            Case: 12-14910   Date Filed: 07/09/2014   Page: 1 of 5



                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-14910
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 2:05-cr-14090-JEM-1


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus


LEONARD P. BOGDAN, JR.,

                                                          Defendant-Appellant.

                        ________________________

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

                                (July 9, 2014)

Before CARNES, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM:
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       Leonard P. Bogdan, Jr., appeals the denial of his alternative motions for a

new trial or an evidentiary hearing under Federal Rule of Criminal Procedure 33.

In 2007 Bogdan was tried and found guilty of conspiracy to commit mail fraud,

mail fraud, and money laundering. He was sentenced to 360 months

imprisonment. 1 He now contends that he should receive a new trial, an evidentiary

hearing, or both, based on newly discovered evidence. He also challenges his

sentence.

                                              I.

       In January 2001 the Office of the Comptroller for the State of Florida filed a

lawsuit in Florida state court alleging that Bogdan and his companies were

misappropriating investors’ funds. The state court issued a temporary injunction

against Bogdan’s companies, including Bogdan Financial Group, Inc. (BFG). The

state court also appointed Lewis B. Freeman as BFG’s receiver. The investigation

into Bogdan and his companies ultimately led to Bogdan’s 2007 federal

convictions for conspiracy to commit mail fraud, mail fraud, and money

laundering. Freeman did not testify at Bogdan’s trial, and no reports that he

prepared as BFG’s receiver were admitted as evidence at Bogdan’s trial.




       1
         We previously affirmed Bogdan’s sentence, see United States v. Bogdan, 296 F. App’x
818 (11th Cir. 2008), and dismissed for want of prosecution his appeal of the denial of his 28
U.S.C. § 2255 motion, see Bogdan v. United States, No. 12-15250 (Jan. 11, 2013 11th Cir.).

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      Several years after Bogdan was convicted, Freeman was himself charged

with conspiracy to commit mail fraud for misappropriating funds from some of the

companies he served as receiver, including BFG. Freeman pleaded guilty in

March 2010.

      Shortly after Freeman was indicted in February 2010, Bogdan filed a pro se

motion in the district court under Rule 33 asking for a new trial or, in the

alternative, an evidentiary hearing. He made a number of arguments in support of

his motion but central to all of them was the assertion that Freeman had fabricated

incriminating evidence, withheld exculpatory evidence, or, through his own

criminal conduct, otherwise corrupted Bogdan’s trial. Bogdan did not specify,

however, which particular pieces of evidence had been improperly presented or

improperly withheld. Nor did he explain how Freeman’s criminal conduct had

impacted his trial. Bogdan later filed another Rule 33 motion challenging his

sentence.

      The district court denied Bogdan’s alternative motions for a new trial or

evidentiary hearing. The court found that Bogdan’s allegations were mere

conjecture and concluded that he had not shown that a new trial or an evidentiary

hearing would lead to a different verdict. As for Bogdan’s motion challenging his

sentence, the court determined that it lacked jurisdiction to consider sentencing

claims under Rule 33, and it denied the motion. This is Bogdan’s appeal.

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                                         II.

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

newly discovered evidence (or previously suppressed evidence) only for abuse of

discretion. United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002). We

also review a district court’s denial of a motion for an evidentiary hearing only for

abuse of discretion. United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996).

      Under Rule 33, a court may vacate any judgment and grant a new trial “if

the interest of justice so requires.” Fed. R. Crim. P. 33(a). 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. United States v. Jernigan, 341 F.3d 1273, 1287 (11th

Cir. 2003). Allegations that are not substantiated by an “objectively credible

source” are insufficient to establish those elements. United States v. Calderon, 127

F.3d 1314, 1354 (11th Cir. 1997). Motions for a new trial are “highly disfavored.”

Jernigan, 341 F.3d at 1287.



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      The district court did not abuse its discretion by denying Bogdan’s Rule 33

motion. Bogdan’s assertion — that Freeman fabricated incriminating documents,

withheld exculpatory evidence, or otherwise corrupted his trial — has no support

in the record, much less support from an “objectively credible source.” See

Calderon, 127 F.3d at 1354. So the district court did not err in denying his Rule 33

motion on that basis. For related reasons, the district court correctly denied

Bogdan’s request for an evidentiary hearing; a hearing is not required where the

resolution of a motion for a new trial is clear. Jernigan, 341 F.3d at 1289. And the

lack of any evidence supporting Bogdan’s claims made the resolution of his

motion for a new trial abundantly clear.

      As for Bogdan’s challenge to his sentence, the district court properly

determined that it did not have jurisdiction under Rule 33 to consider it. See

United States v. Diaz-Clark, 292 F.3d 1310, 1316–18 (11th Cir. 2002). A district

court has jurisdiction to modify a sentence only if permitted by statute or by Rule

35 of the Federal Rules of Criminal Procedure. See 18 U.S.C. § 3582(c)(1)(B);

Diaz-Clark, 292 F.3d at 1316–18. Neither one permits it in this case.

      AFFIRMED.




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