United States v. Cohn

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4283

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARK COHN,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CR-01-
374-AMD)

Argued: October 28, 2005 Decided: January 18, 2006

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam
opinion.

ARGUED: Paul Mark Sandler, SHAPIRO, SHER, GUINOT & SANDLER,
Baltimore, Maryland, for Appellant. Joyce Kallam McDonald,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Robert B.
Levin, Trey Mayfield, SHAPIRO, SHER, GUINOT & SANDLER, Baltimore,
Maryland, for Appellant. Allen F. Loucks, United States Attorney,
Robert R. Harding, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

2
PER CURIAM:

Defendant-Appellant, Mark Cohn, appeals from the district

court’s judgment of conviction and sentence for multiple counts of

mail fraud and wire fraud in violation of 18 U.S.C. §§ 1341 and

1343, respectively, and one count of conspiracy to commit mail

fraud and wire fraud in violation of 18 U.S.C. § 371. Cohn argues

that the district court committed multiple errors during the trial

and erred in denying each of his four motions for a new trial. The

Government argues, via a motion to dismiss the appeal, that this

Court lacks jurisdiction because Cohn’s notice of appeal was

untimely. For the reasons that follow, we grant the Government's

motion to dismiss Cohn's appeal of the district court's judgment of

conviction and sentence and denials of the first three motions for

a new trial. In addition, we affirm the district court's denial of

Cohn's fourth motion for a new trial.1

I.

The evidence adduced at trial established that Cohn, as

general counsel and executive vice president of Four Star Financial

Services, LLC ("Four Star"), led a fraudulent telemarketing scheme

that involved selling consumers memberships in a program through

1
As conceded by the Government at oral argument, Cohn’s notice
of appeal was timely to note an appeal of the district court's
denial of Cohn's fourth motion for a new trial, as it was filed the
same day that the motion was denied. Cohn’s appeal of that order
is discussed in Section III.

3
which they were supposed to receive such items as pre-approved

credit cards and valuable coupons and discounts. Although

consumers, who paid for the membership by having the fees debited

from their bank accounts, received “fulfillment” packages through

the mail, the contents of those packages typically consisted of

items of little or no value, such as credit card applications and

coupon booklets. Dissatisfied consumers discovered that obtaining

a refund of their membership fees was extremely difficult, if not

impossible.

At trial, the Government presented as witnesses several of

Cohn's subordinates at Four Star, as well as individuals from other

companies who dealt with Cohn. Cohn elected not to call any

witnesses, choosing, instead, to develop his defense through

extensive cross-examination. That defense primarily argued that

the Government failed to prove that he had participated in the

scheme knowingly and willfully with the specific intent to deceive.

On June 19, 2003, at the conclusion of the trial, the jury returned

verdicts of guilty on all counts of the indictment.

Following the trial and the filing of the district court’s

sentencing order and memorandum opinion, Cohn, with the assistance

of counsel throughout, filed the series of motions at issue in this

appeal. On January 15, 2004, Cohn filed the first of four motions

for a new trial, each based on the discovery of new evidence, under

Federal Rule of Criminal Procedure 33. The district court denied

4
that motion on January 30, 2004. On February 6, 2004, Cohn filed

an Ex Parte Application for 30 Day Extension of Time [within which

to] File Notice of Appeal ("Motion for Extension of Time"), which

the district court denied on February 9, 2004. On February 17,

2004, Cohn filed his second motion for a new trial, which the

district court denied on February 18, 2004. On that same date, the

judgment of conviction was entered. On March 1, 2004, Cohn filed

his third motion for a new trial, which the district court denied

on March 10, 2004. On March 24, 2004, Cohn filed his fourth, and

final, motion for a new trial, which the district court denied on

April 21, 2004.

On April 21, 2004, the date Cohn’s fourth motion for a new

trial was denied, he filed a notice of appeal from his judgment of

conviction and the denials of all four new trial motions.2 On May

17, 2004, the Government filed a motion to dismiss the appeal on

the ground that the notice of appeal was untimely.

II.

As a threshold matter, we must determine which, if any, of the

district court’s decisions we may review. "Because questions of

subject matter jurisdiction concern the court's very power to hear

the case, we must first determine whether we have jurisdiction to

2
On April 28, 2004, Cohn filed an amended notice of appeal to
correct a minor clerical error in the first notice.

5
hear [an] appeal before proceeding to the merits of that appeal."

