United States v. Donovan G. Davis, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 27, 2019
• Docket: 17-12057
• Status: Unpublished

Opinion

Case: 15-13997 Date Filed: 03/27/2019 Page: 1 of 40

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

Nos. 15-13997, 16-17781, 17-12057 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.

________________________

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

(March 27, 2019)

Before WILLIAM PRYOR, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 15-13997 Date Filed: 03/27/2019 Page: 2 of 40

Donovan G. Davis, Jr., is currently serving a 204-month total sentence of

imprisonment after a jury convicted him on charges of mail fraud, wire fraud, money

laundering, and conspiracy to commit mail fraud and wire fraud. On appeal, Davis

challenges multiple aspects of the district-court proceedings. He argues that

(1) insufficient evidence supports his fraud convictions; (2) the government

presented false testimony to secure his convictions; (3) the district court erred in

admitting a coconspirator’s plea agreement that referenced a polygraph examination;

(4) the court wrongly limited evidence of another coconspirator’s prior fraudulent

conduct; (5) the court abused its discretion in instructing the jury; (6) the court erred

in estimating the amount of loss attributable to him under the Sentencing Guidelines;

(7) the court improperly denied his motion for a new trial under Rule 33(b), Fed. R.

Crim. P., without a hearing; and (8) the court erred in denying his pro se motions for

permission to file a second Rule 33 motion, for the district court judge’s recusal, and

for a hearing under Faretta v. California, 422 U.S. 806 (1975). After careful review,

we reject all of these arguments and affirm Davis’s convictions and sentence.

I.

The government charged that Davis, Blayne Davis (“Blayne,” no relation to

the defendant), and Damien Bromfield (“Bromfield”) perpetrated a scheme to

defraud through Capital Blu Management, LLC (“Capital Blu”), a company that

traded in the off-exchange foreign currency, or “forex,” marketplace. From January

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to August of 2008, according to the indictment 1, Davis, Blayne, and Bromfield

(collectively, the “partners”) solicited and retained investors by making false

representations about Capital Blu’s trading performance, the risks associated with

its trading practices, and the value of investments. All the while, the indictment

alleged, the Capital Blu partners diverted investor money to inure to their personal

benefit and to sustain the fraud.

A jury trial was held over nine days in early May 2015. The government

presented its case through contemporaneous emails from coconspirators, testimony

from participants Bromfield and Beth Courtney, who was Capital Blu’s accountant,

and testimony from numerous investor-victims. The government also presented the

testimony of a forensic accountant, Crystal Boodoo, who analyzed Capital Blu’s

trading activities and accounts from September 2007 to September 2008.

The government’s evidence, viewed in the light most favorable to the verdict,

established the following. Coconspirators Bromfield and Blayne formed Capital Blu

in January 2007. Davis joined as a managing partner in August 2007. Davis, who

had no prior trading experience, was recruited by Bromfield for his “large network

1 A federal grand jury returned a 27-count indictment against Davis and Blayne in February 2014. Davis was charged with one count of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1349; five counts of mail fraud, in violation of § 1341; twelve counts of wire fraud, in violation of § 1343; and nine counts of money laundering, in violation of 18 U.S.C. § 1957. Blayne was charged with a subset of these offenses, while Bromfield was charged in a separate indictment. Davis pled not guilty and went to trial. Blayne and Bromfield pled guilty and agreed to cooperate with the government. 3 Case: 15-13997 Date Filed: 03/27/2019 Page: 4 of 40

of high net worth individuals,” due to his family’s business connections. As a

partner, Davis was responsible primarily for bringing in investors. Blayne did the

trading. Bromfield ran business operations.

In September 2007, shortly after Davis joined Capital Blu, the company set

up a forex 2 investment fund—the CBM FX Fund, LP—which pooled investor

money to be traded by Capital Blu as one large account on the forex market. Capital

Blu’s income was based on management fees and a percentage of trading profits, as

set forth in written agreements with investors.

By late 2007, the three partners believed things were going well for Capital

Blu. They began paying themselves a monthly salary of $15,000 each. They also

purchased an interest in a private jet.

On January 22, 2008, however, Capital Blu sustained heavy trading losses.

Courtney testified that she prepared a report for the partners on the extent of the loss.

The report showed a loss of $2.8 million, or 31%, leaving Capital Blu with a

purported $9 million under management. In fact, the amount of money under

management was closer to $5 million. Courtney’s $9 million figure included

approximately $4 million in a “Saxo Bank” account that, several months later, was

found to have been fabricated by Blayne.

2 “Forex” is a term commonly used to refer to the foreign exchange market, where currencies are traded. See https://www.investopedia.com/terms/f/forex.asp (last visited Feb. 12, 2019). 4 Case: 15-13997 Date Filed: 03/27/2019 Page: 5 of 40

Capital Blu had not regained its losses by February 1, 2008, when it had to

report its monthly performance to investors. The partners worried that reporting the

losses to investors would cause them to pull their money, and Davis was concerned

about his reputation in the community. To buy more time, the partners decided not

to disclose the loss and, instead, to report a small gain to the investors. After a

discussion, they settled on a gain of around 1.5%. Accordingly, Capital Blu sent out

account statements to investors, via mail and email, falsely reporting a 1.6% gain

during January 2008.

Emails from February 2008 show that the partners knew that the clients’

account statements overstated the amount of money actually in Capital Blu’s

brokerage accounts. In a February 8 email to Davis and Blayne, Bromfield pegged

the difference between the “current client obligation” reflected on the account

statements and the “current brokerage valuation”—a difference he referred to as the

“gap”—at $3.2 million, or 29%. Bromfield gave out assignments to close the gap:

Blayne was to “trade like hell”; Bromfield was to cut costs; and Davis was to “keep

trying to raise money as fast as you can.”

Davis successfully solicited new investments. Despite knowing that Capital

Blu had just suffered heavy trading losses during January 2008, Davis told investors

that Capital Blu had never sustained a loss, using marketing documents showing

consistent gains every month, including January 2008. He also told investors that

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the vast majority of their investment—from 80 to 90%—was protected by a “stop

loss,” even though he knew that the protection either did not exist or was ineffective,

given that Capital Blu had just sustained losses of more than 30%.

