                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              AUG 24, 2006
                           Nos. 04-15138, 04-15301          THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                 D. C. Docket Nos. 02-00001-CV-T-26-MAP,
                              99-00226-CR-T-2

UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,

                                    versus

MICHAEL SPUZA,

                                                          Defendant-Appellant.


                         ________________________

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

                              (August 24, 2006)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

     Appellant Michael Spuza, proceeding through counsel, appeals the denial of
his motion for a new trial pursuant to Fed. R. Crim. P. 33, and the district court’s

denial of his motion to disqualify the district court judge. Spuza was convicted of

one count of conspiracy to defraud the United States government, in violation of

18 U.S.C. § 371, 42 U.S.C. § 1320a-7(b); and five counts of receiving kickbacks

for Medicare referrals, in violation of 42 U.S.C. § 1320a-7b(b)(1), 18 U.S.C. § 2.

We affirmed his conviction but vacated the order of restitution and remanded the

case for resentencing. United States v. Liss, 265 F.3d 1220 (11th Cir. 2001). After

the district court resentenced Spuza, he filed a 28 U.S.C. § 2255 motion, which the

district court denied. The district court also denied Spuza’s motion to disqualify

the district judge. Spuza then filed a motion for a new trial and motion to set aside

judgment on his § 2255 motion, which the district court denied. On appeal, Spuza

argues that: (1) the district court erred in denying his motion for a new trial; (2) the

district court erred in declining to hold an evidentiary hearing and make findings of

fact; and (3) the district court erred by denying his motion to disqualify the district

judge. Also pending is the government’s motion to dismiss the appeal arguing that

Spuza’s new trial motion amounted to a successive § 2255 motion for which he did

not obtain our permission to file. We previously carried this motion with the case,

and we resolve it now.

                                A. Motion to Dismiss



                                            2
      Under § 2255, a federal prisoner may move to vacate a sentence when “the

sentence was imposed in violation of the Constitution or laws of the United States,

or [] the court was without jurisdiction to impose such sentence, or [] the sentence

was in excess of the maximum authorized by law, or is otherwise subject to

collateral attack . . . .” 28 U.S.C. § 2255. A federal prisoner who wishes to file a

second or successive motion to vacate, set aside, or correct sentence is required to

move the court of appeals for an order authorizing the district court to consider

such a motion. See id.

      Given the nature of Spuza’s claims, some of which raise constitutional

challenges to his conviction subsequent to a direct appeal, the district court could

have construed his motion as a § 2255 motion. 28 U.S.C. § 2255; United States v.

Jordan, 915 F.2d 622, 629 (11th Cir. 1990). Because Spuza filed his motion after

April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), apply. See

Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 2068, 138 L. Ed. 2d 481

(1997).

      Under AEDPA, a successive § 2255 motion cannot be filed in the district

court before obtaining our permission, and we cannot grant such permission unless

the successive motion relies on (1) newly discovered evidence that, if proven and



                                           3
viewed in light of the evidence as a whole, would be sufficient to establish by clear

and convincing evidence that no reasonable factfinder would have found the

movant guilty of the offense; or (2) a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable. 28 U.S.C. § 2255. A Rule 33 motion filed more than seven days after

the verdict may only address newly discovered evidence of innocence, not a

constitutional violation. Fed. R. Crim. P. 33(b)(1), (2) (motion for new trial based

on grounds other than newly discovered evidence must be filed within seven days

of the verdict); see also United States v. Evans, 224 F.3d 670, 674 (7th Cir. 2000)

(“A defendant whose argument is not that newly discovered evidence supports a

claim of innocence, but instead that he has new evidence of a constitutional

violation or other ground of collateral attack, is making a motion under § 2255”).

      Spuza had already filed a prior § 2255 motion to vacate, which the district

court denied. Though he styled his present motion as one pursuant to Fed. R.