United States v. Bunn (In re 1997 Grand Jury), 215 F.3d 430, 433

(4th Cir. 2000) (internal quotation marks omitted) (citation

omitted). Making this determination, in turn, requires that we

ascertain whether Cohn timely filed a notice of appeal.

Cohn advances two alternative arguments in support of his

assertion that his notice of appeal was timely. First, he argues

that the filing of his fourth motion for a new trial extended the

deadline to file a notice of appeal to ten days after the district

court's denial of that motion. Because he filed a notice of appeal

on the same day that the district court denied his fourth motion

for a new trial, he argues that the notice was timely.

Alternatively, Cohn argues that his Motion for Extension of

Time was the functional equivalent of a notice of appeal.

According to Cohn, because that ex parte motion was filed within

the time limit for filing such a notice, his notice was timely. We

consider each contention in turn.

A.

The defendant in a criminal case must file a notice of appeal

within ten days after entry of final judgment unless the district

court extends the time or the defendant makes certain post trial

motions. See Fed. R. App. P. 4(b). If the defendant timely moves

for a new trial under Federal Rule of Criminal Procedure 33, then

6
the notice of appeal “must be filed within 10 days after the entry

of the order disposing of the last such remaining motion, or within

10 days after the entry of judgment of conviction, whichever period

ends later.” Fed. R. App. P. 4(b)(3)(A). However, if the motion

for a new trial is based on newly discovered evidence (as all of

Cohn's motions were), it must also meet the additional requirement

of being made "no later than 10 days after the entry of the

judgment.” Fed. R. App. P. 4(b)(3)(A)(ii). The time periods for

filing a notice of appeal are "mandatory and jurisdictional."

Browder v. Dir., Dep't of Corr., 434 U.S. 257, 264 (1978) (quoting

United States v. Robinson, 361 U.S. 220, 229 (1960)).

Here, the district court entered the judgment of conviction on

February 18, 2004. Cohn then had ten days within which to notice

an appeal unless he made one of the motions identified in the rule.

Cohn made such a motion. His third motion for a new trial, made on

March 1, 2004, was within ten days of the judgment, and thus

extended the time to file a notice of appeal to ten days after

entry of the order disposing of that third motion.3 The district

court denied the motion on March 10, 2004, yielding a deadline to

file a notice of appeal of March 24, 2004. See Fed. R. Crim. P.

45. Instead of filing a notice of appeal, however, Cohn elected to

3
Cohn’s first and second new trial motions did not extend the
time within which to file the notice of appeal because both were
disposed of by orders dated on or before the date of the final
judgment.

7
file a fourth motion for a new trial based on newly discovered

evidence on March 24, 2004. He contends that this motion again

extended the time to file a notice of appeal for the judgment and

all of the district court's post-trial orders to ten days after

entry of the order disposing of the motion.

Despite the plain language of Federal Rule of Appellate

Procedure 4(b)(3)(A)(ii) that a motion for a new trial based on

newly discovered evidence triggers the application of the provision

extending the time to file a notice of appeal "only if the motion

is made no later than 10 days after the entry of the judgment"

(emphasis added), Cohn argues that the rule has been effectively

amended by United States v. Ibarra, 502 U.S. 1 (1991) (per curiam).

According to Cohn, Ibarra stands for the proposition that a final

judgment ceases to be final once a new trial motion is timely filed

and only becomes final again once the district court disposes of

the motion. At that time, Cohn maintains, the ten-day period to

file a notice of appeal of that judgment starts anew. Under this

interpretation of Ibarra, Cohn argues that the district court's

final judgment of conviction and sentence and its orders denying

his first three motions for a new trial ceased to be final when,

before the deadline passed for filing the notice of appeal, he

filed his fourth motion for a new trial. Then, when the district

court made the judgments final again by disposing of the fourth new

trial motion on April 21, 2004, the ten day time to file a notice

8
of appeal began anew for the judgment of conviction and sentence as

well as for the denials of all four motions for a new trial. We

disagree.

The issue in Ibarra was whether the thirty-day period provided

in Rule 4(b)(1)(B) for the Government to note an appeal begins to

run on the date of the district court's order or on the date of an

order denying the Government's motion for reconsideration--a

question not expressly addressed in the rules. The Supreme Court

answered this question by saying that, under the well-established

rule in civil cases and the Court’s consistent practice of treating

petitions for rehearing as having the same effect in criminal

cases, the 30-day period begins with the denial of the petition for

rehearing. Id. at 6, citing decisions in United States v. Healy,

376 U.S. 75 (1964), and United States v. Dieter, 429 U.S. 6 (1976)

(per curiam).

