IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11366
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RYAN MAZEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-15-ALL-L
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December 11, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Ryan Mazey appeals his conviction for conspiracy to commit
theft and to transport, and the transportation of, stolen
property in interstate commerce. He argues that the district
court erred when it refused to grant him a new trial based on
newly discovered evidence and when it did not voir dire the jury
to assess the severity of any tainting that may have occurred
when juror Brown stated that he believed Mazey was guilty.
To obtain a new trial based upon the discovery of new
evidence, Mazey must establish that (1) the evidence was 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that this opinion should not be published and is not precedent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.
No. 00-11366
-2-
discovered and unknown to him at the time of the trial;
(2) failure to detect the evidence was not a result of his lack
of due diligence; (3) the evidence is material, not merely
cumulative or impeaching; and (4) the evidence will likely
produce an acquittal. United States v. Ardoin, 19 F.3d 177, 181
(5th Cir. 1994). We review a district court's denial of a motion
for a new trial based upon new evidence for a clear abuse of
discretion. United States v. Freeman, 77 F.3d 812, 817 (5th Cir.
1996).
Mazey has failed to establish that the evidence was newly
discovered and unknown to him at the time of trial, and he has
not shown that the alleged failure to detect the evidence was not
due to a lack of due diligence. The record establishes that
Mazey was notified that the date of November 28, 1998, was at
issue from both the superseding indictment and the Government’s
motion for reciprocal discovery. Mazey’s contention that the
November 28 date first became an issue during trial is therefore
meritless. Furthermore, the fact that Mazey did not have in his
possession at the time of trial the time-stamped copy of the
credit card receipt does not render that evidence “unknown.”
Mazey was clearly placed on notice regarding the possibility of
interposing an alibi defense for the night of November 28, 1998,
and, therefore, the fact that he did not have the relevant
evidence in his possession at the time of trial reflects a lack
of diligence. The district court therefore did not abuse its
discretion in denying his motion.
No. 00-11366
-3-
After the court questioned a juror about his pretrial
opinion of Mazey’s guilt, Mazey did not request the district
court to voir dire the remaining jurors. A defendant implicitly
waives objections to juror misconduct when counsel fails to act,
before verdict, upon information known to defendant or counsel.
United States v. O’Keefe, 722 F.2d 1175, 1178 n.1 (5th Cir.
1983).
AFFIRMED.
United States v. Mazey
Combined Opinion