                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 08-15072                   MARCH 23, 2009
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                         ________________________

                     D. C. Docket No. 01-00423-CR-PCH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

KARL BERNARD BELL,

                                                           Defendant-Appellant.


                         ________________________

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

                              (March 23, 2009)

Before BARKETT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Karl Bernard Bell, a federal inmate proceeding pro se, was convicted of two
counts of distributing crack cocaine in 2001. Bell appeals the district court’s

denial of his renewed and supplemented motion for a new trial and his post-trial

motion for discovery. After review, we affirm.

       This is Bell’s third motion for a new trial pursuant to Federal Rule of

Criminal Procedure 33. At Bell’s trial, Dwight Mallary testified as a confidential

informant for the government. Mallary testified that he purchased crack cocaine

from Bell during two controlled buys on March 8, 2000 and April 27, 2000. The

factual and legal basis for Bell’s current motion is that the government suppressed

material evidence that Mallary was a drug dealer and allowed Mallary to give

perjured testimony by omitting his involvement in drug dealing. Bell attached a

transcript of Mallary’s testimony in a different trial in which Mallary admitted to

being employed by a drug dealer at a car wash and conspiring to purchase cocaine

from that drug dealer between March and July 2000.

       The district court did not abuse its discretion in denying Bell’s latest Rule 33

motion.1 The timing of the government’s awareness of Mallary’s drug dealing and

the impact of such impeachment evidence on the jury’s verdict were fully

considered by the district court and this Court in relation to Bell’s two prior


       1
        We review a district court’s denial of a motion for a new trial pursuant to Rule 33 for abuse
of discretion. United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002). We review
application of the law of the case doctrine de novo. United States v. Bobo, 419 F.3d 1264, 1267
(11th Cir. 2005).

                                                 2
motions for a new trial. In particular, this Court previously concluded that the

government became aware of Mallary’s drug dealing only after Bell’s trial, United

States v. Bell, No. 02-1011 (11th Cir. filed Dec. 6, 2002), and that information

about Mallary’s drug dealing was merely cumulative impeachment evidence and

would not have produced a different result at trial, United States v. Bell, No. 04-

15703 (11th Cir. filed Aug. 12, 2005). These prior holdings became the law of the

case. See United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005) (“The law

of the case doctrine bars relitigation of issues that were decided, either explicitly or

by necessary implication, in an earlier appeal of the same case.”).2 And, for the

reasons stated in those prior opinions, Bell’s proffer of Mallary’s testimony about

his drug dealing did not warrant a new trial. See United States v. Jernigan, 341

F.3d 1273, 1287 (11th Cir. 2003) (explaining that to warrant a new trial, a

defendant must show, inter alia, that the new evidence was “not merely cumulative

or impeaching,” was “material to issues before the court” and “would probably

produce a different result”).

        The district court also did not abuse its discretion in denying Bell’s motion



        2
         At times, the parties have characterized the bar to relitigating these issues as “res judicata.”
However, res judicata does not apply here because Bell seeks to modify a judgment in the same
case. See United States v. Escobar-Urrego, 110 F.3d 1556, 1560 n.3 (11th Cir. 1997). We conclude
that the district court’s ruling that the issues raised had “already been fully considered and resolved
against Bell,” is more properly characterized as an application of the law-of-the-case doctrine.

                                                   3
for post-trial discovery.3 Pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194 (1963), Bell sought an order compelling the government to disclose all

information relating to Mallary’s history as an informant. Bell claimed that this

information contained suppressed, material evidence of which the defense was

unaware.

       Brady applies after trial only “when it is discovered that the prosecution had

material information of which the defense was unaware.” United States v. Arias-

Izquierdo, 449 F.3d 1168, 1189 (11th Cir. 2006). Because Brady is not a discovery

device, discovery should not be ordered “based upon mere speculation as to

whether the material would contain exculpatory evidence . . . .” Id.

       Here, Bell’s Brady claim was based on mere speculation. Furthermore, as

discussed above, this Court previously has concluded that the government did not

suppress evidence of Mallary’s drug dealing or knowingly use perjured testimony

at Bell’s trial. Thus, even if the requested documents discredited Mallary, Bell’s

claim that they would establish a Brady violation is unsupported.4

       AFFIRMED.

       3
         We review the denial of a defendant’s post-trial motion for discovery for abuse of
discretion. See United States v. Espinosa-Hernandez, 918 F.2d 911, 913 (11th Cir. 1990).
       4
        Bell’s notices of appeal also designated the denial of his motions for reconsideration of the
above-mentioned orders. However, because Bell’s appellate brief did not address these rulings, Bell
has waived any argument with respect to them. See United States v. Levy, 379 F.3d 1241, 1242-43
(11th Cir. 2004).

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