Thus, Ibarra dealt with the effect of a petition for rehearing

on the time for the Government to file a notice of appeal, an issue

on which Rule 4(b) is silent.4 The rule is not similarly silent

with respect to the effect of a motion for a new trial based on

newly discovered evidence on the time for a defendant to file a

notice of appeal. As noted above, Rule 4(b)(3)(A)(ii) expressly

4
Even if the holding in Ibarra could be read broadly to apply
to all post-trial motions, the Supreme Court explicitly declined to
reach the issue of extension of time in a case, such as the present
one, where successive motions were submitted. Ibarra, 502 U.S. at
7 n.3.

9
requires that, where the motion is based on newly discovered

evidence, the motion be made no later than ten days after the entry

of judgment. Interpreting the rule as having been amended by

Ibarra in the manner Cohn seeks would effectively eliminate that

express time limit. Under such an interpretation, a defendant

could unilaterally extend the time for filing a notice of appeal by

filing serial motions for a new trial for up to three years.5

Adopting Cohn's interpretation of Ibarra would also create an

internal inconsistency in the rules governing the effect of a

motion on notices of appeal. The other motions that can extend the

time to file a notice of appeal under Rule 4(b)(3)(A)--motions for

judgment of acquittal, a new trial grounded on any reason other

than newly discovered evidence and arrest of judgment--are not

subject to the same ten-day time limitation as motions for a new

trial grounded on newly discovered evidence. That distinction

exists because those motions, pursuant to the Federal Rules of

Criminal Procedure, must be filed within seven days after the

verdict or finding of guilty. See Fed. R. Crim. P. Rules 29(c)(1);

33(b)(2); 34(b). A motion for a new trial grounded on newly

discovered evidence, on the other hand, may be filed up to three

years after the verdict or finding of guilty. Fed. R. Crim. P.

33(b)(1). Thus, the unique time frame applied to motions for a new

5
Any motion for a new trial grounded on newly discovered
evidence must be filed within three years after the verdict or
finding of guilty. Fed. R. Crim. P. 33(b)(1).

10
trial grounded on newly discovered evidence in the Federal Rules of

Appellate Procedure creates a comparable limitation on the ability

to delay indefinitely the time to file a notice of appeal as the

Federal Rules of Criminal Procedure create for the other motions.

Eliminating that distinction, as Cohn argues, would create an

artificial incentive for defendants to file motions for a new trial

based on newly discovered evidence, regardless of their merit, to

obtain additional time within which to file a notice of appeal.

Because Ibarra is inapplicable to the facts before us, we conclude

that Cohn's April 21, 2004 notice of appeal was not timely to note

an appeal of the district court's judgment of conviction and

sentence and its orders denying his first three motions for a new

trial.

B.

Alternatively, Cohn argues that his February 6, 2004 Motion

for Extension of Time constitutes the functional equivalent of a

notice of appeal under the principles of Smith v. Barry, 502 U.S.

244 (1992).6 He cites Barry for the proposition that

6
At oral argument, Cohn's counsel stated that his motion for
a bail hearing also served as the functional equivalent of a notice
of appeal. The Joint Appendix does not contain the motion for a
bail hearing. More importantly, Cohn failed to make this argument
either in his motion in opposition to the Government's motion to
dismiss the appeal or in his briefs before this Court. Therefore,
he waived the argument. Schlossberg v. Barney, 380 F.3d 174, 182
n.6 (4th Cir. 2004).

11
 [w]hile a notice of appeal must specifically indicate the
litigant's intent to seek appellate review . . . the
purpose of this requirement is to ensure that the filing
provides sufficient notice to other parties and the
courts. . . . Thus, the notice afforded by a document,
not the litigant's motivation in filing it, determines
the document's sufficiency as a notice of appeal. If a
document filed within the time specified by Rule 4 gives
the notice required by Rule 3, it is effective as a
notice of appeal.

Id. at 248-49 (citations omitted). He also notes that other

circuits have construed motions for an extension of time as a

notice of appeal.7 In light of this trend, we do not foreclose the

possibility that a motion for an extension of time to file a notice

of appeal may constitute the functional equivalent of a notice of

appeal. We conclude, however, that a finding of functional

equivalence is not appropriate on these facts.

