United States v. Donovan G. Davis, Jr.

U
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                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 19-10535
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 6:14-cr-00043-CEM-DCI-2


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

DONOVAN G. DAVIS, JR.,

                                                             Defendant-Appellant.

                          ________________________

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

                              (November 16, 2020)

Before ROSENBAUM, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Donovan Davis, Jr., proceeding pro se, appeals the district court’s denial of

his second Rule 33(b)(1), Fed. R. Crim. P., motion for a new trial based on newly
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discovered evidence. He also appeals the denial of his second motion for the recusal

of the magistrate judge whose recommendation the district court adopted in denying

the new-trial motion. After careful review, we affirm.

                                          I.

      Before addressing Davis’s second Rule 33(b)(1) motion, we provide some

necessary context with an overview of his convictions, his first Rule 33(b)(1)

motion, his motion under Rule 41(g) for the return of certain property and his

associated request for recusal of the magistrate judge, and our decisions resolving

these matters on appeal.

                                          A.

      In 2015, Davis was convicted of participating in a scheme to defraud through

Capital Blu Management, LLC, a company that traded in the off-exchange foreign

currency or “forex” marketplace. According to the evidence presented at trial, Davis

and his Capital Blu partners solicited and retained investors with lies about Capital

Blu’s consistently positive rates of return, among other false information, at the same

time Capital Blu was experiencing massive losses and Davis and his partners were

diverting investor funds for personal use. A jury found Davis guilty of conspiracy

to commit wire fraud and mail fraud, wire fraud, mail fraud, and money laundering.




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       Following the trial, Davis filed a Rule 33(b)(1) motion, Fed. R. Crim. P., for

a new trial asserting newly discovered evidence.1 In support of that motion, Davis

submitted affidavits from prison inmates who claimed that they heard one of Davis’s

co-conspirators, Damien Bromfield, state that he lied in his testimony at Davis’s trial

to get leniency from the government. The district court denied the Rule 33(b)(1)

motion without an evidentiary hearing, finding that the affidavits were not credible

and that no new trial was warranted even if they were.

       Davis appealed his convictions and the denial of his new-trial motion, and we

affirmed in a consolidated opinion issued in March 2019. See United States v. Davis

(Davis I), 767 F. App’x 714 (11th Cir. 2019). In relevant part, we concluded that a

new trial was not warranted even if the inmates’ affidavits were credible.

Id. at 733– 34.

We noted, among other things, Bromfield’s “trial testimony was supported by

extensive contemporaneous documentation and testimony from Capital Blu’s

accountant,” and that he later submitted a sworn affidavit which “effectively

retracted any recantation he had made to other prisoners.”

Id. B. Meanwhile, Davis

moved under Rule 41(g), Fed. R. Crim. P., for the return

of six computer hard drives. Evidence produced by the government in response to


       1
        Immediately after the jury verdict, Davis also filed a motion for judgment of acquittal or
a new trial, which the district court denied. This motion was not based on newly discovered
evidence and is not relevant to our resolution of this appeal.
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Davis’s motion showed that in 2009 Davis’s counsel provided six computer hard

drives to a court-appointed receiver in connection with a civil-enforcement action

brought by the U.S. Commodity Futures Trading Commission (“CFTC”) against

Capital Blu. The receiver, in turn, copied these drives onto external hard drives and

provided the external hard drives to the CFTC, the IRS, and the U.S. Attorney’s

Office. In March 2010, the Secret Service came into possession of one of the

external hard drives through an IRS agent. In September 2017, the Secret Service

contacted Davis to return the external hard drive after erasing its contents.

      After a magistrate judge issued a recommendation that the motion to return

the six hard drives be denied, Davis moved to recuse the magistrate judge on the

ground that he had worked for the U.S. Attorney’s Office for the Middle District of

Florida at the time that office had recused itself from Davis’s criminal prosecution.

The magistrate judge denied the recusal motion, and Davis appealed to the district

court, which denied Davis’s Rule 41(g) motion and affirmed the magistrate judge’s

decision not to recuse.

      We affirmed both rulings on appeal in September 2019. See United States v.

Davis (Davis II), 789 F. App’x 105 (11th Cir. 2019). As to the denial of the Rule

41(g) motion, we concluded that the district court did not clearly err in finding that

the government never possessed the six computer hard drives at issue.

Id. at 109– 4

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11. And because we could not “order the government to return something that it

does not possess,” we affirmed the denial of Davis’s Rule 41(g) motion.

Id. at 111.

