                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 16 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50612

              Plaintiff - Appellee,              D.C. No. 2:08-cr-01028-PA-2

  v.
                                                 MEMORANDUM *
RONNIE FEKRAT,

              Defendant - Appellant.




                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                                                        **
                            Submitted August 3, 2011
                               Pasadena, California

Before: REINHARDT and BERZON, Circuit Judges, and KENNELLY, District
Judge. ***


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

       ***   The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for Northern Illinois, Chicago, sitting by designation.
      Defendant-Appellant Ronnie Fekrat appeals the district court’s denial of his

motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, as well

as its order denying his application for appointment of counsel in connection with

the Rule 33 motion. Fekrat contends that the district court erred in finding that his

motion was not based on newly discovered evidence. He also asserts that the

district court failed to adequately explain its reasons for denying his application for

appointment of counsel.

      We affirm. The district court did not abuse its discretion in determining that

Fekrat’s motion was untimely under Rule 33 because it was not based on evidence

that was newly discovered after the trial. United States v. Berry, 624 F.3d 1031,

1042 (9th Cir. 2010); Fed. R. Crim. P. 33(b)(2) (“Any motion for a new trial

grounded on any reason other than newly discovered evidence must be filed within

14 days after the verdict or finding of guilty.”). Fekrat’s motion presented two

claims. The first was that the government overstated at trial the volume of phone

calls between Fekrat and a co-schemer, Johnson. The government, however,

produced the relevant telephone records to Fekrat prior to trial. Thus any claim

that the government overstated what the records showed was not based on newly

discovered evidence.

      Fekrat’s second claim was that the government presented perjured testimony

by Johnson, who cooperated with the government and testified on its behalf.
Fekrat alleged that Johnson had falsely testified that he had been given no promises

regarding his sentence. However, Fekrat failed to provide the district court with

evidence supporting this contention. See United States v. Felix, 425 F.2d 240, 242

(9th Cir. 1970) (affirming denial of motion for new trial based on allegation of

newly discovered evidence where allegation “was not supported by an affidavit”

and “pertained solely to the credibility of a witness”). Thus he offered no newly

discovered evidence.

      In his reply brief on appeal, Fekrat provided evidence that he contends

supports his claim regarding perjured testimony. That evidence comes far too late

to permit this Court to vacate the district court’s ruling denying Fekrat’s motion for

new trial. That said, it is conceivable that this evidence might serve as the basis for

a motion pursuant to 28 U.S.C. § 2255. The Court expresses no view regarding the

merits of any such motion that Fekrat might file.

      Finally, because Fekrat’s Rule 33 motion was untimely, the court’s denial of

his application for appointment of counsel was not erroneous.

      AFFIRMED.
