United States v. Monica L. Lewis, 680 F. App'x 853

In Nov. 2012 a jury convicted Andre Barbary and Monica Lewis of conspiracy to distribute cocaine and oxycodone and conspiracy to use a communication facility; Barbary led a multistate trafficking organization and Lewis transported drugs/proceeds.
The district court sentenced Barbary to 240 months and Lewis to 90 months; this Court affirmed on direct appeal in United States v. Holt.
Post-judgment, Barbary (and Lewis adopting his motion) filed pro se Rule 33 motions seeking a new trial based on newly discovered evidence from Miramar PD and DEA records and a Brady claim regarding a May 2010 DEA case-status report (Exhibit O).
The new materials included Miramar supplemental reports and interview transcripts concerning coconspirator Lamar Bennett, and DEA reports about the investigation (including Exhibit O showing the investigation was “limited in nature” in May 2010).
The district court denied the Rule 33 motions, concluding defendants failed to show due diligence, the materials were cumulative or merely impeaching, and the evidence was not material or likely to produce a different outcome; the court also rejected the Brady claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether newly discovered documents warrant a Rule 33 new trial	Barbary/Lewis: post-judgment Miramar and DEA documents are newly discovered and undermine key testimony/wiretap affidavit	District/Govt: documents were cumulative/impeaching, known or discoverable with diligence, and not material to guilt	Denied — documents were cumulative/impeaching or discoverable; no probable different outcome; no abuse of discretion
Whether defendants exercised due diligence to discover the evidence pretrial	Barbary/Lewis: could not obtain these records before trial	District/Govt: defendants had or could have obtained much of the information earlier (initial Miramar report was produced)	Denied — defendants failed to show due diligence
Whether the materials were Brady (suppressed and material)	Barbary/Lewis: Exhibit O was suppressed and shows wiretap affidavit omitted/false statements about necessity	District/Govt: Exhibit O is not material and does not contradict affidavit or undermine trial	Denied — even assuming suppression, no reasonable probability of different result; affidavit consistent with Exhibit O
Whether an evidentiary hearing was required	Barbary/Lewis: new evidence warranted further factfinding	District/Govt: evidence was facially cumulative/impeaching so hearing unnecessary	Denied — hearing not required because evidence would not likely change outcome

United States v. Lee, 68 F.3d 1267 (11th Cir. 1995) (elements for new-trial motion based on newly discovered evidence)
United States v. Williams, 816 F.2d 1527 (11th Cir. 1987) (defendant must satisfy all new-evidence elements)
United States v. Holt, 777 F.3d 1234 (11th Cir. 2015) (affirming convictions on direct appeal)
United States v. Martinez, 763 F.2d 1297 (11th Cir. 1985) (standard of review for Rule 33 motions is abuse of discretion)
United States v. Culliver, 17 F.3d 349 (11th Cir. 1994) (circumstances when evidentiary hearing on new-evidence motion is unnecessary)
United States v. Naranjo, 634 F.3d 1198 (11th Cir. 2011) (three-part Brady test)
United States v. Garcia, 13 F.3d 1464 (11th Cir. 1994) (materiality standard for nondisclosed evidence)
United States v. Brester, 786 F.3d 1335 (11th Cir. 2015) (definition of reasonable probability that undermines confidence in outcome)
United States v. Cunningham, 161 F.3d 1343 (11th Cir. 1998) (arguments not raised in initial brief are abandoned)