[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13693

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

DONATUS O. MBANEFO, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 7:16-cr-00002-HL-TQL-6

____________________

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2 Opinion of the Court 21-13693

Before BRANCH, GRANT, and BRASHER, Circuit Judges.

PER CURIAM:

Almost three years after a jury convicted physician Donatus 

Mbanefo for abusing his ability to prescribe controlled substances, 

he filed a motion for new trial. The district court denied the 

motion, holding that his claims of error lacked merit and were not 

based on newly discovered evidence. After careful review, we 

affirm.

I. 

Donatus Mbanefo was convicted by a jury of conspiracy to 

unlawfully dispense Schedule II, III, and IV controlled substances 

and unlawful dispensation of controlled substances. 21 U.S.C. 

§§ 846; 841(a)(1), (b)(1)(C), (b)(1)(E), (b)(2). Mbanefo had worked

as a physician at the Relief Institute of Columbus. But that pain 

management clinic, as revealed at Mbanefo’s trial, was merely a 

façade for a pill mill, handing out prescriptions without legitimate 

medical purpose. The Drug Enforcement Administration caught 

on to the clinic because pharmacies and former physicians reported

the suspicious prescriptions and practices.

The DEA investigation revealed that patients would often 

travel in groups from all over the country to be seen at the clinic, 

receive large opioid prescriptions in exchange for cash payments, 

and then travel to pharmacies in other states to fill the 

prescriptions. The clinic would often schedule large numbers of 

patients and stay open late into the night to accommodate all of 

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21-13693 Opinion of the Court 3

them. Expert physician witnesses, reviewing records of patient 

visits, testified at trial that Mbanefo failed to properly check 

patients’ prescription histories, failed to perform sufficient physical 

examinations or testing, and prescribed aberrant quantities of 

opioids.

The government also introduced at trial evidence extracted 

from over 75 boxes of patient files the DEA seized when it closed

the clinic. A DEA agent testified how a team of analysts uploaded 

the medical and prescription data from the patient files into an 

Excel spreadsheet. In Excel, the government used the “pivot table” 

tool to make summary charts displaying the types and quantities of 

prescriptions Mbanefo wrote—most of which were for Schedule II 

drugs like oxycodone. Mbanefo through counsel objected to these 

summary charts, arguing that they were not admissible because the 

patient files had been neither “admitted nor presented to the jury.” 

The district court asked whether the government had shared the 

75 boxes of patient files and the Excel spreadsheet with him, and he 

conceded that the government had, so the district court admitted 

the summary charts.

Based on this and other evidence, the jury found Mbanefo 

guilty, and the district court sentenced him to 96 months’

imprisonment. On direct appeal, Mbanefo argued that the

evidence was insufficient to sustain his conviction, that the district 

court gave an improper jury instruction, and that the court’s drugquantity finding at sentencing was clearly erroneous. United States 

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4 Opinion of the Court 21-13693

v. Bacon, 809 F. App’x 757, 759–61 (11th Cir. 2020) (unpublished). 

This Court affirmed his conviction and sentence. Id. at 761.

Mbanefo launched a collateral attack a few months later, 

filing a 28 U.S.C. § 2255 motion where he raised several claims of 

ineffective assistance of counsel. The district court denied the 

motion, then this Court granted a certificate of appealability as to 

two claims. We do not address here the claims raised in that

separate appeal of the § 2255 motion.

While his § 2255 motion was still pending before the district 

court, Mbanefo also filed a motion for new trial. The district court 

denied that new-trial motion, and Mbanefo now appeals.1

II. 

“We review a district court’s denial of a motion for new trial 

for abuse of discretion.” United States v. Campa, 459 F.3d 1121, 

1151 (11th Cir. 2006) (en banc).

III. 

“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.” Id. (quotation omitted). “Any 

motion for a new trial grounded on any reason other than newly 

discovered evidence must be filed within 14 days after the verdict 

1 Mbanefo asks this Court for leave to file an amended reply brief because the 

original exceeded the word limit. That motion is GRANTED.

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21-13693 Opinion of the Court 5

or finding of guilty.” Fed. R. Crim. P. 33(b)(2). Mbanefo filed his 

new-trial motion nearly three years after trial and thus must base 

his motion on newly discovered evidence. Fed. R. Crim. P. 

33(b)(1). To do so, he must establish that: (1) the evidence was 

discovered after trial, (2) is material, and (3) is not merely 

cumulative or impeaching. United States v. Caldwell, 963 F.3d 

1067, 1078–79 (11th Cir. 2020). He must also show that (4) his 

failure to discover the evidence was not due to lack of diligence and 

(5) the evidence is of such a nature that a new trial would probably 

produce a different result. Id.

Mbanefo makes three main arguments: a juror misconduct

claim; a suppression claim under Brady v. Maryland, 373 U.S. 83 

(1963) and Giglio v. United States, 405 U.S. 150 (1972); and a 

selective prosecution claim. Because the claims are not premised 

on newly discovered evidence and he forfeited the selective 

prosecution claim, none of them justify a new trial.

According to Mbanefo, five months after trial he learned 

that his trial counsel knew a juror “personally”—several years 

earlier, counsel had brought a successful 42 U.S.C. § 1983 case 

against the juror’s “brother who was a Georgia State Trooper.” 

Mbanefo argued that “with this background knowledge” his 

counsel was wrong to allow her “to be empaneled” on the jury and 

that the juror was biased against him because she hid the fact that 

“she was related to a law enforcement officer” and “was familiar 

with the trial counsel.”

