                                                                      [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                         Sept. 23, 2009
                                    No. 08-15208                       THOMAS K. KAHN
                              ________________________                      CLERK


                       D. C. Docket No. 05-00475-CR-T-27TGW

UNITED STATES OF AMERICA,


                                                                         Plaintiff-Appellee,

                                           versus

THOMAS F. SPELLISSY,

                                                                      Defendant-Appellant.


                              ________________________

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

                                   (September 23, 2009)

Before MARCUS and HILL, Circuit Judges, and VOORHEES,* District Judge.




       *
        Honorable Richard L. Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
PER CURIAM:

      Thomas Spellissy was convicted of conspiring to defraud the United States,

in violation of 18 U.S.C. § 371, by a jury in the District Court for the Middle

District of Florida. He then filed multiple post-trial motions, including the one that

is the subject of the present appeal. The district court dismissed that motion in part

as an improper successive challenge to the legality of his conviction under 28

U.S.C. § 2255 and denied it in part as an unpersuasive motion for a new trial under

Fed. R. Crim. P. 33. Spellissy appeals both the dismissal and denial, arguing that

his motion was not a successive habeas petition and that he did present newly

discovered evidence that would lead to a different outcome in his trial. In addition,

he requests that, if remanded, the case be re-assigned to a new trial judge.

      We remand this case to the district court because it has yet to rule on

whether to grant Spellissy a Certificate of Appealability (“COA”) to challenge the

partial dismissal of his motion on the ground that it was a successive § 2255

petition. In addition, we deny Spellissy’s request for a new judge and affirm the

denial of his Rule 33 motion.

                                          I.

      Spellissy, a colonel in the United States Army, worked for the United States

Special Operations Command (“USSOCOM”) and, within the year prior to his



                                           2
retirement from the Army, had pending under his official responsibility matters

involving a 70mm warhead designed by the Nordic Ammunition Company

(“NAMMO”). On July 30, 2004, Spellissy gave up his procurement authority and

he went on regular leave from the United States Army until October 21, 2004.

Between October 21, 2004 and December 31, 2004, Spellissy was on transitional

leave. During his periods of leave and transitional leave, Spellissy worked for his

own company, Strategic Defense International (“SDI”), which provided consulting

services both to companies that wished to do business with United States agencies

and to USSOCOM on several of its ammunition programs. He retired from active

duty in the Army on December 31, 2004.

      After he retired from the Army, it is alleged that Spellissy, through SDI,

began working for NAMMO and, less than two years after his retirement, traveled

to Norway to represent NAMMO during a meeting where he discussed the 70mm

warhead with the United States. If true, his presence at the meeting in Norway

would be in violation of 18 U.S.C. § 207(a)(2), which prohibits for two years a

former employee of the executive branch from participating in a matter he

reasonably would have known was pending under his official responsibility within

a year of his retirement. Spellissy’s presence at that Norway meeting formed the

basis of an affidavit for a search warrant for his house, and the subsequent search



                                         3
found evidence which led to his conviction.

      In November 2005, a grand jury indicted Spellissy and SDI for: (1)

conspiracy to defraud the United States, in violation of 18 U.S.C. § 371; (2) two

counts of bribery of a public official in December 2004 and January 2005, in

violation of 18 U.S.C. § 201; and (3) two counts of wire fraud in December 2004

and January 2005, in violation of 18 U.S.C. §§ 2, 1343, and 1346. The indictment

alleged that various companies employed Spellissy as a consultant to transact

business with USSOCOM, and that Spellissy conspired with William E. Burke, a

private contractor working for USSOCOM, to provide preferential treatment to the

specific companies he represented in exchange for payment.

      In March 2006, Spellissy filed a motion to suppress, in particular to suppress

a series of emails sent between Spellissy and Burke, found during the search of

Spellissy’s house, alleging that the search warrant was based on an affidavit

containing false statements. Specifically, Spellissy argued that he had given up his

military procurement authority in July 2004 and retired from the Army in August

2004, contrary to claims in the affidavit that he had retired in December 2004;

therefore, he claimed that he had retired before associating with a foreign military

contractor and could not have violated the law.

