# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 13-1975

___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee

v. Douglas Marcel Meeks lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Southern District of Iowa - Davenport

____________ Submitted: January 17, 2014 Filed: February 10, 2014

____________ Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

____________ BYE, Circuit Judge. Douglas Meeks was convicted of conspiracy to distribute at least fifty grams of cocaine base and distribution of at least five grams of cocaine base. After exhausting his appeals, Meeks filed a mo tion for new trial, arguing a new trial iswarranted because a government witness co mmitted perjury. The district court 1 denied the motion. We affirm.
I Douglas Meeks was indicted and convicted of conspiracy to distribute at least fifty grams of cocaine base and distribution of at least five grams of cocaine base. At trial, the government put on evid ence overwhelmingly showing Meeks was guilty of the offenses of conviction. As re levant to this appeal, during the jury trial, Cardale Smith testified for the governme nt concerning a controlled buy of cocaine base from Meeks. Smith testified he had contacted the police, admitted he bought drugs from Meeks, and offered to conduct a controlled buy. At trial, Smith denied selling drugs during the time frame of the trial, but admitted to purchasing crack cocaine in amounts up to a half-ounce and se lling crack cocaine prior to the controlled buy from Meeks. During cross-examination, Smith was impeached when he admitted past purchases of crack cocaine, admitte d he hoped cooperation meant he would not face criminal charges, and ad mitted he had a degree of bi as against Meeks because of prior overlapping girlfriends. Smith also tes tified he had agreed to cooperate in order to help his father, who wa s under investigation for drug crimes. Smith's testimony regarding the controlled buy was bolsteredby the testimony of Monique Nicholson who also participated in the controlled buy. The jury found Meeks guilty of conspiracy to distribute at least fifty grams of cocaine base and distribution of at least fivegrams of cocaine base. The district court found Meeks had two prior felony drug c onvictions and sentenced Meeks to a mandatory term of life imprisonment on the conspiracy count a nd a concurrent term

1 The Honorable John A. Jarvey, United Stat es District Court for the Southern District of Iowa. -2-of 360 months on the individual distribution count. Meeks filed a timely appeal and this Court affirmed the conviction. United States v. Meeks , 639 F.3d 522 (8th Cir. 2011). After Meeks's trial conclude d, Smith was indicted for dealing cocaine. On June 30, 2010, Smith pleaded guilty to conspiracy to distribute at least fifty grams of cocaine base. In the factual basis of the plea agreement, Smith acknowledged the conspiracy ran from approximately September 1, 2007, to Nove mber 21, 2009, which included the dates of Meeks's trial. Meeks filed a Fed. R. Cr im. P. 33(b) motion for new trial based on the newlydiscovered evidence Smith had committed pe rjury by claiming he did not sell crack cocaine during the time of Meek s's trial. The district c ourt denied the motion for new trial, concluding Smith's testimony at trial did not portray him as a person of upstanding character, and concluding if the case were retried with the new impeachment evidence, the ne w evidence could not produce an acquittal. The district court also noted the overwhelming eviden ce of guilt based on the testimony of many witnesses.
II Meeks appeals the district court's denial of his Rule 33(b) motion for new trial. Rule 33(b) allows district courts to vacat e a conviction and grant a new trial on the basis of newly discovered evidence. Rule33(b) motions are disfavored and are reviewed under the rigorous standard of a cl ear abuse of discretion. United States v. Baker , 479 F.3d 574, 577 (8th Cir. 2007). A defe ndant is not entitled to a new trial "unless the evidence weighs heavily enough ag ainst the verdict that a miscarriage of justice may have occurred." United States v. Placensia , 352 F.3d 1157, 1162 (8th Cir. 2003) (internal quotation marks and citation omitted).

-3-In order to receive a new trial, Meek s must show (1) the evidence was unknown or unavailable at the time of trial; (2) Meeks was duly diligent in attempting to uncover the evidence; (3) the newly discovere d evidence is material; and (4) the newly discovered evidence is such its emergence probably will result in an acquittal upon retrial. Fed. R. Crim. P. 33( b); United States v. Rubashkin , 655 F.3d 849, 857 (8th Cir. 2011). The motion fails based on the third and fourth elements, which require Meeks to show the newly discovered evidence is material and would result in an acquittal upon retrial. The evidence at trial shows th e evidence of Meeks's participation in the controlled buy was overwhelming, and the value of the additional impeachment material would be negligible at best. "[I]n order to meet the materiality requirement, newly discovered evidence must be 'more than merely . . . impeaching." Baker , 479 F.3d at 577 (quoting United States v. Dogskin , 265 F.3d 682, 685 (8th Cir. 2001)). At trial, Smith portrayed himself as a drug user and former drug dealer and was impeached by Meeks's counsel in various ways. The additional impeachment evidence is not material and is insufficient to show an acquittal would be likely. See United States v. Johnson , 450 F.3d 366, 373 (8th Cir. 2006) (holding district court did not abuse its discretion in denying a Rule 33(b) motion where "the evidence would serve only to impeach . . . testimony"); United States v. Hollowhorn , 523 F.3d 882, 889-90 (8th Cir. 2008) (finding allegations victim's testimony was coached served only to impeach testimony and there was no abuse of discretion in denying the motion for new trial). Accordingly, we conclude the district court did not abuse its discretion in denying Meeks's motion for a new trial.
III The judgment of the district court is affirmed.

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