                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            May 28, 2008
                             No. 07-15788                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 04-00490-CR-T-17TBM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ELIAS ABUSAID, JR.,
a.k.a. Lou,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 28, 2008)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Elias Abusaid, Jr., who proceeded pro se and was convicted by a jury of

maintaining an establishment for the purpose of unlawfully distributing or using a

controlled substance, specifically Methylenedioxymethamphetamine (“MDMA”),

in violation of 21 U.S.C. § 856(a)(2) and (b), and being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), appeals the district

court’s denial of his motion for a new trial, pursuant to Fed.R.Crim.P Rule 33, on

the grounds of newly discovered evidence.1 For the reasons discussed below, we

affirm.

                                              I.

      At Abusaid’s trial, the following relevant testimony was presented.

Christopher Casio, an agent of the Drug Enforcement Agency (“DEA”), testified

for the government that he had investigated Abusaid and his Tampa, Florida,

establishment with the aid of a certain confidential source. On cross-examination,

Abusaid asked Agent Casio the name of his confidential source. The government

objected to the question on the grounds of preserving confidentiality, and the

district court sustained the objection. Abusaid then asked the name of the

confidential source’s place of employment. The government objected on the same

grounds, and the district court sustained the objection. Abusaid then asked, “Does



      1
          Abusaid was sentenced to serve two concurrent terms of 97 months’ imprisonment.

                                               2
she not work at the Mons Venus [strip club]?” The government objected on the

same grounds, and the district court sustained the objection.

      James Toliver, a pharmacologist with the DEA, testified for the government

that MDMA, a stimulant, had the effect of dehydrating the user’s body. Scott

Albrecht, an agent with the DEA in Tampa, testified for the government that the

DEA began investigating Abusaid and his establishment when the Sarasota,

Florida, police department contacted it and indicated that a male confidential

source wished to provide information about drug dealing within and around

Abusaid’s establishment.

      Kirby Rainsberger, an Assistant City Attorney, testified for Abusaid that he

represented the City of Tampa (“the City”) in a civil suit filed by Abusaid against

the City and, originally, the DEA. The suit was filed before Abusaid’s arrest on

the instant charges. On cross-examination, the government asked, “[B]ased on any

lawsuit that was filed by the defendant against the [City], did you ever request that

the DEA investigate the defendant or his club?” Rainsberger replied, “Never.”

The government then asked whether Rainberger knew whether the local police

department had contacted a neighboring police department and asked the

neighboring police department to provide a confidential source with information

on Abusaid’s establishment. Rainsberger again replied in the negative.



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      Abusaid testified on his own behalf. On cross-examination, he testified that

he sold “massive” amounts of water at his establishment. Also, the county wherein

his establishment was operated had passed a “dance hall rave ordinance” requiring

a special permit for clubs that charged cover charges and featured music and

dancing but that were not licensed to serve alcohol. Abusaid’s establishment fell

under this ordinance. However, Abusaid took steps to circumvent the special

permit requirement, such as doing away with the traditional cover charge but

instituting fees for entering “VIP” rooms that were paid once a patron was indoors.

      After the jury found him guilty, Abusaid filed the instant motion for a new

trial on the basis of newly discovered evidence. Therein, Abusaid pointed to four

pieces of newly discovered evidence that would have altered the outcome of his

trial. First, Abusaid stated that, in Abusaid v. Hillsborough County Bd. of County

Comm’rs, WL 2669210 (M.D. Fla. 2007), the Middle District of Florida recently

had held that the dance hall rave ordinance was unconstitutional. Abusaid argued

that this evidence undermined the government’s suggestion at trial that Abusaid

was not credible and was a law breaker because of his efforts to skirt the

ordinance’s requirements. Because the dance hall rave ordinance was

unconstitutional, Abusaid was not “hiding from the law,” as the government had

indicated. Therefore, the evidence at a new trial would show that Abusaid was a



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law-abiding club owner and likely would lead to a different verdict.

