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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14769
Non-Argument Calendar
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D.C. Docket No. 8:12-cr-00457-SCB-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNOLD MAURICE MATHIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 7, 2017)
Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Arnold Mathis, proceeding pro se, appeals the district court’s denial of his
motion for a new trial based on new evidence under Fed. R. Crim. P. 33 and the
court’s denial of an evidentiary hearing on the motion. He contends evidence
allegedly discovered after trial shows the government illegally searched his cell
phone without a warrant. He also asserts his motion warranted an evidentiary
hearing. After review, 1 we affirm.
I. DISCUSSION
A defendant may move for a new trial based on newly discovered evidence
within three years of the verdict. Fed. R. Crim. P. 33. “A new trial is warranted
based upon circumstances coming to light after trial only if the following five-part
test is satisfied: (1) the evidence was in fact discovered after trial; (2) the
defendant exercised due care to discover the evidence; (3) the evidence was not
merely cumulative or impeaching; (4) the evidence was material; and (5) the
evidence was of such a nature that a new trial would probably produce a different
result.” United States v. Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). The failure to
satisfy any one of these elements results in denial of the motion. Id. at 1274. We
have previously stated that “motions for a new trial are highly disfavored” and that
district courts “should use great caution in granting a new trial motion based on
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“We review the denial of a motion for a new trial for abuse of discretion.” United
States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). We also review the denial of an
evidentiary hearing on a motion for a new trial for abuse of discretion. United States v. Massey,
89 F.3d 1433, 1443 (11th Cir. 1996).
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newly discovered evidence.” United States v. Jernigan, 341 F.3d 1273, 1287 (11th
Cir. 2003) (quotation omitted).
We rest our determination that the district court did not abuse its discretion
on several independent grounds. First, Mathis failed to show the evidence was
discovered after trial—even assuming the state accessed his cell phone on
December 19, 2011, his expert came to that conclusion in his subsequent state trial
based on the report tendered to him by the government during his federal case.
Only his state expert’s opinion was new; neither Mathis’ expert in his federal case
nor his attorney made such a contention when they had access to the report. Thus,
Mathis fails the first prong of Lee. United States v. Calderon, 127 F.3d 1314, 1351
(11th Cir. 1997) (stating a motion for a new trial may not be based on evidence of
which the defendant had knowledge prior to the return of the jury verdict).
Second, and relatedly, Mathis did not exercise due care. As noted above, he had
the opportunity to discover the alleged warrantless access, but did not do so.
Finally, the evidence was not of such a nature as would probably produce a
different result. The search warrant application did not contain any information
gained from the alleged illegal access. The inculpating evidence from Mathis’ cell
phone would thus not have been suppressed, and the result of his trial would have
been the same. See United States v. Terzado-Madruga, 897 F.2d 1099, 1115 (11th
Cir. 1990) (“Under the ‘independent source’ doctrine, the challenged evidence will
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be admissible if the prosecution can show that it derived from a lawful source
independent of the illegal conduct.”).
In addition, because the record already contained all of the evidence needed
to dispose of Mathis’ claims, the district court did not abuse its discretion by
denying an evidentiary hearing. United States v. Scrushy, 721 F.3d 1288, 1305
n.30 (11th Cir. 2013).
II. CONCLUSION
For the foregoing reasons, the order of the district court is affirmed.
AFFIRMED.
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