           Case: 16-15603   Date Filed: 09/13/2017   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15603
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:13-cr-00117-WS-C-2



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

versus

DAVID PETERSEN,

                                                        Defendant - Appellant.

                       ________________________

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

                            (September 13, 2017)

Before MARTIN, JULIE CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
             Case: 16-15603     Date Filed: 09/13/2017   Page: 2 of 11


      Defendant appeals the district court’s denial of his motion for a new trial

based on newly discovered evidence. We affirm.

I.    BACKGROUND

      A.    Factual Background

      Defendant David Petersen (“Defendant”) was indicted by a grand jury in

May 2013, along with co-defendants Yaman Sencan, Stephen Merry, and Timothy

Durkin, for their involvement in a Ponzi scheme between 2009 and 2012. The

scheme involved soliciting investments in Westover Energy Trading, LLC

(“Westover”) through an entity called Ramco and Associates, LLC (“Ramco”),

which Sencan claimed would invest the funds through a trading algorithm of

Westover’s that would provide high returns and little risk. Rather than having

investors wire their funds to Ramco, Sencan had them wire their funds to an entity

called Ramco 1 Business Trust (“Ramco 1”), which was formed by Merry and

Defendant. Defendant was Ramco 1’s accountant, and he and Merry had exclusive

control over the trust’s bank account. At Sencan’s direction, Defendant diverted

the funds from Ramco 1 into various personal and business accounts controlled by

Defendant and his co-defendants, and distributed some of the funds to investors,

who were thereby led to believe that they were receiving the promised return on

their investments. Investors placed $4.6 million into the scheme, of which $3.1




                                         2
             Case: 16-15603     Date Filed: 09/13/2017   Page: 3 of 11


million was distributed back to them, and $1.5 million went to Defendant, Sencan,

Merry, and Durkin.

      B.     Procedural History

      Defendant was convicted of one count of conspiracy to commit securities

and wire fraud, one count of securities fraud, and eighteen counts of wire fraud.

The court sentenced him to serve a total of 60 months’ imprisonment and 3 years

of supervised release. On direct appeal, a panel of this Court affirmed Defendant’s

conviction and sentence. Following his unsuccessful appeal, Defendant filed

several pro se motions—Motion for Immediate Disclosure of Favorable Evidence,

Motion for Reconsideration and Clarification, and Motion to Compel Production of

Grand Jury Material—which the district court denied.

      Again acting pro se, Defendant then filed a motion for a new trial, which the

district court described as “a sprawling, 81-page Motion for New Trial that, in

substantial part, reiterates and expounds on certain failed arguments and themes

animating his prior postconviction motion practice.” Defendant alleged that the

Government withheld evidence in violation of its obligations under Brady v.

Maryland, 373 U.S. 83 (1963) and it knowingly relied on false testimony in

violation of its obligations under Giglio v. United States, 405 U.S. 150 (1972). The

evidence and testimony Defendant points to includes (1) files related to the SEC’s

investigation of a Stephen Kirkland and his company, The Kirkland Organization,


                                         3
               Case: 16-15603      Date Filed: 09/13/2017      Page: 4 of 11


Inc.;1 (2) the Government’s Trial Exhibit 200, which is an agreement signed by

Wesley McCain, one of the scheme’s victims; (3) the FBI’s investigative file of

Arthur Cohen, a real estate mogul and one-time principal in Westover; and

(4) records regarding the FBI’s efforts to apprehend co-defendant Durkin, who fled

the country following the indictment. Concluding that Defendant had not actually

identified any pertinent new evidence, that the Government had not withheld

exculpatory evidence before trial or presented false testimony at trial, and that none

of the evidence proffered by Defendant would have yielded a different result at

trial, the district court denied Defendant’s motion. We agree with the district court

and affirm its ruling.

II.    DISCUSSION

       A.     Standard of Review

       A denial of a Rule 33 motion for a new trial is reviewed for abuse of

discretion. United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003). A

district court’s denial of a motion for a new trial based on an alleged Brady or

Giglio violation is also reviewed for abuse of discretion. See United States v.

Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002); United States v. Stein, 846 F.3d

1135, 1147 (11th Cir. 2017) (“Giglio error is a type of Brady violation.”).

1
   Kirkland was investigated for securities violations and making false representations to
investors concerning Westover and investments in Westover. The SEC eventually initiated civil
litigation against Kirkland.


