              Case: 16-17234     Date Filed: 02/20/2018   Page: 1 of 10


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                   No. 16-17234
                               Non-Argument Calendar
                             ________________________

                       D.C. Docket No. 1:13-cr-20616-JIC-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

DARRYL BURKE,
a.k.a. David Middleton,
a.k.a. James Duncan,
a.k.a. Donald Brown,
a.k.a. Dr. Jeffrey Burke,

                                                              Defendant-Appellant.


                             ________________________

                                   No. 17-11257
                               Non-Argument Calendar
                             ________________________

                       D.C. Docket No. 1:13-cr-20616-JIC-2
             Case: 16-17234     Date Filed: 02/20/2018   Page: 2 of 10


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

VICKI GARLAND,
a.k.a. Vickie Garland,
a.k.a. Felicia Middleton,

                                                             Defendant-Appellant.

                            ________________________

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

                               (February 20, 2018)

Before TJOFLAT, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:

      A jury found Darryl Burke and Vicki Garland guilty of one count of

conspiracy to commit bank and wire fraud, in violation of 18 U.S.C. § 1349, and

three counts of bank fraud, in violation of 18 U.S.C. § 1344. We affirmed their

convictions on direct appeal. United States v. Burke, 645 F. App’x 883 (11th Cir.

2016). Burke and Garland, proceeding pro se, now appeal two District Court

orders: one denying their consolidated Federal Rule of Criminal Procedure 33




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motion 1 for a new trial and the other denying their motion for reconsideration 2 of

that order. We affirm the District Court’s decisions.

                                                 I.

                                                A.

       Burke and Garland first argue that they are entitled to a new trial because a

juror evaded or gave false answers during voir dire regarding whether she had ever

been in mortgage foreclosure litigation.

       We review a district court’s denial of a new trial based on juror misconduct

during voir dire for abuse of discretion. United States v. Quilca-Carpio, 118 F.3d

719, 722 (11th Cir. 1997). To obtain a new trial based on a juror’s failure to

disclose information, the moving party must demonstrate that (1) a juror failed to

answer honestly a material question on voir dire and (2) a correct response would

have provided a valid basis for a challenge for cause. McDonough Power Equip.,

Inc. v. Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 850 (1984). The second

prong requires proof of actual bias. BankAtlantic v. Blythe Eastman Paine

Webber, Inc., 955 F.2d 1467, 1473 (11th Cir. 1992). Bias may be shown either by

express admission or by proof of specific facts showing such a close connection to


       1
          Rule 33 allows courts to “vacate any judgment and grant a new trial if the interest of
justice so requires.” Fed. R. Crim. P. 33(a).
       2
          Although the Federal Rules of Criminal Procedure do not expressly provide for motions
for reconsideration, the Supreme Court and this Court have nonetheless permitted them. United
States v. Phillips, 597 F.3d 1190, 1199 (11th Cir. 2010).
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the circumstances at hand that bias must be presumed. United States v. Carpa, 271

F.3d 962, 967 (11th Cir. 2001). District courts are not obligated to investigate

allegations of juror misconduct absent “clear, strong, substantial and

incontrovertible evidence” that the jury committed an impropriety that might

undermine the verdict. United States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir.

1990) (internal quotation marks omitted).

      The District Court did not abuse its discretion in denying Burke and

Garland’s consolidated motion for new trial based on alleged juror misconduct.

The records relied upon by Burke and Garland do not prove the juror was in or had

experienced mortgage foreclosure litigation at or before the time of Burke and

Garland’s trial. Further, assuming arguendo that the juror did not provide accurate

answers during voir dire, Burke and Garland failed to demonstrate her actual bias.

They allege that the juror was in mortgage foreclosure litigation with a bank that

was also mentioned in Burke’s indictment, and so the juror may have felt that

Burke and Garland’s actions contributed to her situation. They also allege in

conclusory fashion that the bank forgave the juror of her debt after they were

convicted, proving the motive for her bias. This all falls short of proving actual

bias. See Carpa, 271 F.3d at 967. Therefore, Burke and Garland failed to prove a

valid basis to strike the juror for cause and accordingly were not entitled to a new




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trial based on juror misconduct. See McDonough Power, 464 U.S. at 556, 104 S.

Ct. at 850.

                                          B.

      Burke and Garland next argue that the District Court abused its discretion in

denying their consolidated motion for new trial based on alleged newly discovered

evidence that impeached several witnesses’ testimony.

      We review a district court’s denial of a motion for new trial based on newly

discovered evidence for an abuse of discretion. United States v. Jernigan, 341

F.3d 1273, 1287 (11th Cir. 2003). Notably, motions for a new trial are highly

disfavored, and district courts should use great caution in granting a new trial

motion based on newly discovered evidence. Id. To merit a new trial based on

newly discovered evidence, the defendant must show that:

      (1) the evidence was discovered after trial, (2) the failure of the
      defendant 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 to issues before the court, and (5) the
      evidence is such that a new trial would probably produce a different
      result.

Id. Failure to meet any one of these elements will defeat a motion for new trial.

United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995).

      The District Court did not abuse its discretion in denying Burke and

Garland’s consolidated motion for new trial based on alleged newly discovered

evidence that impeached several witnesses’ testimony. The accuracy and
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authenticity of many of the documents submitted in support of the motion for new

trial were dubious. 3 Even if the documents were accurate, the issues that the

documents allegedly demonstrated were part of Burke and Garland’s trial defense,

and, therefore, amount to cumulative and impeachment evidence, which does not

warrant a new trial. See United States v. Hirst, 668 F.2d 1180, 1185 (11th Cir.

