Zarate

MEMORANDUM ***

Sheri Zarate (“Zarate”) was convicted as a willing participant in a bank robbery. The jury believed that Zarate knowingly drove the getaway car after her husband, Orlando Sample (“Sample”), robbed a bank. At sentencing, Zarate moved for a new trial based on newly discovered evidence. Sample, who did not testify at Zarate’s trial, was now allegedly willing to testify that Zarate had no knowledge of his bank robbery when she picked him up on the street corner.

The district court denied Zarate’s motion because Sample’s proffered testimony was not “newly discovered” but rather “either available or capable of being developed before trial.” We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm the district court’s decision.

We review for an abuse of discretion the district court’s denial of a motion for a new trial. United States v. Lockett, 919 F.2d 585, 591 (9th Cir.1990). A district court’s findings of fact are accepted unless those findings are clearly erroneous. United States v. Endicott, 869 F.2d 452, 454 (9th Cir.1989).

In order to obtain a new trial based on newly discovered evidence, Zarate must establish: (1) the evidence was newly discovered;…