                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            MAY 2, 2006
                             No. 04-15475
                                                          THOMAS K. KAHN
                       ________________________
                                                              CLERK

                  D. C. Docket No. 99-06153-CR-KMM

UNITED STATES OF AMERICA,


                                               Plaintiff-Appellee,

                                  versus

FABIO OCHOA-VASQUEZ,
a.k.a. Julio,
a.k.a. Pepe,

                                               Defendant-Appellant.


                       ________________________

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

                              (May 2, 2006)


Before BLACK, BARKETT and COX, Circuit Judges.

PER CURIAM:
      Fabio Ochoa-Vasquez appeals the district court’s denial of his second

motion for new trial based on newly discovered evidence. Ochoa argues the

alleged new evidence establishes (1) his former attorney violated his Sixth

Amendment rights by operating under a conflict of interest; and (2) the

prosecution knew and approved of a Government informant’s misconduct, which

tainted Ochoa’s indictment and trial. We affirm.

                                I. BACKGROUND

      Ochoa was indicted as part of “Operation Millennium,” a large drug-

trafficking investigation conducted jointly by the United States Drug Enforcement

Agency (DEA) and Colombian law enforcement agencies. Following a jury trial,

he was convicted of conspiracy to possess with intent to distribute five kilograms

or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and conspiracy

to import five kilograms or more of cocaine into the United States, in violation of

21 U.S.C. §§ 952 and 963. He was sentenced to 365 months’ imprisonment.

      Throughout the proceedings below, Ochoa repeatedly raised the attorney

conflict and Government misconduct claims that are the subject of this appeal. As

for the attorney conflict issue, he argued Joaquin Perez, who had briefly

represented him after his arrest, operated under a conflict of interest by

representing co-conspirator and Government informant Nicholas Bergonzoli. As

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for the Government misconduct issue, he argued Baruch Vega, another

Government informant, had devised an illegal scheme called the “Rehabilitation

Program of Narcotics Traffickers” (the Program) where he would solicit drug

traffickers to surrender to the DEA by promising to arrange phony cooperation

deals. Ochoa argued he was vindictively prosecuted for blowing the whistle on

the Program, and that Government witnesses testified falsely against him because

of his whistle-blowing. The district court rejected Ochoa’s arguments because he

could not show any actual conflict of interest, and because there was no nexus

between Vega’s misconduct and Ochoa’s prosecution.

      Ochoa appealed his conviction, sentence, and the denial of his first motion

for new trial, and also appealed an order denying his motion to unseal documents

in Bergonzoli’s case. We consolidated both appeals and issued an opinion on

October 20, 2005. United States v. Ochoa, 428 F.3d 1015 (11th Cir. 2005)

(Ochoa I).

      On August 12, 2004, after briefing in Ochoa I was complete, Ochoa filed a

second motion for new trial based on newly discovered evidence under Federal

Rule of Criminal Procedure 33. His purported new evidence consisted of: (1) a

recently unsealed transcript in the Bergonzoli case; (2) the recently unsealed

transcript of Bergonzoli’s plea hearing; (3) Vega’s sentencing transcript; and

                                         3
(4) transcripts from a hearing before the Merit System Protection Board regarding

DEA Agent David Tinsley, one of Vega’s supervisors. Ochoa argued the unsealed

Bergonzoli transcripts established Perez’s actual conflict because, in representing

Bergonzoli, Perez was advocating directly against Ochoa’s interests. He argued

the other evidence showed the prosecution team knew and approved of Vega’s

misconduct, thus establishing the requisite nexus between the misconduct and his

prosecution. He argued the evidence also established corruption by several high-

level Colombian officials, including General Serrano, the official in charge of the

wiretapping that led to Ochoa’s arrest. The district court denied Ochoa’s motion

and refused to hold an evidentiary hearing because Ochoa’s newly discovered

evidence was irrelevant, immaterial, and cumulative to evidence already presented.

This appeal followed.

                                II. DISCUSSION

      Ochoa first argues the district court erred in denying him a new trial because

the unsealed Bergonzoli transcripts “graphically demonstrate[] Perez’s conflict of

interest and corroborate[] Ochoa’s contention that Perez’s conduct violated his

Sixth Amendment rights.” Ochoa is essentially putting forth an ineffective

assistance of counsel claim.




                                         4
      “Generally, we do not consider claims of ineffective assistance of counsel

on direct appeal, because there usually has been insufficient opportunity to

develop the record regarding the merits of these claims.” United States v.

Camacho, 40 F.3d 349, 355 (11th Cir. 1994), overruled in part on other grounds,

United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc). Instead, “[a]n

ineffective assistance of counsel claim is properly raised in a collateral attack on

the conviction under 28 U.S.C. § 2255.” United States v. Butler, 41 F.3d 1435,

1437 n.1 (11th Cir. 1995); see also Massaro v. United States, 123 S. Ct. 1690,

1694 (2003) (holding a motion for ineffective assistance of counsel should be

raised, “in most cases,” on collateral review rather than on direct appeal). We

conclude the record below is not sufficiently developed to evaluate Ochoa’s

ineffective assistance of counsel claim at this time. Thus, the claim would be more

appropriately addressed in a § 2255 motion.

      Turning to Ochoa’s alleged new evidence of Government misconduct, we

find no merit in his argument that this evidence entitles him to a new trial or an

evidentiary hearing. The denial of a motion for a new trial based on newly

discovered evidence under Rule 33, along with the denial of an evidentiary

hearing on such a motion, is reviewed for abuse of discretion. United States v.

Schlei, 122 F.3d 944, 990 (11th Cir. 1997). To succeed on a motion for a new trial

                                          5
based on newly discovered evidence under Rule 33, a defendant must establish

“(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.” Id. at 991. “The failure to satisfy any one of these elements is

fatal to a motion for a new trial.” United States v. Lee, 68 F.3d 1267, 1274 (11th

Cir. 1995).

       Ochoa has failed to sustain his burden under Rule 33. His new evidence of

the prosecution’s alleged knowledge and approval of Vega’s misconduct is

immaterial because it has no bearing on his guilt or innocence.1 See Ochoa I, 428

F.3d at 1024 n.4 (affirming the district court’s exclusion of evidence of the

Program because “[t]hat spectacle . . . would have diverted the jury’s attention to

evidence that neither proved nor disproved Ochoa’s guilt.”). As such, Ochoa has

failed to demonstrate a new trial would probably produce a different outcome. See

id. at 1022 (explaining “[a]t trial, the Government presented substantial evidence

of Ochoa’s guilt”).2

       1
           The same reasoning applies to Ochoa’s claim of corruption by General Serrano.
       2
        In his brief, Ochoa cites to cases applying the standard for Rule 33 motions based on
Brady evidence instead of the standard for Rule 33 motions based on newly discovered evidence.

                                                6
       The district court also acted within its discretion in denying Ochoa’s motion

without a hearing. See Schlei, 122 F.3d at 994 (“In determining whether a motion

for a new trial based on newly discovered evidence was properly denied, we are

persuaded that the acumen gained by a trial judge over the course of the

proceedings [makes him] well qualified to rule on the basis of affidavits without a

hearing.”) (quotation omitted). Accordingly, we affirm the district court’s

dismissal of Ochoa’s Rule 33 motion.

       AFFIRMED.




Even if we were to apply the Brady standard to this case, however, the result would not change.
One of the necessary elements of establishing a Brady claim is to show that “had the evidence
been disclosed to the defendant, there is reasonable probability that the outcome would have been
different.” United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002). As explained above,
Ochoa cannot make this showing because substantial evidence supported his conviction, and his
new evidence has no bearing on his guilt or innocence.

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