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United States v. Caballero

United States District Court, S.D. California

May 19, 2017



          Hon. Roger T. Benitez United States District Judge.

         On the basis of “newly discovered evidence” which is neither newly discovered nor admissible evidence, Defendant moves under Rule 33 of the Federal Rules of Criminal Procedure for a new trial. The supposed evidence hardly merits a new trial. In fact, the substance of the putative evidence was of such dubious quality that counsel wisely did not try to offer it to the jury. Defendant's motion is denied.

         On the day set for sentencing, Defendant filed his motion for new trial. A photocopy of a handwritten letter penned in Spanish is the basis for the motion. The letter is signed twice. First, supposedly by Roberto Diaz Flores. Second, supposedly by Rafael Arias Medina. Both names are apparently used by the same individual. The letter is not dated. It is not notarized. It is not signed under penalty of perjury. There is no indication of when it was written. There is no indication of how it came into being.

         There is no indication as to whom it was delivered or when it was received. There is only counsel's assertion that it is a “newly discovered letter.” The letter is short. In essence, the letter says that the writer is the person who put packages in Defendant's car, that the writer was forced, and that the writer is guilty and should be put on trial instead of Defendant.

         The same day, the Court appointed counsel for the supposed letter writer, Roberto Diaz Flores / Rafael Arias Medina, and continued the sentencing. Two weeks later, counsel for Roberto Diaz Flores / Rafael Arias Medina informed the Court that his client intended to invoke the Fifth Amendment. Counsel for Defendant agreed that calling him to testify would be unproductive. Appointed counsel for Roberto Diaz Flores / Rafael Arias Medina was discharged and the sentencing of Defendant was again continued. While the format of a handwritten letter may, or may not, be new, the information communicated by the letter was known by Defendant before trial and was the subject of a pre-trial hearing held at the instigation of Defendant.

         I. Background

         On September 28, 2015, Defendant applied for entry into the United States at the Calexico, California Port of Entry. He was the sole occupant and driver of a 2007 Toyota Camry. During the secondary inspection, thirty-two packages were found concealed within Defendant's vehicle; two packages field-tested for heroin and thirty packages field-tested for methamphetamine.

         Eight months later and just twelve days prior to trial, Defendant moved for a writ of habeas corpus ad testificandum for federal inmate Roberto Diaz-Flores, a/k/a. Rafael Arias-Medina (hereinafter “Diaz-Flores”). Defendant announced that inmate Diaz-Flores had “come forward with exculpatory information, namely that he is the person responsible for concealing drugs in Mr. Caballero's car without his knowledge.” (Docket No. 45-1 at 1.) On June 1, 2016, the Court granted Defendant's motion and issued the writ.

         The day before trial, Defendant sought permission to call a hearsay witness. Defendant did not say that he wanted to call Diaz-Flores. The defense argued that it wanted to call a new witness, Ms. Silvia Castro. Ms. Castro, it was explained, is a Spanish interpreter who was present when inmate Diaz-Flores made his statements during an unrecorded interview with counsel for the defense.[1] (Docket No. 53.) Defendant sought to admit the interpreter's testimony about inmate Diaz-Flores' mea culpa under the statements-against-interest exception to the hearsay rule. He asserted that inmate Diaz-Flores was an unavailable witness for purposes of the exception because Defendant anticipated that inmate Diaz-Flores would invoke his Fifth Amendment privilege against self-incrimination. The Diaz-Flores “evidence” was suspect and the corroborating evidence was thin.

         Still before trial, the government opposed Defendant's motion on the grounds that the statements would not actually be against self-interest and that there was insufficient corroborating evidence. The government offered the interview notes Defendant's attorney made during his meeting with Diaz-Flores.[2] Those notes indicate that the interview occurred on May 13, 2016. Inmate Diaz-Flores discussed how he placed the packages in Defendant's car because he was forced. In his words, he was “forced, under duress. Wasn't a worker, wasn't w/ them [sic].” (Docket No. 55-1 at 3.) The government also produced transcripts of jail phone calls to demonstrate that Defendant and inmate Diaz-Flores “had a close enough relationship to share the same phone call and called the same number at separate times.” (Docket No. 55 at 6; Exhibit 2.)

