The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is Defendant Juan Carlos Flores-Acuna's Motion for a New Trial (ECF No. 63).
On June 25, 2010, Defendant was arrested at the Otay Mesa Port of Entry while attempting to enter the United States from Mexico as the driver of a 2005 Chevrolet Silverado truck. Agents later discovered 12.2 pounds of methamphetamine concealed within the truck.
On July 21, 2010, the grand jury returned a two-count Indictment charging Defendant with Importation of Methamphetamine in violation of 21 U.S.C. §§ 952 and 960; and Possession of Methamphetamine with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1). (ECF No. 9).
The jury trial commenced on December 15, 2010. Defendant was represented at trial by Victor Torres. Defendant testified that he purchased the truck from his neighbor Jose Eduardo and that Defendant did not have all of the money to pay Eduardo fully. (ECF No. 63-1 at 4-7). Defendant testified that while he was unable to pay for the truck fully, Eduardo allowed him to borrow it. Id. at 8-9. Defendant also testified that he could not read or write in Spanish or English, and that he was unable to understand the purchase agreement regarding the truck that he signed with Eduardo. Id. at 6.
On December 17, 2010, the jury returned a verdict finding the Defendant guilty of both counts in the Indictment. (ECF No. 43).
On February 22, 2011, the Court granted Defendant's request for new counsel and appointed Holly A. Sullivan to represent the Defendant. (ECF No. 51).
New defense counsel requested a psychological evaluation of the Defendant. (ECF No. 63 at 2). On June 27, 2011, clinical and forensic psychologist Dr. Bruce Yanofsky performed a psychological evaluation of the Defendant. (Exhibit B at 1). Dr. Yanofsky found that Defendant "is an individual with limited intellectual resources . . . some cognitive functions appear to be below expectation." Id. at 16. Dr. Yanofsky concluded that there was no indication that the Defendant was suffering from a severe mental health problem and recommended vocational and academic instruction in order to improve the Defendant's functional abilities and independence.
Victor Torres, counsel for Defendant at trial, submitted a declaration in support of Defendant's Motion for a New Trial. Torres states:
I did not have Mr. Flores-Acuna evaluated by a psychiatrist/psychologist prior to trial. If I had known Mr. Flores-Acuna was in a mentally retarded range of intelligence quotient (IQ), I would likely have advised him not to testify at trial. If he chose to testify, I would have presented information concerning his mental deficits. I would have changed my trial strategy and presented evidence of his lower intellectual ability and argued his vulnerable state due to his mental deficits made [sic] him an ideal candidate to be used by others as a "blind mule." I would have utilized this information concerning documents shown to him by the prosecutor on cross examination for which the government argued he testified truthfully. I also would have used this information to explain his inability to remember names and dates. (ECF No. 63-2 at 2).
Rule 33 of the Federal Rules of Criminal Procedure provides "upon defendant's motion the court may vacate any judgment and grant a new trial if the interest of justice so requires." Rule 33 provides the trial court with broad discretion. The Ninth Circuit has set out five factors to determine whether a court should grant a motion for a new trial based on newly discovered evidence in United States v. Harrington, 410 F.3d 598 (9th Cir. 2005). The factors are: "(1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant's part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result in acquittal." Id. at 601.
Defendant contends that evidence of his low functioning should have been presented to the jury in order "to determine whether Mr. Flores-Acuna knowingly imported methamphetamine or whether the act was done through ignorance, mistake, or accident." (ECF No. 63 at 9). The Government contends that Defendant has failed to show that he could not have obtained a mental assessment prior to trial, and ...