Meanwhile, despite the partners’ plan to close the gap by maximizing the

amount of money under management, they nevertheless withdrew investor money

for improper purposes. Courtney testified that, as of February 2008, Capital Blu’s

operating expenses were exceeding the legitimate revenue that it was entitled to

under the investor agreements. Rather than cut partner salaries or sell the private jet,

Capital Blu took the difference directly out of investor money. Davis or Bromfield

authorized the transfers, according to Courtney. Courtney also testified that the

partners used client money to cover personal expenses like a chartered jet used for

personal travel, luxury car payments, and trips to Jamaica. For example, Davis spent

most of a month in Jamaica for forex “seminars,” and he requested a round number

for reimbursement and presented no receipts to document his expenses.

By March 1, 2008, when Capital Blu had to report its monthly performance

to investors, Capital Blu had not recovered its January losses. The gap remained at

around 30%, according to a report Courtney prepared for the partners. Nonetheless,

the partners decided to falsely report a gain of 3.32% for February trading.

A few days later, Courtney told Bromfield that she was uncomfortable “lying

to investors.” She then expressed similar concerns to Davis, who did not dispute

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that there was a gap in funding or that the company was lying to its investors.

Courtney resigned later that month and reported Capital Blu to law enforcement.

Little changed after Courtney’s exit from Capital Blu. Each month from April

through September 2008, when Capital Blu was shut down, the partners continued

to report false numbers to investors reflecting steady profits from trading. Emails

between the partners in April, June, and July of 2008 show that the partners also

continued to draw from their brokerage accounts to pay for things like partner

salaries, credit card payments, and the private jet. And Davis continued to solicit

new investments and assure current investors with the same falsehoods he had used

before. He told investors that a certain percentage of their investments was protected

against loss and that Capital Blu was profitable and had never sustained a loss.

But Capital Blu was never profitable after January 2008, and the partners

knew as much. An April 22, 2008 email from Bromfield to the other partners

showed that the gap—the difference between the amount showing on client

statements ($10.9 million) and the amount actually in the accounts ($7.4 million)—

remained near 30% ($3.5 million). In the following months, emails between the

partners discussed both pulling investor money from Capital Blu’s brokerage

accounts and “re-appropriat[ing]” new investments in order to cover operating

expenses. The partners also discussed making up a reason to institute a six-month

lock-up of client funds, so as to prevent any investor withdrawals.

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On August 8, 2008, Capital Blu sustained massive trading losses of

approximately $4 million. That same day, Davis and Bromfield discussed freezing

some client funds. Around the same time, Bromfield learned that Blayne had been

secretly diverting funds from Capital Blu to another company, Nakano Capital. He

also learned that the Saxo Bank account did not exist. Bromfield notified Davis, and

they terminated Blayne as a partner at the end of August 2008.

Capital Blu never mentioned the extensive August losses to investors,

however. Instead, Davis and Bromfield continued to report that Capital Blu was

profitable. They posted a gain of 0.16% to investors for the month of August.

Around the same time, they posted a letter to clients on their website instituting a

four-month lock-up of client funds.

Nor did the massive trading losses in early August stop Davis from soliciting

new investments with the same falsehoods. For example, one investor decided to

invest $100,000 in late August after Davis assured him that Capital Blu was doing

well and was always turning profits. Several weeks later, in September 2008, the

National Futures Association, an industry regulator, shut down the company after

Capital Blu refused to cooperate with an audit.

According to Crystal Boodoo, a forensic accountant and auditor with the U.S.

Attorney’s Office, total contributions were $16.9 million. The bulk of that money—

$7 million or 41.47%—was lost on the market from September 2007 until September

8 Case: 15-13997 Date Filed: 03/27/2019 Page: 9 of 40

2008. Another $4.7 million, or 28%, went to payments to Capital Blu and its

partners. Of that $4.7 million, Davis took $607,996, Bromfield took $332,916, and

Blayne took $400,073. Capital Blu spent another $1 million on payments for cars

and private planes and spent $2.4 million on various other expenses. Investors

reclaimed $3.87 million.

Contrary to the investor account statements, according to Boodoo, Capital Blu

was never profitable. Cumulative losses as of March 2008 were approaching $5

million. While Capital Blu rebounded over the coming months, it never approached

profitability. At its highest point since December 2007, it reached cumulative losses

of approximately $2 million in July 2008. But the next month saw trading losses of

approximately $4 million, followed by additional losses in September, resulting in

cumulative losses of approximately $7 million. Boodoo also testified that, in her

analysis, Capital Blu misrepresented its actual rate of return every month from

September 2007 until September 2008.

II.

Based on this evidence, the district court denied Davis’s motions for judgment

of acquittal, and the jury found Davis guilty of one count of conspiracy to commit

mail and wire fraud, six counts of wire fraud, one count of mail fraud, and eight

counts of money laundering. The jury failed to reach a verdict on two counts of mail

fraud, one count of wire fraud, and one count of money laundering, and the court

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declared a mistrial as to those counts. The remaining counts of the 27-count

indictment had been dismissed before trial. After trial, the counts on which the jury

was deadlocked were dismissed with prejudice. 3

Using the 2013 Guidelines Manual, the presentence investigation report

(“PSR”) recommended holding Davis responsible for investor losses totaling

$10,520,005. Davis filed objections, arguing that the loss amount should be based

on the actual gain to him, which was $607,996. In his view, losses beyond that

amount were not reasonably foreseeable because he believed that investors would

eventually be made whole. Alternatively, he asserted that the loss amount “should

only consist of investments that were made on or after April of 2008,” since the jury

had acquitted him of the substantive counts based on conduct before April.

The government responded in support of the PSR’s loss calculation. It argued

that the $10.5 million figure properly included loss from Davis’s pre-January 2008

falsehoods as well as losses from the conspiracy, which included amounts under

management as of January 31, 2008, and any net investment thereafter. The figure

excluded the account balance at the end of the conspiracy. The government prepared

and submitted a summary exhibit reflecting these calculations.

3 To be more precise about it, Counts 4, 6, 7–9, 22, and 24 were dismissed on government motion before trial. The jury returned a guilty verdict on Counts 1, 5, 11–18, 20–21, 23, and 25– 27. The jury was hung on Counts 2, 3, 10, and 19, which were dismissed with prejudice on government motion on May 21, 2015. All count numbers above are based on the original indictment, which was amended and renumbered before trial. 10 Case: 15-13997 Date Filed: 03/27/2019 Page: 11 of 40

Thereafter, Davis filed an amended sentencing memorandum urging a loss

amount of $4.7 million, which was the amount that the partners diverted for their

personal benefit. He also asserted that he should not be held liable for any losses

before January 2008.