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But as Mbanefo admits, these facts were not discovered after 

trial. In fact, he protests that his attorney recognized her at trial 

and chose not to strike her from the jury. Mbanefo claims only that

his attorney did not share the information with him until after the

trial. And that lack of communication does not amount to newly 

discovered evidence. A “defendant is ‘deemed bound by the acts 

of his lawyer-agent and is considered to have notice of all facts, 

notice of which can be charged upon the attorney.’” New York v. 

Hill, 528 U.S. 110, 115 (2000) (quoting Link v. Wabash R.R. Co., 

370 U.S. 626, 634 (1962)). Because Mbanefo through his counsel 

was fully aware of any juror misconduct before trial, it is not newly 

discovered evidence.2

And the claim would have failed on the merits regardless. A 

dishonest juror response to “a material question on voir dire” 

warrants a new trial only when the defendant also presents proof 

of “actual bias,” either “by express admission or by proof of specific 

facts showing such a close connection to the circumstances at hand 

that bias must be presumed.” United States v. Carpa, 271 F.3d 962, 

967 (11th Cir. 2001). Mbanefo has not even shown that the juror 

recognized his trial counsel’s connection to the prior § 1983 action, 

let alone any actual bias. And the fact that her brother worked in 

law enforcement is not so related to Mbanefo’s unlawful 

2 Mbanefo also raises an “actual innocence” claim, restyled before this Court 

as an “insufficient evidence” claim, but it fails for the same reason—it is not 

based on newly discovered evidence. 

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prescribing that we must presume bias exists. The district court 

thus did not abuse its discretion when it denied the motion for new 

trial based on juror misconduct.

Mbanefo also argues that the government unlawfully 

suppressed Brady evidence because it did not share the “Pivot 

Table” that summarized the clinic physicians’ prescribing data. He 

claims that the table would have proved that Mbanefo was not 

“one of the top 2 prescribers at the time [he] was charged in the 

original indictment” and that he was not “one of the top 3 

prescribers at the time the superseding indictment was returned.” 

To make out a Brady claim, a defendant must show that (1) the 

government withheld evidence favorable to the defendant; (2) the 

defendant did not possess and could not obtain that evidence with 

any reasonable diligence; and (3) had the government disclosed the 

evidence, there is a reasonable probability that the outcome would 

have been different. United States v. Vallejo, 297 F.3d 1154, 1164 

(11th Cir. 2002).

Mbanefo relatedly claims that the failure to produce the 

table resulted in Giglio error. He says it would have revealed that 

the prosecutor made false statements that Mbanefo was one of the 

clinic’s “top three prescribers.” To establish Giglio error, a 

defendant must (1) “identify evidence the government withheld” 

that would have revealed that the statements were false, (2) 

establish that the government “knowingly used perjured 

testimony” or failed to correct what it “subsequently learned was 

false testimony,” and (3) show that “such use was material” to the 

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judgment. United States v. Stein, 846 F.3d 1135, 1147 (11th Cir. 

2017) (quotation omitted).

Both claims fail for the same reason: the government did not 

withhold the evidence, despite what Mbanefo says to the contrary. 

As the government’s witness explained, a “pivot table” is “a tool” 

built into Excel “that helps you summarize or visualize” data in a 

spreadsheet. And no one disputes that the government provided 

both the 75 boxes of patient data and the Excel spreadsheet 

compiling that patient data to Mbanefo. Because that spreadsheet 

contained all the data Mbanefo wanted from the “Pivot Table”—

including the prescribing records for the other physicians at the 

clinic—his Brady claim and his Giglio claim fail. Mbanefo cannot 

complain because, with reasonable diligence, he could have 

analyzed the spreadsheet data himself. See United States v. Jordan, 

316 F.3d 1215, 1253 (11th Cir. 2003).

Mbanefo finally argues for a new trial on selective 

prosecution grounds, claiming that he “was prosecuted because of 

his age and race.” But “a claim of selective prosecution is not the 

proper subject of a Rule 33(b)(1) motion for a new trial” because it 

“has no bearing on the integrity of the trial or the verdict.” United 

States v. Scrushy, 721 F.3d 1288, 1305 (11th Cir. 2013).

Besides that, Mbanefo forfeited the claim by failing to raise 

it before trial. The defense of selective prosecution “must be raised 

by pretrial motion if the basis for the motion is then reasonably 

available.” Fed. R. Crim. P. 12(b)(3)(A)(iv). If a defendant fails to 

do so, “the motion is untimely” and may not be considered unless

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he can show “good cause” for the delay. Fed. R. Crim. P. 12(c)(3). 

Mbanefo argues that the government withheld necessary 

information about whether other doctors worked at the clinic for 

a similar period or produced similar quantities of unlawful 

prescriptions. But as we explained above as to his Brady and Giglio

claims, Mbanefo had access to these facts before trial. He thus 

cannot show good cause for failing to raise a timely selective 

prosecution defense. See Scrushy, 721 F.3d at 1306.3

* * *

Because Mbanefo seeks a new trial without producing newly 

discovered evidence to support his request, the court properly 

exercised its discretion to deny the motion. The district court’s 

order is AFFIRMED. 

3 Along with the motion for new trial, Mbanefo also filed a motion for both 

discovery and dismissal of the indictment, which focused largely on his 

selective prosecution claim. Because the selective prosecution claim was 

forfeited and the other underlying claims lack merit, we also affirm the denial 

of that motion.

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