United States v. Nix , 84 F. App'x 415 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 23, 2003
Charles R. Fulbruge III
Clerk
No. 97-60756
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIRKSEY MCCORD NIX, JR.; JOHN RANSOM,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
(1:91-CR-40PR)
--------------------
Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendants-Appellants Kirksey McCord Nix, Jr., federal
prisoner #20921-077, and John Elbert Ransom, federal prisoner
#97349-131, were convicted of conspiracy to violate the fraud-by-
wire statute and the murder-for-hire statute and for substantive
wire fraud violations. United States v. Sharpe, 995 F.2d 49, 50-51
(5th Cir. 1993). Nix and Ransom filed a motion for a new trial
under FED. R. CRIM. P. 33, asserting that they had newly discovered
evidence that prosecutors (1) withheld exculpatory evidence in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) withheld
evidence tending to impeach government witnesses in violation of
Giglio v. United States, 405 U.S. 150 (1972); and (3) knowingly
offered perjured testimony in violation of Mooney v. Holohan,
294 U.S. 103 (1935). The district court denied the motion and Nix
and Ransom appeal.
We review a denial of a Rule 33 motion for new trial for abuse
of discretion. United States v. Jaramillo, 42 F.3d 920, 924
(5th Cir. 1995). A defendant seeking a new trial on grounds of
newly discovered evidence must show that: (1) The evidence is
newly discovered and was unknown to him at the time of trial;
(2) his failure to discover the evidence did not result from a lack
of diligence; (3) the evidence is material, not merely cumulative
or impeaching; and (4) the evidence would probably produce
acquittal at a new trial. United States v. Freeman, 77 F.3d 812,
817 (5th Cir. 1996). “[T]he likelihood of changing a jury’s
decision as a result of newly discovered evidence must rise
considerably above the level of speculation.” United States v.
Prior, 546 F.2d 1254, 1259 (5th Cir. 1977) (quoting Ross v. Texas,
474 F.2d 1150, 1153 (5th Cir. 1973) (habeas case)).
With respect to Nix and Ransom’s assertions of undisclosed
impeachment evidence and perjury related to the consideration given
to witnesses in exchange for their testimony, their claims of newly
discovered evidence cannot support relief under Rule 33.
“[E]vidence which merely discredits or impeaches a witness’ [sic]
2
testimony does not justify a new trial.” United States v. Pena,
949 F.2d 751, 758 (5th Cir. 1991).
With respect to their assertions that the government withheld
exculpatory evidence, Nix and Ransom have not shown that the
identities of other possible suspects in the Sherry murders,
including the individual ultimately convicted of the crime, were
material to the conviction for conspiracy to violate the wire-fraud
and murder-for-hire statutes. Additionally, there is no indication
that evidence regarding the identity of the person who was hired to
commit the murders would have produced an acquittal on the
conspiracy count. See Freeman, 77 F.3d at 817; Prior, 546 F.2d at
1259.
Nix and Ransom also assert as error the government’s alleged
use of other perjured testimony unrelated to impeachment, the
district court’s allegedly incorrect application of the sentencing
guidelines, the insufficiency of the evidence to sustain Ransom’s
conviction, and their alleged convictions under an ex post facto
application of a criminal statute. These arguments contain no
substantive allegations of newly discovered evidence and do not
challenge the district court’s denial of the Rule 33 motion.
Neither are the arguments relevant to the issues on appeal.
Based on our exhaustive review of the record, we hold that the
district court did not abuse its discretion in denying relief under
FED. R. CRIM. P. 33 without allowing additional discovery
or conducting an evidentiary hearing. See Murphy v. Johnson,
3
205 F.3d 809, 814 (5th Cir. 2000) (habeas case); United States
v. Simmons, 714 F.2d 29, 30 (5th Cir. 1983). The judgment of the
district court is AFFIRMED.
Ransom’s motion to compel production of the trial transcript
is DENIED.
4