Ray

MEMORANDUM

Penny Ray and James Lee appeal from the district court’s denial of their consolidated Rule 33 motion for a new trial based on “newly discovered evidence.” They also appeal the court’s denial of Ray’s 28 U.S.C. § 2255 motion to vacate her conviction and sentence for exporting defense articles to the People’s Republic of China without a license in violation of 22 U.S.C. § 2778 . Lee contends that he did not join Ray’s § 2255 motion, and that accordingly, the denial, as far as it refers to his case, should be vacated. We affirm in part, reverse in part, and decline to grant Ray’s request for a Certificate of Appealability (“COA”).

To prevail on a Rule 33 motion for a new trial, Ray and Lee must satisfy a five-part test:

United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.1991); see also United States v. Jackson, 209 F.3d 1103, 1106 (9th Cir.2000). We review the district court’s denial of a motion for a new trial based on “newly discovered evidence” for an abuse of discretion. United States v. Sarno, 73 F.3d 1470, 1507 (9th Cir.1995).

Here, the appellants’ proffer of “new” evidence consists of the testimony of Ray’s brother, Fang Yu, which the district court properly…