         The Court made a tentative ruling that the interpreter's hearsay testimony would not be admissible. It was not a final ruling. See e.g., United States v. McElmurry, 776 F.3d 1061, 1072 (9th Cir. 2015) (Christen, J., dissenting) (“One thing is certain: before trial, the district court did not make a definitive Rule 403 determination with respect to any of the letters. At the motion in limine hearing, the court stated: ‘My tentative ruling is . . . .'”) (Emphasis added). Once trial began, defense counsel did not again bring up the subject. He did not attempt to call inmate Diaz-Flores to the stand. He did not attempt to call Ms. Castro (the Spanish interpreter) to the stand. He did not offer his interview notes as evidence. And defense counsel did not make an offer of proof or request a final ruling on his motion before the jury began their deliberations.[3] On June 8, 2016, the jury found Defendant guilty of one count of Importation of Heroin, in violation of 21 U.S.C. §§ 952 and 960, and one count of Importation of Methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. (Docket No. 61.) Defendant's sole post-verdict motion for mistrial on other grounds was denied.

         II. Legal Standard

         Rule 33(a) of the Federal Rules of Criminal Procedure provides that a court “may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). When reviewing a motion for new trial, a district court is not required to view the evidence in the light most favorable to the verdict, and may independently weigh the evidence and evaluate the credibility of the witnesses. See United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000) (citing See United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992) (citation omitted)). “If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.” Alston, at 1211-12 (citing United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). However, a new trial should only be granted “in exceptional cases in which the evidence preponderates heavily against the verdict.” United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (quoting 2 Wright, Federal Practice and Procedure, Criminal s 553 at 487 (1969)). The defendant bears the burden of demonstrating grounds for a new trial. See United States v. Joelson, 7 F.3d 174, 178 (9th Cir. 1993) (defendant had burden to show newly discovered evidence warranted a new trial). These standards are not met here.

         III. Discussion

         Defendant's motion for new trial is premised on the claim that he has produced newly discovered evidence that raises serious questions about third-party culpability in his case. (Docket No. 78-1 at 1, 4.) Although it is not entirely clear from his motion, it also appears Defendant is seeking a new trial on due process grounds. The Court will address both arguments in turn.

         A. Motion for New Trial Based on Newly Discovered Evidence

         To prevail on a Rule 33 motion for a new trial based on newly discovered evidence, the movant must satisfy a five-part test:

(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.

United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir. 1991) (citing United States v. Lopez, 803 F.2d 969, 977 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987)); see also United States v. Brugnara, ___ F.3d ___, 2017 U.S.App. LEXIS 8349*13 (9th Cir. May 11, 2017) (identifying the five-part test as the correct legal rule). Here, Defendant fails to satisfy parts (1), (2), and (5).

         The Ninth Circuit “[has] long held that, in general, a defendant seeking a new trial on the basis of newly discovered evidence must show that “the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial.” United States v. McKinney, 952 F.2d 333, 335 (9th Cir. 1991) (quoting Pitts v. United States, 263 F.2d 808, 810 (9th Cir.), cert. denied, 360 U.S. 919 (1959)). Put another way, “[e]vidence known or discovered before the trial is over is not newly discovered.” Id. (citing United States v. Eldred, 588 F.2d 746 (9th Cir. 1978)); see also United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005) (finding crime scene photographs and street maps were not “newly discovered evidence” to support Rule 33 motion for new trial because they could have been obtained any time before trial).

         The government correctly points out that the only thing “new” about this evidence is the form in which it is presented - a letter supposedly written post-trial.[4] However, the new form of this old “evidence” does not qualify as the newly discovered evidence described by Rule 33. The McKinney case is instructive.

         In McKinney, the defendant-appellant (“McKinney”) was convicted of multiple counts of currency reporting violations. Id., 952 F.2d at 334. During voir dire, the court asked whether any juror was involved with a tax protest group against the IRS, and none of the jurors responded affirmatively. Id. However, during the juror deliberations, the Assistant United States Attorney (“AUSA”) informed the court and defense counsel that he had just learned that a juror's husband was a member of a tax protest group, and that the couple had not filed tax returns since 1983. Id. at 334-35. The juror's husband had also been observed outside the courtroom making anti-IRS and anti-government comments. Id. at 334. During the AUSA's ...

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