                                              4
             Case: 16-15603     Date Filed: 09/13/2017   Page: 5 of 11


      B.    Whether Defendant’s Motion for a New Trial Was Correctly
            Denied

      A court may grant a defendant’s motion for a new trial based on newly

discovered evidence within three years of the verdict. Fed. R. Crim. P. 33. To

successfully move for a new trial based on newly discovered evidence, a 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.

Jernigan, 341 F.3d at 1287. Such motions are “highly disfavored” and should be

granted “only with great caution.” United States v. Campa, 459 F.3d 1121, 1151

(11th Cir. 2006) (en banc).

      Newly discovered evidence showing a Brady violation may be grounds for a

new trial. Id. To obtain a new trial for a Brady violation, a defendant must show

that the Government possessed and suppressed favorable evidence; that the

defendant “could not obtain the evidence with any reasonable diligence”; and that

“had the evidence been disclosed to the defendant, there is a reasonable probability

that the outcome would have been different.” Vallejo, 297 F.3d at 1164. To

succeed in a Giglio challenge, “the defendant must demonstrate that the prosecutor

‘knowingly used perjured testimony, or failed to correct what he subsequently


                                         5
              Case: 16-15603    Date Filed: 09/13/2017   Page: 6 of 11


learned was false testimony, and that the falsehood was material.’” Id. at 1163–64

(quoting United States v. Dickerson, 248 F.3d 1036, 1041 (11th Cir. 2001)). A

falsehood is material if “the false testimony ‘could reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.’”

Dickerson, 248 F.3d at 1041 (quoting Strickler v. Greene, 527 U.S. 263, 290

(1999)). Thus, while each of these claims involves different standards, there is

overlap, and all three require a reasonable likelihood that the new evidence would

have affected the outcome of the case.

             1.    SEC Investigation of Stephen Kirkland

      Defendant argues that the Government committed a Brady violation by

failing to provide him with notice of the SEC’s investigation of Stephen Kirkland

and with documents relating to that investigation, including email and bank

records, subpoena returns, corporate ownership information, and the final agency

findings and decision to initiate civil proceedings against Kirkland. Defendant

argues that the evidence from the Kirkland investigation is favorable to him

because even though the Government acknowledges similarities between the two

cases, it did not subject Kirkland to criminal charges, meaning that Defendant

should have enjoyed the same fate. We disagree.

      First, the Government provided a CD to Defendant during discovery with

about 2100 pages of documents pertaining to the Kirkland investigation. So, to the


                                          6
              Case: 16-15603      Date Filed: 09/13/2017    Page: 7 of 11


extent any of the information Defendant now identifies was contained on that CD,

it is not newly discovered evidence and cannot serve as the basis for a new trial.

Further, Defendant was aware of this investigation, and through the exercise of

reasonable diligence, he could have sought any additional information related to

the Kirkland investigation. Indeed, the SEC’s civil complaint against Kirkland was

filed on a public docket nearly three months before Defendant’s case went to trial,

yet, Defendant did not seek any information concerning that matter.

      Nor has Defendant demonstrated how any information in the Kirkland

investigative file would have led to a different result at his trial. Defendant’s

conviction related to offenses distinct from any involvement by Kirkland with

Westover. Thus, a decision by the Government not to prosecute Kirkland does not

translate into a conclusion that Defendant was innocent of any wrongdoing. As

Defendant has not shown that the above evidence would likely have made a

difference in his trial, the district court did not abuse its discretion when it denied

Defendant’s motion for a new trial on this ground.

             2.     Trial Exhibit 200

      Defendant next argues that McCain falsely testified to signing a co-

investment agreement with Ramco and Westover, with the “agreement” being

entered as the Government’s Trial Exhibit 200, and that the Government

knowingly relied on testimony it knew to be false. Defendant further argues that


                                            7
              Case: 16-15603     Date Filed: 09/13/2017    Page: 8 of 11


the Government tampered with its Trial Exhibit 200 by removing the last four

pages of the document, which, Defendant alleges, contain exculpatory evidence,

and which action rendered the document a forgery. Defendant bases this allegation

on a comparison of Trial Exhibit 200 to a different co-investment agreement

between Ramco, Westover, and other companies that contained additional pages.

      Because this other agreement is a wholly separate agreement, however,

Defendant cannot show that Trial Exhibit 200 was altered or constituted a forgery

merely because it was not identical to this other agreement. In addition, Defendant

had access to both of these documents prior to and during trial, so it is clear that

this evidence is not newly discovered. In short, the district court did not abuse its

discretion by declining to grant Defendant a new trial based on this evidence.

