                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-11307                ELEVENTH CIRCUIT
                                   Non-Argument Calendar               APRIL 14, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 4:07-cr-00308-BAE-GRS-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

DONALD FLOYD BROWN, a.k.a. Donald 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:

         Donald Floyd Brown 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), possession of an unregistered short-barreled shotgun, in

violation of 26 U.S.C. § 586, and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1), the new evidence came in the form of a letter

from the government dated approximately one year after Brown’s trial, stating that

one of the government’s primary witnesses against Brown had been indicted on

insurance fraud charges stemming from activities that occurred both before and

after the events leading to the case against Brown.

      Brown argues that, as required by Fed. R. Crim. P. 33, the new evidence is

not merely cumulative or impeaching because the government’s case was

dependent on the informant’s testimony to prove the elements of the charged

offenses, and the new evidence probably would have resulted in an acquittal.

Brown also asserts for the first time on appeal that due process, as well as the

concepts of justice and fair play, entitle him to a new trial.

        We review “the denial of a motion for a new trial based on newly

discovered evidence for abuse of discretion.” United States v. Jernigan, 341 F.3d

1273, 1287 (11th Cir. 2003). “Constitutional objections not raised before the

district court are reviewed only for plain error.” See United States v. Moriarty,

                                           2
429 F.3d 1012, 1018 (11th Cir. 2005). “[U]nder this standard [a defendant] must

show that: (1) an error occurred; (2) the error was plain; (3) it affected his

substantial rights; and (4) it seriously affected the fairness of the judicial

proceedings.” Jernigan, 341 F.3d at 1289 (quotation omitted). “A plain error is

an error that is obvious and is clear under current law.” United States v.

Humphrey, 164 F.3d 585, 588 (11th Cir. 1999). “Without precedent directly

resolving . . . [a] claim, . . . [the] alleged error is not ‘obvious’ or ‘clear’ under

current law.” Id. 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

                                            3
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 Brown’s motion

for a new trial because the new evidence was cumulative and merely impeaching,

and because Brown did not show that the jury would probably have reached a

different result. Further, in the absence of precedent resolving Brown’s due

process claim, his argument fails under plain error review. Accordingly, we

affirm.

      AFFIRMED.1




      1
          Appellant’s request for oral argument is denied.

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