The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER DENYING MOTION FOR NEW TRIAL
Pending before the Court is defendant Jovanni Mendoza's amended motion for new trial, or in the alternative, for writ of coram nobis. The Court heard argument on the motion on December 3, 2009. John R. Kraemer appeared on behalf of the government, and J. Kerry Bader appeared on behalf of defendant. For the reasons set forth below, the motion is denied.
On September 7, 2005, a federal grand jury returned a twelve-count indictment charging defendant with importation of marijuana in violation of 21 U.S.C. §§ 952 and 960 (count one), possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (count two), bringing in illegal aliens for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) (counts three, five, seven, nine, and eleven), and transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II) (counts four, six, eight, ten and twelve).
On August 14, 2006, the Court, upon the government's motion, dismissed counts seven and eight of the indictment. (RT 93.) Defendant waived trial by jury. Thereafter, the Court held a bench trial on August 14 through August 17, 2006, during which defendant was represented by counsel, Mr. Felix J. Martinez. (RT 88-709.) Defendant did not testify and called no witnesses. The Court found defendant guilty on all counts. (RT 701-708; see Doc. 40, Amended Judgment in a Criminal Case (March 22, 2007).)
On December 15, 2006, this Court sentenced defendant to 235 months custody on counts one and two, followed by five years supervised release; 120 months custody on counts three, five, nine, and eleven, followed by three years supervised release; and 60 months custody on counts four, six, ten, and twelve, followed by three years supervised release. All counts were ordered to run concurrently. The Court also imposed a $1000 penalty assessment, and ordered restitution in the amount of $9,874.57.
On December 21, 2006, defendant filed a notice of appeal. Thereafter, Magistrate Judge Louisa S. Porter appointed J. Kerry Bader to represent defendant on appeal. Defendant has yet to file an opening brief in the Ninth Circuit. Instead, defendant has obtained several stays in the Ninth Circuit to allow him to pursue relief in this Court. On January 19, 2009, defendant filed a motion for new trial under Federal Rule of Criminal Procedure 33, or in the alternative, for writ of coram nobis. On March 13, 2009, defendant moved to substitute his earlier motion with the instant motion. On March 16, 2009, defendant moved for discovery. In a written order filed March 17, 2009, this Court ordered defendant's previously filed motion for new trial withdrawn and his revised new trial motion filed. The Court ordered the government to file its opposition to defendant's revised motion by no later than April 24, 2009. The hearing on defendant's motion was continued several times at defendant's request, and finally was heard on December 3, 2009.
In an Order issued on March 25, 2009, this Court tentatively: (a) denied defendant's discovery requests in support of his ineffective assistance of counsel claim, finding that such a claim may not be raised in a new trial motion under Rule 33 of the Federal Rules of Criminal Procedure; (b) found defendant failed to make a showing that the government withheld exculpatory evidence and denied without prejudice defendant's discovery requests to the extent such requests related to asserted newly-discovered violations of the government's duty to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); (c) denied defendant's request for grand jury transcripts because defendant failed to demonstrate a particularized need; and (d) denied defendant's remaining discovery requests as "untimely, speculative, or cumulative."
On March 27, 2009, the discovery motion was heard and the Court stood on its tentative rulings, with one exception. Pursuant to United States v. Vogel, 251 Fed. App. 399 (9th Cir. 2007), the Court ordered the government to produce any Brady material it had within its possession relating to United States Border Patrol Agent Mark Hansen, Cooperating Witness Cristie Sanchez, and Material Witnesses Martin Ramirez-Salinas and Eulalia Bautista.*fn1 The Court also quashed without prejudice subpoenas that defendant had served on the San Diego County Public Defender's and District Attorney's Offices, the University of California at San Diego, the California Department of Transportation, and attorney Alan Ferguson, counsel for the material witnesses.
A motion for new trial based on newly discovered evidence must be made within three years after verdict. Fed. R. Crim. P. 33(b)(1). If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case. Id. "The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Trulis v. Barton, 107 F.3d 685, 694-95 (9th Cir. 1995). However, "Rule 33 permits a district court to entertain and deny a motion for a new trial based upon newly discovered evidence without the necessity of a remand." United States v. Frame, 454 F.2d 1136, 1138 (9th Cir. 1972). As such, this Court "ha[s] jurisdiction to entertain the [Rule 33] motion and either deny the motion on its merits or certify its intention to grant the motion to the Court of Appeals, which c[an] then entertain a motion to remand the case." United States v. Cronic, 466 U.S. 648, 667 n.42 (1984). See also Frame, 454 F.2d at 1138 ("Only after the district court has heard the motion and decided to grant it is it necessary to request a remand from the appellate court.").
Defendant's motion for new trial is premised on two categories of "newly discovered" evidence: (1) undisclosed exculpatory evidence; and (2) evidence of ...