[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-14769

Non-Argument Calendar

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D.C. Docket No. 8:12-cr-00457-SCB-MAP-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

ARNOLD MAURICE MATHIS, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(June 7, 2017)

Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM: 

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Arnold Mathis, proceeding pro se, appeals the district court’s denial of his 

motion for a new trial based on new evidence under Fed. R. Crim. P. 33 and the 

court’s denial of an evidentiary hearing on the motion. He contends evidence 

allegedly discovered after trial shows the government illegally searched his cell 

phone without a warrant. He also asserts his motion warranted an evidentiary 

hearing. After review,1 we affirm.

I. DISCUSSION

 A defendant may move for a new trial based on newly discovered evidence 

within three years of the verdict. Fed. R. Crim. P. 33. “A new trial is warranted 

based upon circumstances coming to light after trial only if the following five-part 

test is satisfied: (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 that a new trial would probably produce a different 

result.” United States v. Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). The failure to 

satisfy any one of these elements results in denial of the motion. Id. at 1274. We 

have previously stated that “motions for a new trial are highly disfavored” and that 

district courts “should use great caution in granting a new trial motion based on 

 1 “We review the denial of a motion for a new trial for abuse of discretion.” United 

States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). We also review the denial of an 

evidentiary hearing on a motion for a new trial for abuse of discretion. United States v. Massey, 

89 F.3d 1433, 1443 (11th Cir. 1996).

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newly discovered evidence.” United States v. Jernigan, 341 F.3d 1273, 1287 (11th 

Cir. 2003) (quotation omitted).

We rest our determination that the district court did not abuse its discretion 

on several independent grounds. First, Mathis failed to show the evidence was 

discovered after trial—even assuming the state accessed his cell phone on 

December 19, 2011, his expert came to that conclusion in his subsequent state trial 

based on the report tendered to him by the government during his federal case. 

Only his state expert’s opinion was new; neither Mathis’ expert in his federal case 

nor his attorney made such a contention when they had access to the report. Thus, 

Mathis fails the first prong of Lee. United States v. Calderon, 127 F.3d 1314, 1351 

(11th Cir. 1997) (stating a motion for a new trial may not be based on evidence of 

which the defendant had knowledge prior to the return of the jury verdict). 

Second, and relatedly, Mathis did not exercise due care. As noted above, he had 

the opportunity to discover the alleged warrantless access, but did not do so. 

Finally, the evidence was not of such a nature as would probably produce a 

different result. The search warrant application did not contain any information 

gained from the alleged illegal access. The inculpating evidence from Mathis’ cell 

phone would thus not have been suppressed, and the result of his trial would have 

been the same. See United States v. Terzado-Madruga, 897 F.2d 1099, 1115 (11th 

Cir. 1990) (“Under the ‘independent source’ doctrine, the challenged evidence will 

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be admissible if the prosecution can show that it derived from a lawful source 

independent of the illegal conduct.”). 

In addition, because the record already contained all of the evidence needed 

to dispose of Mathis’ claims, the district court did not abuse its discretion by 

denying an evidentiary hearing. United States v. Scrushy, 721 F.3d 1288, 1305 

n.30 (11th Cir. 2013). 

II. CONCLUSION

For the foregoing reasons, the order of the district court is affirmed.

AFFIRMED.

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