of another issue of law.’ For instance, the existence of a
violation, as well asquestions regarding the fairness or impartiality of a jury, may be grounds for a new trial.”)(quoting
United States v. Beasley
, 582 F.2d 337, 339 (5th Cir. 1978))). The common threadthat ties together the types of evidence supporting a proper Rule 33(b)(1) motion is that thenewly discovered evidence must, in some non-attenuated and material way, impugn thereliability of the jury’s verdict.To obtain a new trial on non-
claims based upon newly discovered evidence, adefendant must show that:(1) the evidence was discovered after trial[;] (2) the failure of the defendant todiscover the evidence was not due to a lack of due diligence[;] (3) the evidenceis not merely cumulative or impeaching[;] (4) the evidence is material to issues before the court[;] and (5) the evidence is such that a new trial would probably produce a different result.
United States v. Jernigan
, 341 F.3d 1273, 1287 (11th Cir. 2003) (quoting
United States v. Ramos
, 179 F.3d 1333, 1336 n.1 (11th Cir. 1999)). “Failure to meet any one of theseelements will defeat” the motion.
United States v. Starrett
, 55 F.3d 1525, 1554 (11th Cir.1995). To obtain a new trial premised on
claims, the defendant must show that:(1) the Government possessed favorable evidence to the defendant; (2) thedefendant [did] not possess the evidence and could not [have] obtain[ed] theevidence with any reasonable diligence; (3) the prosecution suppressed thefavorable evidence; and (4) had the evidence been disclosed to the defendant,there is a reasonable probability that the outcome would have been different.
United States v. Vallejo
, 297 F.3d 1154, 1163–64 (11th Cir. 2002);
see also United States v. Elso
, 364 F. App’x 595, 598–99 (11th Cir. 2010). With respect to
Case 2:05-cr-00119-MEF-CSC Document 1072 Filed 01/24/12 Page 3 of 30