          Case: 18-10082   Date Filed: 09/27/2018   Page: 1 of 12


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10082
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:12-cr-20885-RNS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JAMES MATHURIN,

                                                        Defendant-Appellant.

                      ________________________

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

                           (September 27, 2018)

Before TJOFLAT, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:
              Case: 18-10082         Date Filed: 09/27/2018   Page: 2 of 12


      James Mathurin, proceeding pro se, appeals the denial, without an

evidentiary hearing, of his motion for a new trial based on newly discovered

evidence following his convictions for robbery, carjacking, and weapons offenses.

After careful review, we affirm the denial of his new-trial motion and the denial of

an evidentiary hearing.

                                              I.

      After a jury trial in 2010, Mathurin was convicted of a number of armed

robbery, carjacking, and weapons crimes, and the district court sentenced him to

492 months of imprisonment. Mathurin appealed, successfully arguing that the

government did not indict him within the time required by the Speedy Trial Act.

We vacated his convictions and remanded the case to the district court with

instructions to determine whether dismissal of the indictment should be with or

without prejudice. United States v. Mathurin, 690 F.3d 1236, 1238, 1243–44 (11th

Cir. 2012). The court concluded that the indictment should be dismissed without

prejudice, and the government reindicted Mathurin on the offenses of which he had

been convicted in the first trial.

      In the lead up to the second trial, the government notified Mathurin of the

witnesses it intended to call, including Vernon Henry and Andron Bodden, two

coconspirators who had testified for the government at the first trial. Mathurin had




                                              2
              Case: 18-10082     Date Filed: 09/27/2018   Page: 3 of 12


also been provided with Henry’s and Bodden’s plea agreements, which included

cooperation provisions.

      The second trial took place in February 2014. Henry and Bodden both

testified that Mathurin had participated in several armed robberies.           Both

cooperating witnesses were also questioned about their motivations for testifying.

Henry stated that he hoped to receive a sentence reduction in exchange for his

testimony. Bodden said that he had already received a sentence reduction for

cooperating against Mathurin and did not expect another reduction for his

testimony at the second trial.

      The jury found Mathurin guilty of 30 of the 31 counts charged in the

indictment, and he was sentenced to a total term of 685 months of imprisonment.

Mathurin appealed, raising numerous challenges to his convictions and sentence,

and we affirmed. See United States v. Mathurin, 868 F.3d 921 (11th Cir. 2017).

      Meanwhile, in June 2014, a few months after the second trial, the

government filed motions to reduce the sentences of Henry and Bodden under Rule

35(b), Fed. R. Crim. P. Court records show that Henry’s Rule 35 motion was

based on his assistance to the prosecution in both of Mathurin’s trials, and that he

had not yet received a reduction for his cooperation. As for Bodden, court records




                                          3
               Case: 18-10082        Date Filed: 09/27/2018      Page: 4 of 12


suggest his Rule 35 motion arguably had two grounds: (a) his testimony at

Mathurin’s second trial; and (b) his cooperation in unrelated state cases. 1

       In November 2017, Mathurin filed the instant pro se motion for a new trial

under Rule 33 of the Federal Rules of Criminal Procedure. Mathurin claimed that

newly discovered evidence showed that the government violated Brady v.

Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).

He asserted that the government failed to disclose that Henry and Bodden would

receive additional sentence reductions for their testimony, allowed Henry to

suggest falsely that the judge, not the government, would determine whether he

received a reduction, and allowed Bodden to testify falsely that he did not expect

another reduction.

       Mathurin advised that he first learned about Henry’s reduction from another

inmate in or around July 2017. This prompted him to ask an “undisclosed source”

to check court records to confirm whether Henry and Bodden had both received

sentence reductions. He received records to that effect in or around August 2017.

Mathurin admitted that his new-trial motion was untimely, but he argued that the

       1
          The record is not entirely clear on the basis for the motion. In its response to
Mathurin’s motion for new trial, the government produced an internal memorandum from a
prosecutor seeking authority to file a Rule 35 motion for Bodden based on his cooperation with a
state prosecutor. However, a motion for continuance filed by the government before the Rule 35
hearing expressly stated that the Rule 35 motion was “based on substantial assistance provided to
the United States in the prosecution of United States v. Mathurin, 12-CR-20885-SCOLA,” which
was the second case against Mathurin. See United States v. Bodden, No. 10-cr-20791, doc. 34
(S.D. Fla.). It appears that both grounds were referenced by the government at Bodden’s Rule 35
hearing, though the focus was his state cooperation. See id., doc. 39.
                                               4
             Case: 18-10082     Date Filed: 09/27/2018   Page: 5 of 12


court should equitably toll the limitations period. He said he was prevented from

filing on time because the government had failed to notify him of the Rule 35

motions.

      The district court denied the motion for a new trial on two main grounds.

