Robert G. Horn v. United States

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 02-2188 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Robert G. Horn, * * [UNPUBLISHED] Appellant. * ___________ Submitted: November 7, 2002 Filed: November 19, 2002 ___________ Before HANSEN, Chief Judge, and MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit Judges. ___________ PER CURIAM. Robert G. Horn appeals the district court’s1 denial of his Federal Rule of Criminal Procedure 33 motion for a new trial based on newly discovered evidence, following his conviction for possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (1994). After careful review of the record, we find that the district court did not abuse its discretion in concluding that the new evidence submitted by 1 The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri. Mr. Horn was merely impeaching and would not be likely to produce an acquittal at a new trial. See United States v. Provost, 969 F.2d 617, 620 (8th Cir. 1992) (standard of review), cert. denied, 506 U.S. 1056 (1993); United States v. Duke, 255 F.3d 656, 659 (8th Cir.) (criteria for granting new trial based on newly discovered evidence), cert. denied, 122 S. Ct. 550 (2001). Accordingly, we affirm. See 8th Cir. R. 47B. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -2-