USCA11 Case: 21-11091 Date Filed: 10/18/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11091
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDSON GELIN,
a.k.a. Bo,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cr-00131-CEM-LRH-3
____________________
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2 Opinion of the Court 21-11091
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No. 21-11505
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDSON GELIN,
a.k.a. Bo,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cr-00131-CEM-LRH-3
____________________
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21-11091 Opinion of the Court 3
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No. 21-11587
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY REMY FERNETUS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cr-00131-CEM-LRH-2
____________________
____________________
No. 21-11714
Non-Argument Calendar
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4 Opinion of the Court 21-11091
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDSON GELIN,
a.k.a. Bo,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cr-00131-CEM-LRH-3
____________________
____________________
No. 21-13012
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
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21-11091 Opinion of the Court 5
versus
EDSON GELIN,
a.k.a. Bo,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cr-00131-CEM-LRH-3
____________________
Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
In their consolidated appeals, codefendants Edson Gelin and
Jimmy Fernetus, federal prisoners proceeding pro se, appeal from
multiple orders of the district court in their criminal case. First, Mr.
Gelin argues that the district court abused its discretion when it de-
nied his post-judgment motions to dismiss the indictment for selec-
tive prosecution and failed to hold an evidentiary hearing. He con-
tends that he had “good cause” to overcome his untimeliness based
on newly discovered evidence. Second, Mr. Gelin argues that the
district court abused its discretion in denying his motion for dis-
qualification or recusal because it was biased in favor of the gov-
ernment. Third, Mr. Gelin and Mr. Fernetus argue that the district
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6 Opinion of the Court 21-11091
court abused its discretion in denying their motions for a new trial
based on newly discovered evidence because they were not made
aware of the full extent of two witnesses’ cooperation with the gov-
ernment. Fourth, Mr. Gelin argues that the district court abused
its discretion in denying his renewed motion for compassionate re-
lease because it disregarded his health conditions, the COVID-19
pandemic, the
18 U.S.C. § 3553(a) factors, and the fact that he
would have received a lesser sentence if sentenced at the time of
his motion.
We affirm. We also deny Mr. Gelin’s motions for oral argu-
ment.
I
When a district court denies a defendant’s motion to dismiss
for selective prosecution, we review its factual findings for clear er-
ror and its legal conclusions de novo. See United States v. Brantley,
803 F.3d 1265, 1270 (11th Cir. 2015). Although federal courts pos-
sess the authority to dismiss an indictment for governmental mis-
conduct, dismissal is an extreme sanction that should be infre-
quently utilized. See United States v. Michael,
17 F.3d 1383, 1386
(11th Cir. 1994). Dismissal is only favored in the most egregious
cases. See
id.
The defense of selective prosecution must be raised by pre-
trial motion if the basis for the motion is then reasonably available.
See Fed. R. Crim. P. 12(b)(3)(A)(iv). An untimely motion may not
be considered unless a defendant can show good cause for the
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21-11091 Opinion of the Court 7
delay. See Fed. R. Crim. P. 12(c)(3). A defendant does not have
good cause warranting relief when he had all the information nec-
essary to bring a Rule 12(b) motion before the deadline for pre-trial
motions. See United States v. Ramirez,
324 F.3d 1225, 1228 n.8
(11th Cir. 2003). An evidentiary hearing on a defendant’s claim of
selective prosecution is necessary only if the defendant presents
sufficient facts to raise a reasonable doubt as to the prosecutor’s
motive. See United States v. Jones,
52 F.3d 924, 927 (11th Cir.
1995).
The district court did not err in summarily denying Mr.
Gelin’s Rule 12 motion to dismiss the indictment for selective pros-
ecution. The government charged Mr. Gelin by superseding in-
dictment in September of 2017, a jury found him guilty in February
of 2018, and we affirmed his convictions and sentences in April of
2020. It was not until April of 2021 that he filed his motion to dis-
miss the indictment for selective prosecution. Consequently, that
motion was untimely by over three years. See Fed. R. Crim. P.
12(c)(3).
As good cause for his untimeliness, Mr. Gelin argues that he
did not discover until after his trial evidence showing that the gov-
ernment selectively prosecuted him based on racial and ethnic ani-
mus towards Black Haitian Americans. Mr. Gelin’s argument,
however, is refuted by his admission that he presented evidence of
the government’s alleged improper motives to counsel before trial.
The basis for his Rule 12 motion was therefore reasonably available
to him pre-trial, and he cannot show good cause. See Ramirez, 324
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8 Opinion of the Court 21-11091
F.3d at 1228 n.8. Accordingly, the district court did not err in deny-
ing his motion and, in turn, declining to hold an evidentiary hear-
ing on that motion.
