             Case: 13-14893     Date Filed: 06/24/2014   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-14893
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:09-cr-00429-VMC-EAJ-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

FREDERICK WARDELL MITCHELL,
a.k.a. Wardell,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (June 24, 2014)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

      Frederick Mitchell, proceeding pro se, appeals the district court’s denial of

his Fed.R.Crim.P. 33 motion for a new trial based on newly discovered evidence
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concerning his 2010 convictions for robbery and other related offenses. In support

of his Rule 33 motion, Mitchell submitted an affidavit by Roberto Almaguer

asserting that the government had coerced him into falsely testifying against

Mitchell at trial. The record shows that Almaguer originally testified at trial that

he and Mitchell, along with a third individual, committed an armed robbery of a

Waffle House restaurant. On appeal, Mitchell argues that: (1) the district court

erred in finding that Almaguer’s affidavit, recanting his former testimony, did not

constitute newly discovered evidence warranting a new trial; and (2) the court

erred in denying his motion for a new trial without first conducting an evidentiary

hearing. After careful review, we affirm.

      We review the district court’s 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).

We also review a 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). Additionally, “[p]ro se pleadings are held to a less stringent standard

than pleadings drafted by attorneys and will, therefore, be liberally construed.”

Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (quotations omitted).

      Rule 33 allows a defendant to file a motion for a new trial within 3 years

after the verdict if the motion is based on “newly discovered evidence,” or 14 days

after the verdict if based on “other grounds.” Fed.R.Crim.P. 33(b). The court may


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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) (quotations

omitted).   The defendant must satisfy all of these elements to warrant relief.

United States v. Williams, 816 F.2d 1527, 1530 (11th Cir. 1987). 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) (quotations omitted).

      “In ruling on a motion for new trial based upon newly discovered evidence,

it is within the province of the trial court to consider the credibility of those

individuals who give statements in support of the motion.” United States v. Reed,

887 F.2d 1398, 1404 n.12 (11th Cir. 1989). Further, we have held that, for newly

discovered evidence to justify a new trial, “the evidence must be material and not

merely cumulative or impeaching, and must be such that it will probably produce

an acquittal.” United States v. Diaz, 190 F.3d 1247, 1255 (11th Cir. 1999).




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       The government’s presentation of perjured testimony or failure to correct

false evidence violates due process. Giglio v. United States, 405 U.S. 150, 153-55

(1972). In order to establish a Giglio violation, the defendant must show that “(1)

the contested statements were actually false, (2) the statements were material, and

(3) the prosecution knew that they were false.” United States v. Bailey, 123 F.3d

1381, 1395 (11th Cir. 1997) (quotations omitted). In order to show that the

contested statements were material, the defendant must demonstrate that “the false

testimony could reasonably be taken to put the whole case in such a different light

as to undermine confidence in the verdict.” United States v. Dickerson, 248 F.3d

1036, 1041 (11th Cir. 2001) (quotations omitted).

      First, we reject Mitchell’s claim that the district court abused its discretion

by denying the motion for a new trial based on newly discovered evidence. As the

record shows, Almaguer’s affidavit was conclusory -- it did not identify which

portions of his trial testimony were untrue or provide a corrected account of the

robbery. Thus, it was within the district court’s province to find that the affidavit

was not credible when viewed against Almaguer’s detailed testimony at trial. As

for whether Almaguer’s affidavit constituted newly discovered evidence, the

affidavit was not dated, and Mitchell did not show that he obtained the affidavit

after the trial was completed.        Moreover, even assuming, arguendo, that

Almaguer’s affidavit constituted new evidence, the record shows that the


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government produced substantial evidence of Mitchell’s guilt at trial apart from

Almaguer’s testimony. As a result, there was little in the record for the district

court to find that Almaguer’s affidavit would have probably produced an acquittal.

See Diaz, 190 F.3d at 1255. In short, the district court did not abuse its discretion

by denying the motion for new trial on this claim. Nor, moreover, did the district

court abuse its discretion in finding that Mitchell was not entitled to a new trial on

the basis of any Giglio violation.       Among other things, Mitchell failed to

demonstrate that the government knowingly introduced any false testimony. See

Bailey, 123 F.3d at 1395.

      Finally, the district court did not abuse its discretion by failing to conduct an

evidentiary hearing before denying Mitchell’s motion for a new trial. We have

said 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

her] well qualified to rule on the [motion] without a hearing.” Schlei, 122 F.3d at

994 (quotations omitted).      Here, District Judge Covington, who ruled upon

Mitchell’s motion, also presided over his trial. Because Judge Covington was

already familiar with the evidence and the demeanor of the witnesses, it was not

necessary for the court to conduct an evidentiary hearing before ruling on

Mitchell’s motion. See id.

      AFFIRMED.


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