      As to Davis’s demand for recusal of the magistrate judge, we found “no

grounds that, viewed objectively, would cause a neutral lay observer to entertain a

significant doubt about the magistrate judge’s impartiality.”

Id. We noted that

the

magistrate judge could not recall having any involvement in Davis’s criminal case

or knowledge of the basis for the recusal decision, and that Davis had not shown that

the magistrate judge’s statements were inaccurate or that “the district-wide recusal

decision was in any way related to the magistrate judge or would affect his

impartiality in this case.”

Id. at 111–12.

We therefore found insufficient grounds to

show that the failure to recuse was an abuse of discretion.

Id. at 112. C.

      In May 2018, Davis filed pro se a second Rule 33(b)(1) motion for a new trial

based on purported newly discovered evidence. As relevant here, Davis claimed that

the government had made false representations to the court during his trial that the

data from the original hard drives—which were the subject of his Rule 41(g) motion

for the return of property—were not available. He stated that he learned in October

2017 that the government had been in possession of an external hard drive containing

copies of the original hard drives. But according to Davis, the government erased

the external hard drive before returning it to him, which prevented him from


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demonstrating that the documents introduced at trial by the government were

fabricated, likely by cooperating coconspirator Bromfield. He further argued that

the magistrate judge should have recused from his criminal case due to the recusal

of the U.S. Attorney’s Office for the Middle District of Florida.

      In response, the government argued that Davis did not show that any potential

evidence relating to the original hard drives was of a nature that a new trial would

probably produce a different result. Further, in disputing that recusal was required,

the government provided additional details regarding the recusal decision, stating

that the district-wide recusal was based on Davis’s then-marriage to an agent with

the Social Security Administration’s Office of the Inspector General who

occasionally worked with the U.S. Attorney’s Office.

      Davis replied that the only reason he could not show a probable different result

was because the government destroyed the data on the external hard drive, and that

recusal was required because the magistrate judge should have been aware of an

office-wide recusal based on a relationship with someone he worked with regularly.

      The district court summarily denied Davis’s motion “[f]or the reasons set forth

in the Court’s September 21, 2016, Order,” which was the order denying Davis’s

previous Rule 33(b)(1) motion. Davis now appeals the denial of his second Rule

33(b)(1) motion and his request for recusal of the magistrate judge.




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                                          II.

      We review for an abuse of discretion a district court’s denial of a motion for

a new trial, a motion to recuse, and a request for an evidentiary hearing. United

States v. Scrushy, 

721 F.3d 1288

, 1303 (11th Cir. 2013); United States v. Schlei, 

122 F.3d 944

, 990 (11th Cir. 1997). A court abuses its discretion when it applies the

wrong legal standard, bases its decision on findings of fact that are clearly erroneous,

or makes a clear error of judgment. United States v. Grzybowicz, 

747 F.3d 1296

,

1305 (11th Cir. 2014); 

Scrushy, 721 F.3d at 1303

.

                                          A.

      We start with the new-trial motion. Motions for a new trial based on newly

discovered evidence are “highly disfavored” and “should be granted only with great

caution.” United States v. Campa, 

459 F.3d 1121

, 1151 (11th Cir. 2006) (en banc)

(quoting another source). While “[n]ewly discovered evidence need not relate

directly to the issue of guilt or innocence to justify a new trial, but may be probative

of another issue of law,” the new evidence still must be such that it “would afford

reasonable grounds to question . . . the integrity of the verdict.” 

Scrushy, 721 F.3d at 1304

(quotation marks omitted).

      In general, a new trial is warranted based on newly discovered evidence only

if the evidence (1) was discovered after trial; (2) could not have been discovered

with due diligence; (3) is not merely cumulative or impeaching; (4) is material to


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issues before the court; and (5) is of such a nature that a new trial would probably

produce a different result. United States v. Barsoum, 

763 F.3d 1321

, 1341 (11th Cir.

2014). In contrast, where the defendant claims that he is entitled to a new trial

because the government made false representations during trial, he “must establish

that (1) the prosecutor knowingly used perjured testimony or failed to correct what

he subsequently learned was false testimony; and (2) such use was material i.e., that

there is any reasonable likelihood that the false testimony could have affected the

judgment.” United States v. Stein, 

846 F.3d 1135

, 1147 (11th Cir. 2017). That

materiality standard is more “defense-friendly” than the ordinary standard for Rule

33(b)(1) motions. See

id. Here, the district

court did not abuse its discretion when it denied Davis’s

second Rule 33(b)(1) motion. At the outset, we note that we agree with Davis to the

extent that the district court could have better explained its grounds for denying that

motion, which raised issues distinct from the first Rule 33(b)(1) motion. But “we

may affirm for any reason supported by the record, even if not relied upon by the

District Court.” United States v. Barsoum, 

763 F.3d 1321

, 1338 (11th Cir. 2014).