At sentencing in August 2015, the district court determined that Davis was

responsible for a loss of more than $10 million to investors, despite his arguments

for a lesser amount. The court adopted the PSR’s loss figure without further

elaboration. That figure resulted, after additional guideline calculations not relevant

to this appeal, in a total offense level of 36. With a criminal history category of I,

Davis’s guideline range was 188 to 235 months of imprisonment. After hearing

from the parties and considering the 18 U.S.C. § 3553(a) sentencing factors, the

district court sentenced Davis to a total of 204 months in prison.

Some time later, in March 2016, Davis filed a pro se motion for a new trial

based on newly discovered evidence under Rule 33(b), Fed. R. Crim. P., which had

been prepared by a prisoner named Frank Amodeo. Davis claimed that, after the

trial, three people came forward with facts supporting his innocence. He attached

affidavits from three federal prisoners who claimed to have heard Bromfield, after

the trial, state that he lied in his testimony at Davis’s trial to get a more lenient

sentence from the government. The district court struck the motion because Davis

was represented by counsel.

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A few months later, Davis filed a similar motion through counsel, relying on

the same three affidavits plus one additional affidavit. Each of the affiants stated

that they overheard Bromfield in some manner or form admit that he falsely testified

in Davis’s trial. In addition to these affidavits, Davis attached to the motion

memoranda documenting interviews by Internal Revenue Service (“IRS”) agents

with each of the affiants. The affiants largely maintained the accuracy of their

affidavits to the IRS agents despite being warned of the penalties for lying.

The government opposed the motion and attached an affidavit executed by

Bromfield. In the affidavit, Bromfield swore that he testified truthfully at Davis’s

trial, that he never made the statements imputed to him by the inmates, and that he

was not recanting his trial testimony.

The district court denied the renewed motion for new trial without a hearing.

The court discussed two reasons for denying the motion. First, the court found that

the affidavits were not credible, noting that the three original affidavits appeared to

have been prepared on the same date by Frank Amodeo, a “serial filer” with whom

the court was familiar. The court found that the “circumstances indicate[d] a

coordinated effort by those involved to manufacture a controversy.” Second, the

court found that, even if the affidavits were credible, they did not constitute newly

discovered evidence. The court stated that Bromfield had effectively retracted any

recantation attributed to him by the affiants, so a new trial was not warranted based

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on United States v. Santiago, 837 F.2d 1545, 1550 (11th Cir. 1988) (no new trial

required based on a witness’s recantation that was later retracted).

More than two months after the denial of the renewed Rule 33(b) motion,

Davis filed a pro se motion for “clarification” on the limitations of his ability to file

pro se, which the court struck as an unauthorized pro se filing, and then a motion for

recusal and for a Faretta hearing. In this filing, Davis indicated that he wished to

bring “new claims,” in addition to the old claims, in a second Rule 33(b) motion,

though he did not identify what these new claims were. The court denied the

motions, finding no basis for recusal and citing its prior denial of his first Rule 33(b)

motion. Thereafter, Davis again sought “clarification,” and he requested a hearing

under Faretta. The court summarily rejected these requests.

Davis has appealed the judgment of conviction and sentence (No. 15-13997),

the denial of his Rule 33(b) motion for new trial (No. 16-17781), and the denial of

his motions relating to his request to file a second Rule 33(b) motion for new trial

(No. 17-12057). These appeals have been consolidated. Davis is represented by

counsel in the first two appeals; he proceeds pro se in the final one.

III.

Davis first challenges the sufficiency of the evidence to support his fraud

convictions.4 We review de novo whether sufficient evidence supports a jury’s

4 Davis does not raise any independent issue with respect to his convictions for money 13 Case: 15-13997 Date Filed: 03/27/2019 Page: 14 of 40

verdict in a criminal trial, “viewing the evidence in the light most favorable to the

government, and drawing all reasonable factual inferences in favor of the jury’s

verdict.” United States v. Toll, 804 F.3d 1344, 1354 (11th Cir. 2015) (quotation

marks omitted). “The defendant must do more than put forth a reasonable hypothesis

of innocence, because the issue is not whether a jury reasonably could have acquitted

but whether it reasonably could have found guilt beyond a reasonable doubt.” Id.

(quotation marks omitted).

A conviction for conspiracy to commit mail or wire fraud, in violation of 13

U.S.C. § 1349, requires proof that two or more persons agreed to commit mail or

wire fraud and that the defendant knowingly and voluntarily joined the agreement.

United States v. Martin, 803 F.3d 581, 588 (11th Cir. 2015). The elements of mail

and wire fraud are (1) intentional participation in a “scheme to defraud”, and (2) use

of the mails or wires in furtherance of the scheme. United States v. Ward, 486 F.3d

1212, 1221–22 (11th Cir. 2007); United States v. Hasson, 333 F.3d 1264, 1270 (11th

Cir. 2003); see also 18 U.S.C. §§ 1341, 1343.

A “scheme to defraud” is a scheme to deprive another of money or property

through deceit, such as misrepresentations. United States v. Bradley, 644 F.3d 1213,

1238–39 (11th Cir. 2011). The misrepresentation must be “material”—having the

laundering. Rather, he maintains that, if his fraud convictions fall, so too should the money- laundering convictions. Because sufficient evidence supports the fraud convictions, we likewise affirm the money-laundering convictions. 14 Case: 15-13997 Date Filed: 03/27/2019 Page: 15 of 40

natural tendency to influence, or be capable of influencing, the decision-maker to

whom it is addressed—but the government need not show “the victim actually relies

on the misrepresentation or omission.” Id. at 1239; see Neder v. United States, 527

U.S. 1, 24–25 (1999) (“By prohibiting the ‘scheme to defraud,’ rather than the

completed fraud, the elements of reliance and damage would clearly be inconsistent

with the statutes Congress enacted.”). Rather, “proof of intent to defraud is

sufficient.” Bradley, 644 F.3d at 1239.

In evaluating evidence of intent to defraud, “[w]e must determine whether the

defendant attempted to obtain, by deceptive means, something to which he was not

entitled.” Id. The jury is permitted to infer an intent to defraud from the defendant’s

conduct. Id. And “[e]vidence that a defendant personally profited from a fraud may

provide circumstantial evidence of an intent to participate in that fraud.” Id.

Not all deception constitutes fraud, however. “[A] schemer who tricks

someone to enter into a transaction has not ‘schemed to defraud’ so long as he does

not intend to harm the person he intends to trick.” United States v. Takhalov, 827

F.3d 1307, 1313 (11th Cir. 2016). That remains the case “even if the transaction

would not have occurred but for the trick,” because there is “no intent to harm.” Id.

Deception becomes fraud when it is used to obtain something to which the deceiver

is not entitled. Id. at 1313–14.

