[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 14, 2006
No. 05-12798
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00147-CR-T-24-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS JEROME COOK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 14, 2006)
Before ANDERSON, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Thomas Jerome Cook, a federal prisoner serving a term of 360 months’
imprisonment for distributing a mixture containing a detectable amount of cocaine
and possessing a firearm and ammunition while convicted of a felony crime,
appeals pro se the district court’s order denying his motion for a new trial based on
newly discovered evidence, filed pursuant to Federal Rule of Criminal Procedure
33. On appeal, Cook argues that the government violated Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Giglio v. United States, 405
U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), through its failure to disclose a
trial witness’s criminal history from 1999 to 2001, the fact that the witness was on
probation at the time he testified at Cook’s trial, and the fact that probation
revocation proceedings had commenced against the witness. Cook further argues
that the district court erred in applying the standard for evaluating a motion for a
new trial based on newly discovered evidence instead of the standard for
evaluating such a motion based on Brady evidence.
Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the
defendant’s motion, the court may vacate any judgment and grant a new trial if the
interest of justice so requires.” “We review the district court’s denial of a motion
for new trial based on newly discovered evidence for abuse of discretion.
Similarly, a district court’s denial of a motion for new trial based on a Brady
violation is reviewed for abuse of discretion.” United States v. Vallejo, 297 F.3d
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1154, 1163 (11th Cir. 2002) (citation omitted).
To obtain a new trial based on a Brady claim of newly discovered evidence,
the defendant must show that: “(1) the government possessed favorable evidence to
the defendant; (2) the defendant does not possess the evidence and could not obtain
the evidence with any reasonable diligence; (3) the prosecution suppressed the
favorable evidence; and (4) had the evidence been disclosed to the defendant, there
is a reasonable probability that the outcome would have been different.” Vallejo,
297 F.3d at 1164. “Evidence favorable to the accused includes impeachment
evidence.” United States v. Newton, 44 F.3d 913, 918 (11th Cir. 1994). A
“reasonable probability” is “a probability sufficient to undermine confidence in the
outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87
L. Ed. 2d 481 (1985) (quotation omitted).
Here, the district court erred because it evaluated Cook’s motion for a new
trial using the standard for a Rule 33 motion based on newly discovered evidence
instead of a Rule 33 motion based on Brady evidence. See United States v.
Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (outlining framework for
evaluating a Rule 33 motion for new trial); but see Vallejo, 297 F.3d at 1164
(setting forth standard for prevailing upon a Rule 33 motion based on a Brady
violation). However, we will not remand unless doing so “would serve [a] valid
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purpose.” See United States v. Bascaro, 742 F.2d 1335, 1344 (11th Cir. 1984).
We therefore consider whether Cook can establish a Brady claim.
Applying the standard for a new trial based on a Brady violation and
assuming the government possessed and suppressed information about the trial
witness’s complete criminal history, Cook has not shown that he could not have
possessed this evidence with reasonable diligence. See Vallejo, 297 F.3d at 1164.
Rather, as demonstrated by the attachments to the motion for a new trial,
information about the witness’s criminal history and probationary status was
publicly available. In addition, Cook has not demonstrated that a reasonable
probability existed that the outcome of his trial would have been different had he
received a more complete evidence about the witness’s criminal history. See id.
Evidence at trial showed that Cook sold cocaine to a confidential informant and
was arrested when he tried to complete a second drug transaction with the
informant. Because Cook is unable to establish a Brady claim, remand would
serve no valid purpose. See Bascaro, 742 F.2d at 1344.
Based on a review of the parties’ briefs and the record on appeal, we discern
no reversible error. Accordingly, we affirm.
AFFIRMED.
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