II
We review a recusal decision for an abuse of discretion. See
United States v. Berger,
375 F.3d 1223, 1227 (11th Cir.2004).
Recusal is governed by two federal statutes,
28 U.S.C. §§ 144 and
455.
Under § 144, a judge must recuse himself when a party to a
district court proceeding 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. To
warrant recusal under § 144, the moving party must allege facts
that would convince a reasonable person that bias actually exists.
See United States v. Serrano,
607 F.2d 1145, 1150 (5th Cir. 1979).
The affidavit must be filed not less than ten days before the begin-
ning of the term at which the proceeding is to be heard, or good
cause must be shown for failure to file it within such time. See
28
U.S.C. § 144.
Under § 455(a), a judge shall disqualify himself in any pro-
ceeding in which his impartiality might reasonably be questioned.
The test under § 455(a) is whether an objective, disinterested, lay
observer fully informed of the facts underlying the grounds on
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21-11091 Opinion of the Court 9
which recusal was sought would entertain a significant doubt
about the judge’s impartiality. See United States v. Kelly,
888 F.2d
732, 744–45 (11th Cir. 1989). The allegation of bias must show that
“the bias is personal as distinguished from judicial in nature.” Bolin
v. Story,
225 F.3d 1234, 1239 (11th Cir. 2000) (citation omitted).
The district court also did not err in summarily denying Mr.
Gelin’s post-judgment motion for recusal or disqualification, pur-
suant to §§ 144 or 455(a). Mr. Gelin argues that recusal was war-
ranted because the district court judge previously denied his post-
judgment motion to disqualify under § 144, summarily denied the
other motions that he now appeals, and denied his motion for re-
lease pending appeal from the denials of those motions. He also
adopts the arguments from his initial § 144 motion, arguing that
the district court judge exhibited bias by, among other things, ig-
noring evidence of racial and ethnic bias and ruling in favor of the
government on various evidentiary issues before and during trial.
Mr. Gelin’s motion to recuse lacked merit under either § 144
or § 455(a). Mr. Gelin’s arguments for recusal or disqualification
are based solely on the district court judge’s conduct and adverse
rulings during his criminal proceedings. He presented no evidence
that the district court judge’s alleged bias stemmed from personal
or extrajudicial sources. See Story,
225 F.3d at 1239. For that rea-
son, the impartiality of the district court judge could not have rea-
sonably been questioned. See § 455(a). Additionally, to the extent
that Mr. Gelin moved for disqualification or recusal under § 144,
any such motion filed post-judgment was untimely, and he
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10 Opinion of the Court 21-11091
otherwise has not established good cause. See, e.g., Weber v. Co-
ney,
642 F.2d 91, 92-93 (5th Cir. 1981) (plaintiff’s motion to disqual-
ify judge, filed a year after the case was assigned to the judge, about
four months after the case was transferred to another judge, and
three days after the second judge rendered a final judgment, was
untimely, moot, and frivolous).1 Consequently, the district court
acted within its discretion in summarily denying his motion for
recusal or disqualification.
III
We review the denial of a motion for new trial for an abuse
of discretion. See United States v. Martinez,
763 F.2d 1297, 1312
(11th Cir. 1985). To merit a new trial based on newly discovered
evidence, the defendant must show that: (1) the evidence was dis-
covered following trial; (2) the defendant exercised due care to dis-
cover the evidence; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material; and (5) the evidence is of
such a nature that a new trial would probably produce a different
result. See United States v. Lee,
68 F.3d 1267, 1273 (11th Cir. 1995).
The defendant must satisfy all of these elements to warrant relief.
See United States v. Williams,
816 F.2d 1527, 1530 (11th Cir. 1987).
Motions for a new trial based on newly discovered evidence are
highly disfavored, and district courts should use great caution in
1 Decisions of the Fifth Circuit issued prior to October 1, 1981, are binding on
this Court. See Bonner v. City of Prichard, Ala.,
661 F.2d 1206, 1207 (11th Cir.
1981) (en banc).
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21-11091 Opinion of the Court 11
granting a new trial motion based on newly discovered evidence.
See United States v. Jernigan,
341 F.3d 1273, 1287 (11th Cir. 2003).
The district court did not err in denying Mr. Gelin’s and Mr.
