The following excerpt is from U.S. v. Dominguez-Rodriguez, 119 F.3d 7 (9th Cir. 1997):
We review a district court's denial of a motion for a new trial based on newly discovered evidence for an abuse of discretion. United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.1992). For a court to grant a new trial, the defendant must: 1) allege facts from which the court may infer diligence on the defendant's part and show from the motion that the evidence relied on is 2) newly discovered, 3) not merely cumulative or impeaching, 4) material to the issues involved and 5) in a new trial probably would produce an acquittal. Id.
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