Crim. P. 33 and Fed. R. Civ. P. 60(b), he raised claims that included constitutional

violations stemming from the government’s suppression of (1) computer data

seized from Clearwater Clinical Laboratories (“CCL”); (2) an audiotape of Spuza’s

conversation with Ray Bastedo, a former employee of the Spuza clinic, and Felicia

Spuza; (3) documents from a company called SOMED; and (4) a October 29,



                                          4
1998, prosecution report implicating Todd Vernale, as well as other prosecution

reports. These claims were not raised in his prior § 2255 motion. Spuza did not

seek our permission to file a second or successive § 2255 motion to pursue these

claims. See 28 U.S.C. § 2255. Further, a Rule 33 motion filed more than seven

days after the verdict may only address newly discovered evidence showing actual

innocence, not constitutional violations, and none of these documents shows that

Spuza was actually innocent. Thus, to the extent that Spuza’s claims raise new

evidence of constitutional violations not addressed in his prior § 2255 motion, his

present motion was a successive § 2255 motion to vacate, which the district court

did not have jurisdiction to consider. Accordingly, we GRANT the government’s

motion to dismiss with respect to these claims.

      However, Spuza’s remaining claims properly form the basis of a Rule 33

motion as they assert actual innocence. The remaining claims essentially are that

evidence obtained from Ultra Healthcare Systems and CCL show that Spuza is

actually innocent because the evidence impeaches testimony at trial. Though the

government now asserts that Spuza’s Rule 33 motion was untimely, it did not raise

this claim before the district court and thus forfeited it. See Eberhart v. United

States, ___ U.S. ___, 126 S. Ct. 403, 406-07, 163 L. Ed. 2d 14 (2005) (the time

limits on Rule 33 motions for new trials based on new evidence are not



                                           5
jurisdictional and can be forfeited). Accordingly, we DENY the motion to dismiss

with respect to these claims.

                          B. Spuza’s Remaining Claims

                                1. New Trial Motion

      First, Spuza argues that the district court abused its discretion in denying his

motion for a new trial. He asserts that he produced newly discovered evidence that

supported his claim of actual innocence.

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

newly discovered evidence for abuse of discretion. United States v. Vallejo, 297

F.3d 1154, 1163 (11th Cir. 2002). We have stated that

      [t]o succeed on a motion for a new trial based on newly discovered
      evidence, the movant must establish 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.

United States v. Schlei, 122 F.3d 944, 991 (11th Cir. 1997). “The failure to satisfy

any one of these elements is fatal to a motion for a new trial.” Id. (quoting United

States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995)). “The district court should use

‘great caution’ in granting a new trial motion based on newly discovered

evidence.” United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994) (citation



                                           6
omitted). Unsubstantiated allegations and accusations are insufficient to support a

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

Calderon, 127 F.3d 1314, 1348, 1354-55 (11th Cir. 1997).

      In order to convict Spuza of receiving kickbacks for referring patients to

CCL, the government had to prove that he

      knowingly and willfully solicit[ed] or receive[d] any remuneration
      (including any kickback, bribe, or rebate) directly or indirectly,
      overtly or covertly, in cash or in kind – (A) in return for referring an
      individual to a person for the furnishing or arranging for the
      furnishing of any item or service for which payment may be made in
      whole or in part under the Federal health care program. . . .

42 U.S.C. § 1320a-7b(b).

       Spuza admits that the government did not suppress documents from UHS or

documents abandoned by CCL. The record demonstrates that he was aware that

witnesses from both companies would testify, yet he made no effort to obtain

documents from either company. Thus, he has not shown that he was unable to

discover the evidence through the exercise of due diligence. The remaining

evidence concerns evidence that Spuza argues the government suppressed and to

which the district court used the wrong standard. However, as Spuza’s claims

regarding this evidence allege constitutional violations, the appropriate vehicle for

raising such claims is a § 2255 motion. As noted above, the district court properly

denied Spuza’s claims in this regard as a second or successive § 2255 motion.

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Accordingly, we affirm on this ground.

                                   2. Evidentiary Hearing

       Next, Spuza argues that the district court erred in declining to hold an

evidentiary hearing or make findings of fact related to his motion for a new trial.

He asserts that the district court erred in making credibility determinations about

Christine Nichols (“Nichols”), Spuza’s investigator, without holding an evidentiary

hearing.

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

hearing. United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1998).