We base that conclusion on the totality of the circumstances

presented in this appeal. First, as we have noted, Cohn was

represented by counsel throughout the proceedings in question.

That representation has been both vigorous and knowledgeable

regarding the post-trial process.8 Cohn relies heavily, albeit not

7
See e.g., Andrade v. AG, 270 F.3d 743, 751-52 (9th Cir.
2001), rev'd on other grounds Lockyer v. Andrade, 538 U.S. 63
(2003); Rinaldo v. Corbett, 256 F.3d 1276, 1279-80 (11th Cir.
2001); Haugen v. Nassau County Dep't. of Soc. Servs., 171 F.3d 136,
138 (2nd Cir. 1999); United States v. Smith, 182 F.3d 733, 735-36
(10th Cir. 1999); Listenbee v. City of Milwaukee, 976 F.2d 348,
349-51 (7th Cir. 1992).
8
In its order denying Cohn's second motion for a new trial,
the district court referred to Cohn's "further attempt to lard the
record on appeal" and his "transparent attempt to bolster his post-
verdict attack on his conviction for purposes of appeal (through

12
exclusively, on cases involving pro se appellants. Smith v. Barney

was such a case. Our view "that the policy of construing notices

of appeal liberally applies 'especially' to pro se filings"

recognizes the appropriateness of a distinction between counseled

and pro se litigants. United States v. Little, 392 F.3d 671, 681

(4th Cir. 2004).

Second, Cohn's Motion for Extension of Time failed to comply

with the dictates of Rule 3(c)(1).

Courts will liberally construe the requirements of Rule
3. . . . This principle of liberal construction does not,
however, excuse noncompliance with the Rule. Rule 3's
dictates are jurisdictional in nature, and their
satisfaction is a prerequisite to appellate review. . .
. Although courts should construe Rule 3 liberally when
determining whether it has been complied with,
noncompliance is fatal to an appeal.

successor counsel)." J.A. 3506. In its order denying Cohn's
fourth motion for a new trial, the district court again noted
Cohn's manipulation of the post-trial process:

Never in the living memory of this court has there been
encountered a more blatantly transparent attempt by a
convicted defendant to thwart the orderly progress of
post-verdict criminal proceedings than is demonstrated by
the manipulation evidenced in this record. . . . As for
the serial motions for a new trial, the court has
exhaustively considered the defendant's contentions and
has repeatedly rejected them. It is perfectly obvious
that successor counsel has simply shifted the defense
strategy on the basis of 20/20 hindsight in an attempt to
undo the jury verdict, which is a product of a
fundamentally fair trial, during which [the defendant]
vigorously contested the [G]overnment's evidence.

J.A. 3597-98.

13
Barry, 502 U.S. at 248 (citations omitted). "Notices 'shall specify

the party or parties taking the appeal; shall designate the

judgment, order or part thereof appealed from; and shall name the

court to which the appeal is taken.'" Id. Cohn's Motion for

Extension of Time specifically failed to comply with Rule 3 because

it did not "name the court to which the appeal is taken."9 Fed. R.

App. P. 3(c)(1)(C).

Finally, Cohn's Motion for Extension of Time failed to provide

sufficient notice by clearly evincing an intent to seek appellate

review. "[A] notice of appeal must specifically indicate the

litigant's intent to seek appellate review . . . to ensure that the

filing provides sufficient notice to other parties and the courts."

Barry, 502 U.S. at 248. Although the motion contains the statement

"Cohn desires to appeal [the district court's] judgment of

9
We recognize that two other circuits have held that the
failure of a notice of appeal to include the court to which the
appeal is taken does not necessarily warrant dismissal for want of
jurisdiction. See Dillon v. United States, 184 F.3d 556, 557 (6th
Cir. 1999) (en banc) ("[W]here only one avenue of appeal exists,
Rule 3(c)(1)(C) is satisfied even if the notice of appeal does not
name the appellate court."); United States v. Treto-Harlo, 287 F.3d
1000, 1002 n.1 (10th Cir. 2002) ("[T]he United States Court of
Appeals for the Tenth Circuit is the only Court to which the
Government may take this appeal. The Government's failure to
identify this Court in its notice of appeal, while careless if not
inexcusable, did not prejudice or mislead the Defendant."). We
note, however, that both cases involved a notice of appeal, not a
motion purported to be its functional equivalent. In light of the
other deficiencies in Cohn's Motion for Extension of Time that
prevent it from the being the functional equivalent of a notice of
appeal, we need not decide whether such a failure, standing alone,
would warrant dismissal.

