           Case: 13-10495    Date Filed: 09/23/2013   Page: 1 of 6


                                                      [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10495
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:04-cr-20250-DLG-2



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                                   versus

NICHOLAS BACHYNSKY,
a.k.a. Reporter Doe,
a.k.a. Nick,

                                                      Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (September 23, 2013)

Before DUBINA, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Nicholas Bachynsky appeals the district court’s denial of his motion for a

new trial based on newly discovered evidence. After careful review, we vacate and

remand for the limited purpose of considering whether some of the evidence

Bachynsky submitted warrants a new trial.

      In 2008, Bachynsky was convicted of wire fraud, securities fraud, and

conspiracy to commit securities fraud, all in violation of 18 U.S.C. §§ 371 and

1343 and 15 U.S.C. § 78j(b). Bachynsky and Richard Anders, Bachynsky’s co-

conspirator, established Helvetia Pharmaceuticals in 2001, purportedly to research

and develop a new cancer treatment. The trial evidence revealed that Bachynsky

and Anders solicited investors in Helvetia by misrepresenting the status of

Bachynsky’s medical license, the success of medical trials of the treatment, and the

ownership of medical technology, as well as by failing to disclose to investors that

both Bachynsky and Anders had prior criminal convictions.

      At trial, Bachynsky argued that Anders was solely responsible for

defrauding the investors and that his own involvement in Helvetia was limited to

the medical side of the company. But the jury heard testimony from Ralph Klein, a

Helvetia investor who stated that he spoke at length with Bachynsky in connection

with his decision to invest in the company. Ultimately, two of the wire fraud

counts on which Bachynsky was convicted stemmed from transactions involving

Klein. Bachynsky appealed, arguing the trial evidence was insufficient to sustain a


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conspiracy conviction, and a panel of this court affirmed. United States v.

Bachynsky, 415 F. App’x 167 (11th Cir. 2011) (unpublished).

        In 2009, Bachynsky filed a motion for a new trial based on newly discovered

evidence. In support, he submitted five affidavits from inmates who were

incarcerated with Anders. The inmates separately stated that Anders told them

Bachynsky was not involved in defrauding Helvetia investors and had no

knowledge of Anders’s fraud. The district court held an evidentiary hearing, at

which Anders testified. Anders denied making the statements in the affidavits, but

testified that Bachynsky had never spoken to Klein, that Bachynsky only spoke to

investors on a few occasions, and that he and Bachynsky never formally agreed to

defraud Helvetia investors but rather the scheme “developed into what it was” over

time.

        After the hearing, Bachynsky filed a supplemental memorandum arguing

that the inmates’ affidavits and Anders’s testimony constituted grounds for a new

trial based on newly discovered evidence. The district court denied the motion.

This is Bachynsky’s appeal.

        We review the 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). To succeed on such a motion, the defendant

must establish:


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      (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. Ramos, 179 F.3d 1333, 1336 n.1 (11th Cir. 1999). Where the

evidence is inadmissible, it cannot form the basis of the motion because it would

not probably produce a different result at a new trial. United States v. Jernigan,

341 F.3d 1273, 1287-88 (11th Cir. 2003).

      Bachynsky asserts that both Anders’s testimony and the inmates’ affidavits

constitute newly discovered evidence that provides a basis for a new trial. We first

examine whether the inmates’ affidavits warrant a new trial. Before the district

court, Bachynsky asserted that the affidavits were admissible under the residual

exception to the hearsay rule. See Fed. R. Evid. 807. But on appeal, he has

abandoned this argument by failing to raise it in his initial brief. See United States

v. Magluta, 418 F.3d 1166, 1185-86 (11th Cir. 2005). Instead, he advances two

new arguments supporting the admissibility of the affidavits: (1) that they would

not be offered to prove the truth of the matter asserted, but instead to show

Anders’s state of mind regarding Bachynsky’s involvement in the conspiracy; and

(2) that they are admissible prior inconsistent statements. Because Bachynsky did

not raise the arguments before the district court, we review only for plain error.

United States v. Naranjo, 634 F.3d 1198, 1206-07 (11th Cir. 2011). “It is the law
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of this circuit that, at least where the explicit language of a statute or rule does not

specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Bachynsky has not

demonstrated that the district court plainly erred in concluding that the statements

would not be admissible at a new trial and therefore could not produce a different

result. He cites no case law directly supporting the admissibility of the affidavits

under the hearsay exceptions he cites. Therefore, he has not met his burden of

demonstrating that the district court plainly erred in failing to grant a new trial

based on the inmates’ affidavits. See id.

      Bachynsky also asserts that the district court should have granted his motion

for a new trial on the basis of Anders’s testimony. Although Bachynsky presented

this argument to the district court, the court did not discuss Anders’s testimony at

all in its order denying the motion for a new trial and provided no reasons why the

testimony did not satisfy the requirements for a new trial. We therefore cannot

determine whether the district court properly exercised its discretion. See United

States v. Cruz, 611 F.3d 880, 887 (11th Cir. 2010). Accordingly, we VACATE the

district court’s order denying Bachynsky’s motion for a new trial and REMAND

for the purpose of reconsidering whether Bachynsky is entitled to a new trial, but

only with respect to Anders’s evidentiary hearing testimony.


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VACATED AND REMANDED.




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