                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 23, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 97-60756
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

KIRKSEY MCCORD NIX, JR.; JOHN RANSOM,

                                    Defendants-Appellants.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                         (1:91-CR-40PR)
                      --------------------

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Defendants-Appellants   Kirksey    McCord   Nix,   Jr.,    federal

prisoner #20921-077, and John Elbert Ransom, federal prisoner

#97349-131, were convicted of conspiracy to violate the fraud-by-

wire statute and the murder-for-hire statute and for substantive

wire fraud violations. United States v. Sharpe, 995 F.2d 49, 50-51

(5th Cir. 1993).   Nix and Ransom filed a motion for a new trial

under FED. R. CRIM. P. 33, asserting that they had newly discovered

evidence that prosecutors (1) withheld exculpatory evidence in


     *
        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this opinion should not be published and is not precedent except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.
violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) withheld

evidence tending to impeach government witnesses in violation of

Giglio v. United States, 405 U.S. 150 (1972); and (3) knowingly

offered perjured testimony in violation of Mooney v. Holohan,

294 U.S. 103 (1935).     The district court denied the motion and Nix

and Ransom appeal.

      We review a denial of a Rule 33 motion for new trial for abuse

of discretion.      United States v. Jaramillo, 42 F.3d 920, 924

(5th Cir. 1995).     A defendant seeking a new trial on grounds of

newly discovered evidence must show that:                 (1) The evidence is

newly discovered and was unknown to him at the time of trial;

(2) his failure to discover the evidence did not result from a lack

of diligence; (3) the evidence is material, not merely cumulative

or   impeaching;   and   (4)      the   evidence    would   probably   produce

acquittal at a new trial.         United States v. Freeman, 77 F.3d 812,

817 (5th Cir. 1996).         “[T]he likelihood of changing a jury’s

decision as    a   result    of   newly      discovered   evidence   must   rise

considerably above the level of speculation.”                United States v.

Prior, 546 F.2d 1254, 1259 (5th Cir. 1977) (quoting            Ross v. Texas,

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

      With respect to Nix and Ransom’s assertions of undisclosed

impeachment evidence and perjury related to the consideration given

to witnesses in exchange for their testimony, their claims of newly

discovered    evidence      cannot      support    relief    under   Rule   33.

“[E]vidence which merely discredits or impeaches a witness’ [sic]

                                         2
testimony does not justify a new trial.”                    United States v. Pena,

949 F.2d 751, 758 (5th Cir. 1991).

       With respect to their assertions that the government withheld

exculpatory evidence, Nix and Ransom have not shown that the

identities of other possible suspects in the Sherry murders,

including the individual ultimately convicted of the crime, were

material to the conviction for conspiracy to violate the wire-fraud

and murder-for-hire statutes. Additionally, there is no indication

that evidence regarding the identity of the person who was hired to

commit       the   murders    would   have      produced    an   acquittal   on   the

conspiracy count.          See Freeman, 77 F.3d at 817; Prior, 546 F.2d at

1259.

       Nix and Ransom also assert as error the government’s alleged

use of other perjured testimony unrelated to impeachment, the

district court’s allegedly incorrect application of the sentencing

guidelines, the insufficiency of the evidence to sustain Ransom’s

conviction, and their alleged convictions under an ex post facto

application of a criminal statute.                  These arguments contain no

substantive allegations of newly discovered evidence and do not

challenge the district court’s denial of the Rule 33 motion.

Neither are the arguments relevant to the issues on appeal.

       Based on our exhaustive review of the record, we hold that the

district court did not abuse its discretion in denying relief under

FED.    R.    CRIM.   P.     33   without       allowing     additional   discovery

or conducting an evidentiary hearing.                      See Murphy v. Johnson,

                                            3
205 F.3d 809, 814 (5th Cir. 2000) (habeas case); United States

v. Simmons, 714 F.2d 29, 30 (5th Cir. 1983).   The judgment of the

district court is AFFIRMED.

     Ransom’s motion to compel production of the trial transcript

is DENIED.




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