United States v. Delvin McKinney , 312 F. App'x 247 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
__________________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 17, 2009
No. 08-11993
THOMAS K. KAHN
Non-Argument Calendar CLERK
__________________________________
D. C. Docket No. 04-60038-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELVIN MCKINNEY,
Defendant-Appellant.
_________________________________
On Appeal from the United States District Court for the
Southern District of Florida
__________________________________
(February 17, 2009)
Before TJOFLAT, BIRCH and HULL, Circuit Judges.
PER CURIAM:
A Southern District of Florida grand jury indicted Delvin McKinney with
possessing and distributing at least five grams of crack cocaine within 1000 feet of
a school on six days in June, July and August 2003 (Counts 1-6), possession with
intent to distribute 50 or more grams of crack cocaine (Count 7), and possession
with intent to distribute at least 100 grams of cocaine (Count 8), all in violation of
21 U.S.C. § 841 (a)(1). These offenses allegedly occurred in the City of
Hallandale Beach, Florida. McKinney pled not guilty and stood trial. The jury
convicted him of all but Counts 1 and 5. The district court denied his alternative
motions for new trial or acquittal, and sentenced him to life imprisonment on
Count 7, and concurrent prison terms of 360 months on the remaining counts.
McKinney appealed his convictions and life sentence. We affirmed. United
States v. McKinney, 219 Fed. Appx. 921 (11th Cir. 2007).1 On February 22, 2008,
he filed a motion for a new trial based on newly discovered evidence and
requested an evidentiary hearing. McKinney presented the affidavit of Kaper
Reams, the brother of Victor Reams, the confidential informant who made
repeated drug buys from McKinney and testified at his trial as a Government
witness, which stated that he had seen Victor pick up money on the ground near a
church in Hallandale during the summer of 2003, and that Victor told him that he
1
While his appeal was pending, McKinney filed several motions for a new trial. All
were denied.
2
had staged drug sales from an individual whom the police had targeted.
The Government response suggested that the affidavit of Kaper Reams was
false and stated that the evidence at trial conclusively established that the money
Victor Reams used to purchase drugs from McKinney was provided by law
enforcement and documented, Reams was searched prior to every transaction with
McKinney and found to be free of contraband, and his testimony was corroborated
by law enforcement officers.
The district court denied McKinney’s motion and his request for an
evidentiary hearing, noting that “this speculative new evidence would have been
only cumulative, impeachment evidence, at best, not material and would not have
affected the verdict as to any count.” McKinney now appeals the court’s ruling,
contending that the district court abused its discretion in denying his motion for a
new trial because his newly discovered evidence satisfied the criteria necessary to
warrant a new trial. McKinney also contends that the court abused its discretion in
ruling on his motion without holding an evidentiary hearing.
We review a district court’s 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). Likewise, we review a district court’s
decision concerning whether to hold an evidentiary hearing for an abuse of
3
discretion. United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996).
Federal Rule of Criminal Procedure 33 provides that a “court may vacate
any judgment and grant a new trial if the interest of justice so requires.” Fed. R.
Crim. P. 33(a).
To succeed on a motion for a new trial based on newly discovered
evidence, the movant must establish 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
omitted). “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).
“Motions for a new trial based on newly discovered evidence are highly
disfavored in the Eleventh Circuit and should be granted only with great caution.
Indeed, the defendant bears the burden of justifying a new trial.” United States v.
Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc) (quotation omitted).
“Newly discovered impeaching evidence is insufficient to warrant a new trial.”
United States v. Champion, 813 F.2d 1154, 1171 (11th Cir. 1987).
A defendant is not entitled to an evidentiary hearing on a motion for a new
trial if “the acumen gained by a trial judge over the course of the proceedings
4
[made him] well qualified to rule on the [evidence] without a hearing.” United
States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997) (quotation omitted). A motion
for a new trial “may ordinarily be decided upon affidavits without an evidentiary
hearing,” and “[w]here evidentiary hearings are ordered, it is because of certain
unique situations typically involving allegations of jury tampering, prosecutorial
misconduct, or third party confession.” United States v. Hamilton, 559 F.2d 1370,
1373 (5th Cir. 1977).
The newly discovered evidence McKinney provided was, at best, mere
impeaching evidence. It would not have produced a different outcome at trial.
We find no abuse of discretion in the court’s denial of the motion without an
evidentiary hearing.
AFFIRMED.
5