintiff-Appellant United States of America.


• For Appellees:
  
• Mark E. Cedrone, Esq., [Argued], Cedrone & Janove, Philadelphia, PA, for Defendant-Appellee Jake Kelly.