      Next, Abusaid stated that he recently had discovered the name of the

previously unnamed confidential source who helped Agent Casio investigate

Abusaid. Abusaid likewise stated that he had discovered certain information about

this female confidential source. Abusaid argued that, had the government provided

her name before trial, Abusaid could have called her as a defense witness. If he

had called her, she could have provided exculpatory information. He also could

have impeached her credibility by demonstrating that she supported herself as an

exotic dancer at the Mons Venus strip club and as a prostitute, was a cocaine addict

and drinker, and had several drinking-and-driving and drug-related arrests. He

likewise could have impeached her credibility by demonstrating that she would

have “done almost anything to ‘work off her charges,’” including trading sex for

drugs from some of Abusaid’s employees. Had the “centerpiece” of the

government’s case against Abusaid been impeached in this manner, the jury may

have reached a different result.

       Next, Abusaid stated that he recently had obtained a document from the

Florida Department of Law Enforcement (“FDLE”) that demonstrated that the

DEA and local police had asked the FDLE to help investigate Abusaid and his

establishment. Abusaid argued that this document showed that Agent Albrecht and



                                         5
Assistant City Attorney Rainsberger were lying when they testified that the

investigation of Abusaid and his establishment was not initiated by the DEA and

the City in retaliation of Abusaid filing a civil suit against the DEA and the City.

But for this false testimony, he could have pursued his retaliation defense. Had the

jury known that the police orchestrated the “raid” of his establishment in order to

undermine his civil suit against the City and the DEA, it might have acquitted him.

Abusaid attached a copy of the FDLE document. It includes one line stating that

the DEA and City “requests assistance in reference to drug activity at [Abusaid’s]

club.”

          Finally, Abusaid stated that newspaper articles about recently published

studies by the Multi-disciplinary Association for Psychedelic Studies showed that

MDMA actually suppresses the user’s thirst. Abusaid argued that this evidence

undermined the government’s suggestion that Abusaid must have condoned

MDMA use because he sold “massive” amounts of water at his establishment.

This evidence also established that Tolliver’s “expert” testimony was flawed. Had

the jury heard that the expert’s testimony was incorrect and that Abusaid’s

provision of water was not probative evidence, it might have reached a different

result.

          The government responded that, even though the Middle District of Florida



                                             6
later found the dance hall rave ordinance unconstitutional, Abusaid’s state of mind

and actions when the ordinance remained in effect nevertheless were relevant to his

character. Doing away with the ordinance after Abusaid’s actions, therefore, had

no bearing on his case. The government also responded that Abusaid failed to

demonstrate what new and helpful information Hauk could provide, that Abusaid

obviously knew who the confidential source was at the time of trial because he

knew her place of employment, and that the information cited by Abusaid simply

was impeachment evidence against a witness who never testified. Therefore, any

effect Hauk’s presence may have had on Abusaid’s trial was purely speculative and

wholly unsubstantiated. The government likewise responded that the copy of the

FDLE report did not demonstrate that Agent Albrecht or Assistant City Attorney

Rainsberger had lied, as it merely showed that they asked the FDLE for

investigative assistance, which is a common practice. The government finally

responded that the reports that MDMA actually suppresses thirst would only be

valuable to Abusaid’s case to the limited extent that they could impeach Tolliver’s

testimony. It was unlikely that the jury would acquit Abusaid because of these

reports.

      The district court denied Abusaid’s motion. The district court reasoned that

the government’s response was persuasive and incorporated the government’s



                                         7
arguments into its order.

                                          II.

      We review a district court’s denial of a Rule 33 motion for a new trial for

abuse of discretion. United States v. Campa, 459 F.3d 1121, 1151 (11th Cir.

2006). Pursuant to Rule 33, a defendant may file a motion for a new trial based on

newly discovered evidence within three years of the jury’s verdict. Fed.R.Crim.P.

33(b)(1). “Motions for a new trial based on newly discovered evidence are highly

disfavored in the Eleventh Circuit and should be granted only with great caution.”

