                                                    [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                           FILED
                  __________________________________
                                                  U.S. COURT OF APPEALS
                                                    ELEVENTH CIRCUIT
                                                    FEBRUARY 17, 2009
                             No. 08-11993
                                                     THOMAS K. KAHN
                         Non-Argument Calendar            CLERK
                  __________________________________

                    D. C. Docket No. 04-60038-CR-WPD


UNITED STATES OF AMERICA,
                                                       Plaintiff-Appellee,

                                    versus

DELVIN MCKINNEY,

                                                       Defendant-Appellant.

                   _________________________________

            On Appeal from the United States District Court for the
                         Southern District of Florida
                 __________________________________

                              (February 17, 2009)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:

     A Southern District of Florida grand jury indicted Delvin McKinney with
possessing and distributing at least five grams of crack cocaine within 1000 feet of

a school on six days in June, July and August 2003 (Counts 1-6), possession with

intent to distribute 50 or more grams of crack cocaine (Count 7), and possession

with intent to distribute at least 100 grams of cocaine (Count 8), all in violation of

21 U.S.C. § 841 (a)(1). These offenses allegedly occurred in the City of

Hallandale Beach, Florida. McKinney pled not guilty and stood trial. The jury

convicted him of all but Counts 1 and 5. The district court denied his alternative

motions for new trial or acquittal, and sentenced him to life imprisonment on

Count 7, and concurrent prison terms of 360 months on the remaining counts.

       McKinney appealed his convictions and life sentence. We affirmed. United

States v. McKinney, 219 Fed. Appx. 921 (11th Cir. 2007).1 On February 22, 2008,

he filed a motion for a new trial based on newly discovered evidence and

requested an evidentiary hearing. McKinney presented the affidavit of Kaper

Reams, the brother of Victor Reams, the confidential informant who made

repeated drug buys from McKinney and testified at his trial as a Government

witness, which stated that he had seen Victor pick up money on the ground near a

church in Hallandale during the summer of 2003, and that Victor told him that he



       1
         While his appeal was pending, McKinney filed several motions for a new trial. All
were denied.

                                              2
had staged drug sales from an individual whom the police had targeted.

      The Government response suggested that the affidavit of Kaper Reams was

false and stated that the evidence at trial conclusively established that the money

Victor Reams used to purchase drugs from McKinney was provided by law

enforcement and documented, Reams was searched prior to every transaction with

McKinney and found to be free of contraband, and his testimony was corroborated

by law enforcement officers.

      The district court denied McKinney’s motion and his request for an

evidentiary hearing, noting that “this speculative new evidence would have been

only cumulative, impeachment evidence, at best, not material and would not have

affected the verdict as to any count.” McKinney now appeals the court’s ruling,

contending that the district court abused its discretion in denying his motion for a

new trial because his newly discovered evidence satisfied the criteria necessary to

warrant a new trial. McKinney also contends that the court abused its discretion in

ruling on his motion without holding an evidentiary hearing.

      We review a district court’s denial of a motion for a new trial based on

newly discovered evidence for an abuse of discretion. United States v. Vallejo,

297 F.3d 1154, 1163 (11th Cir. 2002). Likewise, we review a district court’s

decision concerning whether to hold an evidentiary hearing for an abuse of

                                          3
discretion. United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996).

      Federal Rule of Criminal Procedure 33 provides that a “court may vacate

any judgment and grant a new trial if the interest of justice so requires.” Fed. R.

Crim. P. 33(a).

      To succeed on a motion for a 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.

United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (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) (en banc) (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).

      A defendant is not entitled to an evidentiary hearing on a motion for a new

trial if “the acumen gained by a trial judge over the course of the proceedings

                                          4
[made him] well qualified to rule on the [evidence] without a hearing.” United

States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997) (quotation omitted). A motion

for a new trial “may ordinarily be decided upon affidavits without an evidentiary

hearing,” and “[w]here evidentiary hearings are ordered, it is because of certain

unique situations typically involving allegations of jury tampering, prosecutorial

misconduct, or third party confession.” United States v. Hamilton, 559 F.2d 1370,

1373 (5th Cir. 1977).

      The newly discovered evidence McKinney provided was, at best, mere

impeaching evidence. It would not have produced a different outcome at trial.

We find no abuse of discretion in the court’s denial of the motion without an

evidentiary hearing.

      AFFIRMED.




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