[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-13429

Non-Argument Calendar

________________________

D.C. Docket No. 1:12-cr-20757-JEM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

versus

KAREN KALLEN-ZURY, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(June 12, 2018)

Before WILLIAM PRYOR, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: 

Case: 17-13429 Date Filed: 06/12/2018 Page: 1 of 9 
2

Karen Kallen-Zury appeals from the district court’s summary denial of her 

second motion for a new trial based on newly discovered evidence. See Fed. R. 

Crim. P. 33(b)(1). She argues on appeal that her motion was timely and that her 

new evidence warranted a new trial. After careful review, we affirm.

I.

In 2013 Kallen-Zury was convicted of operating a Medicare fraud and 

kickback scheme at Hollywood Pavilion (“HP”), a mental-health facility she coowned and operated.1

 Briefly stated, Kallen-Zury and HP unlawfully paid 

recruiters to bring patients to HP to receive psychiatric services that HP could bill 

to Medicare. The evidence showed that most of the patients were drug addicts who 

did not need the psychiatric services offered at HP. We affirmed Kallen-Zury’s

convictions and sentence on direct appeal. United States v. Kallen-Zury (KallenZury I), 629 F. App’x 894 (11th Cir. 2015). 

In 2016 Kallen-Zury filed a first motion for a new trial based on newly 

discovered evidence. Some of that evidence—testimony from the trial of another 

HP employee—partly contradicted the trial testimony of a patient recruiter named 

Gloria Himmons, who stated that she was directed by an HP employee (not Kallen-

 1 More precisely, Kallen-Zury was convicted of one count of conspiracy to commit 

healthcare fraud and wire fraud, in violation of 18 U.S.C. § 1349; five counts of wire fraud, in 

violation of 18 U.S.C. §§ 1343 and 2; two counts of healthcare fraud, in violation of 18 U.S.C. 

§§ 1347 and 2; one count of conspiracy to defraud the United States and to pay and receive 

kickbacks in connection with a federal healthcare-benefit program, in violation of 18 U.S.C. 

§ 371; and five counts of payment of kickbacks in connection with a federal healthcare-benefit 

program, in violation of 42 U.S.C. § 1320a-7b(b)(2)(A). 

Case: 17-13429 Date Filed: 06/12/2018 Page: 2 of 9 
3

Zury) to file false reports of her activities for HP. The district court denied KallenZury’s motion, and we affirmed. United States v. Kallen-Zury (Kallen-Zury II), 

710 F. App’x 365 (11th Cir. 2017). In relevant part, we concluded that the 

evidence relating to Himmons did not warrant a new trial because Himmons’s

testimony was largely cumulative of the testimony from other patient recruiters and 

because the government produced other evidence to corroborate these accounts. 

See id. at 372–73.

In 2017, over three years after the date of the jury verdict, Kallen-Zury filed 

a second motion for a new trial based on newly discovered evidence. This time, 

she relied on evidence from trial in the case of United States v. McCardell, No. 

5:16-cr-212, from the Western District of Louisiana. McCardell involved a similar

Medicare kickback scheme at Physician’s Behavioral Hospital (“PBH”) in 

Shreveport, Louisiana. Himmons testified at the McCardell trial that she recruited 

patients for PBH during the same period of time that she was recruiting patients for 

HP. In addition, according to Kallen-Zury, Himmons referred many of the same 

patients to both PBH and HP, and PBH admitted these patients for inpatient 

psychiatric services. Kallen-Zury argued that the McCardell evidence impeached 

Himmons’s credibility and refuted evidence that patients were fraudulently

diagnosed at HP. 

Case: 17-13429 Date Filed: 06/12/2018 Page: 3 of 9 
4

The district court summarily denied Kallen-Zury’s motion for the reasons 

stated in the government’s response. These reasons included that the motion was 

untimely since it was filed more than three years after the jury verdict, and that it 

did not meet the requirements for a new trial under Rule 33(b)(1) since it relied on 

evidence that was cumulative, impeaching, and did not undermine confidence in 

the integrity of the verdict. Kallen-Zury now appeals.

