                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              January 9, 2006
                               No. 05-10137
                                                             THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 03-20525-CR-PCH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

MAUREEN GRAY,

                                                             Defendant-Appellant.


                         ________________________

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

                               (January 9, 2005)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Maureen Gray appeals the district court’s denial of her motion for a new trial
based upon newly discovered evidence. After review, we affirm.

       Gray, an airport baggage handler, was tried and convicted of two counts of

knowingly and intentionally attempting to import cocaine. During her trial in

November 2003, the government introduced into evidence a tape-recorded

conversation in which Gray asked government informant John Lewis, another

baggage handler, whether the suitcase she was helping to smuggle contained a

“white pregnant lady.” Lewis testified that he understood Gray to be asking

whether the suitcase contained cocaine. Lewis also testified that he was

cooperating with the government as part of a plea agreement in a pending criminal

case against him and that he was assisting authorities in gathering information

about other smugglers in order to have his sentenced reduced. On cross-

examination, Lewis agreed that depending upon how favorable the U.S. Attorney’s

Office found his cooperation, he “could go all the way from spending the rest of

[his] life in jail to spending no time at all in jail.”

       Following her conviction, Gray filed a motion for a new trial based on

newly-discovered evidence that Lewis had lied to the Drug Enforcement Agency

(“DEA”) about circumstances surrounding the September 1997 administrative

criminal seizure of money from a suitcase that Lewis’s son had brought through

Miami airport. The district court denied Gray’s motion, and this appeal followed.



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      On appeal, Gray argues that her post-trial discovery that Lewis had lied to

DEA agents on a collateral matter years earlier warrants a new trial because the

government relied on Lewis’s testimony to establish that Gray believed that she

was dealing with cocaine. We review a district court’s denial of a defendant’s

motion for a new trial for abuse of discretion. See United States v. Jernigan, 341

F.3d 1273, 1287 (11 th Cir. 2003). Upon review of the record and consideration of

the parties’ briefs, we discern no reversible error.

      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, and “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). We have held that district courts should

exercise “great caution” in granting a new trial based on newly discovered

evidence. Jernigan, 341 F.3d at 1287 (quotation marks and citation omitted). To

obtain a new trial on the basis of newly discovered evidence, a defendant must

show that: (1) the evidence was in fact discovered following trial; (2) the defendant

exercised due care to discover the evidence; (3) the evidence is not merely

cumulative or impeaching; (4) the evidence is material; and (5) the evidence is of

such nature that a new trial would probably produce a different result. United

States v. Lee, 68 F.3d 1267, 1273 (11 th Cir 1995). “The failure to satisfy any one



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of these elements is fatal to a motion for new trial.” Id. at 1274. As to elements

one, two and four, neither party disputes that the evidence was discovered

following trial or that Gray exercised due care to discover the evidence, and the

government previously conceded that the newly discovered evidence was material

to the credibility of Lewis as the government’s cooperating witness.

      However, as to the elements in dispute, Gray’s arguments fail. First, as to

element three, Gray did not show that the newly-discovered evidence is anything

more than impeaching. See United States v. Riley, 211 F.3d 1207, 1208 (11 th Cir.

2000), vacated in part on other grounds, 232 F.3d 844 (11 th Cir. 2000) (holding that

district court did not abuse its discretion in denying a new trial based on newly-

discovered impeaching evidence as to a collateral matter). Second, as to element

five, she failed to demonstrate how the newly discovered evidence would be likely

to result in her acquittal given that the jury had heard a tape-recorded conversation

in which Gray used the term “white pregnant lady” to describe the contents of the

suitcase, and the jury was fully aware that Lewis had a pending criminal case and

stood to gain a great deal by testifying favorably for the government. It is highly

unlikely that knowledge that Lewis lied to DEA agents years earlier and before he

was an informant about an unrelated matter would have resulted in Gray’s

acquittal. Accordingly, the district court did not abuse its discretion in denying



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Gray’s motion for a new trial.

      AFFIRMED.




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