      The search warrant affidavit was executed by Department of Defense



                                         4
Special Agent Robert Calvert, who was investigating Spellissy for possible

violations of 18 U.S.C. §§ 207(a)-(b) and 208(a), and alleged that Spellissy

previously worked for USSOCOM and retired in December 2004. It further stated

that Calvert had received information, prior to Spellissy’s retirement, that he was

involved with a foreign interest to influence the awarding of future government

contracts.   Particularly, the affidavit claimed that Spellissy was instrumental in

having USSOCOM submit a request to purchase a 70mm warhead from NAMMO,

and that, in December 2004, Spellissy traveled to Norway and Sweden on behalf of

USSOCOM to attend meetings concerning the 70mm warhead and other programs.

The affidavit also alleged that Spellissy made this trip as a contractual employee

and billed USSOCOM for the work performed, but did not bill USSOCOM for

three days of the trip. It said “[a]ccording to Major Shannon Jackson, Special

Projects, U.S. Army Picatinny Arsenal, and a co-attendee of the meetings,

Spellissy attended the meetings in Sweden as the USSOCOM representative, but in

Norway he represented NAMMO.”           Finally, the affidavit alleged that Calvert

learned from Don Jones, a program manager with USSOCOM, that Spellissy had

told him prior to the trip to Norway that he was going as a representative of

NAMMO, not as a USSOCOM consultant.

      After a hearing, the district court denied Spellissy’s motion to suppress,



                                         5
finding that, while the search warrant did contain false statements and material

omissions, it still provided probable cause that Spellissy had violated the two-year

prohibition on participating in a matter that he reasonably knew was also pending

under his official responsibility. Specifically, the district court held that there was

probable cause that (1) after his retirement, Spellissy began working for NAMMO

and had represented NAMMO during a meeting in Norway where he discussed the

70mm warhead with the United States government, and (2) Spellissy had reason to

know the warhead was a matter under his previous official responsibility within the

last two years as prohibited by 18 U.S.C. § 207(a)(2).

      In May 2006, Spellissy was convicted by a jury of all five counts in the

indictment.   However, the district court partially granted Spellissy’s motion of

acquittal; the only count left standing was a conviction for conspiracy to defraud

the United States in violation of 18 U.S.C. § 371.

      We affirmed that conviction on appeal, agreeing with the district court’s

conclusion that the search warrant affidavit supported a finding of probable cause

and that sufficient evidence supported the conspiracy conviction. United States v.

Spellissy, 243 Fed. Appx. 550 (11th Cir. Sept. 18, 2007).

      Since we affirmed that conviction, Spellissy has filed seven motions with the

district court seeking to overturn his conviction. In September and October 2007,



                                           6
he filed five motions asking that the district court (1) vacate his conviction

pursuant to Rule 33 because of constitutional violations and his discovery of new

evidence that undercut his conviction and sentence, and (2) stay the execution of

his sentence pursuant to § 2255. The district court denied all of these motions, and

Spellissy did not appeal.

          In December 2007, Spellissy filed a motion for a new trial pursuant to Fed.

R. Crim. P. 33 and § 2255, asserting violations of his constitutional rights, as well

as alleging new evidence that he claimed undercut the validity of the search

warrant and asking the district court to vacate his conviction or grant him a new

trial. The district court denied this motion for lack of subject matter jurisdiction,

finding it was a successive § 2255 motion. Spellissy did not appeal that ruling

either.

          In July 2008, Spellissy filed a motion with the district court entitled an

“alternative authority motion for new trial pursuant to Fed. R. Crim. P. 33(a)

and/or 60(b)(6).” In that motion, he asked the court to vacate his conviction or

grant him a new trial based on newly discovered evidence. First, Spellissy argued

that the district court should not automatically construe his claim under Fed. R.

Civ. P. 60(b) as a successive habeas claim because he was merely asserting that the

district court’s prior denial of § 2255 relief on a procedural basis was in error.