II.

We review the denial of a motion for a new trial for an abuse of discretion. 

United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc). We 

likewise review for an abuse of discretion a district court’s decision to not hold an 

evidentiary hearing. United States v. Slocum, 708 F.2d 587, 600 (11th Cir. 1983). 

Abuse-of-discretion review is deferential: we will affirm unless the district court 

made a clear error of judgment or applied the wrong legal standard. United States 

v. Lyons, 403 F.3d 1248, 1255 (11th Cir. 2005).

III.

A defendant may move within three years of the verdict for a new trial on 

the basis of newly discovered evidence. Fed. R. Crim. P. 33(b)(1). “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.” Campa, 459 F.3d 

Case: 17-13429 Date Filed: 06/12/2018 Page: 4 of 9 
5

at 1151 (quotation marks omitted). The defendant bears the burden of justifying 

the need for a new trial. Id. 

To obtain a new trial based on newly discovered evidence, the defendant 

must establish that (1) the evidence was discovered after trial; (2) the failure to 

discover the evidence was not due to a lack of due diligence; (3) the evidence is 

not merely cumulative or impeaching; (4) the evidence is material to issues before 

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

produce a different result. United States v. Barsoum, 763 F.3d 1321, 1341 (11th 

Cir. 2014). The failure to satisfy any one of these requirements is fatal to a motion 

for new trial. United States v. Taohim, 817 F.3d 1215, 1223 (11th Cir. 2013). 

Newly discovered evidence need not relate directly to the issue of guilt or 

innocence to justify a new trial, but it must “afford reasonable grounds to question 

. . . the integrity of the verdict.” United States v. Scrushy, 721 F.3d 1288, 1304 

(11th Cir. 2013) (quotation marks omitted). 

Here, the district court did not abuse its discretion in denying Kallen-Zury’s 

motion for a new trial based on newly discovered evidence. See Campa, 459 F.3d 

at 1151. To begin with, the court’s summary denial order is sufficient to permit 

meaningful review. The court said it was denying the motion for the reasons stated 

by the government in its response to her motion. And the record is otherwise 

complete enough to provide an adequate basis for our review. See Hall v. Holder, 

Case: 17-13429 Date Filed: 06/12/2018 Page: 5 of 9 
6

117 F.3d 1222, 1226 (11th Cir. 1997) (remand is unnecessary where the record is 

complete and “provides an adequate basis” for our review of the merits of the 

case). Likewise, no evidentiary hearing was necessary because “the record 

contained all the evidence needed to dispose of each of the grounds asserted as a 

basis for a new trial.” Scrushy, 721 F.3d at 1305 n.30.

Turning to the grounds asserted in the motion, Kallen-Zury contends that the 

McCardell evidence warrants a new trial for two reasons. First, she says, it 

severely undercuts Himmons’s credibility because it shows that Himmons was 

committing other crimes at the time she recruited patients for HP and that she lied 

about these facts to the government and the court. Second, Kallen-Zury contends, 

it contradicts evidence at her trial that most of the patients referred to HP did not 

need psychiatric services. Neither ground warrants a new trial.

While the McCardell evidence shows that Himmons committed additional 

crimes in referring patients to PBH, this evidence is merely cumulative and 

impeaching. As such, “it is not the type of evidence that warrants a new trial.” See 

Taohim, 817 F.3d at 1223. More significantly, Kallen-Zury fails to explain how

this evidence would have resulted in a different result in light of the “strong” 

evidence of Kallen-Zury’s guilt. See Kallen-Zury II, 710 Fed. App’x at 372–73; 

Kallen-Zury I, 629 F. App’x at 906. As we said in affirming the denial of her first 

motion, Himmons’s testimony was “largely cumulative” of testimony from the 

Case: 17-13429 Date Filed: 06/12/2018 Page: 6 of 9 
7

other patient recruiters, and the government produced evidence to corroborate the 

consistent accounts of the patient recruiters. See Kallen-Zury II, 710 F. App’x at 

372–73. The McCardell evidence has no direct bearing on this other evidence. 