See Campa, 459 F.3d at 1151. The defendant bears the burden of proving that the

circumstances warrant this form of relief. See id. To satisfy this burden, the

defendant must demonstrate that: (1) the evidence was in fact discovered following

trial; (2) the defendant exercised due care to discover the evidence; (3) the

evidence is not merely cumulative or impeaching; (4) the evidence is material; and

(5) the evidence is of such nature that it is probable that it would produce a

different result in a new trial. United States v. Lee, 68 F.3d 1267, 1273 (11th Cir.

1995). The defendant’s failure to demonstrate any one of these factors defeats his

motion. See id. at 1274.

                                          III.

      Here, the district court did not abuse its discretion in denying Abusaid’s



                                           8
motion. See Campa, 459 F.3d at 1151. Abusaid has not satisfied his burden of

demonstrating that the new evidence was material to his defense or not merely

impeaching. See Campa, 459 F.3d at 1151; Lee, 68 F.3d at 1273. Specifically,

Abusaid has not shown that the evidence that the dance hall rave ordinance later

was found unconstitutional is material. See Lee, 68 F.3d at 1273. The government

illustrated to the jury that Abusaid skirted the dance hall rave ordinance. This

evidence was relevant to the government’s case in showing Abusaid’s state of

mind, namely that he was the kind of person who was willing to not follow the law.

The new evidence does not demonstrate that Abusaid’s state of mind at the time

was something other than endeavoring to skirt the law. Regardless of the new

case, at the time of Abusaid’s actions, the dance hall rave ordinance was the law as

far as Abusaid knew. Thus, because the new case does not illustrate that Abusaid

did not attempt to skirt the law, it is immaterial. See id.

      Abusaid also has not shown that the evidence on the female confidential

source’s character is not merely impeachment evidence. See id. Newly discovered

impeachment evidence, such as a witness’s ulterior motives, drug use, and criminal

history, is insufficient to warrant a new trial. See id. To the extent that Abusaid

indicated that the female confidential source would have provided exculpatory

evidence had he been able to call her as a witness, Abusaid failed to explain the



                                            9
nature of this exculpatory evidence, such that its cumulative nature and materiality

cannot be analyzed. See id. Thus, because Abusaid only has stated that the new

information about the female confidential source goes to her character as a witness,

it is insufficient. See id.

       Abusaid likewise has not shown that the evidence that the DEA and City

requested FDLE assistance in investigating Abusaid and his establishment is

material. See id. Abusaid’s intended use of this evidence was to show that the

DEA and the City inappropriately investigated him merely as a means of getting

back at him for filing a civil suit against them. This evidence does not

demonstrate, however, that the City and DEA initiated the investigation with

retaliatory motives. Rather, it shows only that the City and DEA asked the FDLE

for support. Thus, because the new document does not support Abusaid’s

argument, it is immaterial. See id.

       Abusaid finally has not shown that the evidence that MDMA actually

suppresses thirst is material. See id. The government illustrated to the jury that

Abusaid must have known of, and promoted and profited from, the MDMA usage

at his establishment because he sold “massive” amounts of water at his

establishment, a well-known “accessory” of the MDMA-usage culture. This

evidence was relevant to the government’s case in showing Abusaid’s state of



                                          10
mind, namely that he must have encouraged the MDMA usage because he

provided what he thought were the tools necessary for its usage. The new evidence

does not demonstrate that Abusaid’s state of mind was something different.

Regardless of the new evidence to the contrary, at the time of Abusaid’s actions, he

and his patrons probably thought that MDMA users needed water. Thus, because

the new case does not illustrate that Abusaid did not think water was a common

accessory of the MDMA-usage culture, it is immaterial. See id.

      Because Abusaid has not shown that the evidence is material to his case or

not merely impeaching, he cannot satisfy his burden. See id. at 1274.

Accordingly, we affirm the district court’s denial.

      AFFIRMED.




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