           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 19, 2009

                                     No. 08-51266                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

MOHAMMAD H GHARBI,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                     for the Western District of Texas, Austin
                             USDC No. 1:04-CR-180-12


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Mohammad H. Gharbi was convicted of conspiracy, mail fraud, wire fraud,
and bank fraud, and was sentenced to serve twelve months and one day of
imprisonment. He appeals the denial of his motion for a new trial based on
newly discovered evidence.
       The “[d]enial of a motion for a new trial based on newly discovered
evidence is reversed only when there is a clear abuse of discretion.” United


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                   No. 08-51266

States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996) (citation omitted). “Such
motions are disfavored and reviewed with great caution.” United States v.
Severns, 559 F.3d 274, 280 (5th Cir. 2009).
             In order to receive a new trial on the basis of newly
             discovered evidence, the defendant must demonstrate
             that: (1) the evidence is newly discovered and was
             unknown to the defendant at the time of trial; (2)
             failure to detect the evidence was not due to a lack of
             diligence by the defendant; (3) the evidence is not
             merely cumulative or impeaching; (4) the evidence is
             material; and (5) the evidence introduced at a new trial
             would probably produce an acquittal.
United States v. Franklin, 561 F.3d 398, 405 (5th Cir. 2009) (internal quotation
marks and citation omitted).
      The evidence that Gharbi relies on in support of his motion for a new trial
is an affidavit of Firooz Deljavan, the alleged ringleader of the conspiracy, in
which he says that Gharbi was an unwitting dupe. Gharbi asserted in his
motion that he was unaware of Deljavan’s proposed testimony prior to trial, and
that Deljavan was unavailable to testify at trial because he was a fugitive. After
Gharbi’s trial, Deljavan was extradited to the United States from Turkey, was
convicted, and was sentenced to five years in prison.
      In its order denying Gharbi’s motion for a new trial, the district court
found that many of Deljavan’s allegedly exonerating statements in his affidavit
about Gharbi were in direct contravention of sworn testimony at Gharbi’s trial.
The court found further that Gharbi had failed to meet his burden of showing
that, if a new trial were granted, Deljavan’s testimony would probably produce
an acquittal.
      Although Gharbi argued in his motion for new trial and in his opening
brief on appeal that he was unaware of Deljavan’s proposed testimony prior to
trial, he also states in his brief that he did not testify in his own defense at trial



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because Deljavan was unavailable to corroborate his testimony.               The
Government contends that this is essentially an admission that Gharbi was
aware of the substance of Deljavan’s allegedly corroborating testimony at the
time of his trial and thus Gharbi cannot now claim that the evidence was newly
discovered. Gharbi replies that although he was aware at the time of his trial
that he had been used as an unwitting dupe by Deljavan, Deljavan’s testimony
is nevertheless newly discovered.     He concedes that if Deljavan had been
unavailable at the time of his trial due to his assertion of the Fifth Amendment
privilege, his testimony would not have been newly discovered. He contends,
however, that because Deljavan was unavailable due to his fugitive status, his
testimony is newly discovered. We reject that contention. Because Gharbi knew
of the substance of Deljavan’s testimony at the time of his trial, Deljavan’s
testimony is best characterized as “newly available” rather than “newly
discovered.” See Freeman, 77 F.3d at 817 (“When a defendant is aware of a co-
defendant’s proposed testimony prior to trial, it cannot be deemed newly
discovered under Rule 33 even if the co-defendant was unavailable because she
invoked the Fifth Amendment.”). Gharbi cites no authority, and offers no basis,
for distinguishing a co-defendant who is unavailable because he is a fugitive and
one who is unavailable because of invocation of the Fifth Amendment privilege
against self-incrimination.
      Because Gharbi has failed to demonstrate that the evidence at issue is
newly discovered, the district court did not clearly abuse its discretion by
denying Gharbi’s motion for a new trial. See United States v. Wall, 389 F.3d 457,
467 (5th Cir. 2004) (“If the defendant fails to demonstrate any one of these
factors, the motion for new trial should be denied.”) (citation omitted).
                                                                    AFFIRMED.




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