United States v. Dora Moreira

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 12, 2018
• Docket: 17-12967
• Status: Unpublished

Opinion

Case: 17-12967 Date Filed: 04/12/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12967 Non-Argument Calendar ________________________

D.C. Docket No. 1:13-cr-20298-JEM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DORA MOREIRA,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(April 12, 2018)

Before WILLIAM PRYOR, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM: Case: 17-12967 Date Filed: 04/12/2018 Page: 2 of 5

This is the second time we have considered an appeal in this case. In the

first appeal, we affirmed Dora Moreira’s (“Moreira”) convictions and total

sentence for various Medicare fraud violations. United States v. Moreira, 605 F.

App’x 852 (11th Cir. 2015), cert. denied, 136 S. Ct. 1155 (2016).

In this appeal, Moreira, a prisoner proceeding pro se, appeals the district

court’s order denying her motion for a new trial filed pursuant to Federal Rule of

Criminal Procedure 33. On appeal, Moreira argues that, although her Rule 33

motion was untimely, the district court abused its discretion in denying the motion

because she presented sufficient grounds for the court to find excusable neglect,

and she established that newly discovered evidence was material and would have

likely changed the outcome of her trial.

I.

We review the denial of a motion for a new trial based on newly discovered

evidence for an abuse of discretion. United States v. Vallejo, 297 F.3d 1154, 1163

(11th Cir. 2002). The abuse of discretion standard is deferential and decisions of

the district court will be affirmed unless “the district court has made a clear error of

judgment, or has applied the wrong legal standard.” United States v. Lyons, 403

F.3d 1248, 1255 (11th Cir. 2005). We construe pro se filings liberally,

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), but pro se

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litigants must still conform to procedural rules, Loren v. Sasser, 309 F.3d 1296,

1304 (11th Cir. 2002).

II.

Pursuant to the Federal Rules of Criminal Procedure, a defendant may move

the court to vacate a judgment and grant a new trial “if the interest of justice so

requires.” Fed. R. Crim. P. 33(a). “Any motion for a new trial grounded on newly

discovered evidence must be filed within [three] years after the verdict or finding

of guilty. If an appeal is pending, the court may not grant a motion for a new trial

until the appellate court remands the case.” Fed. R. Crim. P. 33(b)(1). Moreover,

a district court may extend the time for a defendant to file an otherwise untimely

motion if she can show excusable neglect. Fed. R. Crim. P. 45(b)(1)(B).

A new trial based on newly discovered evidence is warranted only if: “(1)

the evidence was in fact discovered after trial; (2) the defendant exercised due care

to discover the evidence; (3) the evidence was not merely cumulative or

impeaching; (4) the evidence was material; and (5) the evidence was of such a

nature that a new trial would probably produce a different result.” United States v.

Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). “Failure to meet any one of these

elements will defeat a motion for a new trial.” United States v. Starrett, 55 F.3d

1525, 1554 (11th Cir. 1995). Our court highly disfavors motions for new trials

based on newly discovered evidence and has opined that they should be granted

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only with great caution. United States v. Campa, 459 F.3d 1121, 1151 (11th Cir.

2006) (en banc). Self-serving allegations that are unsubstantiated by any

objectively credible source and that present only second-hand information do not

warrant a new trial. United States v. Calderon, 127 F.3d 1314, 1354-55 (11th Cir.

1997). Issues implicating the fairness of a trial or the integrity of the verdict may

be grounds for a new trial. Campa, 459 F.3d at 1151 n.268.

III.

Even assuming that Moreira’s delay in filing her motion for a new trial was

due to excusable neglect, the motion itself fails on its merits. Moreira’s reliance on

alleged government misconduct in an unrelated case does not establish such

misconduct in her case. Moreira cannot show that the alleged misappropriated

Medicare documents from an unrelated case could not have been discovered before

trial if she or her attorney had exercised due care in discovering them. The only

evidence that she has put forward to support her argument—that the government

introduced a binder full of documents on the first day of trial that she and her

attorney previously had not seen—does not warrant the grant of a new trial. The

government disputes Moreira’s assertion that her counsel had not seen the

documents before the introduction of the binder, noting that her counsel did not

object to their admission into evidence. Accordingly, we conclude from the record

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that the district court did not abuse its discretion in denying Moreira’s motion for a

new trial, and we affirm its order. Vallejo, 297 F.3d at 1163; Lyons, 403 F.3d at

1255.

AFFIRMED.