United States v. Eric Thomas Brown , 423 F. App'x 889 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11194 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 14, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:07-cr-00308-BAE-GRS-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
ERIC THOMAS BROWN,
a.k.a. Charon Field,
a.k.a. Charon Fields,
a.k.a. Eric Brown,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(April 14, 2011)
Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Eric Thomas Brown, a.k.a. Charon Fields (“Fields”), appeals the district
court’s denial of his motion for a new trial based on newly discovered evidence,
pursuant to Fed. R. Crim. P. 33. After his convictions for conspiracy to rob
federally insured credit unions, in violation of 18 U.S.C. § 371, attempted credit
union robbery, in violation of 18 U.S.C. § 2113(a), and possession of an
unregistered short-barreled shotgun, in violation of 26 U.S.C. § 5861, the new
evidence came in the form of a letter from the government dated approximately
one year after Fields’s trial, stating that one of the government’s primary witnesses
against Fields had been indicted on insurance fraud charges stemming from
activities that occurred both before and after the events leading to the case against
Fields.
Fields argues that, as required by Fed. R. Crim. P. 33, the new evidence is
not merely cumulative or impeaching because it raises the implication that, as part
of the informant’s larger “lying-for-money” business, the informant fabricated his
story about Fields in order to receive monetary compensation for his cooperation
with the police. Fields argues that the evidence does not go merely to the
informant’s credibility, and further contends that if a jury was presented evidence
of the larger “lying-for-money” scheme, an acquittal would have resulted. Fields
requests additional discovery and a new trial.
We review “the denial of a motion for a new trial based on newly
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discovered evidence for abuse of discretion.” United States v. Jernigan, 341 F.3d
1273, 1287 (11th Cir. 2003).
Under Fed. R. Crim. P. 33, upon a defendant’s motion, the district court may
“vacate any judgment and grant a new trial if the interest of justice so requires.”
Fed. R. Crim. P. 33(a). As we have held,
To succeed on a motion for new trial based on newly discovered
evidence, the movant must establish that (1) the evidence was
discovered after trial, (2) the failure of the defendant to discover the
evidence was not due to a lack of due diligence, (3) the evidence is
not merely cumulative or impeaching, (4) the evidence is material to
issues before the court, and (5) the evidence is such that a new trial
would probably produce a different result.
Jernigan, 341 F.3d at 1287 (quotation omitted). “Failure to meet any one of these
elements will defeat a motion for a new trial.” United States v. Starrett, 55 F.3d
1525, 1554 (11th Cir. 1995). “Motions for a new trial based on newly discovered
evidence are highly disfavored in the Eleventh Circuit and should be granted only
with great caution. Indeed, the defendant bears the burden of justifying a new
trial.” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (quotation
omitted). “Newly discovered impeaching evidence is insufficient to warrant a new
trial.” United States v. Champion, 813 F.2d 1154, 1171 (11th Cir. 1987).
After a review of the record and consideration of the parties’ briefs, we
conclude that the district court did not abuse its discretion to deny Fields’s motion
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for a new trial because the new evidence was cumulative and merely impeaching,
and because Fields did not show that the jury would probably have reached a
different result. Accordingly, we affirm.
AFFIRMED.
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