IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 district court’s

denial of her August 2011 motion for new trial based on newly discovered

evidence. 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 of aiding and abetting wire fraud, 15 counts of concealing

money laundering, and five counts of engaging in monetary transactions in

property derived from specified unlawful activity, and the district court

United States Court of Appeals

Fifth Circuit

F I L E D

September 20, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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sentenced her to a total term of 360 months in prison 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.” FED. R. CRIM. P. 33(a). We review the denial of

a motion for a new trial for an abuse of discretion. United States v. Piazza, 647

F.3d 559, 564 (5th Cir. 2011). To obtain a new trial based on newly discovered

evidence, the defendant must show that (1) the evidence is newly discovered and

was unknown to her at the time of trial, (2) the failure to detect the evidence was

not due to her lack of diligence, (3) the evidence is not merely cumulative or

impeaching, (4) the evidence is material, and (5) the evidence if introduced at a

new trial would probably produce an acquittal. Id. at 565. The failure to

demonstrate any one factor is fatal to the motion. Id.

“The decision to conduct an evidentiary hearing on a motion for a new trial

is within the sound discretion of the district court.” United States v. Bishop, 629

F.3d 462, 470 (5th Cir. 2010). This court “will reverse only where the ruling was

so clearly erroneous as to constitute an abuse of discretion.” Id.

Fleming moved for a new trial based on newly discovered evidence that

shewas improperly medicated during trial, that she was involuntarily medicated

as a condition of representing herself at trial, and that the jury prematurely

deliberated and was tampered. The district court determined that it did not

have jurisdiction over the motion for new trial because it was filed while the case

was still on appeal and ordered that the motion be stricken. In the alternative,

the court denied the motion “because the issues raised by defendant were each

rejected on appeal and are not, as defendant alleges, premised upon newlydiscovered evidence.”

To the extent the district court struck or denied the motion for lack of

jurisdiction, it erred. See FED.R.CIV.P. 33; United States v. Redd, 355 F.3d 866,

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880 (5th Cir. 2003). However, such error is not reversible and does not warrant

remand in this case because we affirm on the district court’s alternative grounds.

The district court did not err in concluding that Fleming’s claim that she

was involuntarily medicated in violation of her right to due process was rejected

on direct appeal. See Arthur, 432 F. App’x at 428. Additionally, contrary to

Fleming’s assertion, there was no testimony at the proffer hearing that either

the prescription for or the duration of Fleming’s taking of Effexor was improper. 

Thus, Fleming did not have evidence, new or otherwise, that she was improperly

medicated.

Fleming raised in the instant new trial motion the same or similar

assertions that she made in her October 2009 motion for an evidentiary hearing

on jury misconduct, and which this court found on direct appeal were insufficient

to support that motion. Arthur, 432 F. App’x at 431. Thus, the district court did

not err in finding that this issue had been rejected on direct appeal. 

Additionally, Fleming’s only new evidence was her own affidavit containing

hearsay. Thus, the district court did not err in finding that Fleming had

presented no new evidence that the jury had engaged in premature deliberations

or had been tampered. See United States v. Neuman, 505 F. App’x 308, 309 (5th

Cir. 2013 (citing United States v. Wall, 389 F.3d 457, 470-71 (5th Cir. 2004)).

Accordingly, the district court did not abuse its discretion in denying

Fleming’s motion for a new trial without a hearing. See Piazza, 647 F.3d at 564-

65; Bishop, 629 F.3d at 470. Fleming’s outstanding motions for remand to hold

hearing on her motion for a new trial and for appointment of counsel on remand

are denied.

AFFIRMED; MOTIONS DENIED.

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