                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12846                ELEVENTH CIRCUIT
                                                           JANUARY 8, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                   D. C. Docket No. 06-00027-CR-3-RV

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

EUGENE JEROME SMITH,
a.k.a. Sperm,


                                                         Defendant-Appellant.


                       ________________________

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

                            (January 8, 2009)

Before BARKETT, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      Eugene Jerome Smith appeals the district court’s denial of his motion for

new trial based on newly discovered evidence. Smith was convicted of one count

of conspiracy to possess cocaine with intent to distribute and two counts of

possession of cocaine with intent to distribute. In support of his motion for a new

trial, Smith produced evidence that he was in Tampa when a witness, Carisha

Jones, testified that he was in Pensacola. Additionally, he asserted new evidence

showing that Jones made statements to the police describing drug sales at a certain

address as drug sales at his home, when Smith no longer lived at that address at the

time of the sales.

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

for abuse of discretion. 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, and “the court may vacate 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 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 a nature that a new trial

would probably produce a different result. United States v. Lee, 68 F.3d 1267,



                                           2
1273 (11th Cir. 1995). “The failure to satisfy any one of these elements is fatal to

a motion for new trial.” Id. at 1274. Evidence of an alibi is particularly “within

the knowledge of the defendant himself,” making it extremely difficult for a

defendant to show that the evidence is new or could not have been discovered with

due diligence. United States v. Williams, 816 F.2d 1527, 1530-31 (11th Cir.

1987).

         In this case, the evidence proffered by Smith cannot be considered new

evidence and could have been discovered by Smith if he had exercised due

diligence. Accordingly, the district court did not abuse its discretion by denying

Smith’s motion for a new trial.

         AFFIRMED.




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