625 Fed.Appx. 24 (3rd Cir. 2015), 15-1334, United States v. Whoolery

Docket Nº:15-1334
Citation:625 Fed.Appx. 24
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA v. LEWIS WHOOLERY, Appellant
Attorney:For United States of America, Plaintiff - Appellee: Brendan T. Conway, Esq., Rebecca R. Haywood, Esq., Office of United States Attorney, Pittsburgh, PA. Lewis Whoolery, Defendant - Appellant, Pro se, Loretto, PA.
Judge Panel:Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges.
Case Date:September 14, 2015
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 24

625 Fed.Appx. 24 (3rd Cir. 2015)

UNITED STATES OF AMERICA

v.

LEWIS WHOOLERY, Appellant

No. 15-1334

United States Court of Appeals, Third Circuit

September 14, 2015

Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 August 27, 2015

NOT PRECEDENTIAL

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Criminal Action No. 2-10-cr-00144-002). District Judge: Honorable Joy Flowers Conti.

For United States of America, Plaintiff - Appellee: Brendan T. Conway, Esq., Rebecca R. Haywood, Esq., Office of United States Attorney, Pittsburgh, PA.

Lewis Whoolery, Defendant - Appellant, Pro se, Loretto, PA.

Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges.

Page 25

OPINION[*]

PER CURIAM

Federal prisoner Lewis Whoolery appeals pro se from the District Court's January 23, 2015 order denying his motion for a new trial. For the reasons that follow, we will summarily affirm the District Court's judgment.

I.

Because we write primarily for the parties, who are familiar with the background of this case, we discuss that background only briefly. In January 2013, a jury found Whoolery guilty of conspiring to commit wire fraud. The charge stemmed from his role in a complex mortgage fraud scheme. The District Court sentenced him to ten years in prison and three years of supervised release, and ordered him to pay restitution in the amount of $1,746,561. He appealed, and we affirmed the District Court's judgment in September 2014. See United States v. Whoolery, 579 Fed.Appx. 78, 80 (3d Cir. 2014).

In late December 2014, Whoolery timely moved the District Court for a new trial pursuant to Federal Rule of Criminal Procedure 33. This pro se motion alleged two pieces of newly discovered evidence relating to Whoolery's sister, Kimberly Baldwin. Baldwin, who pleaded guilty to conspiracy to commit wire fraud in 2011 for her role in the mortgage fraud, was a prosecution witness at Whoolery's trial. The first piece of evidence in support of the Rule 33 motion was an affidavit from Whoolery's and Baldwin's father. According to the affidavit, after Whoolery's trial, Baldwin told her father that she had lied during her trial testimony " to get the deal" from the Government that she hoped would result in a more lenient sentence for her role in the mortgage fraud.1 The second piece of evidence is the fact that...

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