United States v. Gray

MEMORANDUM * Ashley Lynn Gray appeals the district court’s denial of her motion for a new trial, after her conviction for manslaughter and use of a firearm in a violent crime. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm. The district court correctly held that Gray failed to satisfy the five-part test necessary to prevail on a Rule 33 motion based on newly discovered evidence. See Fed.R.Crim.P. 33; United States v. Harrington, 410 F.3d 598, 601 (9th Cir.2005) (describing five-part test). Gray failed to introduce any evidence supporting her assertion that she exercised due diligence in attempting to retain a forensic psychologist prior to trial. See Harrington, 410 F.3d at 601 . Moreover, the psychologist’s report does not “indicate that a new trial would probably result in an acquittal.” Id. at 601 . Gray testified at trial that she could not remember most of the events surrounding the shooting. An expert’s report describing the reasons for her post-shooting amnesia has no bearing on her ultimate guilt or innocence. Accordingly, the district court did not abuse its discretion by denying Gray’s motion for a new trial. Nor did the district court abuse its discretion by failing to order a competency hearing. The district court correctly concluded that Ashley’s inability to remember the events of the shooting did not, alone, create a bona fide doubt about her competence. See United States v. Fernandez, 388 F.3d 1199, 1251 (9th Cir.2004) (noting that a trial court must order a competency hearing “if a reasonable judge would have ... a bona fide doubt [about the defendant’s] competence” (internal quotations omitted)). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.