     Case: 11-20786       Document: 00512380697         Page: 1     Date Filed: 09/20/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 20, 2013
                                     No. 11-20786
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RHONDA FLEMING,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CR-513-1


Before JOLLY, SMITH, AND CLEMENT, Circuit Judges.
PER CURIAM:*
       Rhonda Fleming, federal prisoner # 20446-009, appeals the district court’s
denial of her August 2011 motion for new trial based on newly discovered
evidence. A jury found Fleming guilty of one count of conspiring to commit
health care fraud and wire fraud, 35 counts of aiding and abetting health care
fraud, 10 counts of aiding and abetting wire fraud, 15 counts of concealing
money laundering, and five counts of engaging in monetary transactions in
property derived from specified unlawful activity, and the district court

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-20786

sentenced her to a total term of 360 months in prison and three years of
supervised release. This court affirmed the judgment. United States v. Arthur,
432 F. App’x 414 (5th Cir. 2011).
      The district “court may vacate any judgment and grant a new trial if the
interest of justice so requires.” FED. R. CRIM. P. 33(a). We review the denial of
a motion for a new trial for an abuse of discretion. United States v. Piazza, 647
F.3d 559, 564 (5th Cir. 2011). To obtain a new trial based on newly discovered
evidence, the defendant must show that (1) the evidence is newly discovered and
was unknown to her at the time of trial, (2) the failure to detect the evidence was
not due to her lack of diligence, (3) the evidence is not merely cumulative or
impeaching, (4) the evidence is material, and (5) the evidence if introduced at a
new trial would probably produce an acquittal. Id. at 565. The failure to
demonstrate any one factor is fatal to the motion. Id.
      “The decision to conduct an evidentiary hearing on a motion for a new trial
is within the sound discretion of the district court.” United States v. Bishop, 629
F.3d 462, 470 (5th Cir. 2010). This court “will reverse only where the ruling was
so clearly erroneous as to constitute an abuse of discretion.” Id.
      Fleming moved for a new trial based on newly discovered evidence that
she was improperly medicated during trial, that she was involuntarily medicated
as a condition of representing herself at trial, and that the jury prematurely
deliberated and was tampered. The district court determined that it did not
have jurisdiction over the motion for new trial because it was filed while the case
was still on appeal and ordered that the motion be stricken. In the alternative,
the court denied the motion “because the issues raised by defendant were each
rejected on appeal and are not, as defendant alleges, premised upon newly-
discovered evidence.”
      To the extent the district court struck or denied the motion for lack of
jurisdiction, it erred. See FED. R. CIV. P. 33; United States v. Redd, 355 F.3d 866,



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                                  No. 11-20786

880 (5th Cir. 2003). However, such error is not reversible and does not warrant
remand in this case because we affirm on the district court’s alternative grounds.
      The district court did not err in concluding that Fleming’s claim that she
was involuntarily medicated in violation of her right to due process was rejected
on direct appeal. See Arthur, 432 F. App’x at 428. Additionally, contrary to
Fleming’s assertion, there was no testimony at the proffer hearing that either
the prescription for or the duration of Fleming’s taking of Effexor was improper.
Thus, Fleming did not have evidence, new or otherwise, that she was improperly
medicated.
      Fleming raised in the instant new trial motion the same or similar
assertions that she made in her October 2009 motion for an evidentiary hearing
on jury misconduct, and which this court found on direct appeal were insufficient
to support that motion. Arthur, 432 F. App’x at 431. Thus, the district court did
not err in finding that this issue had been rejected on direct appeal.
Additionally, Fleming’s only new evidence was her own affidavit containing
hearsay. Thus, the district court did not err in finding that Fleming had
presented no new evidence that the jury had engaged in premature deliberations
or had been tampered. See United States v. Neuman, 505 F. App’x 308, 309 (5th
Cir. 2013 (citing United States v. Wall, 389 F.3d 457, 470-71 (5th Cir. 2004)).
      Accordingly, the district court did not abuse its discretion in denying
Fleming’s motion for a new trial without a hearing. See Piazza, 647 F.3d at 564-
65; Bishop, 629 F.3d at 470. Fleming’s outstanding motions for remand to hold
hearing on her motion for a new trial and for appointment of counsel on remand
are denied.
      AFFIRMED; MOTIONS DENIED.




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