1982). Burke and Garland also failed to adequately demonstrate that they could

not have discovered the documents with due diligence prior to trial. The materials

attached to their consolidated new trial motion were predominantly public records

published prior to trial. Furthermore, the evidence of Burke and Garland’s guilt

was overwhelming. Thus, even with their alleged newly discovered evidence,

Burke and Garland would not have a reasonable probability of producing a

different result in a subsequent trial. See id.; Jernigan, 341 F.3d at 1287.

                                                 C.

       Third, Burke and Garland argue that the District Court abused its discretion

in denying their consolidated motion for new trial based on alleged Brady4 and

Giglio5 violations.




       3
       That is, because Burke and Garland engaged in a fraudulent scheme, many of the
documents they used as proof of error contain traces of their fraud.
       4
           Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
       5
           Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972).
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      We review a district court’s denial of a new trial based on alleged

prosecutorial misconduct for abuse of discretion. United States v. Vallejo, 297

F.3d 1154, 1163 (11th Cir. 2002). To obtain a new trial on the basis of a Brady

violation, the defendant must show that:

      (1) the government possessed evidence favorable to the defendant;
      (2) the defendant does not possess the evidence and could not obtain
      the evidence with any reasonable diligence; (3) the prosecution
      suppressed the favorable evidence; and (4) had the evidence been
      disclosed to the defendant, there is a reasonable probability that the
      outcome would have been different.

Id. at 1164.

      The District Court did not abuse its discretion in denying Burke and

Garland’s consolidated motion for new trial based on alleged Brady and Giglio

violations. The accusations that the Government introduced false documents

before the grand jury and at trial, failed to disclose that a Government witness had

made false representations in her bankruptcy proceeding, and knowingly allowed

this witness to testify falsely about her bankruptcy at trial did not amount to actual

misconduct. The Government introduced documents containing false information

because they were obtained via the search warrant from Burke’s residence, and the

trial was about a fraud largely perpetrated through the use of falsified documents.

Burke and Garland’s after-the-fact explanations for the truth of certain bank and

mortgage records over others do not support a finding of prosecutorial misconduct.



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       Also, Burke and Garland’s claims regarding the Government’s

nondisclosure of one of its witness’s bankruptcy court records and concealment of

this witness’s representations to the bankruptcy court after trial did not constitute

Brady violations because the evidence, if disclosed, would not have with

“reasonable probability” led to a different result. See id.; see also United States v.

Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381 (1985) (noting that a Brady error

occurs “only if the evidence is material in the sense that its suppression undermines

confidence in the outcome of the trial”). Further, the speculative allegation that the

Government reached an undisclosed agreement with this witness does not rise to

the level of a Brady violation.6 Finally, as to the argument that the Government

violated Giglio by knowingly allowing this witness to testify falsely about her

bankruptcy at trial, Burke and Garland failed to prove that any of the witness’s trial

testimony about her bankruptcy was actually false. See Giglio, 405 U.S. at 153, 92

S. Ct. at 766.




       6
          Burke and Garland contend there was a “tacit” agreement between the Government and
one of its witnesses not to disclose a number of “benefits” the witness would later receive in her
bankruptcy proceeding for testifying. Burke and Garland, however, present only speculation that
such an agreement was formed. Cf. United States v. Calderon, 127 F.3d 1314, 1352–54 (11th
Cir. 1997) (affirming the denial of a new trial motion based on “totally unsubstantiated”
allegations of a “clandestine” meeting between the judge, jury foreman, prosecutor, and two
defendants).
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                                          D.

      Burke and Garland additionally argue that the District Court abused its

discretion in denying their request for an evidentiary hearing on the claims raised

in their motion for new trial.

      We review a district court’s decision concerning whether to hold an

evidentiary hearing for an abuse of discretion. United States v. Massey, 89 F.3d

1433, 1443 (11th Cir. 1996). We have noted that an evidentiary hearing is not

required if, as here, the record contains all of the evidence needed to dispose of

each of the grounds asserted as the basis for a new trial. United States v. Scrushy,

721 F.3d 1288, 1305 n.30 (11th Cir. 2013). Whether to hold an evidentiary

hearing is a decision within the district court’s sound discretion. United States v.

Slocum, 708 F.2d 587, 600 (11th Cir. 1983).

      The District Court here, given its acumen gained over the course of

proceedings and given the evidence on record, acted within its sound discretion in

not holding an evidentiary hearing on the claims raised in Burke and Garland’s

new trial motion.

                                          E.

      Finally, Burke and Garland argue that the District Court abused its discretion

in denying their consolidated motion for new trial and their motion for

reconsideration because it failed to resolve the merits of all the claims presented in


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the motions, in violation of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en

banc). They argue that the Court was required to address each of their claims

independently. Clisby, however, held only that district courts must resolve all

claims in a 28 U.S.C. § 2254 habeas petition, as failing to do so presents certain

federalism and comity problems. See 960 F.2d at 934–38. Further, here the

District Court nonetheless provided thorough and complete orders denying Burke

and Garland’s motions for new trial and for reconsideration.

                                         II.

      Accordingly, we affirm the District Court’s denial of Burke and Garland’s

consolidated motion for new trial and their motion for reconsideration.

      AFFIRMED.




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