                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 05-11060
                                                               February 28, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                         ________________________                CLERK

                      D. C. Docket No. 04-80022-CR-KLR


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

TORRES HOLMES,

                                                           Defendant-Appellant.

                         ________________________

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

                             (February 28, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Torres Holmes (“Holmes”) appeals his convictions for bank robbery, in

violation of 18 U.S.C. §§ 2113(a) and (d); conspiracy to commit bank robbery, in
violation of 18 U.S.C. § 371; and possession of a firearm during the commission of

a felony, in violation of 18 U.S.C. § 924(c). On appeal, Holmes argues that the

district court erred by (1) admitting evidence of his involvement in an uncharged

bank robbery, pursuant to Fed. R. Evid. 404(b); and (2) denying his request for an

evidentiary hearing on his motion for a new trial.1 After thorough review of the

record and careful consideration of the parties’ briefs, we affirm.

       We review a district court’s admission of evidence of a defendant’s prior

bad acts under Rule 404(b) and its denial of a motion for new trial based on newly

discovered evidence for abuse of discretion. See United States v. Ramirez, 426

F.3d 1344, 1354 (11th Cir. 2005) (admission of 404(b) evidence); United States v.

Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (denial of motion for a new trial

based on newly discovered evidence).                  We likewise review the district court’s




       1
           We discern no abuse of discretion in the district court’s denial of Holmes’s two motions
for continuance of his trial. See United States v. Bowe, 221 F.3d 1183, 1189 (11th Cir 2000)
(reviewing decision on a motion for continuance for abuse of discretion). Holmes has not satisfied
his burden to show specific, substantial prejudice resulting from an alleged inadequate opportunity
to prepare for trial. Id. at 1190 n.5 (noting that when party denied continuance alleges an inadequate
opportunity to prepare for trial, the party “must also show specific, substantial prejudice”).
Holmes’s counsel was appointed seven weeks prior to the start of trial. Holmes has not suggested,
and our own review does not reveal, why that amount of time was inadequate to prepare for this
trial. Cf. United States v. Verderame, 51 F.3d 249, 251 (11th Cir. 1995) (finding abuse of discretion
based on denial of unopposed motion for continuance where defense counsel had 34 days to prepare
for trial, and government had spent years investigating case, case involved two major drug
conspiracies and large forfeitures, and government filed a second bill of particulars on the first day
of trial).

                                                  2
denial of an evidentiary hearing for abuse of discretion. United States v. Massey,

89 F.3d 1433, 1443 (11th Cir. 1996).

      The parties are familiar with the facts and we summarize only those

necessary to our analysis. On June 8, 2004, by superseding indictment, Holmes

and his brother, Keenan Holmes (“Keenan”), were charged with bank robbery

(Count 1), in violation of 18 U.S.C. §§ 2113(a) and (d); conspiracy to commit bank

robbery (Count 2), in violation of 18 U.S.C. § 371; and possession of a firearm

during the commission of a felony (Count 3), in violation of 18 U.S.C. § 924(c).

The superseding indictment alleged that the charged offenses occurred on or about

December 4, 2003, at the First Community Bank of Palm Beach County in Belle

Glade, Florida.

      Prior to trial, the government filed a notice of its intent to introduce,

pursuant to Federal Rule of Evidence 404(b), co-defendant Keenan’s testimony

concerning Holmes’s participation in an uncharged robbery of the First

Community Bank of Palm Beach in Belle Glade, Florida on October 2, 2003. In

support of admitting this testimony under Rule 404(b), the government asserted the

evidence was relevant to the instant charges because (1) by pleading not guilty,

Holmes had put his intent at issue; (2) the evidence tended to show motive, plan,




                                        3
preparation, opportunity, and identity; and (3) the uncharged offense was

committed by the same individuals as the instant offense.

      On the first day of the first trial, the district court made a preliminary finding

that evidence about the October bank robbery was admissible as inextricably

intertwined with the instant offense, or, in the alternative, as proper Rule 404(b)

material.   The district court stated that the evidence was “most fairly viewed as

inexplicably intertwined,” but it also found that the evidence was permissible under

Rule 404(b) because it was “relevant to an issue other than the defendant’s

character . . . [namely] state of mind and claim and lack of mistake.” The district

court further determined that the uncharged offense would be established by

sufficient proof for the jury to determine that Holmes was involved in the

uncharged robbery because Holmes’s brother would testify to that fact. Finally,

the district court concluded that, due to the proximity in time between the offenses

and the “nature of the evidence,” the probative value of the evidence was not

substantially outweighed by the prejudice to Holmes.

      During the government’s case-in-chief, Keenan testified that on October 2,

2003, he, Holmes, and Gregory Richardson robbed a bank in Belle Glade, Florida.

Before the robbery, it had been agreed that Keenan would “keep everybody at bay

in the lobby” of the bank, Richardson would “go across the counter,” and Holmes



                                           4
would be the driver because he was the most familiar with the Belle Glade area.

