                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            March 14, 2006
                              No. 05-12798
                                                          THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                  D. C. Docket No. 01-00147-CR-T-24-MAP

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

THOMAS JEROME COOK,

                                                          Defendant-Appellant.


                        ________________________

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

                              (March 14, 2006)

Before ANDERSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

     Thomas Jerome Cook, a federal prisoner serving a term of 360 months’
imprisonment for distributing a mixture containing a detectable amount of cocaine

and possessing a firearm and ammunition while convicted of a felony crime,

appeals pro se the district court’s order denying his motion for a new trial based on

newly discovered evidence, filed pursuant to Federal Rule of Criminal Procedure

33. On appeal, Cook argues that the government violated Brady v. Maryland, 373

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Giglio v. United States, 405

U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), through its failure to disclose a

trial witness’s criminal history from 1999 to 2001, the fact that the witness was on

probation at the time he testified at Cook’s trial, and the fact that probation

revocation proceedings had commenced against the witness. Cook further argues

that the district court erred in applying the standard for evaluating a motion for a

new trial based on newly discovered evidence instead of the standard for

evaluating such a motion based on Brady evidence.

      Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the

defendant’s motion, the court may vacate any judgment and grant a new trial if the

interest of justice so requires.” “We review the district court’s denial of a motion

for new trial based on newly discovered evidence for abuse of discretion.

Similarly, a district court’s denial of a motion for new trial based on a Brady

violation is reviewed for abuse of discretion.” United States v. Vallejo, 297 F.3d



                                            2
1154, 1163 (11th Cir. 2002) (citation omitted).

      To obtain a new trial based on a Brady claim of newly discovered evidence,

the defendant must show that: “(1) the government possessed favorable evidence to

the defendant; (2) the defendant does not possess the evidence and could not obtain

the evidence with any reasonable diligence; (3) the prosecution suppressed the

favorable evidence; and (4) had the evidence been disclosed to the defendant, there

is a reasonable probability that the outcome would have been different.” Vallejo,

297 F.3d at 1164. “Evidence favorable to the accused includes impeachment

evidence.” United States v. Newton, 44 F.3d 913, 918 (11th Cir. 1994). A

“reasonable probability” is “a probability sufficient to undermine confidence in the

outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87

L. Ed. 2d 481 (1985) (quotation omitted).

      Here, the district court erred because it evaluated Cook’s motion for a new

trial using the standard for a Rule 33 motion based on newly discovered evidence

instead of a Rule 33 motion based on Brady evidence. See United States v.

Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (outlining framework for

evaluating a Rule 33 motion for new trial); but see Vallejo, 297 F.3d at 1164

(setting forth standard for prevailing upon a Rule 33 motion based on a Brady

violation). However, we will not remand unless doing so “would serve [a] valid



                                          3
purpose.” See United States v. Bascaro, 742 F.2d 1335, 1344 (11th Cir. 1984).

We therefore consider whether Cook can establish a Brady claim.

      Applying the standard for a new trial based on a Brady violation and

assuming the government possessed and suppressed information about the trial

witness’s complete criminal history, Cook has not shown that he could not have

possessed this evidence with reasonable diligence. See Vallejo, 297 F.3d at 1164.

Rather, as demonstrated by the attachments to the motion for a new trial,

information about the witness’s criminal history and probationary status was

publicly available. In addition, Cook has not demonstrated that a reasonable

probability existed that the outcome of his trial would have been different had he

received a more complete evidence about the witness’s criminal history. See id.

Evidence at trial showed that Cook sold cocaine to a confidential informant and

was arrested when he tried to complete a second drug transaction with the

informant. Because Cook is unable to establish a Brady claim, remand would

serve no valid purpose. See Bascaro, 742 F.2d at 1344.

      Based on a review of the parties’ briefs and the record on appeal, we discern

no reversible error. Accordingly, we affirm.

      AFFIRMED.




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