                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1975
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              Douglas Marcel Meeks

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Southern District of Iowa - Davenport
                                 ____________

                           Submitted: January 17, 2014
                            Filed: February 10, 2014
                                 ____________

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
                          ____________

BYE, Circuit Judge.

      Douglas Meeks was convicted of conspiracy to distribute at least fifty grams
of cocaine base and distribution of at least five grams of cocaine base. After
exhausting his appeals, Meeks filed a motion for new trial, arguing a new trial is
warranted because a government witness committed perjury. The district court1
denied the motion. We affirm.

                                           I

       Douglas Meeks was indicted and convicted of conspiracy to distribute at least
fifty grams of cocaine base and distribution of at least five grams of cocaine base.

       At trial, the government put on evidence overwhelmingly showing Meeks was
guilty of the offenses of conviction. As relevant to this appeal, during the jury trial,
Cardale Smith testified for the government concerning a controlled buy of cocaine
base from Meeks. Smith testified he had contacted the police, admitted he bought
drugs from Meeks, and offered to conduct a controlled buy. At trial, Smith denied
selling drugs during the time frame of the trial, but admitted to purchasing crack
cocaine in amounts up to a half-ounce and selling crack cocaine prior to the controlled
buy from Meeks. During cross-examination, Smith was impeached when he admitted
past purchases of crack cocaine, admitted he hoped cooperation meant he would not
face criminal charges, and admitted he had a degree of bias against Meeks because of
prior overlapping girlfriends. Smith also testified he had agreed to cooperate in order
to help his father, who was under investigation for drug crimes. Smith's testimony
regarding the controlled buy was bolstered by the testimony of Monique Nicholson
who also participated in the controlled buy.

      The jury found Meeks guilty of conspiracy to distribute at least fifty grams of
cocaine base and distribution of at least five grams of cocaine base. The district court
found Meeks had two prior felony drug convictions and sentenced Meeks to a
mandatory term of life imprisonment on the conspiracy count and a concurrent term


      1
        The Honorable John A. Jarvey, United States District Court for the Southern
District of Iowa.

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of 360 months on the individual distribution count. Meeks filed a timely appeal and
this Court affirmed the conviction. United States v. Meeks, 639 F.3d 522 (8th Cir.
2011).

      After Meeks's trial concluded, Smith was indicted for dealing cocaine. On June
30, 2010, Smith pleaded guilty to conspiracy to distribute at least fifty grams of
cocaine base. In the factual basis of the plea agreement, Smith acknowledged the
conspiracy ran from approximately September 1, 2007, to November 21, 2009, which
included the dates of Meeks's trial.

        Meeks filed a Fed. R. Crim. P. 33(b) motion for new trial based on the newly-
discovered evidence Smith had committed perjury by claiming he did not sell crack
cocaine during the time of Meeks's trial. The district court denied the motion for new
trial, concluding Smith's testimony at trial did not portray him as a person of
upstanding character, and concluding if the case were retried with the new
impeachment evidence, the new evidence could not produce an acquittal. The district
court also noted the overwhelming evidence of guilt based on the testimony of many
witnesses.

                                           II

       Meeks appeals the district court's denial of his Rule 33(b) motion for new trial.
Rule 33(b) allows district courts to vacate a conviction and grant a new trial on the
basis of newly discovered evidence. Rule 33(b) motions are disfavored and are
reviewed under the rigorous standard of a clear abuse of discretion. United States v.
Baker, 479 F.3d 574, 577 (8th Cir. 2007). A defendant is not entitled to a new trial
"unless the evidence weighs heavily enough against the verdict that a miscarriage of
justice may have occurred." United States v. Placensia, 352 F.3d 1157, 1162 (8th Cir.
2003) (internal quotation marks and citation omitted).



                                          -3-
        In order to receive a new trial, Meeks must show (1) the evidence was unknown
or unavailable at the time of trial; (2) Meeks was duly diligent in attempting to
uncover the evidence; (3) the newly discovered evidence is material; and (4) the newly
discovered evidence is such its emergence probably will result in an acquittal upon
retrial. Fed. R. Crim. P. 33(b); United States v. Rubashkin, 655 F.3d 849, 857 (8th
Cir. 2011).

       The motion fails based on the third and fourth elements, which require Meeks
to show the newly discovered evidence is material and would result in an acquittal
upon retrial. The evidence at trial shows the evidence of Meeks's participation in the
controlled buy was overwhelming, and the value of the additional impeachment
material would be negligible at best. "[I]n order to meet the materiality requirement,
newly discovered evidence must be 'more than merely . . . impeaching." Baker, 479
F.3d at 577 (quoting United States v. Dogskin, 265 F.3d 682, 685 (8th Cir. 2001)).
At trial, Smith portrayed himself as a drug user and former drug dealer and was
impeached by Meeks's counsel in various ways. The additional impeachment
evidence is not material and is insufficient to show an acquittal would be likely. See
United States v. Johnson, 450 F.3d 366, 373 (8th Cir. 2006) (holding district court did
not abuse its discretion in denying a Rule 33(b) motion where "the evidence would
serve only to impeach . . . testimony"); United States v. Hollowhorn, 523 F.3d 882,
889-90 (8th Cir. 2008) (finding allegations victim's testimony was coached served
only to impeach testimony and there was no abuse of discretion in denying the motion
for new trial). Accordingly, we conclude the district court did not abuse its discretion
in denying Meeks's motion for a new trial.

                                          III

      The judgment of the district court is affirmed.
                     ______________________________



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