                                           7
Second, he claimed that his conviction violated the Fourth and Sixth Amendments,

because the government failed to present key witness testimony at his suppression

hearing and the prosecutor and Calvert, the agent who provided the affidavit

underlying the search warrant, made false and misleading statements.           Third,

Spellissy said that he possessed new evidence revealing that the affidavit for the

search warrant contained fraudulent statements, and the district court improperly

denied his motion to suppress.        Further, he claimed that the prosecutorial

misconduct in this case -- the government’s knowing use of perjured testimony in

the affidavit -- violated his constitutional rights.   Spellissy also asserted in his

motion for a new trial that he wanted to testify at the suppression hearing and at

trial as well, but his counsel prevented him from doing so, and that the

government’s failure to call other persons who attended the meeting in Norway to

testify at the suppression hearing violated his Confrontation Clause rights.

      The district court dismissed part of Spellissy’s motion as a successive §

2255 motion, and denied the remaining part of his motion for a new trial based on

newly discovered evidence under Rule 33. First, it found that the motion was a

successive § 2255 motion, because it attacked the legality of Spellissy’s conviction

despite its designation as a Fed. R. Civ. P. 60(b) motion.

      Second, the district court found that the Rule 33 portion of Spellissy’s



                                          8
motion was without merit, because Spellissy knew the identities of his “new”

sources of information -- Donald Jones, a former Program Manager for

Ammunition at USSOCOM, and James Rooney, a former president of NAMMO,

both of whom were present at the 70mm warhead meeting in Norway -- and that

both of those sources would testify that Spellissy was not in attendance at the

70mm warhead meeting in Norway before the suppression hearing. Thus, Jones’s

deposition and Rooney’s affidavit were not new evidence. The district court then

determined that Spellissy did not exhibit due diligence, because he did not attempt

to secure the testimony of Jones or Rooney for the suppression hearing as he did

with his other witnesses.   Finally, it concluded that, even if this evidence was

actually new, it would do nothing more than contradict the statement from Jackson

that Spellissy was present at the 70mm warhead meeting upon which Calvert relied

in his affidavit. The “new” evidence would not have shown that the affidavit was

definitively false, or that Calvert recklessly relied on that information in drafting

the affidavit. The district court concluded that, while Spellissy’s presence at the

NAMMO meetings in Norway was material, his presence at any particular meeting

was not determinative, and it found that Spellissy did not show that the alleged

new evidence would produce a different result as it did not negate probable cause

for the search warrant.



                                          9
                                         II.

      Because we are obliged to review our subject matter jurisdiction sua sponte,

we must decide as a threshold issue whether a COA must issue before we can

entertain the portion of Spellissy’s appeal regarding the denial of his motion as a

successive § 2255 petition. See Boone v. Sec’y of Dep’t of Corr., 377 F.3d 1315,

1316 (11th Cir. 2004).

      Unless a habeas petitioner, such as Spellissy, obtains a COA, he may not

appeal “the final order in a proceeding under section 2255.”            28 U.S.C. §

2253(c)(1)(B). A petitioner’s application for a COA must first be considered by a

district court before this Court can consider the issue. Fed. R. App. P. 22(b)(1);

Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997). Even if the

petitioner does not expressly request a COA from the district court, the district

court still must treat a notice of appeal filed by a movant, following the denial of a

§ 2255 motion, as an application for a COA and make a determination on that

motion. Fed. R. App. P. 22(b)(1). Because we cannot review a motion for a COA

unless and until the district court has ruled on the propriety of issuing the COA, we

must remand any appeal of an order denying a § 2255 motion as successive if that

appeal is filed before the district court has ruled on the COA. Edwards, 114 F.3d

at 1084-85.



                                          10
       Put simply, there is no indication whatsoever in the record that Spellissy

requested a COA to appeal the issues raised in what the district court construed to

be his § 2255 motion, nor is there any indication that the district court construed

his notice of appeal as requesting a COA. Thus, because the district court has not

yet granted (or denied) a COA in this case, we must remand it to the district court

for that determination.

