                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              AUGUST 18, 2009
                               No. 09-11141                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 06-00086-CR-CG

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

TOMMIE NATHANIEL WHITE,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                               (August 18, 2009)

Before BIRCH, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Tommie Nathaniel White appeals the district court’s denial of his motion for
a new trial pursuant to Federal Rule of Criminal Procedure 33 (“Rule 33”). White

argues that adverse testimony from co-conspirators at his trial provided in

exchange for recommended sentence reductions through plea agreements violated

the federal anti-bribery statute, 18 U.S.C. § 201(c)(2), which forbids anyone from

promising anything of value to any person to testify under oath in a judicial

proceeding. Because White’s argument is foreclosed by our precedent, we

AFFIRM.

                                   I. BACKGROUND

       In July of 2006, White was convicted by a jury of conspiracy to possess with

intent to distribute more than five kilograms of cocaine and more than fifty grams

of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and

possession with intent to distribute approximately 500 grams of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B). See Doc. 49 at 420-21.1 The

district court sentenced him to 400 months of imprisonment on both counts, to be

served concurrently. See Doc. 62 at 2. We affirmed White’s convictions and

sentences in United States v. White, 270 Fed. Appx. 824 (11th Cir. 2008) (per

curiam).



       1
         All record cites reflect a document cite from the electronic record on appeal. Each
document is identified by the abbreviation “Doc.” followed by the docket number pertaining to
that document.

                                               2
      During his trial, a number of co-conspirators testified against White pursuant

to their plea agreements. See Doc. 47 at 52-71, 88-109, 143-53, 167-77, 199-204;

Doc. 48 at 226-30, 252-60, 274-85, 299-310. On cross-examination, the co-

conspirators conceded that they had chosen to testify against White in order to

receive recommendations for sentence reductions based on plea agreements. See

Doc. 47 at 72-78, 117-22, 153-58, 178-87, 204-17; Doc. 48 at 231-39, 261-72,

286-94, 311-20. In his Rule 33 motion to the district court, White claimed that (1)

the government violated the federal anti-bribery statute, 18 U.S.C. § 201(c)(2), by

offering recommendations for sentence reductions to his co-conspirators who

testified against him at trial; and that (2) the record showed that the government

failed to provide discovery materials to White. See Doc. 87 at 5-24. As White did

not raise the alleged discovery abuse by the government in his appeal to us, he has

abandoned that claim. See United States v. Cunningham, 161 F.3d 1343, 1344

(11th Cir. 1998) (noting that an issue is abandoned if the defendant fails to proffer

argument on its merits on appeal). Accordingly, the only issue before us is

White’s argument that the government violated the federal anti-bribery statute.

                              II. DISCUSSION

      “We review the district court’s denial of a motion for [a] new trial for abuse

of discretion.” United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009) (per



                                           3
curiam). Rule 33 allows a defendant to file a motion for a new trial within three

years after the verdict if the motion is based on “newly discovered evidence,” or

seven days after the verdict if based on “[o]ther grounds.” Fed. R. Crim. P. 33(b).

The court may grant the motion “if the interest of justice so requires.” Fed. R.

Crim. P. 33(a). In this case, White predicates his Rule 33 motion on newly

discovered evidence. See Doc. 87 at 1.

      In United States v. Jernigan, we observed that the movant of a Rule 33

motion based on newly discovered evidence must establish the following:

      (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.

341 F.3d 1273, 1287 (11th Cir. 2003) (quotation marks and citation omitted). We

also conclusively have determined that cooperation provisions of plea agreements

do not violate 18 U.S.C. § 201(c)(2). See United States v. Lowery, 166 F.3d 1119,

1124 (11th Cir. 1999).

      Given our decision in Lowery, we need not consider whether White has

established each of the five requirements for obtaining a new trial on the basis of

newly discovered evidence. His argument that the cooperation provisions of his

co-conspirators’ plea agreements violated 18 U.S.C. § 201(c)(2) is foreclosed by

                                          4
our circuit precedent. See Lowery, 166 F.3d at 1124. Consequently, the district

court did not err in denying White’s Rule 33 motion for a new trial.

                               III. CONCLUSION

      White appeals the district court’s denial of his motion for a new trial. His

argument that adverse testimony from co-conspirators at his trial provided in

exchange for recommended sentence reductions through plea agreements violated

the federal anti-bribery statute is foreclosed by our circuit precedent. Accordingly,

we AFFIRM.

      AFFIRMED.




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