14
conviction and sentence, as well as the denial of his motion for a

new trial based on newly discovered evidence;" J.A. 3464; it goes

on to state that "counsel should be entitled to have sufficient

time to consider any other issues and courses of action before the

district court is by law divested of jurisdiction by the filing of

a notice of appeal." J.A. 3465. Counsel did, in fact, consider,

and pursue, other issues and courses of action, including filing

three additional motions for a new trial, before filing a notice of

appeal. Further, the last sentence of Cohn's motion signaled

opposing counsel that he was not noticing an appeal at that point:

"Cohn respectfully requests that the [district court] rule by

February 10 in order to allow time to file notice should the

[district court] deny this application." Id. Cohn's language and

his actions indicated to the Government and the district court that

he neither intended to divest, nor believed that he had divested,

the district court of jurisdiction over the case by filing the

Motion for Extension of Time. Given these signals, we can not

conclude that the motion in question provided sufficient notice to

the Government or the court that Cohn would appeal the district

court's orders, three of which had not yet been issued.

For the foregoing reasons, Cohn's notice of appeal was

untimely with respect to his judgment of conviction and first three

motions for a new trial. We therefore grant the government's

motion to dismiss the appeal with respect to them.

15
 III.

Having concluded that our jurisdiction is limited to

consideration of the district court's decision to deny Cohn's

fourth motion for a new trial, we now review that decision. The

following additional facts are relevant to that review. Several of

Cohn's subordinates, among others, testified at trial: Jeffrey

Augen, an employee of a predecessor telemarketing venture whom Cohn

hired to work at Four Star; Suzanne Tikkanen, who oversaw the

accounting staff that handled the client funding accounting at Four

Star; and Daniel Connor, who Cohn asked to take over as president

of the telemarketing scheme in its final months of operation. The

testimony of these individuals reflected, among other things, that

Cohn had all telemarketing scripts and fulfillment package contents

sent to him for review when his predecessor headed the scheme; that

Four Star eventually took over the operation; that Cohn made the

determination as to what accounts would be paid, including how much

would be available for refunds to dissatisfied consumers; that Cohn

was aware that no agreements existed with companies to supply the

benefits being offered in the program; that Cohn "micro-controlled"

the telemarketing scheme, spending 70 to 80 percent of his business

day on it; and that Cohn instructed Connor to send out fulfillment

packages, despite the fact that they lacked the promised benefits.

Shortly after the jury returned its verdicts in the present

case, Tikkanen filed a civil complaint against Cohn and Four Star

16
alleging sexual harassment and funds due. In connection with the

civil suit, Cohn deposed Imtiaz Ahmad, a manager of the

telemarketing operation at Four Star, and Henry and Linda Cote

("the Cotes"), the principals of an outside company retained as a

telemarketing consultant. In his fourth motion for a new trial,

Cohn identified selected portions of these depositions as newly

discovered evidence that, had it been available at trial, would

have refuted the testimony of Government witnesses concerning

Cohn's knowledge of and involvement in the operation. Furthermore,

Cohn argued that, because Ahmad had testified during the deposition

that he had provided the same information to the Government when

interviewed, and the Government had failed to disclose that

information to Cohn, the Government had violated its duties under

Brady v. Maryland, 373 U.S. 83 (1963).

The legal standard governing Cohn's claims with respect to the

Cotes' testimony differs from that governing the claims with

respect to Ahmad's testimony. United States v. Bales, 813 F.2d

1289 (4th Cir. 1987) sets forth the standard generally applied to

a motion for a new trial based on newly discovered evidence:

(a) the evidence must be, in fact, newly discovered,
i.e., discovered since the trial; (b) facts must be
alleged from which the court may infer diligence on the
part of the movant; (c) the evidence relied on must not
be merely cumulative or impeaching; (d) it must be
material to the issues involved; and (e) it must be such,
and of such nature, as that, on a new trial, the newly
discovered evidence would probably produce an acquittal.

17
Id. at 1295 (internal quotation marks omitted). "Unless the answer

to each of these inquiries is affirmative, a new trial is not

appropriate." United States v. Chavis, 880 F.2d 788, 793 (4th Cir.

1989). This standard applies to Cohn's claims concerning the

testimony of the Cotes.

