United States v. Eugene Jerome Smith ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12846 ELEVENTH CIRCUIT
JANUARY 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00027-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENE JEROME SMITH,
a.k.a. Sperm,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 8, 2009)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Eugene Jerome Smith appeals the district court’s denial of his motion for
new trial based on newly discovered evidence. Smith was convicted of one count
of conspiracy to possess cocaine with intent to distribute and two counts of
possession of cocaine with intent to distribute. In support of his motion for a new
trial, Smith produced evidence that he was in Tampa when a witness, Carisha
Jones, testified that he was in Pensacola. Additionally, he asserted new evidence
showing that Jones made statements to the police describing drug sales at a certain
address as drug sales at his home, when Smith no longer lived at that address at the
time of the sales.
We review a district court’s denial of a defendant’s motion for a new trial
for abuse of discretion. 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, and “the court may vacate 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 in fact discovered following trial; (2) the defendant exercised due care to
discover the evidence; (3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material; and (5) the evidence is of such a nature that a new trial
would probably produce a different result. United States v. Lee, 68 F.3d 1267,
2
1273 (11th Cir. 1995). “The failure to satisfy any one of these elements is fatal to
a motion for new trial.” Id. at 1274. Evidence of an alibi is particularly “within
the knowledge of the defendant himself,” making it extremely difficult for a
defendant to show that the evidence is new or could not have been discovered with
due diligence. United States v. Williams, 816 F.2d 1527, 1530-31 (11th Cir.
1987).
In this case, the evidence proffered by Smith cannot be considered new
evidence and could have been discovered by Smith if he had exercised due
diligence. Accordingly, the district court did not abuse its discretion by denying
Smith’s motion for a new trial.
AFFIRMED.
3