       Spellissy does raise arguments pertaining to the invalidity of his conviction

other than that the district court erred in dismissing his motion in part as a

successive § 2255 motion. However, we decline to address those challenges unless

and until Spellissy is granted a COA. See id. at 1084-85. A petitioner making a

collateral challenge to his conviction on any ground other than newly discovered

evidence demonstrating actual innocence may do so only through a § 2255 motion.

See United States v. Jordan, 915 F.2d 622, 629 (11th Cir. 1990) (explaining that

collateral challenges to the legality of a conviction must be brought under 28

U.S.C. § 2255).       Thus, because this is an appeal of Spellissy’s seventh post-

sentencing motion1 and we have already affirmed his conviction on direct appeal,

any argument challenging that conviction -- including his arguments dealing with


       1
         As described above, two of those motions sought a new trial pursuant to Rule 33 and
four of them sought relief pursuant to § 2255. All of these post-trial motions were either denied
or dismissed by the district court and none of them, except for the present one, were appealed by
Spellissy.

                                               11
prosecutorial misconduct, ineffective assistance of counsel, sufficiency of the

evidence, and his right to confrontation -- can be raised only in the context of a

proper § 2255 motion. And we can only hear an appeal of the issues that can be

raised in a § 2255 motion if a COA has been granted.

      Accordingly, the case is remanded to the district court for a ruling on

whether a COA will issue as to the dismissal of Spellissy’s motion as an

improperly filed successive § 2255 motion.

                                         III.

      Spellissy also has requested that a new district judge be assigned to his case

if it is remanded on the ground that the trial judge presiding over his case sua

sponte addressed its jurisdiction to hear his claims. This request is without merit.

      We have “the authority to order reassignment of a criminal case to another

district judge as part of our supervisory authority over the district courts in this

Circuit.” United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989). Such

reassignment is a “severe remedy.” United States v. Remillong, 55 F.3d 572, 577

(11th Cir. 1995). In deciding whether it is necessary to reassign the case to another

judge on remand, we consider “(1) whether the original judge would have

difficulty putting his previous views and findings aside; (2) whether reassignment

is appropriate to preserve the appearance of justice; (3) whether reassignment



                                          12
would entail waste and duplication out of proportion to gains realized from

reassignment.” Torkington, 874 F.2d at 1447 (citation omitted).

      In this case, the district court acted squarely within its powers in addressing

the jurisdictional issues.   Indeed, the district court is required to consider its

jurisdiction to rule on Spellissy’s motion for a new trial sua sponte. Williams v.

Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007) (“Federal courts are obligated to

inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.”)

(quotation marks omitted). Accordingly, this case will not be reassigned.

                                        IV.

      Finally, the district court did not abuse its discretion in denying Spellissy’s

request for a new trial under Rule 33. See United States v. Campa, 459 F.3d 1121,

1151 (11th Cir. 2006) (a denial of a motion for a new trial is reviewed for an abuse

of discretion).

      Spellissy faces a high burden in demonstrating that a new trial is warranted.

As we explained in Campa, “[m]otions for a new trial based on newly discovered

evidence are highly disfavored in the Eleventh Circuit and should be granted only

with great caution. Indeed, the defendant bears the burden of justifying a new

trial.” Id. at 1151 (quotation marks omitted). To receive a new trial based on

newly discovered evidence under Fed. R. Crim. P. 33, Spellissy must demonstrate



                                         13
that: (1) he discovered the evidence after trial; (2) his 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) the evidence is of

such character that a new trial would probably produce a different result. United

States v. Schlei, 122 F.3d 944, 991 (11th Cir. 1997); Bentley v. United States, 701

F.2d 897, 898 (11th Cir. 1983). “The failure to satisfy any one of these elements is

fatal to a motion for a new trial.”    Schlei, 122 F.3d at 991 (quotation marks

omitted). Further, “facts concerning an alibi are peculiarly within the knowledge

of a defendant himself,” thus it is difficult for a defendant to show that alibi

evidence was available but unobtainable with due diligence before the time of the

trial. United States v. Williams, 816 F.2d 1527, 1530 (11th Cir. 1987) (quotation

marks omitted). Spellissy cannot surpass this high hurdle.