Fernetus’ motions for a new trial. Both defendants argue that a
new trial was warranted based on the same alleged newly discov-
ered evidence, that is, evidence that the government failed to dis-
close at trial that cooperating witnesses had received immunity and
a sentence reduction, respectively, for their cooperation. But at
trial, defense counsel cross-examined both cooperating witnesses
on their prior criminal histories and continued criminal conduct,
the fact that they were cooperating witnesses, and any benefits they
received from cooperating, including the length, or lack thereof, of
their terms of incarceration. As such, to the extent that Mr. Gelin
and Mr. Fernetus had newly discovered evidence relating to the
witnesses’ cooperation, any such evidence was mere impeachment
evidence cumulative of defense counsel’s cross-examination of
those witnesses. This deficiency was fatal to their motions. See
United States v. Champion,
813 F.2d 1154, 1171 (11th Cir. 1987).
Accordingly, the district court acted within its discretion in denying
Mr. Gelin’s and Mr. Fernetus’ motions for a new trial. See Lee,
68
F.3d at 1273.
IV
We review de novo a district court’s determination about a
defendant’s eligibility for an
18 U.S.C. § 3582(c) sentence reduction.
See United States v. Bryant,
996 F.3d 1243, 1251 (11th Cir. 2021).
However, we review a district court’s denial of a prisoner’s 18
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12 Opinion of the Court 21-
11091
U.S.C. § 3582(c)(1)(A) motion under an abuse of discretion stand-
ard. See United States v. Harris,
989 F.3d 908, 911 (11th Cir. 2021).
A district court abuses its discretion if it applies an incorrect legal
standard, follows improper procedures in making the determina-
tion, or makes findings of fact that are clearly erroneous. See
id.
Generally, we can affirm for any reason supported by the record.
See United States v. Chitwood,
676 F.3d 971, 976 (11th Cir. 2012).
In the context of compassionate release, the applicable stat-
ute requires exhaustion of remedies and otherwise provides that a
district court may grant a defendant’s motion for a sentence reduc-
tion, if, after considering the
18 U.S.C. § 3553(a) factors, the court
finds that extraordinary and compelling reasons warrant such a re-
duction and that a reduction is consistent with applicable policy
statements in the Sentencing Guidelines. See
18 U.S.C. §
3582(c)(1)(A). We have held that the policy statement set forth in
§ 1B1.13 of the Sentencing Guidelines is applicable to all motions
under
18 U.S.C. § 3582(c)(1)(A). See Bryant, 996 F.3d at 1262. Ac-
cordingly, a district court may not reduce a sentence under §
3582(c)(1)(A) unless a reduction would be consistent with § 1B1.13.
See id.
In turn, § 1B1.13 requires the district court to find that the
defendant is not a danger to the safety of any other person or to the
community. See § 1B1.13(2). Altogether, then, § 3582(c)(1)(A) im-
poses three conditions before a court may award a sentence reduc-
tion: (1) there must be extraordinary and compelling reasons for
doing so; (2) the reduction must be supported by the § 3553(a) fac-
tors; and (3) granting a sentencing reduction must not endanger
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21-11091 Opinion of the Court 13
any person or the community within the meaning of § 1B1.13’s pol-
icy statement. See United States v. Tinker,
14 F.4th 1234, 1237
(11th Cir. 2021). Each condition is necessary, so the failure to sat-
isfy one condition warrants denial of a motion for a sentence re-
duction. See
id. at 1237–38. Further, if the district court finds that
one of the compassionate release conditions was not satisfied, it is
not an abuse of discretion for the district court to skip assessment
of another condition. See
id. at 1238. Nothing on the face of
§ 3582(c)(1)(A) requires a district court to conduct the compassion-
ate release analysis in any particular order. See id. at 1237.
The district court did not err in denying Mr. Gelin’s renewed
motion for compassionate release. In denying that motion, the dis-
trict court concluded that Mr. Gelin had not identified extraordi-
nary and compelling reasons justifying compassionate release, in-
cluding with respect to the COVID-19 pandemic. Although it did
not explicitly address the § 3553(a) factors, it concluded in direct
response to Mr. Gelin’s motion that he did, in fact, pose a danger
to the community based on the conduct of his offense. We can
therefore infer that, at a minimum, the district court considered the
§ 3553(a) factor addressed by Mr. Gelin in his motion. Its order was
not otherwise bereft of reasoning and permitted meaningful appel-
late review. See United States v. Cook,
998 F.3d 1180, 1184-85 (11th
Cir. 2021). Nevertheless, Mr. Gelin failed to establish extraordinary
and compelling circumstances, and that alone justified denying him
relief. See Tinker, 14 F.4th at 1237. Mr. Gelin was sentenced after
2010, and thus, to the extent he could have, received all of the
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14 Opinion of the Court 21-11091
benefits of the Fair Sentencing Act of 2010. Accordingly, the dis-
trict court acted within its discretion in denying Mr. Gelin’s re-
newed motion for compassionate release.
V
The district court’s orders are affirmed. Mr. Gelin’s motions
for oral argument are denied.
AFFIRMED.
