                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-14033         ELEVENTH CIRCUIT
                         Non-Argument Calendar        JUNE 7, 2011
                       ________________________        JOHN LEY
                                                        CLERK
                 D.C. Docket No. 9:07-cr-80114-DTKH-2

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

PAULO HENRIQUE HILEL,
a.k.a. Lilito,

                                                     Defendant-Appellant.

                      ________________________

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

                              (June 7, 2011)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      In United States v. Hilel, 353 Fed.Appx. 378 (11th Cir. 2009), we affirmed

Paulo Henrique Hilel’s conviction and sentence for conspiracy to commit alien

smuggling, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). In May 2010, Hilel

moved the district court for a new trial pursuant to Federal Rule of Criminal

Procedure 33 based on newly discovered evidence. The newly discovered

evidence consisted of declarations made by two individuals, Adenir de Souza and

Marcos De Assis, not in the United States, who participated at some time in alien

smuggling activities with Hilel. Both declarants exonerated Hilel of any

involvement in the conspiracy for which he had been convicted. The district court

denied his motion on three grounds: (1) Hilel failed to establish that declarations

of Souza and Assis constituted newly discovered evidence; (2) Hilel failed to

demonstrate the declarations’ statements were more than impeaching evidence;

and (3) Hilel failed to establish that he could not have obtained the statements

before trial in the exercise of due diligence. Hilel now appeals the court’s ruling,

presenting two arguments.

      Hilel argues that the district court abused its discretion in two respects: (1)

in denying his motion because the declarations showed that the Government

violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),

Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), and

                                          2
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and

(2) in ruling without holding an evidentiary hearing. We need not reach the

question of whether the Government violated Brady, Kyles, or Giglio, because

Souza’s and Assis’s declarations did not constitute evidence, much less newly

discovered evidence.

      Rule 33 provides that a “court may vacate any judgment and grant a new

trial if the interest of justice so requires.” Fed. R. Crim.P. 33(a).

      To succeed on a motion for new trial based on newly discovered
      evidence, the movant must establish 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.

United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quotation

omitted). Newly discovered evidence does not include evidence that would be

inadmissible at trial. Jernigan, 341 F.3d at 1288-1289 (affirming the denial of a

motion for a new trial because the evidence offered was not admissible under Fed.

R. Evid. 804(b)(3), and thus, would not have produced a different result at trial).

      The district court correctly held that the declarations Hilel presented with

his motion for new trial do not constitute evidence that would be admissible at a




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retrial of Hilel’s case.1 In his declaration, Souza merely states, without providing

any explanation or support, that “Paulo Henrique Hilel had no involvement in any

alien smuggling venture that was happening about [sic] or before June 4, 2007.”

Assis, an indicted co-conspirator, in his declaration, merely states that “Mr. Paulo

Henrique Seleme Hilel, arrested in August, 2008, Case # 07/CR/8114/DTKH/2,

had no connection with the fact [sic].” We assume that “no connection” means no

involvement in the conspiracy for which Hilel was convicted. Neither Souza nor

Assis explains how they knew that Hilel was not involved in the June 4, 2007

smuggling trip, nor does either point to any evidence to support their statement

claim.

         In that neither declaration constitutes admissible evidence, and thus required

the district court to deny Rule 33 relief, we do not reach the question of whether

the Government somehow violated Brady, Kyles, or Giglio.

         AFFIRMED.




         1
          The court did not need to hold an evidentiary hearing to reach this holding. Hence,
Hilel’s second argument for reversal fails.

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