           Case: 18-13929   Date Filed: 06/26/2019   Page: 1 of 5


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13929
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:15-cr-00149-SPC-MRM-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                    versus

NORRIS WILLIAMS,

                                                       Defendant - Appellant.

                       ________________________

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

                              (June 26, 2019)

Before WILSON, NEWSOM, and HULL, Circuit Judges.

PER CURIAM:
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       Norris Williams was convicted for several drug crimes. 1 After sentencing,

Williams made a Freedom of Information Act (FOIA) request with the Drug

Enforcement Agency (DEA) seeking any information related to his case. The

DEA replied to the FOIA request stating that, while it had identified records

“pertaining to the subject of [his] request,” it would not provide the information

because the information: (1) “could reasonably be expected to interfere with

enforcement proceedings”; (2) “would disclose techniques and procedures for law

enforcement investigations or prosecutions,” and “such disclosure could

reasonably be expected to risk circumnavigation of the law” or “endanger the life

or physical safety of any individual”; and (3) included “material reporting

investigative efforts.” Based on this response, Williams filed a motion for a new

trial under Federal Rule of Criminal Procedure 33, which the district court denied.

       Williams now appeals, arguing that the district court abused its discretion by

both denying his motion and failing to hold an evidentiary hearing. He argues that

a new trial is warranted because the DEA evidence constituted new evidence and

was withheld from him in violation of Brady v. Maryland, 373 U.S. 83 (1963). We

disagree and affirm.




1
 A jury found Williams guilty of three counts of possessing heroin with intent to distribute under
21 U.S.C. § 841(a)(1), (b)(1)(C) and one count of attempting to possess heroin with intent to
distribute under 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i) and 846.
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                                  I. Rule 33 Motion

      We review the district court’s denial of a motion for a new trial—whether

based on newly discovered evidence or a Brady violation—for abuse of discretion.

See United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002).

      Rule 33(b) authorizes a district court to grant a new trial based on new

evidence only if: (1) the evidence was discovered after trial; (2) the failure 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; 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). Motions for a new trial

based on newly discovered evidence are highly disfavored. Id.

      To get a new trial based on a Brady violation, the defendant must show that:

(1) the government possessed favorable evidence to the defendant, including

impeachment evidence; (2) the defendant did not possess the evidence, and could

not have obtained the evidence with any reasonable diligence; (3) the government

suppressed the favorable evidence; and (4) had the evidence been disclosed to the

defendant, there is a reasonable probability that the outcome would have been

different. Vallejo, 297 F.3d at 1164.

      Williams has not established that he was entitled to a new trial on either

ground. Williams’s argument that the DEA has some information that it is

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unwilling is overly speculative. That allegation cannot show whether the

information is (1) different than the evidence presented at trial, or (2) could have

been found during trial with diligent effort, (3) not cumulative or impeachment

evidence, (4) material, even if it pertained to his case, or (5) that it would lead to a

different trial result. See Jernigan, 341 F.3d at 1287. Williams acknowledges that

it “is unknown” whether the DEA records contain any exculpatory information. 2

       Williams’s argument that he is entitled to a new hearing because the

evidence was withheld from him in violation of Brady fails for the same reason.

Even if Williams could show that the government did not provide the DEA

evidence until the DEA responded to his FOIA request, Williams does not show

that (1) the evidence would have been favorable or useful for impeachment

purposes, (2) the evidence was not already in his possession during trial or not

capable of being obtained with reasonable diligence, or (4) that there is a

reasonable probability the evidence would have changed the outcome of his case.

See Vallejo, 297 F.3d at 1164.

       Williams’s unsubstantiated and conclusory allegations that the DEA might

have some exculpatory evidence that might have made a difference in his case are

insufficient to show that he is entitled to a new trial.

2
 To the extent that Williams argues that the DEA improperly withheld the records under FOIA,
his redress is through a FOIA complaint, which gives federal courts jurisdiction “to order the
production of any agency records improperly withheld from the complainant.” 5 U.S.C.
§ 552(a)(4)(B).
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                             II. Evidentiary Hearing

      We also review for abuse of discretion a district court’s decision not to

conduct an evidentiary hearing before ruling on a motion for a new trial. United

States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996). The “acumen gained by a

trial judge over the course of the proceedings” makes the court “well qualified” to

rule on a motion for a new trial without an evidentiary hearing. United States v.

Schlei, 122 F.3d 944, 994 (11th Cir. 1997). The district court is not required to

hold an evidentiary hearing when the resolution of a motion for a new trial is clear.

Jernigan, 341 F.3d at 1289; see also United States v. Scrushy, 721 F.3d 1288, 1305

n.30 (11th Cir. 2013) (holding that because the “record contained all the evidence

needed to dispose of each of the grounds asserted as the basis for a new trial,” the

district court did not abuse its discretion in denying the motion without an

evidentiary hearing). Williams did not establish any of the elements required for a

new trial. Because the resolution of his motion was clear from the record, the

district court did not abuse its discretion by not conducting an evidentiary hearing.

See Scrushy, 721 F.3d at 1305.

                                  III. Conclusion

      The district court did not abuse its discretion in denying Williams’s motion

for a new trial without an evidentiary hearing. We affirm.

      AFFIRMED.

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