       A defendant is not entitled to an evidentiary hearing for a motion for a new

trial if “the acumen gained by a trial judge over the course of the proceedings

[made him] well qualified to rule on the [evidence] without a hearing.” Schlei, 122

F.3d at 994; see also United States v. Hamilton, 559 F.2d 1370, 1373-74 (5th Cir.

1977) 1 (“Where evidentiary hearings are ordered, it is because of certain unique

situations typically involving allegations of jury tampering, prosecutorial

misconduct, or third party confession.”).

       We conclude from the record that the district court did not abuse its


       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.


                                                8
discretion in denying Spuza’s request for an evidentiary hearing. The court heard

evidence at trial and at a subsequent § 2255 hearing at which Nichols testified.

Much of the evidence Spuza purported to be exculpatory did not show that he was

actually innocent. Some evidence put forth by Spuza conceded that the new

evidence was known before trial. As to other evidence, Spuza failed to show that

the evidence could not have been discovered through the exercise of due diligence.

Because the evidence that Spuza identifies does not, on its face, justify a new trial,

the district court did not abuse its discretion in failing to hold an evidentiary

hearing. Accordingly, we affirm the district court’s disposition of this issue.

                                  3. Disqualification

      Finally, Spuza argues that the district court erred in denying his motion to

disqualify, which was grounded on the district court’s determination that his

witnesses were not credible based on testimony at a prior hearing.

      We review a judge’s decision not to recuse himself for an abuse of

discretion. United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999).

      Under 28 U.S.C. § 144, a judge shall recuse himself “[w]henever a party to

any proceeding in a district court makes and files a timely and sufficient affidavit

that the judge before whom the matter is pending has a personal bias or prejudice

either against him or in favor of any adverse party.” The affidavit “shall state the



                                            9
facts and the reasons for the belief that bias or prejudice exists, and shall be filed

not less than ten days before the beginning of the term at which the proceeding is

to be heard, or good cause shall be shown for failure to file it within such time. A

party may file only one such affidavit in any case. It shall be accompanied by a

certificate of counsel of record stating that it is made in good faith.” Id. To

warrant recusal under § 144, the movant must allege facts that would convince a

reasonable person that bias actually exists. Christo v. Padgett, 223 F.3d 1324,

1333 (11th Cir. 2000).

      Under 28 U.S.C. § 455(a), a federal judge must disqualify himself if his

“impartiality might reasonably be questioned.” To disqualify a judge under

§ 455(a), the bias “must stem from extrajudicial sources, unless the judge’s acts

demonstrate such pervasive bias and prejudice that it unfairly prejudices one of the

parties.” Bailey, 175 F.3d at 968 (internal quotation marks omitted). Motions for

recusal may not be based merely on an adverse ruling in the same case. United

States v. Meester, 762 F.2d 867, 884-85 (11th Cir. 1985). Further, adverse rulings

in the same case do not constitute an extrajudicial source. See Loranger v.

Stierheim, 10 F.3d 776, 780 (11th Cir. 1994). In deciding whether a district judge

should recuse himself under § 455(a), we determine whether “an objective,

disinterested, lay observer fully informed of the facts underlying the grounds on



                                           10
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)

(citation omitted). Section 455(b) requires disqualification under specific

circumstances, including situations where a judge has a personal bias or prejudice

concerning a party, has participated as counsel in the matter, or has a financial

interest in the matter. 28 U.S.C. § 455(b).

      We conclude from the record that the district court did not abuse its

discretion in denying Spuza’s motion. Spuza asserts that the judge in his case

demonstrated bias by rejecting evidence discovered by Nichols based on his

findings at a prior hearing that she was not credible. Thus, Spuza has implicitly

conceded that the alleged bias does not stem from an extrajudicial source. In

addition, the motion is based on a single ruling, which does not show the necessary

pervasive bias and prejudice. Accordingly, we affirm on this ground.

      For the above-stated reasons, we affirm the district court’s denial of Spuza’s

motion for a new trial and the court’s denial of Spuza’s motion to disqualify the

district judge. We grant in part and deny in part the government’s motion to

dismiss the appeal.

      JUDGMENT AFFIRMED, MOTION GRANTED IN PART AND

DENIED IN PART.



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