United States District Court, E.D. California
MEMORANDUM AND ORDER RE: MOTION FOR RECONSIDERATION
WILLIAM B. SHUBB, District Judge
On April 11, 2014, the court granted defendant Nelson Mauricio Ponce Vasquez's motion to dismiss the Indictment based on a violation of his Sixth Amendment right to a speedy trial. The government now seeks reconsideration of that Order based on new evidence and clear error of law.
"No precise rule' governs the district court's inherent power to grant or deny a motion to reconsider a prior ruling in a criminal proceeding." United States v. Lopez-Cruz , 730 F.3d 803, 811 (9th Cir. 2013); see United States v. Healy , 376 U.S. 75, 78 (1964) (recognizing "the appropriateness of petitions for rehearing by the United States in criminal cases"). In assessing motions for reconsideration in criminal cases, some courts have relied on the standard that governs motions for reconsideration under Federal Rule of Civil Procedure 59. See, e.g., United States v. Sims , 252 F.Supp.2d 1255, 1261 (D.N.M. 2003); see also Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc. , 5 F.3d 1255, 1263 (9th Cir. 1993) ("Reconsideration [under Rule 59] is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law."); cf. Lopez-Cruz , 730 F.3d at 811 (discussing case in which the Ninth Circuit affirmed "denial of a motion for reconsideration of a suppression order because the new evidence could readily have been presented at the original hearing on the motion to suppress' and because the defendant offered no excuse for the failure to do so").
Here, the government seeks reconsideration of the court's April 11, 2014 Order based on: (1) new evidence from co-defendant Dionisio Robles Padilla's plea colloquy; and (2) the court's alleged error of law in referring to the presumption of innocence when assessing defendant's claim of actual prejudice.
1. New Evidence
On April 21, 2014, co-defendant Padilla pled guilty to one count of distribution of methamphetamine. During the plea colloquy, the court asked Padilla whom he contacted to obtain the methamphetamine and Padilla eventually said he called defendant at a phone number defendant had left on a purchase order. (Apr. 21, 2014 Tr. at 23:6-9.) The government argues that this new evidence merits reconsideration of the court's prior order because Padilla's testimony confirms that he contacted defendant to order the methamphetamine and the destroyed Comcast phone records would therefore only have incriminated defendant.
To provide defendant's counsel with an opportunity to cross-examine Padilla and present any evidence, the court set the matter for an evidentiary hearing and ordered the government to produce Padilla as a witness. (Docket No. 132.) Shortly before the scheduled hearing, Padilla's counsel filed a statement indicating that Padilla intends to his assert his Fifth Amendment right against self-incrimination and will not testify at the hearing or trial. (Docket No. 135.) The court seriously doubts that it may consider Padilla's statements for purposes of this motion because they were made outside the presence of defendant and his counsel, see generally Crawford v. Washington , 541 U.S. 36, 50-62 (2004) (discussing the Confrontation Clause of the Sixth Amendment), and would be inadmissible hearsay at trial, see generally United States v. Duenas , 691 F.3d 1070, 1086-90 (9th Cir. 2012) (discussing the former testimony exception in Federal Rule of Evidence 804).
Nonetheless, assuming the court can consider Padilla's statement made during the plea colloquy in deciding this motion,  the court would have to determine how much weight to give to that statement. In order to determine the weight to assign to any evidence, the trier of fact must take into account a number of factors. See Ninth Circuit Model Criminal Jury Instruction No. 3.9 (instructing the jury that it "may believe everything a witness says, or part of it, or none of it" and should make that determination based on numerous factors, including "the reasonableness of the witness's testimony in light of all the evidence"). Such determinations are traditionally made through the adversary process. It is only with the benefit of cross-examination and the defendant's "opportunity to present his own side of the case, '" that the adversary process is "trusted to sort out the reliable from the unreliable evidence.'" United States v. Berry , 624 F.3d 1031, 1040 (9th Cir. 2010) (quoting Barefoot v. Estelle , 463 U.S. 880, 899 (1983), superseded by statute on other grounds, 28 U.S.C. § 2253(c)(2)).
Without the defendant being accorded the opportunity to cross-examine Padilla or to present other evidence to contradict or impeach his testimony, the court simply cannot assess the truthfulness of Padilla's testimony from the plea colloquy. If the court had to determine the weight to give to Padilla's testimony based only on the limited evidence before it, the court would have to find such ex parte statement to lack sufficient credibility to merit consideration here. Accordingly, the court will deny the government's motion for reconsideration based on new evidence.
2. Clear Error of Law
In its Order granting defendant's motion to dismiss the Indictment, the court stated:
Of course, if defendant is in fact guilty, it could be argued that it is speculative to assume that he would benefit from identifying that telephone number. Although defendant has presented evidence that his cell phone did not receive a call from the (707)-line on the date in question, the number called could have belonged to someone else associated with him. But in assessing the relevance of that information, the court, consistent with the presumption of innocence, must assume the defendant is innocent. Making that assumption, identifying the phone number Padilla called would be of substantial value to defendant's defense, because it would enable him to ultimately show that he is not connected with the number or person Padilla called to order the methamphetamine and thus that he did not deliver the drugs.
(Apr. 11, 2014 Order at 11:7-20.) The government contends that the presumption of innocence is relevant only at trial and cannot be considered for purposes of a pretrial motion; therefore, it argues, the court's reliance on the presumption of innocence constitutes clear error and merits reconsideration.
In Bell v. Wolfish , 441 U.S. 520 (1979), pretrial detainees challenged the constitutionality of certain conditions of confinement and the Supreme Court stated that the presumption of innocence "has no application to a determination of the rights of a pretrial detainee during ...