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Davis argues that the government failed to prove that the investors’ losses

were connected to the deception. He asserts that the government’s evidence at best

demonstrates that investors were misled about his wealth and lifestyle, and that the

false rates of return reported to investors did not affect their investment decisions.

He maintains that investors received what they bargained for, even if Capital Blu’s

deception caused them to enter into transactions they would otherwise have avoided.

The district court properly denied Davis’s motions for judgment of acquittal.

The evidence presented at trial demonstrated that Davis and his partners in Capital

Blu perpetrated a scheme to lie to potential and current investors to get them to invest

in or to stay invested in Capital Blu. The deception included falsely telling investors

that Capital Blu had posted gains every month of its existence, providing investors

with fraudulent monthly account statements showing that their investment had

appreciated in value when the opposite was true, and falsely telling potential

investors that only a small percentage of investor money was at risk to due a “stop

loss” policy. In other words, investors were led to believe that they were making

fairly low-risk investments with an established company that had never reported a

loss. Then, after making an initial investment, investors were led to believe, again

falsely, that their investments were consistently making money. But none of these

things was true. These misrepresentations are material because they go to the heart

of the riskiness of the investment, so they have the natural tendency to influence, or

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be capable of influencing, reasonable people making decisions about where and how

to invest their money. See Bradley, 644 F.3d at 1238–39.

Davis contends that the government failed to prove that the investors actually

relied on any false representations about Capital Blu’s performance or its risk

policies. But the government did not need to. See id. at 1239 (“It is . . . unnecessary

that the victim actually relies on the misrepresentation or omission; proof of intent

to defraud is sufficient.”). It is enough “that the scheme be reasonably calculated to

deceive.” Id. In any case, the testimony of the investors at trial, construed in the

light most favorable to the government, showed that investors did, in fact, rely on

Davis’s representations about Capital Blu’s safety and consistent gains, and not just

on his apparent wealth and flashy lifestyle.

Further, a reasonable jury could rationally find the necessary intent to

defraud—that is, that Davis “attempted to obtain, by deceptive means, something to

which he was not entitled.” Id. at 1240. At the same time Davis was soliciting

investments in Capital Blu, using the material misrepresentations we have discussed

above, he and his partners were improperly diverting investor funds for their own

personal benefit. The evidence shows that Davis and his partners used more than $4

million in investor funds to enrich themselves in ways that were not authorized by

the investor agreements. Based on this evidence, a reasonable jury could conclude

that, through deception about Capital Blu’s performance and risk, Davis and his

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partners sought to obtain and retain funding that could be used to inure to their

personal benefit and to continue the fraud. See id. at 1239 (“Evidence that a

defendant personally profited from a fraud may provide circumstantial evidence of

an intent to participate in that fraud.”).

For these reasons, Davis’s convictions are supported by sufficient evidence in

the record. See Toll, 804 F.3d at 1354.

IV.

Davis next raises several alleged trial errors. First, he argues that the

government knowingly presented false, inaccurate, and unreliable testimony at trial.

Second, he contends that the district court plainly erred by failing to exclude a

coconspirator’s plea agreement that referenced a polygraph examination. Third, he

asserts that the court abused its discretion by limiting evidence of another

coconspirator’s prior fraudulent conduct. Finally, he challenges the court’s jury

instructions. We take each issue in turn.

A.

Ordinarily, “[a]llegations of prosecutorial misconduct present mixed

questions of law and fact that we review de novo.” United States v. Campa, 529

F.3d 980, 992 (11th Cir. 2008). However, where a defendant does not raise a claim

of prosecutorial misconduct at trial or otherwise call the issue to the attention of the

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district court, we review for plain error only. United States v. Horner, 853 F.3d

1201, 1206 (11th Cir. 2017).

Where the government knowingly solicits or fails to correct false testimony,

due process requires a new trial where “the false testimony could in any reasonable

likelihood have affected the judgment of the jury.” Giglio v. United States, 405 U.S.

150, 154 (1972) (ellipsis and quotation marks omitted). “To prevail on a Giglio

claim, a defendant 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) (alterations omitted). This “could-have” standard requires a

new trial unless the false testimony was harmless beyond a reasonable doubt. Id.

Davis alleges four instances of false testimony at his trial. We review for plain

error because Davis did not raise these precise complaints of Giglio error to the

district court. In any event, Davis’s claims fail even under de novo review.

First, Davis contends that the government failed to correct false testimony

about the amount of investor money under Capital Blu management at the end of

January 2008. As noted above, the government offered evidence that, after Capital

Blu sustained trading losses on January 22, Capital Blu’s accountant, Beth Courtney,

produced a report showing that Capital Blu had around $9 million in its accounts.

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That figure included $4 million in a purported Saxo Bank account, but other

evidence offered by the government showed that this account did not exist.

The government did not mislead the jury as to the state of Capital Blu’s

finances in January 2008. There is no evidence that Courtney was aware that the

account did not exist when she prepared the report, and the government offered

evidence that the account had been fabricated by Blayne. The amount of money also

was not material. Regardless of the amount of money under management, Davis and

his coconspirators agreed to cover up the January 2008 loss and never reported an

accurate performance figure to investors.

Second, Davis asserts that the government failed to correct false testimony by

Courtney about the manner in which Capital Blue determined the value of the assets

under management. Courtney testified that she did not believe that there were any

contracts open at the end of January 2008. Davis suggests, however, that it was

Capital Blu’s practice, as well as industry practice, not to close out all trade contracts

at the end of the month and to hold negative contracts open until they rebounded.

He suggests that the monthly gains reported to investors were reasonable estimates

in light of market volatility.

But even if Courtney was mistaken about whether any contracts were open at

the end of January 2018, nothing indicates that she was providing anything but

honest and truthful answers about her recollection of the report. Nor is there a

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reasonable likelihood that this small point of evidence could have affected the

judgment of the jury. See Stein, 846 F.3d at 1147. Even if there were open contracts,

other evidence indicated there was an established method for putting a value on those

contracts, and the monthly reported gains were not legitimate estimates.

Third, Davis contends that the government offered false testimony from

Bromfield that he was aware of trading losses from January 2008 through August

2008, despite telling Davis in a recorded call that he did not know about the losses

until late July. But contemporaneous emails offered by the government clearly

establish that Bromfield, consistent with his trial testimony, knew of Capital Blu’s

heavy losses on January 22, 2008, as well as the ongoing “gap” in the months

thereafter.

