United States v. McWaine

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS October 14, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-60367 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERWIN RENWICK MCWAINE, also known as Skibow,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:98-CR-22-1 --------------------

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

Derwin Renwick McWaine, federal prisoner # 10797-042, appeals

the district court’s denial of his motion for an evidentiary

hearing and immediate release, apparently brought under FED. R.

CRIM. P. 33. McWaine alleged that Officer David Sullivan presented

false information in obtaining a search warrant for his residence

and that Officer Ronnie Jones was indicted and convicted after

McWaine’s trial. McWaine has not shown that the district court

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. abused its discretion in denying his motion as he has not shown

that his motion is based on new evidence unknown despite due

diligence on his part, that the evidence is material, or that the

evidence would probably have produced an acquittal. See United

States v. Sullivan, 112 F.3d 180, 182-83 (5th Cir. 1997).

Therefore, the district court’s denial of McWaine’s motion is

AFFIRMED.