                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 August 12, 2005
                               No. 04-15703                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket No. 01-00423-CR-PCH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

KARL BERNARD BELL,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                               (August 12, 2005)


Before CARNES, HULL, and MARCUS, Circuit Judges.

PER CURIAM:

     Karl Bernard Bell, proceeding pro se, appeals the denial of his motion for a
new trial based on newly discovered evidence. After review, we affirm.

      I. INTRODUCTION

      In May, 2001, an indictment charged Bell with one count of distributing five

grams or more of crack cocaine and one count of distributing fifty grams or more

of crack cocaine, both in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).

      At Bell’s trial in August, 2001, Dwain Mallory, a cooperating witness,

testified that he had purchased crack cocaine from Bell during two controlled buys

in Miami-Dade County, on March 8, 2000, and April 27, 2000, respectively. In

each instance, Mallory was outfitted with a transmitter and a recording device. The

jury found Bell guilty on both drug counts on August 17, 2001. On direct appeal,

Bell raised numerous issues, but this Court found no reversible error and affirmed

Bell’s convictions. United States v. Bell, No. 02-10111 (11th Cir. Dec. 6, 2002).

      On August 16, 2004, with the assistance of counsel, Bell filed a motion for a

new trial on the basis of newly discovered evidence. In this motion, Bell alleged

that subsequent to his 2001 convictions, Mallory had testified at another trial in

2002, wherein Mallory admitted that he personally had sold drugs for three or four

years in Gainesville, Florida and that he was involved with narcotics trafficking

with his cousins, Lorian and Dorian Mallory in Gainesville, Florida. Bell

contended that the new evidence that Mallory had bought crack from others for



                                           2
years in Gainesville, Florida would have permitted Bell to argue during his trial

that Mallory could have purchased crack during the controlled buys in 2000, in

Miami-Dade County, Florida from other individuals in the neighborhood.1

       The district court denied Bell’s motion for a new trial on two grounds. First,

the district court concluded that the newly discovered evidence that Mallory had

been involved in prior drug purchases was merely impeachment evidence that

could cast doubt on Mallory’s testimony but would not show that the drugs that

Mallory purchased during the recorded controlled buys actually came from a

source other than Bell. The district court also concluded that the newly discovered

evidence of Mallory’s involvement in a crack distribution conspiracy with his

cousins was simply impeachment evidence that went to Mallory’s motive for

testifying at Bell’s trial. The district court also noted that Mallory’s veracity,

motive for testifying, and involvement with his cousins were extensively addressed

at Bell’s trial during cross-examination.

       Second, even if the evidence was admissible for something more than

impeachment purposes, the district court concluded that in light of the

       1
         Bell relies on additional facts at trial, which he contends show that Mallory had the
opportunity to buy the crack from somebody else during the controlled buys. Specifically, Bell
notes that during the first transaction, the DEA agents lost radio contact with Mallory for a few
minutes, although the entire transaction was recorded. During the second transaction, Mallory
needed to leave Bell's residence while Bell "cooked" the crack, and during this time, before
returning to Bell's residence, Mallory drove to another location and spoke to a person he called
his "brother" who was on the street.

                                                 3
overwhelming evidence supporting Bell’s convictions, it was unlikely that the

newly discovered evidence would produce a different result in a new trial.2 Bell

appeals.3

                                       II. DISCUSSION

       Federal Rule of Criminal Procedure 33 provides that a defendant may file a

motion for a new trial on the basis of newly discovered evidence within three years

after the verdict or finding of guilty, and “[u]pon the defendant’s motion, the court

may vacate any judgment and grant a new trial if the interest of justice so

requires.” Fed. R. Crim. P. 33(a), (b)(1). To obtain a new trial on the basis of

newly discovered evidence, a defendant must show 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. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quotation marks



       2
         In addition to Mallory’s testimony, the government presented taped conversations
between Mallory and Bell during the drug transactions. The government also presented
testimony by the DEA agent who set-up the undercover purchases, surveilled Bell’s home, and
searched Mallory’s car before and after the purchases to make sure no crack was hidden in
Mallory's car. The agent also testified that the security at Bell's home was consistent with that of
a stash house.
       3
         This Court reviews a district court’s denial of a motion for a new trial for abuse of
discretion. United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003).

                                                  4
and citation omitted). Failure to meet any one of these elements defeats a motion

for a new trial. United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995).

       We agree with the district court that Bell’s new evidence that Mallory had

previously purchased drugs for years and that he had engaged in a crack

distribution conspiracy was impeachment evidence that was cumulative.

Moreover, even if the evidence inferentially showed an opportunity to obtain drugs

from many persons other than Bell, we also agree with the district court that Bell

failed to show that the newly discovered evidence would probably have produced a

different result. Indeed, there was overwhelming evidence at trial supporting

Bell’s convictions, such as Mallory’s testimony that he purchased crack from Bell,

the recorded conversation corroborating this testimony, and the agent’s testimony

that agents surveilled Bell’s premises and set up the controlled buys. Further, the

newly discovered evidence that Mallory had previously purchased and sold drugs

in Gainesville, Florida does not contradict the evidence that Bell sold drugs to

Mallory on the two specific occasions on March 8, 2000, and April 27, 2000, in

Miami-Dade County, Florida. Thus, the district court did not abuse its discretion

in denying Bell’s motion for a new trial.4


       4
         In his brief on appeal, Bell also contends that the district court erred by denying his
motion for a new trial without first conducting an evidentiary hearing. The district court did not
abuse its discretion in electing not to conduct an evidentiary hearing. See United States v.
Schlei, 122 F.3d 944, 994 (11th Cir. 1997) (“[T]he acumen gained by a trial judge over the

                                                 5
                                    III. CONCLUSION

       For all of the above reasons, this Court affirms the district court’s denial of

Bell’s motion for a new trial.

AFFIRMED.




course of the proceedings [makes him] well qualified to rule on the basis of affidavits without a
hearing.”) (quotation marks and citation omitted).

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