Finally, Davis maintains that the government used false testimony from

Bromfield about Blayne’s diversion of Capital Blu money to another entity, Nakano

Capital. While the record indicates that Bromfield initially did not provide accurate

information about the size and origin of the money diverted to Nakano, the

government quickly corrected that error by attempting to rehabilitate Davis’s

answers on redirect examination and by entering a stipulation containing the correct

information on this point of evidence.

Further, the government did not implicitly vouch for Bromfield’s testimony

during its redirect examination because its questioning was based on information

21 Case: 15-13997 Date Filed: 03/27/2019 Page: 22 of 40

that was presented to the jury in a stipulation during trial. See United States v. Epps,

613 F.3d 1093, 1100 (11th Cir. 2010) (holding that the prosecutor’s comments were

not improper vouching because those statements were based on information

presented to the jury). In any event, this evidence about Blayne’s side-scam was not

material because it was tangential to the evidence of Davis’s guilt.

In sum, we reject Davis’s claims of prosecutorial misconduct.

B.

Davis challenges the admission of Bromfield’s plea agreement, which

included a provision in which Bromfield agreed to submit to polygraph

examinations. He argues that this constituted improper witness bolstering.

When a defendant fails to object to an alleged evidentiary error at trial, we

may review the issue for plain error only. United States v. Turner, 474 F.3d 1265,

1275 (11th Cir. 2007). To succeed on plain-error review, the defendant must show

that a clear or obvious error affected his substantial rights. Id. at 1276. “A

defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for [the error], the outcome of the trial would be

different.” United States v. McQueen, 727 F.3d 1144, 1155 (11th Cir. 2013).

Evidence of a witness’s willingness to submit to a polygraph examination is

inadmissible in a criminal case. United States v. Hilton, 772 F.2d 783, 785 (11th

Cir. 1985). In particular, courts should not admit “[e]vidence of plea agreements

22 Case: 15-13997 Date Filed: 03/27/2019 Page: 23 of 40

containing provisions that the government’s witnesses have agreed to take polygraph

tests to verify trial testimony” because such evidence “constitutes improper

bolstering of the witnesses’ credibility.” Id. at 786. In Hilton, we reversed a

conviction where the district court, after admitting witnesses’ plea agreements

containing polygraph provisions, permitted the prosecutor in closing argument to

contend that the witnesses “were credible because they agreed to take polygraph

examinations.” Id.

Here, Davis did not object to the admission of Bromfield’s unredacted plea

agreement during trial, so we review for plain error only. We assume without

deciding that the district court committed an error that was plain by admitting the

plea agreement without redacting the reference to Bromfield’s willingness to submit

to polygraph examinations.5

But even if we assume there was error, that error would warrant a reversal

only if Davis could show that it affected his substantial rights. See Turner, 474 F.3d

5 Hilton outlines a “suggested procedure” for handling the admission of plea agreements with truth-telling provisions, providing that, if a witness’s credibility has not been attacked, “the clauses of the plea agreement in which the witness promised to testify truthfully should be redacted before the document is admitted in evidence unless the admission of the plea agreement is not questioned.” 772 F.2d at 787. The government believes that polygraph provisions are covered by this same procedure, but we are doubtful. While Hilton suggests that a witness’s promise in a plea agreement to testify truthfully may be admissible, depending on context, see id., it does not outline any permissible purpose for a promise to submit to polygraph examinations. To the contrary, it squarely states that “evidence of a witness’ willingness to submit to a polygraph examination is . . . inadmissible” and “constitutes improper bolstering of the witnesses’ credibility,” id. at 785–86. The polygraph provision should have been redacted. 23 Case: 15-13997 Date Filed: 03/27/2019 Page: 24 of 40

at 1276. That means showing a reasonable probability of a different trial result. See

McQueen, 727 F.3d at 1155. Davis has not met this burden.

The error of admitting the plea agreement’s reference to a polygraph

examination was harmless. Unlike the prosecutor in Hilton, the prosecutor here did

not highlight the polygraph provision for the jury or argue that Bromfield was

credible because he had agreed to take a polygraph examination. See 772 F.2d at

786; cf. United States v. Lewis, 110 F.3d 417, 421 n.2 (7th Cir. 1997) (error in

admitting a reference to a polygraph was harmless where “the government did not

attempt to link the witnesses’ credibility to the polygraph provisions of the plea

agreement”). Nor did the prosecutor otherwise improperly vouch for Bromfield’s

credibility “by making explicit personal assurances of [his] veracity.” See Epps, 613

F.3d at 1100 (quotation marks omitted). Just the opposite. The prosecutor elicited

on direct examination that Bromfield had perjured himself multiple times during the

investigation of this case. And in its closing argument, the government explicitly

said that it did not “vouch” for Bromfield’s testimony and that the jury should weigh

that testimony with the other corroborating evidence.

For these reasons, there is no indication that the jury was misled as to

Bromfield’s credibility, nor is there a reasonable probability that, but for the

admission of Bromfield’s plea agreement, the outcome of Davis’s trial would have

been different. See McQueen, 727 F.3d at 1155.

24 Case: 15-13997 Date Filed: 03/27/2019 Page: 25 of 40

C.

One of the pillars of Davis’s defense in this case was that he was duped by the

inveterate fraudsters Bromfield and Blayne. To this end, Davis sought to admit

evidence of Blayne’s “earlier Ponzi scheme,” which, in Davis’s view, “mirrored the

Capital Blu fraud.”

Before starting Capital Blu, Blayne participated in a Ponzi scheme in which

he offered investment opportunities in the forex market at a guaranteed rate of return.

United States v. Blayne Davis, 491 F. App’x 48, 50 (11th Cir. 2012). After the

scheme collapsed, Blayne went to work for Capital Blu, and he used Capital Blu

money to settle claims against him arising from the prior scheme. United States v.

Blayne Davis, 721 F. App’x 856, 857 (11th Cir. 2018). According to Davis, the

district court in this case deprived him of a material defense by “impos[ing] a strict

prohibition” on this evidence.

We ordinarily review a district court’s evidentiary rulings for abuse of

discretion. United States v. Merrill, 513 F.3d 1293, 1301 (11th Cir. 2008). During

this review, we bear in mind that “[t]he district court has broad discretion to

determine the relevance and admissibility of any given piece of evidence.” Id.

Evidentiary errors are subject to review for harmlessness. United States v. House,

684 F.3d 1173, 1197 (11th Cir. 2012). A non-constitutional evidentiary error does

25 Case: 15-13997 Date Filed: 03/27/2019 Page: 26 of 40

not warrant reversal unless there is a reasonable likelihood that the error affected the

defendant’s substantial rights. Id.