And there is no reason to remand for the district court to explain its reasons because

Davis has not offered sufficient grounds to warrant a new trial.

      Davis has not presented newly discovered evidence that affords reasonable

grounds to question the integrity of the verdict. See 

Scrushy, 721 F.3d at 1304

. He


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claims that his convictions were obtained based on photocopied emails that were

fabricated by Bromfield, a cooperating coconspirator. But he did not proffer any

evidence or provide any supporting details to suggest that the emails introduced at

trial were fabricated or altered. A blanket assertion of fabricated evidence not

substantiated by any credible source is not enough to warrant a new trial or even an

evidentiary hearing. See United States v. Calderon, 

127 F.3d 1314

, 1354 (11th Cir.

1998) (denying a new trial or further inquiry where the appellants “self-serving

affidavits” were “totally unsubstantiated by any objectively credible source”);

United States v. Champion, 

813 F.2d 1154

, 1171 n.25 (11th Cir. 1987) (stating that

evidentiary hearings are not necessary for “fishing expedition[s]” to substantiate an

unsupported claim of wrongdoing).2

       Davis responds that the proof of these fabrications was contained on an

external hard drive, which the government erased. But any evidence that would have

been erased from the external hard drive could hardly be considered new to Davis.

As we explained above, the data on the external hard drive came from the six hard

drives Davis’s attorney provided to the receiver. As a result, Davis would have had

knowledge before trial of information on those drives that could have been used to


       2
         Contrary to Davis’s claim, courts are not required to accept as true factual allegations
made in a motion for new trial under Rule 33(b)(1), which are “highly disfavored.” United States
v. Campa, 

459 F.3d 1121

, 1151 (11th Cir. 2006) (en banc). The cases Davis has cited for this
proposition concern the rules at summary judgment in a civil case. See United States v. Stein, 

881 F.3d 853

, 854 (11th Cir. 2018 (en banc); Caldwell v. Warden, 

748 F.3d 1090

, 1098 (11th Cir.
2014); White v. Berger, 769 F. App’x 784, 789 (11th Cir. 2019). They have no application here.
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contest the authenticity of the emails presented by the government at trial. See

United States v. DiBernado, 

880 F.2d 1216

, 1224 (11th Cir. 1989) (stating that

evidence known to the defendant before trial cannot be “newly discovered” within

the meaning of Rule 33(b)(1), and “reject[ing] the idea that newly available evidence

is synonymous with newly discovered evidence”).

       The only apparently “new” information Davis cites is that the Secret Service

erased the external hard drive before returning it to him in 2017. 3 This new fact does

not provide grounds to question the integrity of the verdict, however. The mere fact

that the Secret Service erased the drive before returning it to him, years after his

conviction, does not strike us as suspicious or indicative of a coverup. Notably, the

record shows that the receiver created multiple, identical external hard drives and

provided these drives to multiple entities, including the U.S. Attorney’s Office. And

it appears that the Secret Service received the drive through an IRS agent, not the

U.S. Attorney’s Office. So the inference Davis draws from the erasure of the

external hard drive—that the government deleted the data because it “would have

established the photocopied documents were inauthentic”—is far too speculative to




       3
          In his reply brief, Davis alleges that the government failed to disclose evidence
concerning other matters. Because these issues were not presented in his initial brief on appeal,
they are not properly before us on appeal. See Timson v. Sampson, 

518 F.3d 870

, 874 (11th Cir.
2008) (“[W]e do not address arguments raised for the first time in a pro se litigant’s reply brief.”).
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warrant further inquiry or a new trial. See 

Calderon, 127 F.3d at 1354

; 

Champion, 813 F.2d at 1171

n.25.

      Nor has Davis shown that a new trial is warranted on grounds of prosecutorial

misconduct. Citing the erasure of the external hard drive, Davis claims that the

government falsely told the court at trial that the original emails were unavailable,

apparently for the purpose of hiding the truth of the fabricated emails.

      There are several problems with this argument. First, it’s based on an alleged

“false representation” that the government simply did not make. The exchange

between the district court and the parties to which Davis refers involved Bromfield’s

removal of a server from one of Capital Blu’s offices. It did not concern either the

original hard drives Davis’s attorney provided to the receiver or the external hard

drive. And nowhere in this exchange did the government state, as Davis asserts,

“that the photocopies were the best available evidence.”

