[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 12, 2005
No. 04-15703 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00423-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARL BERNARD BELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 12, 2005)
Before CARNES, HULL, and MARCUS, Circuit Judges.
PER CURIAM:
Karl Bernard Bell, proceeding pro se, appeals the denial of his motion for a
new trial based on newly discovered evidence. After review, we affirm.
I. INTRODUCTION
In May, 2001, an indictment charged Bell with one count of distributing five
grams or more of crack cocaine and one count of distributing fifty grams or more
of crack cocaine, both in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
At Bell’s trial in August, 2001, Dwain Mallory, a cooperating witness,
testified that he had purchased crack cocaine from Bell during two controlled buys
in Miami-Dade County, on March 8, 2000, and April 27, 2000, respectively. In
each instance, Mallory was outfitted with a transmitter and a recording device. The
jury found Bell guilty on both drug counts on August 17, 2001. On direct appeal,
Bell raised numerous issues, but this Court found no reversible error and affirmed
Bell’s convictions. United States v. Bell, No. 02-10111 (11th Cir. Dec. 6, 2002).
On August 16, 2004, with the assistance of counsel, Bell filed a motion for a
new trial on the basis of newly discovered evidence. In this motion, Bell alleged
that subsequent to his 2001 convictions, Mallory had testified at another trial in
2002, wherein Mallory admitted that he personally had sold drugs for three or four
years in Gainesville, Florida and that he was involved with narcotics trafficking
with his cousins, Lorian and Dorian Mallory in Gainesville, Florida. Bell
contended that the new evidence that Mallory had bought crack from others for
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years in Gainesville, Florida would have permitted Bell to argue during his trial
that Mallory could have purchased crack during the controlled buys in 2000, in
Miami-Dade County, Florida from other individuals in the neighborhood.1
The district court denied Bell’s motion for a new trial on two grounds. First,
the district court concluded that the newly discovered evidence that Mallory had
been involved in prior drug purchases was merely impeachment evidence that
could cast doubt on Mallory’s testimony but would not show that the drugs that
Mallory purchased during the recorded controlled buys actually came from a
source other than Bell. The district court also concluded that the newly discovered
evidence of Mallory’s involvement in a crack distribution conspiracy with his
cousins was simply impeachment evidence that went to Mallory’s motive for
testifying at Bell’s trial. The district court also noted that Mallory’s veracity,
motive for testifying, and involvement with his cousins were extensively addressed
at Bell’s trial during cross-examination.
Second, even if the evidence was admissible for something more than
impeachment purposes, the district court concluded that in light of the
1
Bell relies on additional facts at trial, which he contends show that Mallory had the
opportunity to buy the crack from somebody else during the controlled buys. Specifically, Bell
notes that during the first transaction, the DEA agents lost radio contact with Mallory for a few
minutes, although the entire transaction was recorded. During the second transaction, Mallory
needed to leave Bell's residence while Bell "cooked" the crack, and during this time, before
returning to Bell's residence, Mallory drove to another location and spoke to a person he called
his "brother" who was on the street.
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overwhelming evidence supporting Bell’s convictions, it was unlikely that the
newly discovered evidence would produce a different result in a new trial.2 Bell
appeals.3
II. DISCUSSION
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 within three years
after the verdict or finding of guilty, and “[u]pon the defendant’s motion, the court
may vacate any 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 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.
United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quotation marks
2
In addition to Mallory’s testimony, the government presented taped conversations
between Mallory and Bell during the drug transactions. The government also presented
testimony by the DEA agent who set-up the undercover purchases, surveilled Bell’s home, and
searched Mallory’s car before and after the purchases to make sure no crack was hidden in
Mallory's car. The agent also testified that the security at Bell's home was consistent with that of
a stash house.
3
This Court reviews a district court’s denial of a motion for a new trial for abuse of
discretion. United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003).
4
and citation omitted). Failure to meet any one of these elements defeats a motion
for a new trial. United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995).
We agree with the district court that Bell’s new evidence that Mallory had
previously purchased drugs for years and that he had engaged in a crack
distribution conspiracy was impeachment evidence that was cumulative.
Moreover, even if the evidence inferentially showed an opportunity to obtain drugs
from many persons other than Bell, we also agree with the district court that Bell
failed to show that the newly discovered evidence would probably have produced a
different result. Indeed, there was overwhelming evidence at trial supporting
Bell’s convictions, such as Mallory’s testimony that he purchased crack from Bell,
the recorded conversation corroborating this testimony, and the agent’s testimony
that agents surveilled Bell’s premises and set up the controlled buys. Further, the
newly discovered evidence that Mallory had previously purchased and sold drugs
in Gainesville, Florida does not contradict the evidence that Bell sold drugs to
Mallory on the two specific occasions on March 8, 2000, and April 27, 2000, in
Miami-Dade County, Florida. Thus, the district court did not abuse its discretion
in denying Bell’s motion for a new trial.4
4
In his brief on appeal, Bell also contends that the district court erred by denying his
motion for a new trial without first conducting an evidentiary hearing. The district court did not
abuse its discretion in electing not to conduct an evidentiary hearing. See United States v.
Schlei, 122 F.3d 944, 994 (11th Cir. 1997) (“[T]he acumen gained by a trial judge over the
5
III. CONCLUSION
For all of the above reasons, this Court affirms the district court’s denial of
Bell’s motion for a new trial.
AFFIRMED.
course of the proceedings [makes him] well qualified to rule on the basis of affidavits without a
hearing.”) (quotation marks and citation omitted).
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