Here, the district court did not abuse its discretion in preventing Davis from

offering a more fulsome picture of Blayne’s prior fraudulent conduct. 6 Even if the

court considered this evidence to be relevant, it could properly exclude it if it

believed that its probative value was substantially outweighed by the danger of

unfair prejudice or confusion of the issues or because it was improper character

evidence. See Fed. R. Evid. 403, 404. Indeed, the record indicates that the court

harbored concerns about the possibility of the defense introducing improper

propensity evidence as to Blayne. And there was a potential for evidence of prior

fraudulent conduct in which Davis was not involved to confuse the issues before the

jury. We see no abuse of the district court’s broad discretion in choosing to limit the

evidence of Blayne’s prior fraudulent activities. See Merrill, 513 F.3d at 1301.

In any case, even if error occurred, any error was harmless. Davis was not

impeded from presenting his “material defense” that he had been duped by Blayne

and Bromfield, who perpetrated the fraud without his knowledge. His attorneys

were able to adequately convey this in their opening and closing statements and

during cross-examination. Even if the defense had been able to present evidence

6 The government questions whether there is any evidentiary ruling to review. But even assuming that the court issued a ruling in the way Davis contends, we see no reversible error. 26 Case: 15-13997 Date Filed: 03/27/2019 Page: 27 of 40

that Blayne used Capital Blu investor funds to pay off investors from a prior, similar

Ponzi scheme, that would not taint or undermine the evidence presented in this trial

that Davis knew of the large losses sustained by Capital Blu, agreed to hide these

losses from investors, continued to make misrepresentations to solicit more

investors, and diverted investor funds to enrich himself. Thus, there is no reasonable

likelihood that the error affected Davis’s substantial rights. See House, 684 F.3d at

1197 (“[W]e will not reverse a defendant’s conviction on the basis of an evidentiary

error that does not implicate his constitutional rights if the error had no substantial

influence, and enough evidence supports the result apart from the phase affected by

error.” (quotation marks omitted)).

D.

Davis raises three challenges to the district court’s jury instructions. First, he

contends that the court erroneously instructed the jury that it could consider oral

statements made in connection with the written investor agreements. According to

Davis, this instruction eviscerated his primary theory of defense, which was that the

written contracts “controlled the investor’s decisions.” Second, Davis argues that

the court erred by refusing to give his requested instruction that puffery or sales talk

cannot form the basis for a fraud charge. Third, Davis argues that the district court

erred in refusing to give his theory-of-defense instruction containing his theory that

he was the victim of a fraud perpetrated by his partners.

27 Case: 15-13997 Date Filed: 03/27/2019 Page: 28 of 40

We review the “legal correctness” of jury instructions de novo but review the

“phrasing of the instructions for abuse of discretion.” United States v. Focia, 869

F.3d 1269, 1280 (11th Cir. 2017), cert. denied, (U.S. Jan. 7, 2019) (No. 18-6817).

The refusal to give a requested jury instruction is also reviewed for an abuse of

discretion. United States v. Votrobek, 847 F.3d 1335, 1344 (11th Cir. 2017). The

refusal to give a requested instruction is reversible error only if the “instruction

(1) was a correct statement of the law; (2) was not adequately covered in the

instructions given to the jury; (3) concerned an issue so substantive that its omission

impaired the accused’s ability to present a defense; and (4) dealt with an issue

properly before the jury.” Id. (quotation marks omitted).

Davis has not shown reversible error. First, the district court properly

instructed the jury that, when weighing the evidence, it “may consider both oral

statements made in connection with the agreements and the written agreements

themselves.” That instruction is consistent with established case law, which does

not require proof that the victim “actually relie[d] on the misrepresentation or

omission; proof of intent to defraud is sufficient.” Bradley, 644 F.3d at 1239

(citation and quotation marks omitted). The oral statements here are probative of

Davis’s intent to defraud.

Davis offers no legal support for his argument that, in a criminal prosecution

for mail fraud and wire fraud, a written contract will override material oral

28 Case: 15-13997 Date Filed: 03/27/2019 Page: 29 of 40

misrepresentations made to victims. Cf. United States v. Kreimer, 609 F.2d 126,

132–33 (5th Cir. 1980) (“The parole evidence rule that, in contract cases, prevents

the parties to a written contract from offering evidence that the contract was

something different does not apply in criminal cases.”). Accordingly, the instruction

was not erroneous.

Second, the district court did not abuse its discretion by refusing to give

Davis’s proposed “puffery” instruction. “Puffing” or “sellers talk” is not a crime

under the federal fraud statutes. United States v. Martinelli, 454 F.3d 1300, 1317

(11th Cir. 2006). But a trial court judge may properly refuse to issue an instruction

on a puffery defense where the misrepresentations at issue “were not exaggerated

opinions or hyped-up sales pitches,” but were, rather, “factual statements that were

verifiably refutable.” Id. Here, the statements that Davis made to investors, as

contained in the trial testimony, fell into the latter camp, not the former one.

Multiple investors testified that, in deciding to invest with Capital Blu, they

relied on Davis’s statements that Capital Blu never posted a loss, his provision of

marketing materials showing its tremendous and never-ending gains, his assurances

that there was a “stopgap” in place to protect most of their money, and, once they

invested, his later assurances that Capital Blu was doing well and that their

investments were profitable. The trial evidence also demonstrated that, after January

2008, Davis knew all of this to be untrue. These misrepresentations, like the ones in

29 Case: 15-13997 Date Filed: 03/27/2019 Page: 30 of 40

Martinelli, “cannot in any stretch be characterized as mere puffery or just a sales

pitch,” and the district court accordingly did not abuse its discretion in refusing to

give this instruction. See 454 F.3d at 1317.

Finally, the district court did not abuse its discretion in refusing to give

Davis’s proposed theory-of-defense instruction. Such a refusal is reversible error

only when the requested instruction concerns an issue so substantive that its

omission impaired the defendant’s ability to present a defense. See Votrobek, 847

F.3d at 1344. Here, through defense counsel’s opening and closing statements,

cross-examination of the government’s witnesses, and presentation of the defense

witnesses, Davis was able to present his theory that he was the victim of a scheme

perpetrated by Blayne and Bromfield. The jury did not accept this theory.

Accordingly, Davis has not shown that the district court’s handling of jury

instructions warrants reversal.

V.

