[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 18, 2009
No. 09-11141 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00086-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMIE NATHANIEL WHITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 18, 2009)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Tommie Nathaniel White appeals the district court’s denial of his motion for
a new trial pursuant to Federal Rule of Criminal Procedure 33 (“Rule 33”). White
argues that adverse testimony from co-conspirators at his trial provided in
exchange for recommended sentence reductions through plea agreements violated
the federal anti-bribery statute, 18 U.S.C. § 201(c)(2), which forbids anyone from
promising anything of value to any person to testify under oath in a judicial
proceeding. Because White’s argument is foreclosed by our precedent, we
AFFIRM.
I. BACKGROUND
In July of 2006, White was convicted by a jury of conspiracy to possess with
intent to distribute more than five kilograms of cocaine and more than fifty grams
of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and
possession with intent to distribute approximately 500 grams of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B). See Doc. 49 at 420-21.1 The
district court sentenced him to 400 months of imprisonment on both counts, to be
served concurrently. See Doc. 62 at 2. We affirmed White’s convictions and
sentences in United States v. White, 270 Fed. Appx. 824 (11th Cir. 2008) (per
curiam).
1
All record cites reflect a document cite from the electronic record on appeal. Each
document is identified by the abbreviation “Doc.” followed by the docket number pertaining to
that document.
2
During his trial, a number of co-conspirators testified against White pursuant
to their plea agreements. See Doc. 47 at 52-71, 88-109, 143-53, 167-77, 199-204;
Doc. 48 at 226-30, 252-60, 274-85, 299-310. On cross-examination, the co-
conspirators conceded that they had chosen to testify against White in order to
receive recommendations for sentence reductions based on plea agreements. See
Doc. 47 at 72-78, 117-22, 153-58, 178-87, 204-17; Doc. 48 at 231-39, 261-72,
286-94, 311-20. In his Rule 33 motion to the district court, White claimed that (1)
the government violated the federal anti-bribery statute, 18 U.S.C. § 201(c)(2), by
offering recommendations for sentence reductions to his co-conspirators who
testified against him at trial; and that (2) the record showed that the government
failed to provide discovery materials to White. See Doc. 87 at 5-24. As White did
not raise the alleged discovery abuse by the government in his appeal to us, he has
abandoned that claim. See United States v. Cunningham, 161 F.3d 1343, 1344
(11th Cir. 1998) (noting that an issue is abandoned if the defendant fails to proffer
argument on its merits on appeal). Accordingly, the only issue before us is
White’s argument that the government violated the federal anti-bribery statute.
II. DISCUSSION
“We review the district court’s denial of a motion for [a] new trial for abuse
of discretion.” United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009) (per
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curiam). Rule 33 allows a defendant to file a motion for a new trial within three
years after the verdict if the motion is based on “newly discovered evidence,” or
seven days after the verdict if based on “[o]ther grounds.” Fed. R. Crim. P. 33(b).
The court may grant the motion “if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). In this case, White predicates his Rule 33 motion on newly
discovered evidence. See Doc. 87 at 1.
In United States v. Jernigan, we observed that the movant of a Rule 33
motion based on newly discovered evidence must establish the following:
(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.
341 F.3d 1273, 1287 (11th Cir. 2003) (quotation marks and citation omitted). We
also conclusively have determined that cooperation provisions of plea agreements
do not violate 18 U.S.C. § 201(c)(2). See United States v. Lowery, 166 F.3d 1119,
1124 (11th Cir. 1999).
Given our decision in Lowery, we need not consider whether White has
established each of the five requirements for obtaining a new trial on the basis of
newly discovered evidence. His argument that the cooperation provisions of his
co-conspirators’ plea agreements violated 18 U.S.C. § 201(c)(2) is foreclosed by
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our circuit precedent. See Lowery, 166 F.3d at 1124. Consequently, the district
court did not err in denying White’s Rule 33 motion for a new trial.
III. CONCLUSION
White appeals the district court’s denial of his motion for a new trial. His
argument that adverse testimony from co-conspirators at his trial provided in
exchange for recommended sentence reductions through plea agreements violated
the federal anti-bribery statute is foreclosed by our circuit precedent. Accordingly,
we AFFIRM.
AFFIRMED.
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