           Case: 13-15817    Date Filed: 09/30/2014   Page: 1 of 4


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15817
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:11-cr-20460-DLG-5



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

ARIEL VALDES,

                                                          Defendant-Appellant.

                       ________________________

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

                            (September 30, 2014)

Before HULL, MARCUS, and WILSON, Circuit Judges.

PER CURIAM:
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      Ariel Valdes, proceeding pro se, appeals following the district court’s denial

of his Fed. R. Crim. P. 33 motions for a new trial based on newly discovered

evidence as to convictions stemming from a conspiracy and attempt to rob a

cocaine stash house. Valdes filed two pro se motions for a new trial after a jury

convicted him on all counts of a six-count indictment, the district court imposed a

300-month total sentence, and we affirmed the convictions.

      Valdes’s Rule 33 motions were predicated on the transcript of a recorded

conversation between himself and several codefendants that took place in a police

car after their arrest. The transcript begins with an officer announcing the time as

“7:00 in the evening”, and ends with the same officer announcing the time as being

approximately 10:17 p.m., although only 51 minutes and 21 seconds had elapsed.

Valdes argued that the starting time of 7 p.m. ran counter to the police’s timeline of

events the night of his arrest—which included numerous conspiratorial phone calls

involving him placed after 7 p.m.—and showed that the government had

introduced fabricated evidence. The district court denied the motions without

holding an evidentiary hearing, ruling that the evidence was not newly discovered

and was merely impeaching evidence that did not warrant a new trial.

      On appeal, Valdes argues that the district court abused its discretion in

denying his motions. He also argues that the district court abused its discretion by

not at least holding an evidentiary hearing.


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      We review the denial of a Rule 33 motion for a new trial for abuse of

discretion. United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009) (per

curiam). We also review a district court’s decision to rule on a Rule 33 motion

without an evidentiary hearing for abuse of discretion. United States v. Schlei, 122

F.3d 944, 990 (11th Cir. 1997).

      Rule 33 allows a defendant to file a motion for a new trial within three years

after the verdict if the motion is based on “newly discovered evidence.” Fed. R.

Crim. P. 33(b)(1). The court may grant the motion “if the interest of justice so

requires.” Fed. R. Crim. P. 33(a). We have held that, to succeed on a Rule 33

motion based on newly discovered evidence, the defendant 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.

United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (internal quotation

marks omitted). We have noted that 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) (internal quotation marks omitted).

      The decision whether to hold an evidentiary hearing on a motion for a new

trial based on newly discovered evidence is within the trial court’s sound
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discretion. United States v. Slocum, 708 F.2d 587, 600 (11th Cir. 1983). We have

stated that a defendant is not entitled to an evidentiary hearing on a Rule 33 motion

if “the acumen gained by a trial judge over the course of the proceedings [made

him] well qualified to rule. . .without a hearing.” Schlei, 122 F.3d at 994 (internal

quotation marks omitted).

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

motions for a new trial because it correctly concluded that none of the evidence

Valdes offered was new, and even assuming, arguendo, that the evidence was

newly discovered, it was merely impeaching evidence and did not warrant a new

trial. See Jernigan, 341 F.3d at 1287. The district court also did not abuse its

discretion by failing to conduct an evidentiary hearing before denying Valdes’s

motions, because the trial judge also presided over these motions and thus was

already familiar with the evidence. See Schlei, 122 F.3d at 994. Accordingly, after

review of the parties’ briefs and the record on appeal, we affirm.

      AFFIRMED.




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