                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 08-12581                 ELEVENTH CIRCUIT
                                                                 MARCH 3, 2009
                            Non-Argument Calendar
                                                              THOMAS K. KAHN
                          ________________________
                                                                   CLERK

                      D. C. Docket No. 05-20849-CR-JEM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

LUIS JACINTO MARTI,

                                                             Defendant-Appellant.


                          ________________________

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

                               (March 3, 2009)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Dr. Luis Jacinto Marti appeals the denial of his motion for a new trial based
on newly discovered evidence. The district court ruled that the evidence was not

material. We affirm.

                                I. BACKGROUND

      In 2006, Marti was convicted of one count of conspiracy to commit

healthcare fraud and fifteen counts of healthcare fraud. Marti signed medical

documents as the supervising physician for codefendant Jorge Valido that

recommended medically unnecessary treatments for patients on Medicaid, and

Marti’s signature was forged on prescriptions for those patients. See United States

v. Marti, No. 07-11422 (11th Cir. Sept. 18, 2008). After Marti was served a

subpoena to produce medical records for some of Valido’s patients, Marti reviewed

the records and instructed Valido to make changes to those records before they

were turned over to the government. Marti argued that the medically unnecessary

treatments were added after he signed the medical records and his signatures on the

prescriptions were forged by his codefendants without his consent. A forensic

document examiner for the Federal Bureau of Investigation testified that all of the

patient documents referenced in the indictment contained signatures that either

were forged or were not comparable to Marti’s signature.

      We held on direct appeal that there was sufficient evidence for the jury to

find that Marti allowed his codefendants to use his signature. We stated four



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reasons in support of our conclusion: 1) Marti was the only doctor who supervised

Valido and signed prescriptions during the time that Valido’s medical license was

restricted; 2) Marti’s authentic signature appeared on numerous medical records

that referenced the use of medically unnecessary drugs; 3) Marti reviewed these

records several times and never disavowed his signature; and 4) Marti admitted

that he had testified falsely at a pre-trial deposition that he would not have signed

the chart of a patient unless he had observed Valido with the patient. Marti, No.

07-11422, slip op. at 9–10.

      In March 2008, Marti moved for a new trial based on newly discovered

evidence. Marti alleged that, in January 2008, an auditor from the Department of

Health and Human Services showed him nine medical documents that had been

filed with the Medicaid agency by Floridian Medical Supply, Inc. from December

2005 through July 2006 and bore Marti’s forged signature. Marty alleged that he

had never affiliated with Floridian Medical or treated the patients mentioned in the

medical records. Marti argued that the nine documents supported his defense at

trial that someone forged his signature without his authority. Attached to the

motion was a report prepared by a document examiner that stated the signatures on

the Floridian Medical documents were not genuine. The report contained copies of

the Floridian Medical documents and copies of documents that bore Marti’s actual



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signature.

      The district court denied Marti’s motion and disagreed that the evidence

supported his theory of defense. The district court found that Marti failed to

establish that the forgeries were related to his earlier convictions or that his

signature was forged by the same individual. The court concluded that the newly

discovered evidence “could demonstrate that someone forged Marti’s name in

connection with a different type of Medicaid fraud scheme four years after the

conduct for which Marti was indicted occurred” and “[t]he connection of these

documents [to the evidence underlying his convictions] is tenuous at best.”

                           II. STANDARD OF REVIEW

      We review the denial of a motion for a new trial for abuse of discretion. See

United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006). The decision to

deny an evidentiary hearing is also a decision “‘within the trial court’s sound

discretion, subject to review only for an abuse of that discretion.’” United States v.

Schlei, 122 F.3d 944, 990 (11th Cir. 1997) (quoting United States v. Slocum, 708

F.2d 587, 600 (11th Cir. 1983)).

                                   III. DISCUSSION

      Although “the court may vacate any judgment and grant a new trial if the

interest of justice so requires,” Fed. R. Crim. P. 33(a), “a much more stringent



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standard applies” when the motion is filed more than seven days after the

conviction. Schlei, 122 F.3d at 990–91. Such motions “are highly disfavored . . .

and should be granted only with great caution.” Campa, 459 F.3d at 1151. To

succeed on the motion, the defendant must prove that he discovered the evidence

after his trial; his failure to discover the evidence earlier is not attributable to a lack

of due diligence; the evidence is not cumulative or impeaching; the evidence is

material; and the evidence is of such a nature that it would likely produce a

different result in a new trial. See Schlei, 122 F.3d at 991. “‘The failure to satisfy

any one of these elements is fatal to a motion for a new trial.’” Id. (quoting United

States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995)).

       The district court did not abuse its discretion by denying Marti’s motion and

his request for an evidentiary hearing. The district court presided over Marti’s trial

and was sufficiently familiar with the case to determine that Marti’s new evidence

was not material to his defense. See United States v. Hirst, 668 F.2d 1180, 1185

(11th Cir. 1982) (“Newly discovered evidence must be material and the question of

materiality rests in the discretion of the court.”); see also Schlei, 122 F.3d at 994

(“‘[T]he acumen gained by a trial judge over the course of the proceedings makes

[him] well qualified to rule . . . without a hearing.’” (quoting United States v.

Hamilton, 559 F.2d 1370, 1373–74 (5th Cir. 1977))). Marti failed to establish a



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connection between the Floridian Medical records and the evidence of forgery

offered at his trial. Marti asserts that “unknown persons” forged his signature on

the Floridian Medical documents, but he shared a business relationship with Valido

and others who purportedly altered the medical records and forged his signature on

the prescriptions. Forgeries of unrelated documents do not contradict the finding

that Marti allowed his codefendants to forge his signature as part of their

conspiracy to commit healthcare fraud.

      The denial of Marti’s motion for a new trial is AFFIRMED.




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