           Case: 15-14769   Date Filed: 06/07/2017   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-14769
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:12-cr-00457-SCB-MAP-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus


ARNOLD MAURICE MATHIS,

                                                         Defendant-Appellant.

                      ________________________

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

                              (June 7, 2017)

Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:
                 Case: 15-14769       Date Filed: 06/07/2017       Page: 2 of 4


       Arnold Mathis, proceeding pro se, appeals the district court’s denial of his

motion for a new trial based on new evidence under Fed. R. Crim. P. 33 and the

court’s denial of an evidentiary hearing on the motion. He contends evidence

allegedly discovered after trial shows the government illegally searched his cell

phone without a warrant. He also asserts his motion warranted an evidentiary

hearing. After review, 1 we affirm.

                                       I. DISCUSSION

           A defendant may move for a new trial based on newly discovered evidence

within three years of the verdict. Fed. R. Crim. P. 33. “A new trial is warranted

based upon circumstances coming to light after trial only if the following five-part

test is satisfied: (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.” United States v. Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). The failure to

satisfy any one of these elements results in denial of the motion. Id. at 1274. We

have previously stated that “motions for a new trial are highly disfavored” and that

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

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          “We review the denial of a motion for a new trial for abuse of discretion.” United
States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). We also review the denial of an
evidentiary hearing on a motion for a new trial for abuse of discretion. United States v. Massey,
89 F.3d 1433, 1443 (11th Cir. 1996).
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newly discovered evidence.” United States v. Jernigan, 341 F.3d 1273, 1287 (11th

Cir. 2003) (quotation omitted).

      We rest our determination that the district court did not abuse its discretion

on several independent grounds. First, Mathis failed to show the evidence was

discovered after trial—even assuming the state accessed his cell phone on

December 19, 2011, his expert came to that conclusion in his subsequent state trial

based on the report tendered to him by the government during his federal case.

Only his state expert’s opinion was new; neither Mathis’ expert in his federal case

nor his attorney made such a contention when they had access to the report. Thus,

Mathis fails the first prong of Lee. United States v. Calderon, 127 F.3d 1314, 1351

(11th Cir. 1997) (stating a motion for a new trial may not be based on evidence of

which the defendant had knowledge prior to the return of the jury verdict).

Second, and relatedly, Mathis did not exercise due care. As noted above, he had

the opportunity to discover the alleged warrantless access, but did not do so.

Finally, the evidence was not of such a nature as would probably produce a

different result. The search warrant application did not contain any information

gained from the alleged illegal access. The inculpating evidence from Mathis’ cell

phone would thus not have been suppressed, and the result of his trial would have

been the same. See United States v. Terzado-Madruga, 897 F.2d 1099, 1115 (11th

Cir. 1990) (“Under the ‘independent source’ doctrine, the challenged evidence will


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be admissible if the prosecution can show that it derived from a lawful source

independent of the illegal conduct.”).

      In addition, because the record already contained all of the evidence needed

to dispose of Mathis’ claims, the district court did not abuse its discretion by

denying an evidentiary hearing. United States v. Scrushy, 721 F.3d 1288, 1305

n.30 (11th Cir. 2013).

                                 II. CONCLUSION

      For the foregoing reasons, the order of the district court is affirmed.

      AFFIRMED.




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