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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12967
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20298-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DORA MOREIRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 12, 2018)
Before WILLIAM PRYOR, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
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This is the second time we have considered an appeal in this case. In the
first appeal, we affirmed Dora Moreira’s (“Moreira”) convictions and total
sentence for various Medicare fraud violations. United States v. Moreira, 605 F.
App’x 852 (11th Cir. 2015), cert. denied,
136 S. Ct. 1155 (2016).
In this appeal, Moreira, a prisoner proceeding pro se, appeals the district
court’s order denying her motion for a new trial filed pursuant to Federal Rule of
Criminal Procedure 33. On appeal, Moreira argues that, although her Rule 33
motion was untimely, the district court abused its discretion in denying the motion
because she presented sufficient grounds for the court to find excusable neglect,
and she established that newly discovered evidence was material and would have
likely changed the outcome of her trial.
I.
We review the denial of a motion for a new trial based on newly discovered
evidence for an abuse of discretion. United States v. Vallejo,
297 F.3d 1154, 1163
(11th Cir. 2002). The abuse of discretion standard is deferential and decisions of
the district court will be affirmed unless “the district court has made a clear error of
judgment, or has applied the wrong legal standard.” United States v. Lyons,
403
F.3d 1248, 1255 (11th Cir. 2005). We construe pro se filings liberally,
Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998), but pro se
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litigants must still conform to procedural rules, Loren v. Sasser,
309 F.3d 1296,
1304 (11th Cir. 2002).
II.
Pursuant to the Federal Rules of Criminal Procedure, a defendant may move
the court to vacate a judgment and grant a new trial “if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). “Any motion for a new trial grounded on newly
discovered evidence must be filed within [three] years after the verdict or finding
of guilty. If an appeal is pending, the court may not grant a motion for a new trial
until the appellate court remands the case.” Fed. R. Crim. P. 33(b)(1). Moreover,
a district court may extend the time for a defendant to file an otherwise untimely
motion if she can show excusable neglect. Fed. R. Crim. P. 45(b)(1)(B).
A new trial based on newly discovered evidence is warranted only if: “(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). “Failure to meet any one of these
elements will defeat a motion for a new trial.” United States v. Starrett,
55 F.3d
1525, 1554 (11th Cir. 1995). Our court highly disfavors motions for new trials
based on newly discovered evidence and has opined that they should be granted
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only with great caution. United States v. Campa,
459 F.3d 1121, 1151 (11th Cir.
2006) (en banc). Self-serving allegations that are unsubstantiated by any
objectively credible source and that present only second-hand information do not
warrant a new trial. United States v. Calderon,
127 F.3d 1314, 1354-55 (11th Cir.
1997). Issues implicating the fairness of a trial or the integrity of the verdict may
be grounds for a new trial.
Campa, 459 F.3d at 1151 n.268.
III.
Even assuming that Moreira’s delay in filing her motion for a new trial was
due to excusable neglect, the motion itself fails on its merits. Moreira’s reliance on
alleged government misconduct in an unrelated case does not establish such
misconduct in her case. Moreira cannot show that the alleged misappropriated
Medicare documents from an unrelated case could not have been discovered before
trial if she or her attorney had exercised due care in discovering them. The only
evidence that she has put forward to support her argument—that the government
introduced a binder full of documents on the first day of trial that she and her
attorney previously had not seen—does not warrant the grant of a new trial. The
government disputes Moreira’s assertion that her counsel had not seen the
documents before the introduction of the binder, noting that her counsel did not
object to their admission into evidence. Accordingly, we conclude from the record
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that the district court did not abuse its discretion in denying Moreira’s motion for a
new trial, and we affirm its order.
Vallejo, 297 F.3d at 1163;
Lyons, 403 F.3d at
1255.
AFFIRMED.
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