               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-11366
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

RYAN MAZEY,

                                         Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                     USDC No. 3:00-CR-15-ALL-L
                        --------------------
                          December 11, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Ryan Mazey appeals his conviction for conspiracy to commit

theft and to transport, and the transportation of, stolen

property in interstate commerce.   He argues that the district

court erred when it refused to grant him a new trial based on

newly discovered evidence and when it did not voir dire the jury

to assess the severity of any tainting that may have occurred

when juror Brown stated that he believed Mazey was guilty.

     To obtain a new trial based upon the discovery of new

evidence, Mazey must establish that (1) the evidence was newly


     *
        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that this opinion should not be published and is not precedent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.
                             No. 00-11366
                                  -2-

discovered and unknown to him at the time of the trial;

(2) failure to detect the evidence was not a result of his lack

of due diligence; (3) the evidence is material, not merely

cumulative or impeaching; and (4) the evidence will likely

produce an acquittal.     United States v. Ardoin, 19 F.3d 177, 181

(5th Cir. 1994).    We review a district court's denial of a motion

for a new trial based upon new evidence for a clear abuse of

discretion.     United States v. Freeman, 77 F.3d 812, 817 (5th Cir.

1996).

     Mazey has failed to establish that the evidence was newly

discovered and unknown to him at the time of trial, and he has

not shown that the alleged failure to detect the evidence was not

due to a lack of due diligence.    The record establishes that

Mazey was notified that the date of November 28, 1998, was at

issue from both the superseding indictment and the Government’s

motion for reciprocal discovery.    Mazey’s contention that the

November 28 date first became an issue during trial is therefore

meritless.    Furthermore, the fact that Mazey did not have in his

possession at the time of trial the time-stamped copy of the

credit card receipt does not render that evidence “unknown.”

Mazey was clearly placed on notice regarding the possibility of

interposing an alibi defense for the night of November 28, 1998,

and, therefore, the fact that he did not have the relevant

evidence in his possession at the time of trial reflects a lack

of diligence.    The district court therefore did not abuse its

discretion in denying his motion.
                          No. 00-11366
                               -3-

     After the court questioned a juror about his pretrial

opinion of Mazey’s guilt, Mazey did not request the district

court to voir dire the remaining jurors.   A defendant implicitly

waives objections to juror misconduct when counsel fails to act,

before verdict, upon information known to defendant or counsel.

United States v. O’Keefe, 722 F.2d 1175, 1178 n.1 (5th Cir.

1983).

     AFFIRMED.
