United States v. Cecil Anthony Dortch

Case: 13-15717 Date Filed: 07/07/2014 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15717
Non-Argument Calendar
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D.C. Docket No. 3:10-cr-00055-MCR-CJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CECIL ANTHONY DORTCH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(July 7, 2014)
Before WILSON, PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Cecil Anthony Dortch appeals pro se the denial of his motion for a new trial
as untimely. See Fed. R. Crim. P. 33(b)(2). Dortch filed his motion more than two
years after he was convicted of possessing with intent to distribute marijuana,
using a gun in connection with a drug trafficking crime, and being a felon in
possession of a gun. Dortch argued that he was in possession of newly-discovered
evidence that the government presented perjured testimony from its crime scene
analyst, see Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972), and that it
suppressed DNA evidence collected from firearms discovered in his residence, see
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). We affirm.
A motion for a new trial may be filed within 14 days after the jury returns its
verdict, Fed. R. Crim. P. 33(b)(2), but a motion based on newly-discovered
evidence may be filed within three years following a conviction, id. 33(b)(1). To
prevail on a motion for a new trial based on newly-discovered evidence, the
defendant must prove that he discovered the evidence after the conclusion of his
trial; his failure to discover the evidence is not attributable to a lack of due
diligence; the evidence is not merely cumulative or impeaching; the evidence is
material; and there is a reasonable probability that the evidence could have affected
the outcome of his trial. United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir.
2003). Unsubstantiated allegations and accusations are insufficient to support a
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motion for new trial based on newly discovered evidence. United States v.
Calderon, 127 F.3d 1314, 1354 (11th Cir. 1997).
The district court did not abuse its discretion when it denied Dortch’s motion
for a new trial. Dortch’s motion for a new trial was untimely because it was not
based on newly-discovered evidence. See Fed. R. Crim. P. 33(b)(1), (b)(2).
Dortch attached to his motion some laboratory reports and inventory sheets, none
of which he identified as being unavailable to him before trial. See Jernigan, 341
F.3d at 1287. The information in those reports was consistent with the testimony
of the crime scene analyst at trial about the process that he used to collect DNA
samples from the firearms found in Dortch’s residence. And the reports and
analyst’s testimony that he swabbed “all around the grips” and “around the trigger
guard where anybody would typically touch a gun,” flatly contradicted Dortch’s
allegations that the government withheld the results of DNA tests performed on
trigger guards and triggers. See Calderon, 127 F.3d at 1354. Dortch failed to
produce any objectively credible new evidence that “undermine[d] confidence in
the outcome of [his] trial.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555,
1566 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375,
3381 (1985)).
We AFFIRM the denial of Dortch’s motion for a new trial as untimely.
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