United States District Court, S.D. California
ORDER DENYING DEFENDANT'S MOTION FOR NEW
Roger T. Benitez United States District Judge.
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
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.
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.
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.
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
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.
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. (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.
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. 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.)
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. 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
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.
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
Motion for New Trial Based on Newly Discovered
prevail on a Rule 33 motion for a new trial based on newly
discovered evidence, the movant must satisfy a five-part
(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
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).
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).
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. 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.
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 ...