First, the court denied the motion as untimely, since it was filed more than eight

months after the three-year deadline for a motion based on newly discovered

evidence. The court did not directly address the issue of equitable tolling. Second,

the court alternatively denied the motion on the merits. No Brady or Giglio

violation occurred, the court found, because the government had provided

Mathurin with all required materials relating to Henry and Bodden, and neither

witness and no prosecutor made any misrepresentations concerning any promises

that had been made. Additionally, the court found that, even assuming there was a

violation of Brady or Giglio, Mathurin was not entitled to a new trial because, in

the court’s assessment, “the additional impeachment evidence of Henry and

Bodden would not have made a whit of difference to the jury.”

                                        II.

      We review for an abuse of discretion the district court’s denial of a motion

for a new trial. See United States v. Perez-Oliveros, 479 F.3d 779, 782 (11th Cir.

2007); United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002).          We

likewise review the denial of an evidentiary hearing for an abuse of discretion.


                                         5
              Case: 18-10082     Date Filed: 09/27/2018   Page: 6 of 12


United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996). In reviewing for an

abuse of discretion, we will affirm unless the district court made a clear error of

judgment or applied the wrong legal standard. United States v. Lyons, 403 F.3d

1248, 1255 (11th Cir. 2005). “We review the district court’s determination that

equitable tolling is inapplicable de novo.” Steed v. Head, 219 F.3d 1298, 1300

(11th Cir. 2000).

      Rule 33 provides that “[u]pon the defendant’s motion, the court may vacate

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

Crim. P. 33(a). A defendant has three years after the verdict or finding of guilt to

file a Rule 33 motion if it is based “on newly discovered evidence,” Fed. R. Crim.

P. 33(b)(1), or 14 days after the verdict if the motion is based on any other ground,

Fed. R. Crim. P. 33(b)(2).

      We conclude that the district court did not abuse its discretion in denying

Mathurin’s motion for a new trial.

      First, we need not address Mathurin’s argument that the district court should

have found his time to file his motion for new trial was equitably tolled. Even if

equitable tolling applied, Mathurin still could not prevail on his appeal.

      On the merits of his Rule 33 motion, Mathurin maintains that he is entitled

to a new trial because newly discovered evidence established that the government

violated Brady and Giglio. In his view, the government failed to disclose that


                                          6
             Case: 18-10082     Date Filed: 09/27/2018   Page: 7 of 12


cooperating witnesses Henry and Bodden would receive additional sentence

reductions for their testimony at the second trial, and it then allowed them to

present false testimony regarding their expectations for sentence reductions.

      Motions for a new trial based on newly discovered evidence are “highly

disfavored” and should be granted only with great caution.         United States v.

Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc). In general, a new trial is

warranted based on newly discovered evidence only if the evidence (1) was

discovered after trial; (2) could not have been discovered with due diligence; (3) is

not merely cumulative or impeaching; (4) is material to issues before the court; and

(5) is of such a nature that a new trial would probably produce a different result.

United States v. Barsoum, 763 F.3d 1321, 1341 (11th Cir. 2014).

      To obtain a new trial based on a Brady violation, the defendant must show

that (1) the government possessed evidence favorable to the defendant; (2) the

defendant did not possess that evidence and could not have possessed the evidence

with due diligence; (3) the government suppressed the evidence; and (4) there was

a reasonable probability of a different outcome if the evidence had been disclosed

to the defendant. Vallejo, 297 F.3d at 1164.

      And to prevail on a Giglio claim, “the defendant must demonstrate that the

prosecutor knowingly used perjured testimony, or failed to correct what he

subsequently learned was false testimony, and that the falsehood was material.”


                                         7
             Case: 18-10082    Date Filed: 09/27/2018   Page: 8 of 12


Id. at 1163–64 (quotation marks omitted). The materiality element for a Giglio

claim is met if there is “a reasonable likelihood the false testimony could have

affected the judgment of the jury.” United States v. McNair, 605 F.3d 1152, 1208

(11th Cir. 2010).

      Here, the district court did not abuse its discretion by denying Mathurin’s

motion for a new trial.    Regarding Henry, Mathurin has not shown that any

evidence was suppressed or that Henry offered false testimony. Mathurin knew

before the second trial that Henry had pled guilty and agreed to cooperate in the

hope of obtaining a sentence reduction. And the jury was clearly and accurately

informed about Henry’s motivations because he expressly testified that he

expected to receive a sentence reduction for his testimony at the second trial.

Given this testimony, the fact that the reduction ultimately covered Henry’s

testimony at both trials makes little difference. Plus, Henry’s statement that the

judge would ultimately determine whether to reduce his sentence was accurate and

not misleading. Accordingly, Mathurin has failed to establish that the government

violated Brady or Giglio regarding Henry.

      Regarding Bodden, things are not quite as straightforward, but the district

court still did not abuse its discretion in denying a new trial. Unlike Henry,

Bodden testified at the second trial that he did not expect to receive a sentence

reduction for his testimony, since he had already received a reduction for his


                                        8
             Case: 18-10082     Date Filed: 09/27/2018   Page: 9 of 12


cooperation against Mathurin. So the jury may have found Bodden more credible

because he testified with no specific expectation of reward. After the second trial,

however, the government filed a Rule 35 motion requesting a reduction in

Bodden’s sentence. And it appears that his testimony at the second trial may have

factored into the reduction, even if, as the district court found, the Rule 35 motion

was initially “based upon a request from” a state prosecutor.

