The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 18, 2007
No. 06-13645 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-08125-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARLAND HOGAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 18, 2007)
Before TJOFLAT, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
A jury convicted Garland Hogan of mail fraud, conspiracy to commit mail
fraud, conspiracy to launder proceeds of illegal activities, and engaging in
monetary transactions with mail and wire fraud proceeds of a value greater than
$10,000. We affirmed his convictions. United States v. Arroya, No. 02-10368, at
14–16, 53 (11th Cir. Jun. 24, 2004), vacated in light of Booker sub nom., Hogan v.
United States, 126 S. Ct. 320 (2005), reinstated, No. 02-10368, at 3 (11th Cir. Jan.
5, 2007).
Before our decision issued, however, Hogan filed two successive motions
for a new trial, each with a companion motion to appoint counsel. The district
court denied the first new trial motion because it believed that it did not have
jurisdiction to entertain the motion while Hogan’s direct appeal was still pending.
The court also denied the motion to appoint counsel since the new trial motion was
no longer live.
Hogan appealed. We held in that second appeal the “district court erred
when it determined that it lacked jurisdiction to entertain Hogan’s motion [for a
new trial] because his direct appeal was pending.” United States v. Hogan, No. 04-
12875, at 3 (11th Cir. May 17, 2006). We vacated the court’s order and remanded
for the court to exercise its jurisdiction “by either granting or denying the motion
for a new trial, as the law and facts dictate.” Id.
On June 9, 2006, the district court denied both new trial motions. On June
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14, 2006, Hogan renewed his motions for the appointment of counsel. On June 19,
2006, Hogan filed a notice of appeal from: “the ORDER ON REMAND entered
by the District Court and filed on June 9, 2006. This Final Order denied Hogan’s
pro se motions for new trial [DE 2222 and DE 2242].” The notice of appeal
attached the court’s order denying his new trial motions. The district court denied
the renewed motions to appoint counsel on October 21, 2006.
I.
Hogan first contends that the district court erred in denying his initial and
renewed motions to appoint counsel. We do not have jurisdiction to consider this
contention.
As to the first set of appointment motions, Federal Rule of Appellate
Procedure 3(c)(1)(B) provides that a “notice of appeal must . . . designate the
judgment, order, or part thereof being appealed.” The appellant’s failure to comply
with Rule 3 is “fatal to an appeal.” Smith v. Barry, 502 U.S. 244, 248, 112 S. Ct.
678, 682 (1992).
In this case, Hogan’s notice of appeal mentioned only that he was appealing
the denial of his motions for a new trial. It said nothing about the denial of his
initial motions for the appointment of counsel. Hogan’s brief, which did mention
the appointment of counsel issue, may be construed as a notice of appeal as long as
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it was filed within the appropriate time limits. Id. at 248–49, 112 S. Ct. at 682.
But the brief was not filed within ten days of entry of the court’s order. See Fed.
R. App. P. 4(b)(1)(A) (“In a criminal case, a defendant’s notice of appeal must be
filed in the district court within 10 days after . . . the entry of either the judgment or
the order being appealed.”). Thus, it cannot serve as timely notice that Hogan
intended to appeal the court’s decision on the first set of appointment motions.
Hogan’s notice of appeal is deficient as to the court’s order on the renewed
appointment motion as well. The notice of appeal was filed on June 19, 2006 and
did not mention of the court’s order denying the renewed motion, which was
entered months later on October 21, 2006. No new notice of appeal was filed
thereafter.
Hogan’s brief also cannot be construed as his notice to appeal from the order
denying the renewed motion for appointment of counsel because the brief was filed
on October 19, 2006, two days before that order was entered. “Rule 3(c) requires
that a notice of appeal designate an existent judgment or order, not one that is
merely expected or that is, or should be, within the appellant’s contemplation when
the notice of appeal is filed.” Bogle v. Orange County Bd. of County Comm’rs,
162 F.3d 653, 661 (11th Cir. 1998). At the time Hogan filed his brief, the court’s
ruling on the renewed motion for counsel was expected, but not yet existent.
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If Hogan wanted to appeal the order denying his renewed motion for the
appointment of counsel, he needed to file a separate notice of appeal after that
order was entered. Because he didn’t, we lack jurisdiction to review the order here.
We dismiss the part of his appeal seeking review of the district court’s orders on
the appointment of counsel motions.
II.
Hogan also appeals the denial of his new trial motions. He argues that the
district court abused its discretion in denying them because the government
suppressed exculpatory evidence regarding witnesses called against him at trial, in
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and knowingly
presented false testimony, in violation of Napue v. Illinois, 360 U.S. 264, 79 S. Ct.
1173 (1959), and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972).1
We review the denial of a new trial motion based on a Brady violation for an
abuse of discretion. United States v. Kersey, 130 F.3d 1463, 1465 (11th Cir.
1997). In order to obtain a new trial based on an asserted Brady violation, the
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Hogan attaches four exhibits to his brief that he says are relevant to his contention that
the government suppressed evidence and presented knowingly false testimony at trial. We
cannot consider this evidence for the first time on appeal. Fed. R. App. P. 10(a) (the record on
appeal is limited to the original papers and exhibits “filed in the district court,” the transcript of
proceedings, and “a certified copy of the docket entries prepared by the district clerk”); see also
Ross v. Kemp, 785 F.2d 1467, 1474–75 (11th Cir. 1986) (“We have refused to supplement the
record when a party has filed supplemental material without requesting leave of this court or has
appended material to an appellate brief without filing a motion to supplement.” ).