On October 2, 2003, Keenan and Richardson went into the bank, Richardson went

over the counter, and then they both exited the bank. Keenan testified that he and

Richardson then ran down the road, swam across a canal, and got into a Dodge

Intrepid in which Holmes was waiting. The three co-conspirators then drove away

from the bank.

      Keenan also testified about the subsequent December 4, 2003 robbery,

which formed the basis of the instant superseding indictment, of the same bank in

Belle Glade. On that date, Keenan testified that after he, Holmes, and Richardson

approached the bank, they decided to use a different escape route because there

were people on the particular block they had used during the October robbery.

Keenan and Richardson then went into the bank, ordered everyone to get down,

and Richardson went over the counter.       After leaving the bank, Keenan and

Richardson headed in the same general direction as they had during the first

robbery. They then swam across the same canal and eventually saw Holmes drive

toward them in his Dodge Intrepid. Keenan and Richardson got into Holmes’s

vehicle.   Shortly thereafter, they were involved in a car chase with law

enforcement, after which they were apprehended.        During cross-examination,




                                        5
Keenan explained that he was testifying as a government witness “in hopes for a

reduced sentence.”

      Holmes testified in his own defense and claimed that he was not involved in

the December 4, 2003 robbery. According to Holmes, he let Keenan borrow his

car on that date. He subsequently found the car on the side of the road in Belle

Glade.      As he was driving the car around Belle Glade, he found Keenan and

Richardson on the side of road.             Keenan and Richardson got into the car with

Holmes and, as Holmes was driving, a police officer began following the car.

Keenan then put his foot on the gas pedal and the car crashed into a truck. Holmes

testified that he jumped and ran from the car because he was on probation and

thought that Keenan had involved him in a high speed chase.

      The jury found Holmes guilty of conspiracy to commit armed bank robbery

(Count 2) and the court declared a mistrial as to Counts 1 and 3. After a second

trial, Holmes was convicted on Counts 1 and 3.2 He then proceeded to sentencing.

      At sentencing, Holmes, who was represented by a newly appointed attorney,

requested a new attorney because his appointed attorney did not specialize in

appeals. Holmes said: “I prefer to have me a lawyer that can come go through this

with me. And also I have other issues. When I talked to my investigator he said



      2
          In this appeal, Holmes raises no issues concerning the second trial.

                                                  6
that my co-defendant, Gregory Richardson, he told them straight up, ‘Look, that

guy had nothing to do with it.’” The district court granted Holmes’s request for a

new attorney and postponed his sentencing.

      At the continued sentencing hearing, Holmes requested a new trial or an

evidentiary hearing based on exculpatory evidence that he obtained after his trial.

Specifically, he stated:

      I have been trying to address the [c]ourt about an issue referring to a
      Rule 33. It was something that was brought to my attention after trial
      when I had called . . . my investigator . . . . [My investigator] said he
      was sorry things did not work out. He told me that - - why don’t my
      attorney at the time don’t call Gregory Richardson to testify at my
      trial. At which time I was like, I don’t know, what was he supposed
      to be called for? He told me that Gregory Richardson pretty much
      gave him a statement that I had no part in planning the robbery and
      him and my brother rehearsed their statement while in custody to try
      to curry favor with the [g]overnment to get a reduced sentence. I been
      trying to get - - that’s when I put the motion in to fire my attorney. . . .
      If Gregory Richardson made a statement that they coerced this
      statement to curry favor with the [g]overnment I feel I should have a
      new trial or a hearing to sort out these issues.

The government responded that it had not called Richardson as a witness because,

during debriefing, Richardson denied being involved in the October 2, 2003 bank

robbery.   The government maintained that it chose to call Keenan, instead of

Richardson, because Keenan could testify about Holmes’s involvement in both the

October 2nd and December 4th robberies. The government further noted that “[a]t

no time during the debriefing of Gregory Richardson did he say [Holmes] was not

                                           7
involved in the bank robbery. In other words, [Richardson] at no time provided

exculpatory information about [Holmes] not being involved in the bank robbery.”

      The district court denied Holmes’s request for a hearing and stated, “I don’t

see a basis for that hearing. He was available to both sides at trial. I see nothing in

the factors of this case that would indicate the necessity for a hearing with respect

to Richardson.” After the sentencing hearing. the court sentenced Holmes to a

360-month term of imprisonment. This appeal followed.

      On appeal, Holmes argues that Keenan’s testimony about the October 2nd

bank robbery was impermissible Rule 404(b) evidence because it was offered only

to show that, during the December 4th bank robbery, Holmes acted in conformity

with his October 2nd conduct. Holmes urges that the testimony about the earlier

bank robbery did not arise out of the same transaction as the instant offense and

was not necessary to complete the facts of the instant offense. He also contends

the earlier robbery was not inextricably intertwined with the instant offense. We

are unpersuaded.