      Nevertheless, nothing in the record suggests that Bodden testified falsely

about his expectations for a sentence reduction. In fact, the government produced

an internal memorandum regarding Bodden’s Rule 35 motion in which a

prosecuting attorney wrote that “Bodden agreed to testify against Mathurin again

even though he was told he would not receive any more reduction for his

testimony.” That statement is consistent with Bodden’s trial testimony that he had

already received a sentence reduction for cooperating against Mathurin and that he

did not expect another reduction. Therefore, the record supports the district court’s

conclusion that the government did not violate Brady or Giglio because there was

no pre-second-trial promise of leniency for the government to disclose and

Bodden, as he told the jury, agreed to testify without expectation of reward.

      Mathurin maintains that the credibility of the prosecutor’s memorandum is

in doubt. He contrasts the memorandum, which said that the Rule 35 motion was

based on Bodden’s assistance to a state prosecutor, with a motion for continuance


                                         9
               Case: 18-10082       Date Filed: 09/27/2018      Page: 10 of 12


in which a different prosecuting attorney wrote that Bodden’s Rule 35 motion was

“based on substantial assistance provided to the United States in the prosecution of

United States v. Mathurin, 12-CR-20885-SCOLA [the second trial].” Mathurin

says that an evidentiary hearing is required to resolve the conflict about the basis

for Bodden’s Rule 35 reduction. We disagree.

       For starters, the transcript from the Rule 35 hearing makes clear that the

central basis for the sentence reduction was his assistance in three state cases. 2 So

even assuming Bodden’s trial testimony factored into the Rule 35 reduction, there

is not enough of a factual conflict to warrant further development at a hearing.

       More importantly, Mathurin has made no showing that Bodden or the

government misled the jury about his expectations for a sentence reduction. There

is no conflict between, on the one hand, the government’s statement to Bodden that

he would not be rewarded for his testimony at the second trial and, on the other


       2
          According to the transcript of Bodden’s Rule 35 hearing, the prosecutor explained the
basis for the Rule 35 motion as follows:

       The defendant was sent to federal prison, and as I mentioned in the prior hearing,
       the case that he testified on came back on appeal and he was asked to go ahead
       and testify again, which he did, consistently, truthfully. In the interim, he also
       assisted the State Attorney’s Office on three separate cases, and this reduction
       contemplates—one of those is completed. I believe two more are still ongoing,
       and this reduction contemplates his continued cooperation with the state on the
       cases that are still pending. It’s our belief that he should receive a 25 percent
       reduction for all of this additional cooperation.

United States v. Bodden, No. 10-cr-20791, doc. 39 at 3 (S.D. Fla.); see United States v. Rey, 811
F.2d 1453, 1457 n.5 (11th Cir. 1987) (“A court may take judicial notice of its own records and
the records of inferior courts.”).
                                               10
             Case: 18-10082      Date Filed: 09/27/2018       Page: 11 of 12


hand, the government’s subsequent choice to reward Bodden for that testimony.

Mathurin offers no other allegation or evidence to support his claim that Bodden

committed perjury when he testified that he did not expect an additional reward.

And no evidentiary hearing was required to explore Mathurin’s mere speculation

that Bodden committed perjury. See United States v. Arias-Izquierdo, 449 F.3d

1168, 1189 (11th Cir. 2006) (holding that no evidentiary hearing was required

based on “mere speculation” that a witness committed perjury); United States v.

Champion, 813 F.2d 1154, 1171 n.25 (11th Cir. 1987) (“Absent some evidence

suggesting wrongdoing, the trial court was not obligated to grant a hearing to

enable appellant to conduct a fishing expedition . . . .”).

      Finally, the district court also concluded that, even if Brady or Giglio

violations occurred, “the additional impeachment evidence of Henry and Bodden

would not have made a whit of difference to the jury.” As the court noted, there

was strong evidence of guilt, including Mathurin’s detailed confession and his

positive identification by numerous victims of his robberies, and Mathurin’s

counsel cross-examined Henry and Bodden concerning their plea agreements and

hopes for reduced sentences. We owe deference to the court’s assessment, in light

of the acumen gained by the court over the course of the proceedings. See United

States v. Schlei, 122 F.3d 944 (11th Cir. 1997). And Mathurin has not provided

any persuasive reason why we should doubt that assessment. We therefore cannot


                                           11
               Case: 18-10082        Date Filed: 09/27/2018       Page: 12 of 12


say that the district court made a clear error of judgment in concluding that the new

evidence was not material. 3 See Lyons, 403 F.3d at 1255.

                                               III.

       For these reasons, we affirm the denial of Mathurin’s motion for a new trial.

       AFFIRMED.




       3
          We disagree with Mathurin’s claim that the district court applied an improper
materiality standard for his Giglio claim. The district court properly focused on the effect of the
new evidence on the jury. See McNair, 605 F.3d at 1208.
                                                12