             3.     FBI’s Investigative File of Arthur Cohen

      Defendant further argues that a Government witness knowingly gave false

testimony when he said he did not believe Cohen was involved in the scheme, even

though the witness knew that Cohen was involved with Westover. Defendant also

asserts that the Government withheld the FBI’s investigative file on Cohen, which

allegedly spans over twenty years and details “the many [misdeeds] and unethical

behaviors of Cohen,” and that he could not have obtained that information through

due diligence because he was not a member of the FBI.




                                           8
              Case: 16-15603     Date Filed: 09/13/2017   Page: 9 of 11


      Defendant’s assertion that the Government committed a Giglio violation by

denying any connection between Cohen and Westover is contradicted by the

record. Government witnesses testified at trial that despite telling the grand jury

that Cohen was not involved with Durkin (who was a principle investor in

Westover and its managing partner), their later investigation revealed that Cohen in

fact owned a company that had a brokerage account connected to Durkin, and that

Cohen owned one of the two companies that formed Westover, although Cohen

pulled his money out before the beginning of the indictment period. Thus, Cohen’s

connection with Westover was disclosed. As to the Government’s alleged failure

to disclose its twenty-five year investigative file on Cohen, Defendant has not

shown that such a file exists. His only evidence on this point is a DOJ press

release discussing a settlement by Cohen to resolve banking law violations

unrelated to this case, which press release does not mention any sort of long-term

investigative file. Even if such a file did exist, Defendant has not shown how any

information in the file would be favorable to him, especially considering that a

significant portion of it would contain information obtained prior to the initiation

of the Ponzi scheme at issue here. Further, Defendant was convicted for his

actions regarding Ramco 1, with which Cohen never had any connection. Indeed,

because Defendant’s conviction rests on evidence unrelated to Cohen’s

involvement with Westover, Defendant has not shown that evidence related to


                                          9
             Case: 16-15603      Date Filed: 09/13/2017   Page: 10 of 11


Cohen would have changed the outcome of his trial. The district court therefore

did not err in concluding that Defendant was not entitled to a new trial based on

any evidence related to Cohen.

             4.    Evidence Regarding Efforts to Apprehend Timothy Durkin

      At trial, the Government presented testimony that co-defendant Durkin had

been indicted, but was not in custody and was believed to be in the United

Kingdom. In its efforts to apprehend Durkin, the FBI had purportedly entered an

arrest warrant into the National Crime and Information Center (NCIC) database,

“forwarded the arrest warrant on to Interpol,” and requested a Red Notice, which

requests that foreign law enforcement agencies attempt to arrest Durkin pursuant to

the U.S. arrest warrant. Defendant disputes the veracity of the above information,

stating that the Interpol Red Notice was published four months after trial and the

United States Marshals Service website did not have Durkin listed as a fugitive as

of May 2015. According to Defendant, this lack of effort on the part of the

Government in apprehending Durkin denied Defendant his right to call Durkin as

an exculpatory witness or to use other “related exculpatory discovery evidence that

Durkin would have provided.” Notably, Defendant fails to elaborate on what this

evidence might entail.

      As the district court correctly concluded, a new trial is not warranted based

on this allegation. Defendant has not shown that any testimony regarding the


                                          10
             Case: 16-15603    Date Filed: 09/13/2017   Page: 11 of 11


FBI’s efforts to find Durkin was false because the absence of Durkin from the

United States Marshals’ fugitive list does not mean that the warrant was not

entered into NCIC. Similarly, that Interpol did not publish the Red Notice until

four months after the trial does not contradict testimony that the warrant was

“forwarded” to Interpol. Even if the testimony had been untruthful, Defendant

does not show how his prosecutors knew or should have known that the testimony

was incorrect. Indeed, as this Court noted in affirming Defendant’s conviction,

there was no misconduct surrounding efforts to extradite Durkin or anything

improper about the testimony. United States v. Sencan, 629 Fed. App’x 884, 891

(11th Cir. 2015). Finally, even if the Government’s efforts to apprehend Durkin

were lackadaisical, Defendant has not shown how Durkin’s presence would have

made a difference in Defendant’s trial, given the ample evidence against him.

III.   CONCLUSION

       Defendant has not made the requisite showing for a new trial. The district

court therefore did not abuse its discretion in denying Defendant’s motion for a

new trial, and its order is therefore AFFIRMED.




                                         11