Davis next challenges the district court’s loss calculation at sentencing. We

review a district court’s amount-of-loss determination for clear error. United States

v. Machado, 333 F.3d 1225, 1227 (11th Cir. 2003). Under this standard, we will not

reverse unless we are left with a definite and firm conviction that a mistake has been

committed. United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003). “The

district court’s factual findings for purposes of sentencing may be based on, among

30 Case: 15-13997 Date Filed: 03/27/2019 Page: 31 of 40

other things, evidence heard during trial, undisputed statements in the [PSR], or

evidence presented during the sentencing hearing.” United States v. Hamaker, 455

F.3d 1316, 1338 (11th Cir. 2006) (quotation marks omitted).

Section 2B1.1 of the 2013 guidelines manual—the version applied at Davis’s

sentencing—provides for a 20-level enhancement if the loss is between $7 million

and $20 million. U.S.S.G. § 2B1.1(b)(1)(K). “Loss” under the guidelines is the

greater of actual or intended loss. Id. § 2B1.1, cmt. n.3(A). The court here relied on

actual loss, which means the “reasonably foreseeable pecuniary harm that resulted

from the offense.” Id. Loss is based on a defendant’s “relevant conduct,” which

includes “all acts and omissions omitted, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by the defendant” in relation to commission

of the offense. U.S.S.G. § 1B1.3(a)(1)(A).

The district court need only make a “reasonable estimate” of the loss; absolute

precision is not required. United States v. Campbell, 765 F.3d 1291, 1301 (11th Cir.

2014); U.S.S.G. § 2B1.1, cmt. n.3(C). The loss amount should be based on

“available information,” such as the fair market value of the property taken or

destroyed. U.S.S.G. § 2B1.1, cmt. n.3(C). And it must be reduced by any sums

returned to victims before the offense was detected. Id. § 2B1.1, cmt. n.3(E)(i).

“[B]ecause the district court is in a unique position to assess the evidence, its loss

31 Case: 15-13997 Date Filed: 03/27/2019 Page: 32 of 40

determination is entitled to appropriate deference.” Bradley, 644 F.3d at 1290

Here, the district court did not clearly err in calculating the amount of loss

attributable to Davis under § 2B1.1. Initially, the court did not err procedurally in

calculating loss. While the court did not make specific findings, the “failure to make

specific findings does not preclude appellate review where the court’s decisions are

based on clearly identifiable evidence.” Bradley, 644 F.3d at 1293. Here, by

adopting the PSR’s guideline calculations, which the government supported at

sentencing with a summary exhibit based on trial evidence, the court made clear the

evidence on which it relied and its reasons for doing so. See id. (“In adopting the

[PSR], the court made it clear that it was resolving all questions of fact in favor of

the Government. From this, we can easily determine on which evidence the court

relied, and we require nothing more.”).

The calculated loss of $10,520,005 was a “reasonable estimate” of the loss

based on available information. See Campbell, 765 F.3d at 1301. The court relied

on the PSR and on the government’s exhibit documenting the losses suffered by

investors during the period of the conspiracy and as a result of Davis’s own pre-

conspiracy false representations. See U.S.S.G. § 2B1.1, cmt. n.3(C); Id.

§ 1B1.3(a)(1)(A). Further, the PSR and the exhibit excluded from the loss

32 Case: 15-13997 Date Filed: 03/27/2019 Page: 33 of 40

calculations funds returned to investors and funds stolen by the receiver after the

conspiracy ended. See id. § 2B1.1, cmt. n.3(E)(i).

Davis’s allegations of what amounts should not be included are vague and are

not supported by record citations. He claims he should not be responsible for any

investments made before January 2008, but those investors were still misled as to

the state of their investments during the conspiracy and then suffered extensive

losses. And the conspiracy’s false statements allowed Capital Blu to continue to

hold and use those investors’ funds.

Davis also states that the loss amount included money he himself invested,

but the record supports a finding that this money was his family’s, not his own. He

contends that his other partners’ personal use of investor money was not reasonably

foreseeable or jointly undertaken, but the record belies this claim. 7

Finally, although Davis argues for the first time on appeal that the total amount

includes $4 million in losses from market volatility, which he says were not

reasonably foreseeable, he has not established plain error. Davis relies on our

decision in Stein for this argument, but Stein did not hold that losses due to market

volatility must always be excluded when calculating investment-fraud losses.

7 While Blayne’s diversion of Capital Blu funds to Nakano Capital was not within the scope of the jointly undertaken activity, Davis cites no record support for his claim that the amount Blayne stole was $3 million. The evidence at trial indicated that the amount stolen was less than $1 million. Excluding these stolen funds from the loss amount—to the extent they were included in the first place—would not affect the guideline range because the total loss amount would remain above $7 million. See U.S.S.G. § 2B1.1(b)(1)(K) (2013). So any error was harmless. 33 Case: 15-13997 Date Filed: 03/27/2019 Page: 34 of 40

Rather, we said that once a defendant “point[s] to intervening events that may have

affected” the eventual losses, the court must “make findings regarding the effects of

these intervening events, if any, and whether these events were reasonably

foreseeable to [the defendant].” Stein, 846 F.3d at 1156. So we remanded for the

court to make a factual finding of reasonable foreseeability based on the specific

facts before it. Id.

Here, however, Davis did not identify any intervening events at sentencing

that the court was required to make findings about, and we cannot say that it is

“plain” that the extensive losses suffered by Capital Blu in August 2008 were not

reasonably foreseeable. See United States v. Allmendinger, 706 F.3d 330, 342–43

(4th Cir. 2013) (concluding that investor losses were reasonably foreseeable, despite

other potential causes, where “people were deceived into entrusting their money to

A & O on the false pretense that the company had an incredible record of protecting

its investors’ principal while earning hundreds of millions of dollars in double-digit

returns”).

Giving appropriate deference to the district court’s loss findings, we cannot

say that the court clearly erred in determining that Davis was responsible for investor

losses of more than $7 million but less than $20 million. We affirm his sentence.8

8 Davis also argues that he was “effectively without counsel” because his lawyer at sentencing had a conflict of interest and his counsel failed to properly prepare for the sentencing hearing. This purported ineffective-assistance-of-counsel claim is more properly brought in a 34 Case: 15-13997 Date Filed: 03/27/2019 Page: 35 of 40

VI.

Davis argues that the district court abused its discretion by failing to hold an

evidentiary hearing on his first motion for a new trial based on newly discovered

evidence under Rule 33(b). He also contends, pro se, that the court erred in several

ways in handling his request to file a second such motion.

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

discretion. United States v. Grzybowicz, 747 F.3d 1296, 1304 (11th Cir. 2014).

