[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 14, 2006

N o . 05-12798

THOMAS K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 01-00147-CR-T-24-MAP

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS JEROME COOK,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Middle District of Florida

(M a rch 14, 2006)

B efo re ANDERSON, BIRCH and WILSON, Circuit Judges.

P E R CURIAM:

T h o m as Jerome Cook, a federal prisoner serving a term of 360 months'

im p riso n m en t for distributing a mixture containing a detectable amount of cocaine a n d possessing a firearm and ammunition while convicted of a felony crime, ap p eals pro se the district court's order denying his motion for a new trial based on n e w ly discovered evidence, filed pursuant to Federal Rule of Criminal Procedure 3 3 . On appeal, Cook argues that the government violated Brady v. Maryland, 373 U .S . 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Giglio v. United States, 405 U .S . 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), through its failure to disclose a trial witness's criminal history from 1999 to 2001, the fact that the witness was on p ro b atio n at the time he testified at Cook's trial, and the fact that probation r ev o c atio n proceedings had commenced against the witness. Cook further argues th a t the district court erred in applying the standard for evaluating a motion for a n ew trial based on newly discovered evidence instead of the standard for ev alu atin g such a motion based on Brady evidence.

F ed eral Rule of Criminal Procedure 33(a) provides that "[u]pon the d efen d an t's motion, the court may vacate any judgment and grant a new trial if the in terest of justice so requires." "We review the district court's denial of a motion fo r new trial based on newly discovered evidence for abuse of discretion.

Similarly, a district court's denial of a motion for new trial based on a Brady v io la tio n is reviewed for abuse of discretion." United States v. Vallejo, 297 F.3d 1 1 5 4 , 1163 (11th Cir. 2002) (citation omitted).

T o obtain a new trial based on a Brady claim of newly discovered evidence, th e defendant must show that: "(1) the government possessed favorable evidence to th e defendant; (2) the defendant does not possess the evidence and could not obtain th e evidence with any reasonable diligence; (3) the prosecution suppressed the f av o r ab le evidence; and (4) had the evidence been disclosed to the defendant, there is a reasonable probability that the outcome would have been different." Vallejo, 2 9 7 F.3d at 1164. "Evidence favorable to the accused includes impeachment e v id e n c e ." United States v. Newton, 44 F.3d 913, 918 (11th Cir. 1994). A "reaso n ab le probability" is "a probability sufficient to undermine confidence in the o u tc o m e ." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L . Ed. 2d 481 (1985) (quotation omitted).

H e re , the district court erred because it evaluated Cook's motion for a new tr ia l using the standard for a Rule 33 motion based on newly discovered evidence in stead of a Rule 33 motion based on Brady evidence. See United States v. T h o m p so n , 422 F.3d 1285, 1294 (11th Cir. 2005) (outlining framework for ev alu atin g a Rule 33 motion for new trial); but see Vallejo, 297 F.3d at 1164 ( se ttin g forth standard for prevailing upon a Rule 33 motion based on a Brady v io latio n ). However, we will not remand unless doing so "would serve [a] valid p u r p o s e ." See United States v. Bascaro, 742 F.2d 1335, 1344 (11th Cir. 1984).

We therefore consider whether Cook can establish a Brady claim.

A p p ly in g the standard for a new trial based on a Brady violation and a ss u m in g the government possessed and suppressed information about the trial w itn ess's complete criminal history, Cook has not shown that he could not have p o ssessed this evidence with reasonable diligence. See Vallejo, 297 F.3d at 1164.

Rather, as demonstrated by the attachments to the motion for a new trial, in f o r m a tio n about the witness's criminal history and probationary status was p u b licly available. In addition, Cook has not demonstrated that a reasonable p ro b ab ility existed that the outcome of his trial would have been different had he receiv ed a more complete evidence about the witness's criminal history. See id.

Evidence at trial showed that Cook sold cocaine to a confidential informant and w as arrested when he tried to complete a second drug transaction with the in f o r m a n t. Because Cook is unable to establish a Brady claim, remand would serv e no valid purpose. See Bascaro, 742 F.2d at 1344.

B a se d on a review of the parties' briefs and the record on appeal, we discern n o reversible error. Accordingly, we affirm.

A F F IR M E D .