     Case: 08-10307     Document: 00511019361          Page: 1    Date Filed: 02/03/2010




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

                                                  FILED
                                                                          February 3, 2010
                                     No. 08-10307
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DANIEL A. FISHER,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:04-CR-172-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Daniel A. Fisher, federal prisoner # 32412-177,
appeals the district court’s denial of his motion for a new trial. He asserts that
the district court failed to conduct the necessary de novo review of his arguments
and did not properly consider all of the claims that he raised in the motion. He
alleges that the disregarded claims, which appear in his traverse to the
government’s response to his motion for a new trial and his objections to the
magistrate judge’s (MJ’s) report and recommendation, were supported by newly

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-10307    Document: 00511019361 Page: 2         Date Filed: 02/03/2010
                                 No. 08-10307

discovered evidence that established his entitlement to a new trial.           The
government has filed a motion for summary affirmance or, alternatively, for an
extension of time to file a brief on the merits.        Fisher’s motion to file a
supplemental brief is GRANTED.
      Fisher’s contention that the district court failed to conduct a proper de
novo review of claims is not supported by the record. The district court explicitly
stated in its order adopting the MJ’s report that its conclusion was based on an
independent review of the pleadings, files, and records in this case, as well as the
findings, conclusions, and recommendations of the MJ. See 28 U.S.C. § 636(b)(1);
Shiimi v. Asherton I.S.D., 983 F.2d 233, 233 n.18 (5th Cir. 1993). Fisher has also
failed to establish that the district court was incapable of conducting a proper de
novo review because it did not have available to it all of the documents that were
relevant to his claims. Fisher does not identify any specific documents that the
court did not have access to or overlooked in its independent review of the
record, and he fails to demonstrate that the allegedly omitted documents would
have altered the district court’s disposition of his motion.
      Fisher has also failed to establish that the district court abused its
discretion in denying his motion for a new trial. United States v. Freeman, 77
F.3d 812, 817 (5th Cir. 1996) (noting that denial of a motion for a new trial based
on newly discovered evidence is reversed only when there is a clear abuse of
discretion). He has not clearly shown that the district court failed to consider the
arguments that he raised in his traverse and his objections to the MJ’s report.
Moreover, the claims purportedly disregarded by the district court do not provide
a basis for a new trial. Those claims principally concern alleged misconduct that
occurred at trial, but Fisher has not shown that the claims are premised on
material, newly discovered evidence that he could not previously have found
through the exercise of diligence. See id.; cf. United States v. Ugalde, 861 F.2d
802, 808 (5th Cir. 1988) (identifying that newly discovered evidence must be
unknown to the defendant at the time of trial); United States v. Jaramillo, 42

                                         2
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                                 No. 08-10307

F.3d 920, 925 (5th Cir. 1995) (holding that evidence is not “newly discovered”
where a defendant is in possession of evidence before trial but fails to realize its
relevance).
      Accordingly, the district court’s denial of Fisher’s motion for a new trial
was not an abuse of discretion, and the judgment is AFFIRMED; the
government’s motion for summary affirmance is GRANTED; the government’s
motions to dismiss and for an extension of time are DENIED as unnecessary;
Fisher’s motions for a limited remand, for release pending appeal, and for the
appointment of counsel are DENIED. Further, Fisher is cautioned that his use
of abusive and insulting language directed at the district judge are improper,
and similar language and accusations in future filings will result in the
imposition of sanctions. See Theriault v. Silber, 579 F.2d 302, 303 (5th Cir.
1978).




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