            Case: 15-11152   Date Filed: 06/19/2017   Page: 1 of 9


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                         No. 15-11152; 15-13674
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:11-cr-00054-SLB-JEO-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                   versus

RICKY WALTER DENTON,

                                                          Defendant-Appellant.

                       ________________________

                Appeals from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                              (June 19, 2017)

Before ED CARNES, Chief Judge, HULL and WILSON, Circuit Judges.

PER CURIAM:
                  Case: 15-11152        Date Filed: 06/19/2017       Page: 2 of 9


       Ricky Denton, proceeding pro se, appeals the district court’s denial of his

Federal Rule of Criminal Procedure 33 motion for a new trial based on newly

discovered evidence. He also challenges the district court’s decision not to hold an

evidentiary hearing. He contends that affidavits from two trial witnesses —

Jonathon Todd, Denton’s son, and Hollie Todd, Denton’s daughter-in-law —

entitle him to a new trial. 1

                                                  I.

       In March 2011 Denton was charged with armed bank robbery and

brandishing a firearm during and in relation to a crime of violence. He chose to

represent himself and proceeded to a jury trial. Before the trial began, Denton

wrote letters to Jonathon suggesting that he testify falsely and perjure himself at

trial. Denton also threatened the life of Jonathon’s wife, Hollie. 2 After Jonathon

received the letters and after Hollie learned that Denton had threatened her life,

Jonathon and Hollie stopped visiting and communicating with him, despite his

letters to them asking to “interview them” about their upcoming trial testimony.




       1
        After Denton filed his notice of appeal from the denial of his Rule 33 motion, he filed a
motion for reconsideration, which the district court denied. Then he filed a motion to vacate the
dismissal of the motion for reconsideration, which the district court also denied. He filed a new
notice of appeal of those two orders, and we consolidated that appeal with the present one.
Because Denton has not addressed the part of the district court’s judgment denying his motion to
reconsider or his motion to vacate, he has abandoned any argument challenging those decisions.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
       2
           We use the Todds’ first names not to be overly familiar but for ease of reference.
                                                  2
               Case: 15-11152     Date Filed: 06/19/2017    Page: 3 of 9


      At trial, the government called as witnesses Hollie, Jonathon, and Denton’s

other son, Jamie. It also called Forrest Sims, an eyewitness who saw the robber

fleeing the bank. Jonathon testified that the bank robber shown in the bank’s

security footage walked like Denton and that he had not been promised anything in

exchange for testifying against Denton. Hollie also testified against Denton, after

which Denton asked the court to permit him to interview her. The district court

would allow Denton to conduct that interview if Hollie agreed to speak to him, but

she refused. Sims testified that the driver of the car that fled the bank after the

robbery was a “black man with a gold grill.” Denton is a white male.

      The jury found Denton guilty of both charges, and the district court

sentenced him to 244 months imprisonment. Denton appealed that conviction and

we affirmed it. See United States v. Denton, 535 F. App’x 832 (11th Cir. 2013)

(unpublished). A little more than two months after judgment was entered, Denton

filed a timely Rule 33(b)(1) motion for a new trial based on newly discovered

evidence allegedly showing government obstruction and fraud. The district court

denied that motion on the merits without holding an evidentiary hearing. This is

Denton’s appeal.

                                          II.

      We review for an abuse of discretion both the district court’s denial of a

motion for a new trial and its denial of an evidentiary hearing. United States v.


                                           3
                  Case: 15-11152   Date Filed: 06/19/2017   Page: 4 of 9


Sweat, 555 F.3d 1364, 1367–68 (11th Cir. 2009). Under Federal Rule of Criminal

Procedure 33, “[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. To

prevail on a Rule 33 motion based on newly discovered evidence, Denton must

establish that:

      (1) the evidence was discovered after trial, (2) the failure of the
      defendant to discover the evidence [earlier] 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). The newly

discovered evidence, however, “need not relate directly to the issue of guilt or

innocence to justify a new trial, but may be probative of another issue of law.”

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

marks omitted). At the same time, “we have held that motions for a new trial are

highly disfavored, and that district courts should use great caution in granting a

new trial motion based on newly discovered evidence.” Jernigan, 341 F.3d at 1287

(quotation marks omitted).

      “In determining whether a motion for a new trial based on newly discovered

evidence was properly denied, . . . ‘the acumen gained by a trial judge over the

course of the proceedings [makes her] well qualified to rule on the basis of

affidavits without a hearing.’” United States v. Schlei, 122 F.3d 944, 994 (11th
                                           4
               Case: 15-11152     Date Filed: 06/19/2017     Page: 5 of 9


Cir. 1997) (quoting United States v. Hamilton, 559 F.2d 1370, 1373–74 (5th Cir.

1977)) (alteration in original); see United States v. Reed, 887 F.2d 1398, 1404 n.12

(11th Cir. 1989) (“In ruling on a motion for new trial based upon newly discovered

evidence, it is within the province of the trial court to consider the credibility of

those individuals who give statements in support of the motion.”).

                                           A.

      Denton first contends that newly discovered evidence shows that the

government improperly interfered with his right to establish a defense by

instructing his sons, Jamie and Jonathon, and his daughter-in-law, Hollie, not to

have any contact with him before his trial. Cf. Schlei, 122 F.3d at 991 (“This court

has held that substantial government interference with a defense witness’ free and

unhampered choice to testify violates due process rights of the defendant.”)

(quotation marks omitted).

