UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5182
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
YANNICK PIERRE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:11-cr-00297-LMB-1)
Submitted: April 18, 2013 Decided: May 24, 2013
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John L. Machado, LAW OFFICE OF JOHN MACHADO, Washington, D.C.,
for Appellant. Neil H. MacBride, United States Attorney,
Timothy D. Belevetz, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yannick Pierre was found guilty, following a jury
trial, on twelve counts of health care fraud in violation of 18
U.S.C. §§ 2, 1347 (2006). After Pierre’s case had been docketed
for appeal, the Government disclosed evidence that had not been
presented to Pierre before trial, and we remanded for the
limited purpose of directing the district court to consider
Pierre’s motion for a new trial. The district court denied the
motion, and Pierre filed a new notice of appeal to encompass
this decision. On appeal, Pierre argues that the district court
erred when it denied her motions for acquittal and a new trial.
We affirm.
First, Pierre contends that the district court
improperly used its power to take judicial notice of the fact
that Woodbridge, Virginia, is within the Eastern District of
Virginia. Pierre argues that the Government was required to
prove venue during its case in chief, and that the district
court erred by supplying an element of the Government’s case sua
sponte. For this reason, Pierre contends that the district
court erred when it denied her motion for judgment of acquittal
filed pursuant to Fed. R. Crim. P. 29.
We review a district court’s decision to deny a Rule
29 motion de novo. United States v. Osborne, 514 F.3d 377, 385
(4th Cir. 2008). We note that “[a]s a general proposition,
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venue is proper in any district where the subject crime was
committed.” United States v. Ebersole, 411 F.3d 517, 524 (4th
Cir. 2005); see U.S. Const. art. III, § 2, cl. 3 (guaranteeing
right of an accused person to be tried where crime was
committed); U.S. Const. amend. VI (guaranteeing speedy trial in
the district where the crime was committed); Fed. R. Crim. P. 18
(requiring prosecution to take place in the district where the
crime was committed). Because venue is not an element of the
offense, the government must establish it only by a
preponderance of the evidence. Ebersole, 411 F.3d at 542;
United States v. Smith, 198 F.3d 377, 382 (2d Cir. 1999). A
district court may take judicial notice that venue is proper in
a particular district. United States v. Kelly, 535 F.3d 1229,
1235-36 (10th Cir. 2008); United States v. Greer, 440 F.3d 1267,
1272 (11th Cir. 2006); cf. United States v. Lavender, 602 F.2d
639, 641 (4th Cir. 1979) (finding that court may take judicial
notice that crime occurred within federal jurisdiction).
Because venue is not an element of the Government’s case, we
conclude that the district court did not err when it denied the
motion for judgment of acquittal. See United States v. Troupe,
307 F. App’x 715, 717 (4th Cir. 2008) (noting that a district
court may take judicial notice of venue even after the close of
the government’s evidence).
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Pierre also contends that the district court erred
when it denied her motion for a new trial based on newly
discovered evidence pursuant to Fed. R. Crim. P. 33. We review
a district court’s denial of a Rule 33 motion for a new trial
for abuse of discretion. United States v. Fulcher, 250 F.3d
244, 249 (4th Cir. 2001). To receive a new trial based on newly
discovered evidence, a defendant must show that: (1) the
evidence is newly discovered; (2) she has been diligent in
uncovering it; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material to the issues involved;
and (5) the evidence would probably produce an acquittal. See
id. Unless the defendant demonstrates all five of these
factors, the motion should be denied. United States v. Chavis,
880 F.2d 788, 793 (4th Cir. 1989). Alternatively, Pierre
alleges that she is entitled to a new trial under Brady v.
Maryland, 373 U.S. 83 (1963).
Under either ground for relief, the issue in this case
is whether the new evidence, which tends to impeach a Government
witness, is material. Undisclosed evidence is material when its
cumulative effect is such that “there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995)
(internal citations and quotation marks omitted). A reasonable
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probability is one sufficient to “undermine confidence” in the
outcome. Id. at 434 (“The question is not whether the defendant
would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of
confidence.”). Upon review of the record, we conclude that the
district court did not abuse its discretion when it denied
Pierre’s motion for a new trial because, considering the wealth
of evidence pointing to Pierre’s guilt, the newly discovered
evidence does not undermine confidence in the verdict.
Accordingly, we affirm the district court’s judgment
and order. We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
before this court and argument will not aid the decisional
process.
AFFIRMED
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