      Federal Rule of Evidence 404(b) provides: “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be admissible for other




                                          8
purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident . . . .” Fed. R. Evid. 404(b).

Thus, Rule 404(b) permits the admission of prior-bad-acts evidence to show

motive, preparation, knowledge, and intent, as well as an ongoing scheme or plan.

See United States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir. 1992);

United States v. Cross, 928 F.2d 1030, 1047-48 (11th Cir. 1991). In reviewing

404(b) decisions, we apply a three-part test for admissibility of such evidence:

(1) the evidence must be relevant to an issue other than the defendant’s character;

(2) there must be sufficient proof so that a jury could find that the defendant

committed the extrinsic act; and (3) the evidence must have probative value that is

not substantially outweighed by undue prejudice. See Jernigan, 341 F.3d at 1280.

“A similarity between the other act and a charged offense will make the other

offense highly probative with regard to a defendant’s intent in the charged

offense.” United States v. Ramirez, 426 F.3d at 1344, 1354 (11th Cir. 2005).

      Here, Keenan’s testimony about the prior bank robbery plainly was relevant

to the issue of Holmes’s state of mind with respect to the charged offenses. “One

of the elements of conspiracy that the prosecution must establish beyond a

reasonable doubt is an intention to further the purposes of the conspiracy.” United

States v. Costa, 947 F.2d 919, 925 (11th Cir. 1991). When a defendant charged



                                          9
with conspiracy enters a plea of not guilty, as in this case, he makes intent a

material issue in the case. See id.; United States v. Delgado, 56 F.3d 1357, 1365

(11th Cir. 1995). Holmes did not “affirmatively take the issue of intent out of

contention by stipulating that [he] possessed the requisite intent,” Costa, 947 F.2d

at 925. Indeed, his very theory of defense was that he was in the wrong place at

the wrong time and lacked the requisite intent.                 Moreover, the government

presented sufficient evidence, in the form of Keenan’s testimony, from which a

jury could find that Holmes committed the prior bank robbery. Finally, we are

satisfied the district court did not abuse its discretion when it determined the

testimony about the October 2nd robbery, which notably, occurred at the same

bank, involved the same participants, and entailed a strikingly similar mode of

escape, was sufficiently probative and was not outweighed by its prejudicial effect.

See Jernigan, 341 F.3d at 1280. Given the substantial similarity between the two

robberies and the closeness in time, when coupled with Holmes’s defense that he

did not participate in the charged offense, the evidence of the uncharged robbery

was probative of Holmes’s guilt and was not outweighed by its prejudice to

Holmes.     In short, we can find no abuse of discretion in the district court’s

admission of the disputed testimony.3


       3
        Because we affirm the district court’s decision to admit the evidence under 404(b), we
need not, and do not reach the issue of whether the evidence was “inextricably intertwined” with

                                               10
         We likewise are unconvinced by Holmes’s argument that the district court

erred by denying his motion for an evidentiary hearing concerning his claim of

newly discovered exculpatory evidence.4 To obtain a new trial on the basis of

newly discovered evidence, a defendant must show that:

         (1) the evidence was discovered after trial, (2) the failure of the
         defendant to discover the evidence was not due to a lack of due
         diligence, (3) the evidence is not merely cumulative or impeaching,
         (4) the evidence is material to issues before the court, and (5) the
         evidence is such that a new trial would probably produce a different
         result.

Jernigan, 341 F.3d at 1287. “Failure to meet any one of these elements will defeat

a motion for a new trial.” United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir.

1995).

         Holmes has not met his burden here. He has not demonstrated that he first

discovered the alleged new evidence after his trial, as required by the first prong of

the test. Indeed, according to his argument in the district court in support of a new




the instant offense.
         4
           Federal Rule of Criminal Procedure 33 provides that a defendant may file a motion for a
new trial on the basis of newly discovered evidence within three years after the verdict or finding
of guilty, and “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new
trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a), (b)(1). Because Holmes filed his
Rule 33 motion within three years after the verdict, there is no jurisdictional impediment to our
review of this issue, as urged by the government. The Supreme Court recently held that “Rule 33
motions are . . . not jurisdictional” and that where the government fails to argue the motion is
untimely in the district court, it forfeits the defense on appeal. See Eberhart v. United States, ___
U.S. ___, 126 S. Ct. 403, 406-07, 163 L. Ed. 2d 14 (2005).

                                                  11
trial, Holmes’s trial investigator became aware of Richardson’s statement prior to

or during Holmes’s trial. Moreover, as the district court found, Richardson was

available as a witness for Holmes’s trial, but Holmes failed to call him. As such,

Holmes cannot meet the second prong of the test for a new trial because it is not

clear that Holmes’s alleged lack of knowledge about Richardson’s statement did

not result from his own lack of due diligence. See id. Again, on this record, we

can find no abuse of discretion in the district court’s denial of Holmes’s motion for

an evidentiary hearing and new trial based on Richardson’s statement.

      AFFIRMED.




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