CLD-120                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-2662
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                                   JAMILA DAVIS,

                                         Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                          (D.C. Crim. No. 05-cr-00482-001)
                      District Judge: Honorable Jose L. Linares
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   February 14, 2013

        Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                           (Opinion filed: February 27, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Jamila Davis appeals the District Court’s order denying her motion for a new trial

filed pursuant to Rule 33 of the Federal Rules of Criminal Procedure. For the reasons

below, we will summarily affirm the District Court’s order.
       In September 2007, Davis was convicted of seven counts of bank fraud. We

affirmed her sentence and conviction on appeal. See United States v. Rickard, 336 F.

App’x 235 (3d Cir. 2009). In 2010, Davis filed a motion for a new trial. The District

Court denied the motion, and Davis filed a notice of appeal and a motion pursuant to Fed.

R. Civ. P. 59(e). After the District Court denied the Rule 59(e) motion, Davis filed an

amended notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291, and we review the District Court’s

order for an abuse of discretion. United States v. Brennan, 

, 189 (3d Cir.

2003). The test we apply to determine whether to grant a new trial based on newly

discovered evidence has five parts:

       (a) the evidence must be[,] in fact, newly discovered, i.e., discovered since trial;
       (b) facts must be alleged from which the court may infer diligence on the part of
       the movant; (c) 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.

United States v. Jasin, 

, 361 (3d Cir. 2002) quoting United States v. Iannelli,

, 1292 (3d Cir. 1976)).

       As part of the fraud scheme, Davis and her co-conspirators bought seven

properties but applied for and received mortgages for amounts much beyond the selling

price, e.g. for a home bought for $3.8 million, they obtained a mortgage of $5.9 million.

Davis provided the banks with false information regarding the income, assets, and

occupations of straw buyers for the properties at issue. Bank employees testified that

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they would not have made the loans had they known that the information provided was

false. Davis was sentenced as an organizer because she identified the properties,

obtained false documents in support of the mortgage applications, created corporations

for false employment information, and determined the inflated purchase prices for the

properties. She also recruited straw buyers and other co-conspirators to the scheme. See

Rickard, 336 F. App’x at 242, 244.

       In her motion for a new trial, Davis argued that Lehman Brothers, one of the banks

that was a victim of the scheme, was involved in fraudulent conduct itself and knew

about and encouraged false mortgage applications. She contended that had the jury

known this, she would have been acquitted of bank fraud.

       The District Court determined that Davis’s motion did not meet any of the five

requirements for granting a new trial. It concluded that the evidence was not newly

discovered because Davis had prior knowledge of the bank’s allegedly fraudulent

business practices. It noted that these business practices were the reason she picked the

bank for her scheme and that she incorporated these business practices into her defense.

As for the diligence prong, the District Court noted that Davis had over eighteen months

between indictment and trial to perform due diligence and could have requested more

time. With respect to the third prong of the test, the District Court concluded that

whether Lehman Brothers acted fraudulently with respect to subprime mortgages was

unrelated to Davis’ criminal conduct of submitting false applications for non-subprime

mortgages. As for whether the purported new evidence was material, the District Court
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observed that David did not offer evidence that Lehman Brothers fraudulently approved

non-subprime mortgage loans such as those at issue in Davis’s trial. In addressing

whether the evidence would probably produce an acquittal, the District Court noted that

Davis was also found guilty of bank fraud against Commerce Bank North. In her Rule

59(e) motion, Davis challenged the District Court’s determination that the new evidence

presented was not relevant to the type of loan at issue in Davis’s case. The District Court

denied the motion.

       We agree with the District Court that Davis has not met all five requirements for

granting a motion for a new trial. She has not shown that the evidence was newly

discovered and that it would probably produce an acquittal. As noted by the District

Court, Davis knew of the bank’s questionable business practices before trial. Moreover,

Davis admits that 18 U.S.C. § 1344 proscribes defrauding the financial institution and not

its officers or agents. See United States v. Jimenez, 

, 74 (3d Cir. 2008).

Thus, it would not have been a defense that the employees were allegedly aware that

Davis was filing the false mortgage applications. Furthermore, as we noted on direct

appeal, bank employees testified that they would not have made the loans had they

known that the information provided was false.

       The District Court did not abuse its discretion in denying Davis’s Rule 33 motion

or Rule 59(e) motion. Summary action is appropriate if there is no substantial question

presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, as well as


                                             4
those set forth by the District Court, we will summarily affirm the District Court’s order.

See Third Circuit I.O.P. 10.6.




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