United States v. Lim ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4010
WON SHIK LIM,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-93-203)
Submitted: June 19, 1997
Decided: July 7, 1997
Before WILKINS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Blair D. Howard, HOWARD, LEINO & HOWARD, P.C., Alexan-
dria, Virginia, for Appellant. Helen F. Fahey, United States Attorney,
Robert A. Spencer, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Won Shik Lim appeals his conviction for conspiracy to commit
extortion and attempted extortion in violation of 18 U.S.C. § 1951(1994). Finding no error, we affirm the judgment.
After his conviction Lim moved for a new trial based upon newly
discovered evidence. The newly discovered evidence was an affidavit
from a co-conspirator, Chang Hyun Lee, stating that Lim was not
present during an extortion that was alleged to have taken place on
July 13, 1992. Lee had originally told FBI agents that Lim was pres-
ent at the extortion. There is no evidence, other than this affidavit,
that Lee told government agents before trial that Lim was not present
at the extortion and therefore no such information was disclosed to
defense counsel. Lee testified for one of Lim's co-defendants at trial
but was not asked about Lim's presence at the restaurant.
We agree with the district court which denied Lim's motion that
the affidavit does not qualify as newly discovered evidence because
Lim's counsel had the opportunity to question Lee before trial and
that the affidavit would probably not result in an acquittal at a new
trial. See United States v. Christy, 3 F.3d 765, 768 (4th Cir. 1993)
(setting out five-part test of newly discovered evidence). We find no
abuse of discretion to the denial of the motion.
Lim also asserts that the Government violated his due process
rights by failing to turn over to him the exculpatory statements made
by Lee prior to trial as required by Brady v. Maryland, 373 U.S. 83(1963). This claim was the subject of another motion for new trial
which the district court denied. The district court properly found that
Lim's due process rights were not violated because even if the state-
ments were made before trial and turned over to defense counsel prior
to trial, the result of the trial would not have been different because
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of compelling testimony from the victim of the extortion. See United
States v. Bagley, 473 U.S. 667, 682 (1985) (evidence material under
Brady when there is a reasonable probability that, had the evidence
been disclosed, the result of proceeding would have been different).
In addition, the evidence in question was available to the Defendant
from another source. See United States v. Wilson , 901 F.2d 378, 380
(4th Cir. 1990). We therefore find that the Government did not violate
Lim's due process rights.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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