FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 18, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-12261

Non-Argument Calendar

________________________

D. C. Docket No. 02-00115-CR-J-32-TEM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT MILLS,

a.k.a. Robo,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 18, 2009)

Before EDMONDSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:

Defendant-Appellant Robert Mills, a pro se federal prisoner convicted of

two drug charges, appeals the denial of his motion for a new trial based on newly

discovered evidence, Fed.R.Crim.P. 33(b). No reversible error has been shown;

we affirm.

The basis of Mills’s motion for a new trial is an immigration document -- an

application for a Significant Public Benefit Parole (“SPBP”) visa -- filed by the

Drug Enforcement Administration (“DEA”) on behalf of George Hall, an

informant for the DEA. According to Mills, the Government withheld this

document; and, had it been disclosed, it would have allowed additional

impeachment of DEA Agent Wilson, with whom Hall had worked in the

investigation of Mills. Mills argues that the withheld document would have shown

that Agent Wilson perjured himself when he testified about how long he had

known informant Hall; and undermining Agent Wilson’s credibility was critical to

Mills’s entrapment defense. According to Mills, Agent Wilson was the strongest

1

witness against him. The district court denied the motion.

We first address Mills’s argument that the district court’s failure to make

The jury was deadlocked initially and seemed initially receptive to Mills’s entrapment 1

defense. After further deliberation, the jury convicted Mills of both felony drug charges listed in

the indictment.

2
specific fact findings precludes us from engaging in meaningful appellate review.

While explicit fact determinations are preferred, a district court’s failure to make

such determinations does not require remand if meaningful appellate review is

possible. See United States v. Villarino, 930 F.2d 1527, 1528-29 (11th Cir. 1991)

(sentencing context). Here, the district court made no fact findings beyond stating

that it considered “all relevant transcripts and other materials;” but the court also

presided over Mills’s trial and ruled on Mills’s other post-trial motions. In the

light of the district court’s first-hand familiarity with the extensive record, together

with our own affirmance of Mills’s conviction on direct appeal, the absence of

specific fact findings in the district court order denying Rule 33(b) relief does not

defeat meaningful appellate review. See United States v. Robertson, 493 F.3d

1322, 1334 (11th Cir. 2007) (when reasonable to do so, appellate court may infer

implied factual findings consistent with the judgment under review).

We review the denial of a motion for a new trial based on a Brady violation,

Brady v. Maryland, 83 S. Ct. 1194 (1963), for an abuse of discretion. United

States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002). To obtain a new trial

based on a Brady violation, a defendant must show these things:

(1) the government possessed favorable evidence to the defendant; (2)

the defendant does not possess the evidence and could not obtain the

evidence with any reasonable diligence; (3) the prosecution

suppressed the favorable evidence; and (4) had the evidence been

3
disclosed to the defendant, there is a reasonable probability that the

outcome would have been different.

Id. at 1164. Impeachment evidence falls within the Brady rule. United States v.

2

Bagley, 105 S.Ct. 3375, 3380 (1985).

We cannot say that the district court abused its discretion here because Mills

did not demonstrate a Brady violation. Mills’s trial ended on 10 January 2003, but

the SPBP visa form that Mills characterizes as withheld in violation of Brady is

dated 31 January 2003. Even if we were to accept that the pertinent document

otherwise would be Brady material, the immigration document was unavailable --

it did not exist -- at the time of Mills’s trial.

And even if Mills could show that the prosecution suppressed the evidence

and the evidence was subject to Brady, he cannot show that, had the evidence been

disclosed to him, the outcome of his trial would have been different. To the extent

that Mills sought a new trial based on the impeachment value of the evidence,

Mills had an adequate opportunity to cross examine Agent Wilson about the

Government’s conduct in investigating him. In an effort to discredit Agent

Wilson, Mills focused at trial on Agent Wilson’s use of informant Hall without

court permission and in violation of the terms of Hall’s supervised release. The

“Failure to meet any one of these elements will defeat a motion for a new trial.” United 2

States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995). 

4
date discrepancy between when the SPBP visa application indicated that Hall had

provided information about Mills -- 1997 -- and when Agent Wilson testified he

was approached by Hall about Mills -- 2002 -- provides, at most, cumulative

impeachment. See United States v. Schlei, 122 F.3d 944, 991 (11th Cir. 1997) (a

court should not grant a motion for a new trial based on newly discovered evidence

when that evidence merely is cumulative or impeaching).

Mills suggests that the date conflict bolsters his entrapment defense: the

DEA had been working to entrap him since 1997. But no other evidence at trial

showed that Hall worked with Wilson as an informant from 1997 to 2002; and the

jury otherwise received sufficient evidence to convict Mills, including Hall’s

testimony about his dealings with Mills, tape-recorded conversations between

Mills and Hall, and the testimony of a former cellmate about admissions made to

him by Mills. Mills fails to demonstrate that had the document been disclosed to

him before trial, a reasonable probability existed that the outcome would have been

different. See Bagley, 105 S.Ct. at 3383 (a reasonable probability of a different

outcome is one sufficient to undermine confidence in the outcome). In the light of

the abundant evidence supporting the charges against Mills, his conviction is still

“worthy of confidence.” Kyles v. Whitley, 115 S.Ct. 1555, 1566 (1995).

Given the entirety of the record and notwithstanding the district court’s lack

5
of specific findings, we see no abuse of discretion in the district court’s denial of

Mills’s motion for a new trial.

AFFIRMED.

6