asserts that the district court improperly applied the standard- — adopted by the majority of circuits but not yet addressed by this court — for “newly available” evidence, it is clear from the record that the c 1448-49 (7th Cir.1995) (same); United States v. Glover, 21 F.3d 133, 138 (6th Cir.1994) (same); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir.1994) (same); United States v. Dale, 991 F.2d 819, 838-39 (D.C.Cir.1993) (same); United States v. Lockett, 919 F.2d 585, 591-92 (9th Cir.1990) (same); United States v. DiBernardo, 880 F.2d 1216, 1224—25 (11th Cir.1989) (same); United States v. Offutt, 736 F.2d 1199, 1202 (8th Cir.1984); United States v. Metz, 652 F.2d 478, 480-81 (5th Cir.1981) (same); but see United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir.1997) (<HOLDING>). 3 . Indeed, the court later said that the
holding that posttrial discovery of asserted newly discovered evidence did not satisfy the requirement that the evidence must be such as with reasonable diligence could not have been discovered and produced at trial holding that the defendants evidence did not qualify as newly discovered evidence holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted holding that affidavit from a new witness was not newly discovered evidence because trial counsel knew of the existence of the witness before trial trial counsel with due diligence could have discovered the evidence holding that unavailable evidence may constitute newly discovered evidence if the failure to learn of the evidence did not result from the defendants lack of due diligence