[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 11347 Non

- Argument Calendar

________________________ D.C. Docket No. 1:13

- cr - 20461

- KMW

- 1
UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus
JOHN CAMERON CAIN, Defendant

- Appellant.

______________ __________ Appeal from the United States District Court for the Southern District of Florida

________________________ ( May 16, 2017 ) Before TJOFLAT , WILSON, and WILLIAM PRYOR , Circuit Judges. PER CURIAM:

Case: 16-11347 Date Filed: 05/16/2017 Page: 1 of 52 John C. Cain appeals the district court’s denial of his motion for a new trial based on new evidence and the denial of an evidentiary hearing. He argues that the district court abused its discretion by denying his motion for a new trial, which was based on two newly discovered police reports that show ed he was invol untarily committed under Florida’s “Baker Act,” Fla. Stat. § § 394.451; 394.463 . He argues that this new evidence could not have been discovered before trial , because he was heavily medicated and could not assist his counsel. Cain also argues that the evidence was material, because it supported his insanity defense and showed that the government presented evidence it knew to be false. Finally, h e argues that the district court should have at least held an evidentiary hearing on the matt er. Following an incident in which Cain, drunk and high, pointed an Ak

- 47 at a mail carrier, Cain was indicted for forcibly assaulting a federal officer using a deadly weapon, in violat ion of 18 U.S.C. § 111(a)(1), (b), brandishing a firearm during and in relation to a crime of violence, in violation of 18
U.S.C. 924(c)(1)(A)(ii), and possession of a firearm by a convicted felon, in violation of 18 U.S.C § 922(g)(1). Cain was sentenced to 300 months’ imprisonment. During his trial, Cain presented an ins anity defense, and while describing Cain’s history of mental illness, Cain’s counsel mentioned that Cain had been “Baker Acted” for being a danger to himself or others on several occasions. During the government’s closing argument, the government stated t hat Cain was

Case: 16-11347 Date Filed: 05/16/2017 Page: 2 of 53 not “Baker Acted” at the time of the incident, and there was no record of any “Baker Acting” or history of psychiatric illness. A district court’s denial of a motion for a new trial is reviewed for abuse of discretion. United States v. Pere z - Oliveros , 479 F.3d 779, 782 (11th Cir. 2007). A district court’s denial of an evidentiary hearing on a motion for a new trial is also reviewed for abuse of discretion. United States v. Fernandez , 136 F.3d 1434, 1438 (11th Cir. 1998).

“ Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requ ires. ” Fed. R. Crim. P. 33(a). Motions for a new trial based on newly discovered evidence are “ highly disfavored ” and

“ should be granted only wi th great caution. ” See United States v. Campa , 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc) (internal quotation marks omitted)

.

“ A new trial is warranted based upon circumstances coming to light after trial only if the following five part test is sat isfied: (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 t hat a new trial would probably produce a different result. ” United States v. Lee , 68 F.3d 1267, 1273 (11th Cir. 1995). “ [ F ] ailure to satisfy any one of these elem ents is fatal to a motion for new trial. ” Id. at 1274. “ [ T ] he acumen gained by a trial judge over the

Case: 16-11347 Date Filed: 05/16/2017 Page: 3 of 54 course of the proceedings makes [ the judge ] well qualified to rule on the basis of affidavits without a hearing. United States v. Schlei , 122 F.3d 944, 994 (11th Cir. 1997) (internal quotation marks omitted)

. T he district court did not abuse its discretion by denying Cain’s motion for a new trial, because Cain did not show that he could not have obtained these reports before trial through the exercise of due diligence. Cain asserts that he obtained the police r eports through FOIA requests, but offers no credible explanation why he or his attorney could not have submitted the se FOIA requests before trial. Additionally, even though Cain argues that he could not assist couns el because he was heavily medicated whil e in pretrial custody , he was able to offer assistance to his counsel by identifying the hospitals where he claim to be “Bake r Acted” before trial. And e ven though Cain’ s counsel was able to request medical records from those hospitals, his failure to als o request the police records that Cain eventually obtained through FOIA requests was a failure to e xercise due diligence . When the medical records were unavailable, a reasonable step would have been to seek documentation of the Baker Act commitments from another source, such as a police report. Without evidence of due care to uncover relevant evidence, Cain has not met the criteria for a new trial. See Lee , 68 F.3d at 1273

– 74

. To the extent that Cain argues that the government’s presentation of false testimony is a separate ground for a new trial, the district court properly denied his

Case: 16-11347 Date Filed: 05/16/2017 Page: 4 of 55 motion on that ground, because it was not filed within 14 days of the verdict as required by Fed. R. Crim. P. 33(b)(2). Finally, b ecause the district court could dete rmine that Cain did not meet the criteria for a new trial based on the record, it did not abuse its discretion by denying his request for an evidentiary hearing. AFFIRMED. Case: 16-11347 Date Filed: 05/16/2017 Page: 5 of 5