The Second Circuit today issued a summary order affirming the denial of a motion for a new trial. Unites States v. Jiau, 15-366. On a motion for a new trial based on newly discovered evidence, the defendant bears the burden of establishing “(1) the evidence is genuinely ‘new,’ i.e., it was discovered after trial; (2) the evidence could not, with the exercise of due diligence, have been discovered before or during trial; and (3) the evidence is ‘so material and noncumulative that its admission “would probably lead to an acquittal.”‘” Jiau, at 2. The Court affirmed Judge Rakoff’s denial of a motion for a new trial because the documents submitted in support of the motion were not “evidence” under Rule 33 and, in any case, were not “newly discovered.” Id. at 3.
Law360.com has coverage of the case here.