UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-7016


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENNETH LEE FOSTER,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-DLH-8)


Submitted:   November 26, 2013            Decided:   December 4, 2013


Before WILKINSON, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kenneth Lee Foster, Appellant Pro Se.        Amy Elizabeth Ray,
Assistant United States Attorney, Jill Westmoreland Rose, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina; Thomas
A. O’Malley, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Kenneth Lee Foster appeals the denial of his Fed. R.

Crim. P. 33 motion for a new trial and the district court’s

refusal to reconsider that denial.             We affirm.

            First, we find no abuse of discretion in the denial of

Foster’s motion for a new trial.                United States v. Moore, 

, 292 (4th Cir. 2013).               To receive a new trial based on

an alleged Brady * violation, a defendant must “show that the

undisclosed evidence was (1) favorable to him either because it

is exculpatory, or because it is impeaching; (2) material to the

defense, i.e.,     prejudice      must   have     ensued;     and   (3)   that   the

prosecution had [the] materials and failed to disclose them.”

United    States   v.   Wilson,   

,   661    (4th   Cir.   2010)

(internal quotation marks omitted).              Similarly, to receive a new

trial based simply on newly discovered evidence, a defendant

must show that: (1) the evidence is newly discovered; (2) he 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.    

.

            Here, the success of Foster’s request for a new trial

based on the Government’s alleged violation of its disclosure

     *
         Brady v. Maryland, 

(1963).



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obligations       under       18     U.S.C.    § 2518(9)          (2012)         turned      on the

conclusion       that     the       wiretaps       used    in    the       investigation           of

Foster’s crimes were not properly authorized by the Department

of   Justice.        18     U.S.C.       § 2516(1)       (2012).          However,       Foster’s

failure    to    properly          raise    that      issue     at    trial      or    on    direct

appeal     prevented          the    district         court     from      reaching          such   a

conclusion absent exceptional circumstances.                               United States v.

Pileggi,      

,     679-82        (4th     Cir.      2013)       (discussing

mandate     rule).            Having       carefully      reviewed           the      record,      we

conclude      that      Foster       failed    to       make    the       requisite         showing

because    the      evidence        Foster    claims      the        Government        improperly

withheld      does      not     impugn      the       validity       of    the     wiretaps        in

question.

            Because the district court also correctly found that

it   lacked      authority          to   reconsider       its        final     order        denying

Foster’s motion for a new trial, see United States v. Breit, 

, 530 (4th Cir. 1985), we affirm the district court’s

orders.     We dispense with oral argument because the facts and

legal    contentions          are    adequately         presented         in     the    materials

before    this      court     and    argument         would    not     aid     the     decisional

process.

                                                                                         AFFIRMED




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