United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 14, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60367
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERWIN RENWICK MCWAINE, also known as Skibow,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:98-CR-22-1
--------------------
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Derwin Renwick McWaine, federal prisoner # 10797-042, appeals
the district court’s denial of his motion for an evidentiary
hearing and immediate release, apparently brought under FED. R.
CRIM. P. 33. McWaine alleged that Officer David Sullivan presented
false information in obtaining a search warrant for his residence
and that Officer Ronnie Jones was indicted and convicted after
McWaine’s trial. McWaine has not shown that the district court
1
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that this opinion should not be published and is not precedent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.
abused its discretion in denying his motion as he has not shown
that his motion is based on new evidence unknown despite due
diligence on his part, that the evidence is material, or that the
evidence would probably have produced an acquittal. See United
States v. Sullivan, 112 F.3d 180, 182-83 (5th Cir. 1997).
Therefore, the district court’s denial of McWaine’s motion is
AFFIRMED.
2