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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.
United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002). “Failure to meet
any one of these elements will defeat a motion for a new trial.” United States v.
Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995).
Hogan argues that the government withheld evidence suggesting that
members of the prosecution team believed that other attorneys, Norman Malinski
and Norman Taplin, who had not been named in the indictment, were involved in
the fraudulent viatical settlement scheme, and that, had the jury learned that the
prosecution believed that others were involved, the blame would have been shifted
away from Hogan. We agree with the district court that Hogan has failed to make
out a Brady claim.
For one thing, the mental impressions of the government’s counsel enjoy
“almost absolute immunity,” and have to be disclosed to the defendant only where
“extraordinary circumstances” exist. See Williamson v. Moore, 221 F.3d 1177,
1182 (11th Cir. 2000) (citing the crime-fraud exception as an extraordinary
example of when the work-product privilege may be pierced). Hogan has not
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persuaded us that such extraordinary circumstances are present here.
For another thing, evidence that Malinski and Taplin were involved in the
fraudulent scheme was not unknown to Hogan. Donnell Johnson, who worked
with Hogan, testified at trial that those two attorneys participated in Financial
Federated’s viatical scheme.
And finally, even if the evidence had been withheld and was unknown to
Hogan, there is not a reasonable probability that the outcome would have been
different had the evidence been disclosed. The evidence introduced at trial showed
that Hogan was extensively involved in the scheme. The following testimony
constituted independent evidence of Hogan’s knowledge of the fraud and intent to
participate in the fraudulent viatical scheme: (1) Hogan’s assistants testified that
they never saw the underlying policies or medical records backing the investments;
(2) Hogan’s assistant testified that Hogan told him that he had seen the insurance
policies underlying the investments, something Hogan later admitted was a lie;
(3) one of the investors testified that Hogan advised him that he had personally
reviewed the policies underlying the investment, the policies were current, and the
period for contestation had expired; (4) the insurance agents, who sold viatical
settlements on behalf of Financial Federated, testified that Hogan assured them that
the investments were backed by life insurance policies, and that Hogan was
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involved in acquiring those policies; (5) Hogan admitted that he lied to the grand
jury and investors when he stated that he had seen the insurance policies; (6)
Hogan admitted that his statements to investors, that he had supervised the
presentation of claims to insurance companies and disbursed insurance maturities,
were false; and (7) Hogan acknowledged that he misrepresented his role to
investors.
“A different and more defense-friendly standard of materiality applies when
the prosecutor knowingly used perjured testimony,” as opposed to when the
prosecutor suppressed favorable evidence in violation of the Brady rule. United
States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995). A defendant may obtain a
new trial on the basis of the government’s use of false testimony in violation of
Giglio if he can show that (1) the prosecutor knowingly used perjured testimony,
or failed to correct what he subsequently learned was false testimony; and (2) the
falsehood was material. Id. The falsehood is deemed to be material “if there is any
reasonable likelihood that the false testimony could have affected the judgment of
the jury.” Id. (quotations and citation omitted; emphasis in original).
Hogan contends that the government knew that two of its witnesses falsely
testified. He claims that government knew that he was not an “insider” in the
fraudulent scheme, as IRS Agent Klaus Hurme testified, and that William Page,
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who owned his own viatical settlement business and testified that Financial
Federated’s practices were inadequate, was himself engaged in a fraudulent viatical
scheme.
Hogan has not presented sufficient evidence that the government had reason
to know that either witness’ testimony was false. Agent Hurme expressed his
opinion that Hogan was an insider after reviewing the documents sent to investors,
all of which Hogan had signed certifying that everything reflected in the
documents was correct, when it clearly wasn’t. This was a sufficient basis to
support Hurme’s opinion, even if there was other evidence contradicting it. As for
Page, the evidence shows that the government did not learn of the investigation
against him until after Hogan’s trial. Thus, it could not have known that his
testimony was tainted by his own fraud investigation.
In any event, the evidence proving Hogan’s fraudulent conduct and intent,
which we have already described, was overwhelming. Hogan has not shown that
the allegedly false testimony presented by the government was material—that is,
that there was a reasonable likelihood the false testimony could have affected the
jury verdict.
III.
Hogan’s final contention on appeal is that the district court erred in refusing
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to hold an evidentiary hearing on his new trial motion. We review the court’s
evidentiary hearing decision for an abuse of discretion. See United States v.
Massey, 89 F.3d 1433, 1443 (11th Cir. 1996).
We find none here. Most of the allegations in Hogan’s motions would not
support a new trial, even if they were supported by evidence. For those that would
have, it is enough that the district court, having sat through the trial and being well
acquainted with the facts of the case, rejected them based on the evidence and
affidavits attached to the new trial motions and the government’s response. See
United States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997) (“In determining
whether a motion for a new trial based on newly discovered evidence was properly
denied, we are persuaded that the acumen gained by a trial judge over the course of
the proceedings makes her well qualified to rule on the basis of affidavits without a
hearing.” (quotation and alteration omitted)).
APPEAL DISMISSED IN PART AND AFFIRMED IN PART.
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