                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 JUNE 15, 2007
                                No. 06-16004                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                   D. C. Docket No. 02-00442-CR-T-27-MSS

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                      versus

FRANKLIN VARGAS,

                                                       Defendant-Appellant.


                          ________________________

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

                                 (June 15, 2007)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

     Franklin Vargas, proceeding pro se, appeals the district court’s denial of his
motion for new trial grounded in newly discovered evidence, submitted after he

pled guilty, pursuant to a written plea agreement, to possession with intent to

distribute five kilograms or more of cocaine while on board a vessel subject to the

jurisdiction of the United States, in violation of 46 App. U.S.C. § 1903(a) and (g),

18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii). In support of his motion for new

trial, Vargas claimed that a 1997 treaty between the United States and Colombia, a

1982 extradition treaty, and § 1903 itself constituted newly discovered evidence.

The district court denied this motion on the grounds that this evidence was not

newly discovered. Vargas has also moved us to hear his appeal en banc and to seal

his reply brief.

       We review the district court’s disposition of a motion for new trial for abuse

of discretion. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).

One of the grounds on which a defendant might move the district court for a new

trial is his alleged discovery of new evidence. See Fed.R.Crim.P. 33(b)(1). Our

predecessor court defined “newly discovered evidence” as “evidence that could not

have been discovered with due diligence at the time of trial.” United States v.

Johnson, 596 F.2d 147, 148 (5th Cir. 1979) (quotation omitted).1 The district court



       1
           In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this
Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.

                                               2
may grant a motion for new trial based on such evidence if the interest of justice so

requires and if (1) the evidence was in fact discovered after trial, (2) the defendant

exercised due care to discover the evidence, (3) the evidence was not merely

cumulative or impeaching, (4) the evidence was material, and (5) the evidence was

of such a nature that a new trial would probably produce a different result.

Fed.R.Crim.P. 33(a); United States v. Lee, 68 F.3d 1267, 1273-74 (11th Cir. 1995).

Each element of this test must be satisfied or else a new trial is not warranted. Lee,

68 F.3d at 1273-74. Furthermore, motions for new trial are “highly disfavored,”

and district courts “should use great caution in granting a new trial motion based

on newly discovered evidence.” United States v. Jernigan, 341 F.3d 1273, 1287

(11th Cir. 2003) (quotation omitted). Moreover, a motion for new trial is an

improper way to challenge the validity of a guilty plea. United States v. Prince,

533 F.2d 205, 208 (5th Cir. 1976).

      The district court did not abuse its discretion in concluding that Vargas had

not presented newly discovered evidence. See Martinez, 763 F.2d at 1312.

Regarding § 1903, the written plea agreement pursuant to which Vargas pled guilty

listed this statute as the statute he violated so that he was aware of its existence and

importance to his case before he pled guilty. Likewise, the 1997 treaty between the

United States and Colombia and the 1982 extradition treaty were signed well



                                            3
before Vargas pled guilty. Therefore he could have discovered and read them

through the exercise of due diligence before he pled guilty. Accordingly, because

this evidence was available before he pled guilty, Vargas did not discover it after

entering his plea and therefore cannot satisfy the test. See Johnson, 596 F.2d at

148; Lee, 68 F.3d at 1273-1274. Furthermore, because a motion for new trial is

not the appropriate vehicle for guilty plea challenges, the district court could have

appropriately denied Vargas’s motion for new trial despite its finding that the

evidence was not newly discovered. See Prince, 533 F.2d at 208. Thus, we

AFFIRM the district court’s denial of Vargas motion for new trial.2 Furthermore,

we DENY Vargas’s motion to seal his reply brief.

AFFIRMED.




      2
          By separate order, Vargas’s motion to hear his appeal en banc has been denied.

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