Case: 13-15717   Date Filed: 07/07/2014   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15717
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:10-cr-00055-MCR-CJK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

CECIL ANTHONY DORTCH,

                                                         Defendant-Appellant.

                      ________________________

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

                              (July 7, 2014)

Before WILSON, PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:
               Case: 13-15717     Date Filed: 07/07/2014     Page: 2 of 3


      Cecil Anthony Dortch appeals pro se the denial of his motion for a new trial

as untimely. See Fed. R. Crim. P. 33(b)(2). Dortch filed his motion more than two

years after he was convicted of possessing with intent to distribute marijuana,

using a gun in connection with a drug trafficking crime, and being a felon in

possession of a gun. Dortch argued that he was in possession of newly-discovered

evidence that the government presented perjured testimony from its crime scene

analyst, see Giglio v. United States, 

, 

(1972), and that it

suppressed DNA evidence collected from firearms discovered in his residence, see

Brady v. Maryland, 

, 

(1963). We affirm.

      A motion for a new trial may be filed within 14 days after the jury returns its

verdict, Fed. R. Crim. P. 33(b)(2), but a motion based on newly-discovered

evidence may be filed within three years following a conviction, 

prevail on a motion for a new trial based on newly-discovered evidence, the

defendant must prove that he discovered the evidence after the conclusion of his

trial; his failure to discover the evidence is not attributable to a lack of due

diligence; the evidence is not merely cumulative or impeaching; the evidence is

material; and there is a reasonable probability that the evidence could have affected

the outcome of his trial. United States v. Jernigan, 

, 1287 (11th Cir.

2003). Unsubstantiated allegations and accusations are insufficient to support a




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motion for new trial based on newly discovered evidence. United States v.

Calderon, 

, 1354 (11th Cir. 1997).

      The district court did not abuse its discretion when it denied Dortch’s motion

for a new trial. Dortch’s motion for a new trial was untimely because it was not

based on newly-discovered evidence. See Fed. R. Crim. P. 33(b)(1), (b)(2).

Dortch attached to his motion some laboratory reports and inventory sheets, none

of which he identified as being unavailable to him before trial. See 

. The information in those reports was consistent with the testimony

of the crime scene analyst at trial about the process that he used to collect DNA

samples from the firearms found in Dortch’s residence. And the reports and

analyst’s testimony that he swabbed “all around the grips” and “around the trigger

guard where anybody would typically touch a gun,” flatly contradicted Dortch’s

allegations that the government withheld the results of DNA tests performed on

trigger guards and triggers. See 

. Dortch failed to

produce any objectively credible new evidence that “undermine[d] confidence in

the outcome of [his] trial.” Kyles v. Whitley, 

, 434, 

,

1566 (1995) (quoting United States v. Bagley, 

, 678, 

,

3381 (1985)).

      We AFFIRM the denial of Dortch’s motion for a new trial as untimely.




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