Under the abuse-of-discretion standard, we must affirm unless we find that the

district court “made a clear error of judgment, or has applied the wrong legal

standard.” Id. at 1305. We likewise review for abuse of discretion a decision to

deny such a motion without holding an evidentiary hearing. United States v. Schlei,

122 F.3d 944, 990 (11th Cir. 1997). An evidentiary hearing on a Rule 33 motion is

not required where the record contains all of the evidence needed to rule on that

motion. See United States v. Scrushy, 721 F.3d 1288, 1305 n.30 (11th Cir. 2013).

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

collateral motion under 28 U.S.C. § 2255. See Massaro v. United States, 538 U.S. 500, 504-05 (2003) (“[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”); United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (noting that this Court does not generally consider claims of ineffective assistance of counsel on direct appeal that were not raised in the district court unless a factual record for such a claim was sufficiently developed). 35 Case: 15-13997 Date Filed: 03/27/2019 Page: 36 of 40

law,” the new evidence still must be such that it “would afford reasonable grounds

to question . . . the integrity of the verdict.” Id. (quotation marks omitted). To

succeed under Rule 33 based on newly discovered evidence, the defendant must

establish that (1) the evidence was discovered after trial; (2) the failure to discover

the evidence was not due to a lack of due diligence; (3) the evidence is not merely

cumulative or impeaching; (4) the evidence is material; and (5) a new trial would

probably produce a different result. Id.; United States v. Jernigan, 341 F.3d 1273,

1287 (11th Cir. 2003).

Here, the district court applied the correct standard and did not abuse its broad

discretion in denying Davis’s amended Rule 33 motion for new trial based on the

purported newly discovered evidence offered by the four jailhouse affiants. Davis

almost exclusively challenges the court’s determination that the affidavits were not

credible, ignoring the court’s alternative finding that a new trial was not warranted

even if the inmates’ affidavits were credible. We affirm the district court based on

the latter determination.

Bromfield’s trial testimony was supported by extensive contemporaneous

documentation and testimony from Capital Blu’s accountant, Beth Courtney, and his

vague post-trial claims to other prisoners, which he later retracted, lacked any

specificity as to what he was supposedly lying about. In these circumstances, the

court did not abuse its discretion in denying the motion for new trial. As the court

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explained, “recantations are viewed with extreme suspicion by the courts.”

Santiago, 837 F.2d at 1550. And when a witness retracts a recantation, the witness’s

“version of events remains exactly as it was at trial.” Id. Because Bromfield

effectively retracted any recantation he had made to other prisoners, averring that

his trial testimony was truthful, the district court’s ruling was not “so clearly

erroneous as to constitute an abuse of discretion.” Santiago, 837 F.2d at 1550; see

United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir. 1995) (no abuse of discretion

in denying new trial based on evidence that a government witness informed a

journalist that he would recant his testimony, where the witness later retracted the

recantation).

Nor did the district court abuse its discretion in denying the motion without

an evidentiary hearing. No evidentiary hearing was necessary to determine the

affiants’ credibility because, as we have explained, a new trial was not warranted

even assuming they were credible. The record otherwise contained all the evidence

necessary to rule on the motion. See Scrushy, 721 F.3d at 1305 n.30.

Finally, Davis, pro se, argues issues related to his request to file a second Rule

33(b) motion. As noted above, more than two months after the denial of the

counseled Rule 33(b) motion, Davis submitted several pro se filings broadly

indicating that he wanted to file a second Rule 33(b) motion pro se. The court first

37 Case: 15-13997 Date Filed: 03/27/2019 Page: 38 of 40

struck Davis’s motion for “clarification” on the limitations of his ability to file pro

se, noting that he was represented by counsel; it then denied his motions for recusal

and for permission to file a second Rule 33(b) motion, finding no basis for recusal

and citing its order denying the counseled Rule 33(b) motion; and finally, it

summarily denied his request for clarification and a hearing under Faretta.

Davis argues that he cannot afford new counsel and the district court’s refusal

to let him proceed pro se violates due process. Alternatively, he maintains that, if

the court was right to require that the motion be filed by counsel, then the court also

needed to appoint counsel for what was, in Davis’s view, a critical stage of the

proceedings. Finally, he contends that the court should have recused.

We see no basis to reverse the district court’s actions. At the time Davis

indicated that he wished to file a second Rule 33(b) motion pro se, Davis was

represented by counsel on appeal of the judgment and of the denial of his counseled

Rule 33(b) motion. These appeals implicated the same grounds on which Davis

apparently sought to file a second Rule 33(b) motion—the jailhouse affidavits and

other issues relating to the government’s knowledge of Bromfield’s credibility.

While Davis broadly referenced “new claims” he sought to raise in a second Rule

33(b) motion, his filings offered little else to suggest that he would be relying on

claims or evidence that had not been addressed at some point in the proceedings.

Because Davis appeared to be attempting to rehash issues pro se that the district

38 Case: 15-13997 Date Filed: 03/27/2019 Page: 39 of 40

court had previously resolved and that were then pending on appeal, the court did

not abuse its discretion or otherwise err by denying his various filings relating to a

second Rule 33(b) motion. We have considered Davis’s other arguments regarding

Faretta and his right to counsel and find them to be without merit.

Nor did the district court abuse its discretion by denying Davis’s recusal

motion. See Scrushy, 721 F.3d at 1303. A district court judge must disqualify

himself “in any proceeding in which his impartiality might reasonably be

questioned,” 28 U.S.C. § 455(a), or where “he has a personal bias or prejudice

concerning a party,” 28 U.S.C. § 455(b)(1). The standard of review on a motion for

recusal based on the appearance of impropriety “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.” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003).

Here, Davis has not identified any source of extrajudicial bias or shown that

there was pervasive bias that prejudiced him. See United States v. Bailey, 175 F.3d

966, 968 (11th Cir. 1999). While the district court’s December 21, 2016, denial of

his amended Rule 33 motion indicated a distaste for the filings of Amodeo, the

prisoner who prepared the motion, that’s not enough for an objective, disinterested

lay observer to entertain a significant doubt about the judge’s impartiality. See Patti,

337 F.3d at 1321. As explained above, there were good alternative reasons for the

39 Case: 15-13997 Date Filed: 03/27/2019 Page: 40 of 40

court to deny the motion, and adverse rulings “alone almost never constitute a valid

basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555

(1994).

VII.

Having considered the record and the briefs submitted by the parties, we

hereby affirm Davis’s convictions and sentences. We affirm the district court’s

denial of Davis’s amended Rule 33 motion for new trial. And we affirm the district

court’s denial of Davis’s motions for permission to file a second Rule 33 motion, for

the district court judge’s recusal, and for a Faretta hearing.

AFFIRMED.