USCA4 Appeal: 24-6611 Doc: 12 Filed: 12/27/2024 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-6611

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT PETER RUSSELL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:91-cr-00056-LMB-1)

Submitted: December 19, 2024 Decided: December 27, 2024

Before KING and BERNER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Robert Peter Russell, Appellant Pro Se. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-6611 Doc: 12 Filed: 12/27/2024 Pg: 2 of 3

PER CURIAM:

Robert Peter Russell appeals the district court’s order denying relief on his Fed. R.

Crim. P. 33 motion for a new trial based on newly discovered evidence. On appeal, Russell

contends that the court analyzed his motion under the wrong standard. For the reasons that

follow, we vacate and remand.

Rule 33 ordinarily requires the movant to show that “the evidence is of such a nature

that it would probably result in an acquittal at a new trial.” United States v. Lofton,

(4th Cir. 2000) (cleaned up). But when a Brady 1 violation forms the basis

of a Rule 33 motion, the movant need only show a reasonable probability of a different

outcome. Juniper v. Davis,

(4th Cir. 2023); see United States v. Sutton,

, 1242 n.3 (4th Cir. 1976) (explaining that a new trial motion based on newly

discovered evidence from a neutral source faces a heavier burden than a new trial motion

based on a Brady violation).

Russell premised his motion on a Brady violation, arguing that the Government had

purposefully withheld the evidence at issue. The district court, however, considered the

motion under the stricter Rule 33 standard. Accordingly, we vacate the district court’s

order and remand so that the court can apply the standard that governs Brady-based Rule

33 motions. 2

1 Brady v. Maryland,

(1963). 2 We express no view on the merits of Russell’s motion.

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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.

VACATED AND REMANDED

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