      Second, Davis’s attorney did not directly challenge the admissibility of the

emails, as Davis maintains. Instead, Davis’s attorney suggested that the jury did not

“have all the emails” and that the government’s case was missing critical

information, including “anything indicating definitively that [Davis] opened any of

these emails.” Finally, as we’ve already explained, Davis offers little more than

speculation that the emails introduced by the government at trial were fabricated,

that the data on the external hard drive would have shown as much, or that the


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government wiped the drive to prevent Davis from proving that the evidence was

fabricated.

      For these reasons, Davis’s unsubstantiated claim of evidence fabrication does

not warrant a new trial or further inquiry at an evidentiary hearing. He has not

presented any new evidence that “would afford reasonable grounds to question . . .

the integrity of the verdict.” 

Scrushy, 721 F.3d at 1304

. Nor has he provided any

reason to believe that the government knowingly relied on false evidence at his trial.

See 

Stein, 846 F.3d at 1147

. We therefore affirm the denial of his second Rule

33(b)(1) motion for a new trial.

                                         B.

      Next, we consider recusal. Under 28 U.S.C. § 455(a), a judge “shall disqualify

himself in any proceeding in which his impartiality might reasonably be questioned.”

28 U.S.C. § 455(a). The purpose of this provision is to promote confidence in the

judiciary by avoiding even the appearance of impropriety. United States v. Patti,

337 F.3d 1317

, 1321 (11th Cir. 2003). To that end, “the standard of review for a

§ 455(a) motion is whether an objective, disinterested, lay observer fully informed

of the facts underlying the grounds on which recusal was sought would entertain a

significant doubt about the judge’s impartiality, and any doubts must be resolved in

favor of recusal.”

Id. (citations and quotation

marks omitted).




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      Here, the district court did not abuse its discretion in refusing to order the

recusal of the magistrate judge. As we noted above, we have previously rejected

Davis’s argument that the magistrate judge should have recused on the ground that

he was an attorney in the U.S. Attorney’s Office for the Middle District of Florida

at the time that office recused itself from Davis’s criminal case. See Davis II, 789

F. App’x at 111–12. We concluded that there were no objective grounds to entertain

a significant doubt about the magistrate judge’s impartiality.

Id. at 111.

We noted

that the magistrate judge could not recall having had any involvement in Davis’s

criminal case or knowledge of the basis for the recusal decision, and that Davis had

not provided anything tending to show that the magistrate judge’s statements were

inaccurate or that “the district-wide recusal decision was in any way related to the

magistrate judge or would affect his impartiality in this case.”

Id. at 111–12.

      Davis again raises the issue of recusal, but we see no grounds that would

warrant a different result than we reached in Davis II. See United States v. Anderson,

772 F.3d 662

, 668 (11th Cir. 2014) (explaining that the doctrine of law of the case

generally bars reconsidering appellate prior rulings in the same case unless new and

different evidence is presented or the prior decision is clearly erroneous). Although

we know now the reason for the district-wide recusal decision, the fact that the U.S.

Attorney’s Office had a working relationship with Davis’s then-wife does not

change the fact that the magistrate judge had no recollection of involvement in


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Davis’s prosecution, investigation, or the recusal. And it remains the case that Davis

has not offered adequate grounds to suspect that “the district-wide recusal decision

was in any way related to the magistrate judge or would affect his impartiality in this

case.” Davis II, 780 F. App’x at 111–12.

      Davis speculates that a reasonable observer could believe that the magistrate

judge tried to help out a “friend”—Davis’s then-wife—by “reviving and prosecuting

a case that had been dormant.” But again, there is nothing to indicate that the

magistrate judge was involved in Davis’s criminal case, and the magistrate judge

was not appointed as a judge until October 2016, after Davis was convicted. So

Davis’s conjecture and speculation about the magistrate judge’s potential motives

are not sufficient to warrant recusal or further inquiry at an evidentiary hearing. See

United States v. Cerceda, 

188 F.3d 1291

, 1293 (11th Cir. 1999) (“conjecture and

speculation” are insufficient to warrant recusal or an evidentiary hearing).

                                         III.

      For the foregoing reasons, we affirm the denial of Davis’s second Rule

33(b)(1) motion for a new trial based on newly discovered evidence and the denial

of his motion for recusal of the magistrate judge.

      AFFIRMED.




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