            Case: 12-14198   Date Filed: 04/22/2013   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-14198
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 1:07-cr-20588-DMM-4

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                  versus

JAMES PARK,
a.k.a. Mobboy,

                                                          Defendant-Appellant.

                        ________________________

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

                               (April 22, 2013)



Before BARKETT, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
                Case: 12-14198        Date Filed: 04/22/2013       Page: 2 of 4


       James Park appeals the district court’s denial of his motion under Federal

Rule of Criminal Procedure 33 for a new trial based on newly discovered evidence.

Proceeding pro se, Park argues (1) the government’s failure to disclose certain

documents impaired his Sixth Amendment right to cross-examination, and (2) the

government’s suppression of those documents violated Brady v. Maryland, 373

U.S. 83 (1963). Upon review of the record and the parties’ briefs, we affirm. 1

       Under Rule 33, newly-discovered evidence warrants a new trial only when

such a remedy is “in the interest of justice.” See United States v. Vicaria, 12 F.3d

195, 198 (11th Cir. 1994). Park has not made this showing, because the evidence

upon which he relies is merely cumulative impeachment material that in no way

suggests a new trial would “probably produce a different result.” See, e.g., United

States v. Jernigan, 341 F.3d 1273, 1278 (11th Cir. 2003). Park’s newly-discovered

evidence consists of three documents: (1) a report describing a key witness’s

criminal history; (2) the same witness’s handwritten account of his arrest; and

(3) that witness’s handwritten diagram of the parties’ narco-trafficking operation.

The information contained in these documents was either known to the jury, and

was thus cumulative, or had no relevance to Park’s guilt or innocence, and was

thus merely impeachment material. Moreover, none of Park’s new evidence

       1
         The denial of a Rule 33 motion is reviewed for abuse of discretion. United States v.
Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009). A district court abuses its discretion when it
applies an erroneous legal standard or makes clearly erroneous findings of fact. United States v.
Jordan, 316 F.3d 1215, 1249 (11th Cir. 2003).
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contradicts the Government’s proof of his guilt. The district court, therefore, did

not abuse its discretion in denying Park’s Rule 33 motion for a new trial.

      We likewise reject Park’s constitutional challenges. Any Sixth Amendment

errors were harmless, because it is “beyond a reasonable doubt” the jury would

have found Park guilty of drug conspiracy even with the disclosure of the

documents at issue. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)

(holding that harmless error in this context is determined by, among other factors,

“the importance of the witness’ testimony in the prosecution’s case,” “the extent of

cross-examination otherwise permitted, and, of course, the overall strength of the

prosecution’s case”). Aside from the key witness’s testimony, the jury saw

videotape of Park negotiating to buy more than five kilograms of cocaine and

boasting about his intent to distribute the drugs. The record also shows Park had

ample opportunity to cross-examine the Government’s key witness. In light of

these considerations as well as the “overall strength of the prosecution’s case,” any

Sixth Amendment error was harmless. See id.

      Similarly, Park’s Brady challenge fails. The newly-discovered documents

do not qualify as “material” under Brady v. Maryland, 373 U.S. 83 (1963), because

they do not “put the whole case in such a different light as to undermine

confidence in the verdict.” Cone v. Bell, 556 U.S. 449, 470 (2009). Based on the

Government’s proof at trial—which Park’s new evidence does not contradict—


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there is no “reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Kyles v. Whitley,

514 U.S. 419, 433 (1995) (internal quotation marks omitted).

      For the foregoing reasons, the district court’s denial of Park’s Rule 33

motion for a new trial is

      AFFIRMED.




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