Cohn's claims concerning the testimony of Ahmad, however,

allege not only that information in Ahmad's testimony was newly

discovered evidence, but that the Government's failure to reveal

its knowledge of that testimony constituted a Brady violation.

When a Brady violation forms the basis of a Rule 33 motion, the

proper legal standard is more favorable to the defendant than that

identified in Bales. First, a new trial may be warranted even

though the new evidence is merely impeaching. See United States v.

Bagley, 473 U.S. 667, 676 (1985). Second, the evidence only need

be such that, on a new trial, its disclosure would result in a

reasonable probability of a different result, which is "shown when

the Government's evidentiary suppression 'undermines confidence in

the outcome of the trial.'" Kyles v. Whitley, 514 U.S. 419, 434

(1995). This more favorable standard, from Cohn's standpoint,

applies to his claims concerning the testimony of Ahmad.

The district court's order denying Cohn's fourth motion for a

new trial, although cursory, suggests that the court applied the

more favorable Brady violation standard to all of Cohn's claims.

United States v. Cohn, AMD 01-0374 (D. Md. April 21, 2004) ("Cohn's

18
repeated invocations of the Brady doctrine is [sic] not remotely

supported by a substantial showing that the court's confidence in

the outcome of the trial in this case should be called into

question." (Emphasis added.)) Since it is more favorable, Cohn can

not claim to have been prejudiced thereby, and our review of the

record indicates that the district court properly denied the

motion.

A.

The deposition testimony of the Cotes fails to meet the Bales

standard. That testimony primarily consists of speculation on the

part of the Cotes as to Cohn's involvement in the telemarketing

scheme and Linda Cote's recollection of discussions with Cohn. To

the extent that the testimony concerned conversations with Cohn, it

could hardly be considered newly discovered because Cohn would have

been aware of those conversations. Furthermore, although Cohn

alleges that he did not have access to the information because the

Cotes would not speak to defense counsel, despite counsel's

diligent efforts, the record contains no indication that those

efforts involved any attempt at compulsory process to obtain what

Cohn now claims to be "highly material" testimony. Finally, no

view of the evidence suggests that it probably would produce an

acquittal at a new trial given the extensive contrary testimony of

principals within the telemarketing scheme who were more familiar

19
with the day-to-day operation of the scheme and dealt with Cohn on

a more regular basis.

B.

The deposition testimony of Ahmad fails to meet the Brady

standard.

The strictures of Brady are not violated . . . if the
information allegedly withheld by the prosecution was
reasonably available to the defendant. As we held in
United States v. Wilson, "where the exculpatory
information is not only available to the defendant but
also lies in a source where a reasonable defendant would
have looked, a defendant is not entitled to the benefit
of the Brady doctrine." 901 F.2d 378, 381 (4th Cir.
1990).

Hoke v. Netherland, 92 F.3d 1350, 1355 (4th Cir. 1996) (citation

omitted).

The allegedly exculpatory evidence consists of Ahmad generally

indicating his lack of awareness regarding Cohn's daily

participation in the telemarketing operation. First of all, it is

questionable whether this evidence is, in fact, exculpatory.

Ahmad's lack of personal knowledge of Cohn's involvement does not

contradict the affirmative testimony of other Cohn subordinates

regarding his involvement.

Further, a reasonable defendant, knowing that a witness had

helpful information, would have sought to obtain it. Cohn had

received a copy of Ahmad's grand jury testimony and knew that Ahmad

was on the Government's witness list. Cohn again complains that

20
Ahmad refused to speak to defense counsel about the criminal case.

Yet, again, the record is devoid of evidence that Cohn attempted to

compel Ahmad's participation.

Finally, Cohn fails to show that the disclosure of Ahmad's

deposition testimony would result in a reasonable probability of a

different result at a new trial, or that the Government's alleged

failure to disclose the information undermines confidence in the

outcome of the trial. For these reasons, we conclude that the

district court did not abuse its discretion in denying Cohn's

fourth motion for a new trial.

IV.

In conclusion, this Court lacks jurisdiction to consider

Cohn's appeal of the district court's judgment of conviction and

sentence and denials of the first three motions for a new trial.

Accordingly, those portions of the appeal are dismissed.

Furthermore, the district court properly denied Cohn's fourth

motion for a new trial. Accordingly, that district court order is

affirmed.

DISMISSED IN PART;
AFFIRMED IN PART

21