           Case: 15-13589   Date Filed: 05/10/2016   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13589
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:12-cr-20710-KMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DARCY PILOTO,

                                                         Defendant-Appellant.

                       ________________________

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

                              (May 10, 2016)

Before WILSON, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Darcy Piloto, a federal prisoner, appeals the district court’s denial of his

motion for a new trial based upon newly discovered evidence under Federal Rule

of Criminal Procedure 33 and related motion for an evidentiary hearing. Piloto

argues that the district court abused its discretion in denying his motions because

he could have presented expert testimony showing that Detective Ana Suarez

falsely testified (1) in her probable cause affidavit to obtain a search warrant and

(2) at his suppression hearing.

       After a jury trial in February 2013, Piloto was convicted of being a felon in

possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and

924(e)(1). Law enforcement discovered the firearms and ammunition in Piloto’s

home pursuant to a search warrant partially based on Piloto having been identified

as a suspect of an armed burglary. At a pre-trial suppression hearing before the

magistrate judge and again at trial before the jury, Detective Suarez testified that

the victim of the burglary identified Piloto from a photo lineup, circled his picture,

and printed his name next to the photo himself. Piloto asserts that Detective

Suarez lied about the handwriting on the photo line up being that of the victim, and

has provided as new evidence a forensic document examiner’s report averring that

the handwriting belongs to Detective Suarez, not the victim. 1


       1
          Because Detective Suarez swore to the truth of all statements in the probable cause
affidavit used to obtain a search warrant to search Piloto’s home, Piloto argues that her alleged
false testimony tainted the search warrant, which was the sole reason law enforcement uncovered
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       The Federal Rules of Criminal Procedure permit the district court to grant a

new trial if the interests of justice require one. Fed. R. Crim. P. 33(a). We apply

an abuse of discretion review to a district court’s denial of a “motion for a new trial

and evidentiary hearing.” United States v. Isaacson, 752 F.3d 1291, 1308 (11th

Cir. 2014), cert. denied, 135 S. Ct. 990 (2015).

       “To succeed on a motion for a 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.” United States v. Schlei, 122

F.3d 944, 991 (11th Cir. 1997). “The failure to satisfy any one of these elements is

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

1274 (11th Cir. 1995)). New trial motions are only granted “with great caution,”

see United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc)

(internal quotation marks omitted), and new evidence must raise the likelihood of a

different result “considerably above the level of speculation,” Ross v. Texas, 474

F.2d 1150, 1153 (5th Cir. 1973).2




the firearms.
        2
          Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting as
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       An evidentiary hearing on a Rule 33 motion is not required where “the

record contained all the evidence needed to dispose of each of the grounds asserted

as a basis for a new trial.” United States v. Scrushy, 721 F.3d 1288, 1305 n.30

(11th Cir. 2013).

       Piloto has not established that the district court abused its discretion in

denying his motion for a new trial because he has failed to meet his burden to

demonstrate that a new trial would likely produce a different result. At his

suppression hearing and at trial, Piloto challenged the truthfulness of Detective

Suarez’s assertions that the victim printed his name next to Piloto’s picture in the

photo line up. As a result, the magistrate judge and jury both had an opportunity to

evaluate the handwriting themselves and determine whether or not they believed

Detective Suarez. Despite the challenge, the magistrate judge and the jury found

Detective Suarez to be credible, and the district court found no reason to disturb

that determination. Moreover, in response to Piloto’s motion for new trial, the

government provided additional evidence that the handwriting belonged to the

victim, not Detective Suarez. Specifically, a case agent contacted the victim, who

confirmed over e-mail that the handwriting in question belonged to him. In the

face of this evidence, we cannot conclude that the third party forensic document




binding all Fifth Circuit precedent prior to October 1, 1981).

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examiner’s report alone would “probably produce a new result” in the trial. See

United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994) (holding that new

evidence undermining the credibility of “but one of several [adverse] witnesses”

did not warrant a new trial); United States v. Starrett, 55 F.3d 1525, 1554 (11th

Cir. 1995) (per curiam).

       Additionally, it was within the sound discretion of the district court to deny

Piloto’s motion for an evidentiary hearing. The court was fully versed in the facts

of Piloto’s case, and the forensic document examiner’s report provided sufficient

reasoning for its conclusions. Accordingly, the court did not err in determining

that proper investigation of the basis of the report did not require additional live

testimony. See Schlei, 122 F.3d at 993 (“[T]he 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.” (internal quotation marks omitted)); Scrushy, 721

F.3d at 1305 n.30.3

       Because Piloto has failed to show that the district court abused its discretion

in denying his motions for a new trial and evidentiary hearing, the judgment of the

district court is

       3
          We need not address whether Piloto’s arguments based on Giglio and Brady have merit
because he failed to raise those arguments on appeal. See Giglio v. United States, 405 U.S. 150,
92 S. Ct. 763 (1972); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); see also United
States v. King, 751 F.3d 1268, 1277 (11th Cir. 2014) (per curiam) (“We have long held that an
appellant abandons a claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.” (internal quotation marks
omitted)).
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AFFIRMED.




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