      The new evidence Spellissy proffers is found in the testimony of two

witnesses who said that Spellissy did not attend the 70mm warhead meeting in

Norway, as had been alleged in the affidavit underlying his search warrant. In

particular, Spellissy offers the December 21, 2007 deposition testimony of Jones

and the November 29, 2007 affidavit executed by Rooney. However, Spellissy

knew that Jones and Rooney were at the meetings in Norway and knew of their

likely testimony at the very time of the meeting, let alone at the time of his



                                         14
suppression hearing months later.           Indeed, during an interview with the

government on April 13, 2005, Spellissy stated that he was present in Norway in

November 2004, explained that he was working with Rooney’s group as a

consultant, and said that he went with Jones to NAMMO to discuss the 70mm

warhead. Spellissy also referred to Rooney’s group in his pleadings filed early in

the litigation of this case and, in a pleading filed before the suppression hearing,

Spellissly expressly named Jones as an individual with whom Calvert must have

spoken in drafting the affidavit underlying the search warrant. Moreover, Spellissy

listed Jones as a USSOCOM witness he wanted to interview during pretrial

proceedings. Accordingly, he cannot meet the first prong of our test for a new trial

as outlined in Schlei because there can be no question that this was not evidence

discovered after his trial had concluded.

      Nor has Spellissy explained how, with due diligence, he was unable to

obtain the testimony of Jones or Rooney before the suppression hearing. Although

it is true that Jones was in Iraq from March to August 2006, Spellissy was aware of

Jones’s attendance at the 70mm warhead meeting, and that he was being indicted

for his attendance at that meeting long before Jones left for Iraq in March 2006.

Indeed, the search warrant in this case was issued in April 2004, and Spellissy filed

his first motion to suppress evidence based on challenges to the search warrant



                                            15
affidavit in February 2006. There is no evidence in the record that Spellissy took

any substantial steps to secure Jones and Rooney as witnesses in support of his

defense.     He did not issue subpoenas or seek alternative means to obtain their

testimony.      After being informed by Jones that Spellissy needed to request

permission to interview him from the United States due to his status as an active

duty member of the military, Spellissy did not make an official request seeking

such approval. This omission is particularly striking because Spellissy did serve

subpoenas on five other active duty military officers and the district court agreed to

allow Spellissy to depose one of those officers to preserve his testimony.

      Nor can Spellissy meet the third prong of the Schlei test.         Jones’s and

Rooney’s testimony would have done nothing more than contradict the testimony

of Jackson and an e-mail provided by NAMMO’s Director of Business Operations

Jerry Kaffka that Spellissy did attend the 70mm warhead meeting, which formed

the basis of Calvert’s affidavit. But, Jones’s and Rooney’s statements would not

have conclusively demonstrated that the information Calvert relied on was false,

nor that he was reckless in relying upon it. All that Spellissy has demonstrated is

that two individuals had a different recollection of the pertinent events than two

other people.

      Finally, there is no indication that the testimony of Jones or Rooney would



                                          16
have produced a different result in this case.   Their testimony would not have

negated the probable cause determination underlying the search warrant, based on

Jackson’s statement and Kaffka’s email, that Spellissy was in Norway less than

two years after his termination from the military as a consultant for NAMMO, and

that Spellissy had reason to know that NAMMO’s 70mm warhead had been a

matter under his official responsibility within one year of his termination from

service as prohibited by § 207(a)(2). The most this “new” evidence could have

done is raise a doubt as to whether Jackson and Kaffka were correct, and such

doubts are permissible under the probable cause standard. Moreover, Spellissy has

not detailed what evidence should have been suppressed, how that evidence was

used at trial, or how the exclusion of that evidence would have affected the

outcome of the trial.

      Accordingly, we remand the portion of Spellissy’s appeal challenging the

partial denial of his motion as an improperly filed successive § 2255 petition for a

determination as to whether a COA should issue; we deny Spellissy’s request for a

new judge on remand; and we affirm the district court’s denial of the portion of

Spellissy’s motion that was properly plead as a Rule 33 motion.



      AFFIRMED IN PART, DENIED IN PART, REMANDED IN PART.



                                         17
