                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-11194                ELEVENTH CIRCUIT
                                   Non-Argument Calendar               APRIL 14, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 4:07-cr-00308-BAE-GRS-2

UNITED STATES OF AMERICA,
lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

ERIC THOMAS BROWN,
a.k.a. Charon Field,
a.k.a. Charon Fields,
a.k.a. Eric Brown,

lllllllllllllllllllll                                          Defendant-Appellant.

                                ________________________

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

                                       (April 14, 2011)

Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         Eric Thomas Brown, a.k.a. Charon Fields (“Fields”), appeals the district
court’s denial of his motion for a new trial based on newly discovered evidence,

pursuant to Fed. R. Crim. P. 33. After his convictions for conspiracy to rob

federally insured credit unions, in violation of 18 U.S.C. § 371, attempted credit

union robbery, in violation of 18 U.S.C. § 2113(a), and possession of an

unregistered short-barreled shotgun, in violation of 26 U.S.C. § 5861, the new

evidence came in the form of a letter from the government dated approximately

one year after Fields’s trial, stating that one of the government’s primary witnesses

against Fields had been indicted on insurance fraud charges stemming from

activities that occurred both before and after the events leading to the case against

Fields.

      Fields argues that, as required by Fed. R. Crim. P. 33, the new evidence is

not merely cumulative or impeaching because it raises the implication that, as part

of the informant’s larger “lying-for-money” business, the informant fabricated his

story about Fields in order to receive monetary compensation for his cooperation

with the police. Fields argues that the evidence does not go merely to the

informant’s credibility, and further contends that if a jury was presented evidence

of the larger “lying-for-money” scheme, an acquittal would have resulted. Fields

requests additional discovery and a new trial.

      We review “the denial of a motion for a new trial based on newly

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discovered evidence for abuse of discretion.” United States v. Jernigan, 341 F.3d

1273, 1287 (11th Cir. 2003).

      Under Fed. R. Crim. P. 33, upon a defendant’s motion, 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). As we have held,

      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.

Jernigan, 341 F.3d at 1287 (quotation omitted). “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). “Motions for a new trial based on newly discovered

evidence are highly disfavored in the Eleventh Circuit and should be granted only

with great caution. Indeed, the defendant bears the burden of justifying a new

trial.” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (quotation

omitted). “Newly discovered impeaching evidence is insufficient to warrant a new

trial.” United States v. Champion, 813 F.2d 1154, 1171 (11th Cir. 1987).

      After a review of the record and consideration of the parties’ briefs, we

conclude that the district court did not abuse its discretion to deny Fields’s motion

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for a new trial because the new evidence was cumulative and merely impeaching,

and because Fields did not show that the jury would probably have reached a

different result. Accordingly, we affirm.

      AFFIRMED.




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