      As evidence of the government’s interference with his defense, Denton first

points to a request that Jamie made after he testified at trial, asking to speak to

Denton. Even if Jamie’s request were evidence of government interference, which

we seriously doubt, it is not newly discovered evidence because Denton heard what

Jamie said at trial when he said it. “Any motion for a new trial grounded on any

reason other than newly discovered evidence must be filed within 14 days after the

verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). Because the motion for


                                            5
              Case: 15-11152     Date Filed: 06/19/2017    Page: 6 of 9


new trial was not filed until more than nine months after the trial had ended, it is

untimely under Rule 33.

      The evidence Denton says shows that the government interfered with his

right to establish a defense by preventing Jonathon and Hollie from testifying on

his behalf came from Jonathon and Hollie’s post-trial affidavit; those affidavits

included statements that law enforcement had instructed them not to have contact

with Denton before the trial.

      The district court did not abuse its discretion in finding that those statements

in Jonathon and Hollie’s affidavits were not credible. The court noted that it was

apparent at trial that neither Jonathon nor Hollie wanted to speak to Denton. It

based that finding on the fact that Denton had written letters to Jonathon

suggesting that he testify falsely; Denton had made statements about trying to have

Hollie murdered; and as a result Jonathon and Hollie chose (as opposed to having

been instructed) not to speak to Denton. The district court noted that at trial it had

given Hollie an opportunity to speak to Denton, and she had refused to do so. The

court did not abuse its discretion in finding unfounded Denton’s claims that the

government interfered with his right to establish a defense.

                                          B.

      Denton also contends that the newly discovered evidence demonstrates

constitutional violations under Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763


                                           6
               Case: 15-11152     Date Filed: 06/19/2017    Page: 7 of 9


(1972), and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and that, as a

result, the district court abused its discretion by denying his motion for a new trial.

“In order to succeed on a Giglio challenge, the defendant must demonstrate that the

prosecutor knowingly used perjured testimony, or failed to correct what he

subsequently learned was false testimony, and that the falsehood was material.”

United States v. Vallejo, 297 F.3d 1154, 1163–64 (11th Cir. 2002) (quotation

marks omitted). And to establish a Brady violation, a defendant must show that

“(1) the government possessed favorable evidence to [him]; (2) [he] does not

possess the evidence and could not obtain the evidence with any reasonable

diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the

evidence been disclosed to [him], there is a reasonable probability that the outcome

would have been different.” Id. at 1164.

      When law enforcement was investigating Denton for the bank robbery, they

interviewed Hollie and, during one of those interviews, Hollie gave consent to

search the apartment where she lived with Jonathon and Denton. In her post-trial

affidavit Hollie stated that she did not freely go to the police station to be

interviewed about Denton and that investigators told her that she had no choice but

to go to the station. Denton contends that those statements demonstrate Giglio and

Brady violations because they show that Hollie did not freely consent to law

enforcement searching the apartment, and that some resulting evidence should


                                           7
               Case: 15-11152     Date Filed: 06/19/2017   Page: 8 of 9


have been suppressed. Hollie’s affidavit, however, says nothing at all about the

apartment search or her consent to it. Even if her post-trial statements about not

freely going to the police station were true, that would not render the apartment

search unconstitutional, nor would it demonstrate a Giglio or Brady violation.

See United States v. Jones, 475 F.2d 723, 730 (5th Cir. 1973) (“[A] defendant

under arrest or in custody may voluntarily consent to a search . . . .”). The district

court did not abuse its discretion in rejecting Denton’s request for a new trial based

on Hollie’s affidavit.

      In his affidavit, Jonathon stated that investigators had told him he would not

be charged for any crimes related to the bank robbery if he testified against his

father by identifying his father in the bank security camera footage. Denton

contends that Jonathon’s affidavit demonstrates Giglio and Brady violations

because it shows that the prosecution knowingly permitted Jonathon to commit

perjury at trial and suppressed evidence by permitting Jonathon to state that he had

not been promised anything in exchange for his testimony.

      The district court found that those statements in Jonathon’s affidavit were

not credible. It noted that Jonathon’s testimony against Denton at trial — that the

man in the bank security video walked like Denton — was consistent with the

court’s own observations of Denton’s gait during the trial. The court also noted

that Denton had attempted to have Jonathon testify falsely in Denton’s favor at


                                           8
                Case: 15-11152        Date Filed: 06/19/2017       Page: 9 of 9


trial, which further undermined the credibility of Jonathon’s post-trial statements in

the affidavit. As a result the district court did not abuse its discretion in concluding

that the newly discovered evidence did not demonstrate either a Giglio violation

(because Jonathon did not perjure himself at trial) or a Brady violation (because

those statements did not credibly show that the prosecution suppressed any

favorable testimony Jonathon could have given).3

                                               III.

       Denton also contends that the district court abused its discretion in failing to

hold an evidentiary hearing on his newly discovered evidence claims. The district

court found that, based on the record and insight gained from presiding at trial, the

relevant statements in the affidavits were not credible and Denton’s claims lacked

merit. It was permitted to make that finding under our Reed decision. 887 F.2d at

1404 n.12. The district court did not abuse its discretion in deciding that no

evidentiary hearing was required.

       AFFIRMED.



       3
          Denton also contends that the government failed to disclose other exculpatory evidence
before trial. The evidence he points to is eyewitness Sims’ statement to law enforcement that the
man driving the car fleeing from the bank robbery was “a black man with a gold grill.” Sims,
however, testified at trial that the driver of the fleeing car was “a black man with a gold grill.”
Assuming that the government did not disclose that evidence to Denton before trial, Denton
heard it at trial and any alleged non-disclosure of it was not newly discovered evidence found
after the trial ended. Denton should have raised any arguments about non-disclosure during the
trial or within 14 days “after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). He
failed to do so.
                                                 9