Accordingly, the McCardell evidence relating to Himmons’s credibility, even 

considered in conjunction with the evidence from Kallen-Zury’s first motion for a 

new trial, is not of such a nature that a new trial would probably produce a 

different result. See Barsoum, 763 F.3d at 1341.

The district court likewise reasonably concluded that any patient overlap 

among PBH and HP did not undermine confidence in the verdict. According to 

Kallen-Zury, the McCardell evidence establishes that (a) Himmons recruited many 

of the same patients for both PBH and HP, and (b) the patients Himmons recruited 

for PBH needed psychiatric treatment.

2

 From these two assertions, Kallen-Zury 

draws the inference that many of the patients Himmons recruited for HP likewise 

needed psychiatric treatment, contradicting evidence at her trial that “[m]ost of the 

patients were drug addicts who did not need the psychiatric services offered at 

HP.” Kallen-Zury I, 629 F. App’x at 897.

 2 We note that, with regard to her assertion of patient overlap, Kallen-Zury’s brief fails to 

cite with any specificity the “parts of the record on which [she] relies,” in violation of Fed. R. 

App. P. 28(a)(8)(A). Instead, she simply invites this Court, as she did the district court, to 

compare an exhibit from the McCardell trial with HP’s patient census, which, the government 

notes, is more than 3,000 pages. Neither this Court nor the district court, however, should be 

expected to do a litigant’s work for her. See Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 

1061 (11th Cir. 2011). In any case, while the failure to comply with Rule 28 “may result in 

waiver or abandonment of issues on appeal,” we exercise our discretion to consider this issue. 

Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1286 n.4 (11th Cir. 2003).

Case: 17-13429 Date Filed: 06/12/2018 Page: 7 of 9 
8

Even assuming that there was some patient overlap among PBH and HP,

however, the McCardell evidence does not establish that the overlapping patients 

admitted by PBH needed psychiatric treatment covered by Medicare, much less 

that these same patients needed psychiatric treatment when they were admitted to 

HP at different times. According to the McCardell trial transcript, PBH patients 

were admitted based on a PBH doctor’s determination of whether second-hand 

reports of psychiatric symptoms fit admissions criteria. But that is as far as the 

McCardell evidence goes regarding the patients’ need for psychiatric treatment. 

And, in fact, both the Director of Social Services and the Director of Nursing for 

PBH, who actually spoke with PBH patients before admission, testified that they 

were concerned that the patients recruited by Himmons may have been faking or 

exaggerating their symptoms. So the McCardell evidence is not inconsistent with 

the testimony from Kallen-Zury’s trial. See Kallen-Zury II, 710 F. App’x at 367 

(“[T]he conspirators often falsified the patients’ records to reflect serious 

psychiatric problems or told the patients to claim psychiatric issues upon 

admission.”). And it certainly was within the district court’s discretion to conclude 

that this tenuously connected new evidence was not of such a nature that a new 

trial would probably produce a different result. See Barsoum, 763 F.3d at 1341.

Because we conclude that the district court did not abuse its discretion by 

denying Kallen-Zury’s second motion for a new trial on the merits, we need not 

Case: 17-13429 Date Filed: 06/12/2018 Page: 8 of 9 
9

and do not address whether the motion was timely either because it related back to 

her first motion or because she could establish equitable tolling. See Eberhart v. 

United States, 546 U.S. 12, 19 (2005) (holding that the time limit to file a Rule 33 

motion, though “admittedly inflexible,” is a non-jurisdictional claims processing 

rule). Accordingly, we affirm the denial of her second motion for a new trial based 

on newly discovered evidence.

AFFIRMED.

Case: 17-13429 Date Filed: 06/12/2018 Page: 9 of 9