### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-20786 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. RHONDA FLEMING, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:07-CR-513-1

Before JOLLY, SMITH, AND CLEMENT, Circuit Judges. PER CURIAM: * Rhonda Fleming, federal prisoner # 20446-009, appeals the d istrict co u rt’s denial of her August 2 011 motion for new t rial based on n ewly discovered

ev i d e n c e. A jury found Fleming guilty of one count of conspiring to commit health care fraud and wire fraud, 35 counts of aiding and abetting health care fraud, 10 counts o f aiding and abetting wire fraud, 15 counts o f concealing money l a undering, and five counts of engaging in monetary transac t i o n s in property d erived from specified unlawful activity, and the district court U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 20, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-20786 Document: 00512380697 Page: 1 Date Filed: 09/20/2013No. 11-20786

sentenced h e r t o a total term of 3 6 0 months in p rison and three years of supervised release. This court affirmed the judgment. United States v . Arthur , 432 F. App’x 414 (5th Cir. 2011). The district “court may vacate any judgment and grant a new trial if the interest of justice so requires.” F E D
. R. C R I M
. P. 33(a). W e review the denial of

a motion for a new trial for a n abuse of discretion. United States v. Piazza , 647 F.3d 559, 564 (5th Cir. 2011). To obtain a n ew trial based on newly discovered evidence, the defendant m ust show that (1) the evidence is n ewly discovered and

was unknown to h er at the t ime of trial, (2) the f ailure to detect the e vidence was not due to her lack of diligence, (3) the evidence is n ot m erely cumulative or impeaching, (4) the e vidence i s material, and (5) t he evidence if introduced at a
new trial would probably produce an a cquittal. I d. at 565. The fai l ure to demonstrate any one factor is fatal to the motion. Id. “The decision t o conduct an evidentiary hearing on a motion for a new trial is within the sound discretion of the di strict court.” United States v. Bishop , 629 F.3d 462, 470 (5th Cir. 2010). This court “will reverse only w here the ruling was so clearly erroneous as to constitute an abuse of discretion.” Id. Fleming moved for a new trial based on newl y di scovered evidence that

s h e w a s i m p r o p e rly m e di c ated during t rial, that she was involuntarily m e di c at e d

as a condi t i o n o f r epresenting herself at trial, and that the jury p rematurely deliberated a nd w as tampe r e d

. T h e d i strict co u rt determined that it did not have jurisdiction over the m otion for new trial because it was filed w hile the case
was still on appeal and ordered that t he motion b e s t ricken. In the alternative, the court denied the motion “because the issues raised by defendant were each rejected on appeal a nd are not, as d efendant a lleges, premised upon newlydiscovered evidence.” To the extent t h e d i s t r i ct co u rt struck or denied the motion for lack of jurisdiction, it erred. See F E D
. R. C I V
. P. 33; U n ited States v. Redd , 355 F.3d 866,

2 Case: 11-20786 Document: 00512380697 Page: 2 Date Filed: 09/20/2013No. 11-20786

880 (5th Cir. 2003). However, such error is n ot r e versible and does n ot warrant remand in this c ase because we affirm on th e di s trict co u rt’s alternative grounds. The d istrict co u rt did not err in concluding that Fleming’s claim that she

was i nvoluntarily medicated i n violation of her right t o due process was rejected

on direct appeal. See A rthur , 432 F. App’x at 428. A dditionally, contrary to Fleming’s assertion, there w as n o testimony at t he proffer hearing that either the prescription for or the d uration o f Fleming’s taking of Effexor was improper. Thus, Fleming did n ot have evidence, new or o therwise, t hat she was improperly medicated. Flemin g raised in th e instant new t rial motion t he same or similar assertions that she m a de i n her October 2 009 m otion for an evidentiary hearing

on jury misconduct, and which this court found on direct a p peal were insufficient to support that m otion. Arthur , 432 F. App’x at 4 31. Thus, the d i strict co u rt did not err in finding that this issue h ad b een rej e c ted on direct appeal. Additionally, Fleming’s only new e v i d e n ce was her own affidavit containing hear s a y . T h us, the district court di d not err in f inding that Fleming had presented no new evidence that the jury had engaged in p r emature deliberations

or had been tampered. See U n ited S ta tes v. Neuman , 5 05 F. App’x 308, 3 09 (5th Cir. 2013 (citing U

n itedS ta tes v. Wall , 389 F.3d 457, 470-71 (5th Cir. 2004)). Accordingly, the district c o u r t did not abuse its discretion in denying Fleming’s motion for a new t rial without a h earing. See Piazza , 647 F.3d at 564- 65; Bishop , 6 29 F.3d at 470. Fleming’s outstanding motions for remand to hold hearing on her m otion for a new trial and for appointment of counsel on remand are denied. AFFIRMED; MOTIONS DENIED.

3 Case: 11-20786 Document: 00512380697 Page: 3 Date Filed: 09/20/2013