Following a jury trial, Ángel García-Ál-varez (“García”) was convicted of carjacking and firearms offenses. Thereafter, the district court denied his motion for new trial, finding that the evidence it was premised on was not newly discovered. Garcia now appeals his conviction on sufficiency and evidentiary grounds, and challenges the denial of his motion for a new trial- Following a careful review, we reject all of Garcia’s claims and affirm the district court.
I. Background
A. Facts
As Garcia challenges the sufficiency of the evidence proffered against him, we recite the facts in the light most favorable to the verdict. See United States v. Vázquez-Botet,
In López’s apartment, Clemencia Lewis, a maid, saw a man she did not recognize enter the apartment and head towards the home office; she testified that it was approximately 10:30 a.m. Lewis was then confronted by a different man armed with a silver-colored gun who, with the help of a third assailant, pushed her into the laundry room, placed her on the floor, and bound her with an iron cord; her face was covered with a towel. The assailants then proceeded to rob the home. They remained in the apartment until approximately 11:20 a.m., when the assailant in the basement became anxious and stepped out to place a call to the men upstairs. López took this opportunity to escape by running into the street. Once there he saw his car — a Mercedes Benz — being driven out of the building’s parking lot, apparently by the assailants.
B. Procedural History
Based on López’s identification of him at a police lineup, Garcia was indicted on one count of carjacking resulting in serious bodily injury under 18 U.S.C. § 2119(2), and one count of possession of a firearm in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii). He was arraigned one week later, and his trial date was set for August 14, 2006. Shortly before trial, Lewis also identified Garcia from a police photo spread. On August 13, 2006, Garcia moved to have both López’s and Lewis’s identifications suppressed, but the district court denied this motion during the course of the four-day trial.
At trial, Garcia maintained his innocence and presented an alibi defense. The jury nonetheless found him guilty of the firearms offense and the lesser included offense of simple carjacking. See 18 U.S.C. § 2119(1). Garcia moved for a judgment of acquittal but was denied this on September 12, 2006. On February 13, 2007, the day of his sentencing hearing, Garcia filed a motion for new trial based on newly discovered evidence. The district court sentenced Garcia to a total of 181 months’ imprisonment along with a period of supervised release. Garcia timely appealed arguing that the district court erred in admitting López’s and Lewis’s out-of-court and in-court identifications, and in failing to grant judgment of acquittal based on the Government’s failure to sufficiently prove the carjacking charge.
On March 30, 2007, the district court also denied Garcia’s motion for new trial because the evidence it was premised on was not unknown or unavailable at the time of the trial and could have been discovered with due diligence. Garcia also appeals this denial, and his three claims have been consolidated in this appeal.
II. Discussion
A. Suppression Challenge
We review a district court’s denial of a suppression motion with deference; such denial will be upheld if any reasonable view of the evidence supports it. See United States v. Brown,
An eyewitness identification, such as those of López and Lewis, will be suppressed only upon a double showing: first, that the identification was secured through impermissibly suggestive means; and second, that under the totality of the circumstances the suggestiveness of the identification is such that the identification itself is not reliable. United States v. de Jesús-Ríos,
Immediately following the robbery and carjacking, López provided the police with a description of the four assailants’ clothing. He also noted that the assailants spoke Spanish with a Dominican accent. Six weeks after the incident, Garcia voluntarily attended a police lineup where he appeared with five other men. All six men were dressed in orange jumpsuits,' and Garcia was made to remove his eyeglasses. When the men were first presented to López, he identified García and stated that he was ninety percent certain that Garcia was one of the assailants who had assaulted and robbed him. Upon request, the six men then repeated in Spanish the statement made by one of the assailants during the robbery: “This motherfucker broke my arm!” Upon hearing this phrase, Ló-pez identified Garcia with complete certainty.
García argues that Lopez’s lineup identification of him was impermissibly suggestive for three reasons: first, because Garcia alleges that he only became a suspect due to his family connection to two other men suspected in the crime; second, because he was made to remove his eyeglasses even though — as his optometrist later certified — he is legally blind without them; and third, because he was made to repeat the assailant’s statement even though he was the only man on the panel who spoke Spanish with a Dominican accent.
Garcia’s first claim is quickly dismissed. Garcia’s initial identification as a suspect, even if it resulted from his family connection to two other wanted men, is not an impermissibly suggestive procedure affecting Lopez’s lineup identification. Ló-pez was unaware of the circumstances under which Garcia became a suspect. As López was not privy to this information, there is no way such knowledge could have influenced or colored his identification of Garcia. ■
The removal of Garcia’s eyeglasses was similarly not suggestive. Garcia’s second claim here is peculiar in that most identification challenges we and our sister circuits encounter involve the presence of a distinguishing characteristic that stands out during the identification process. See, e.g., Monteiro v. Picard,
Garcia’s third challenge, however, requires a closer look. As a starting point, making the lineup panel repeat the assailant’s statement was not an impermissibly suggestive identification procedure. See United States v. Panico,
A suggestive identification may nonetheless remain in evidence if, given the totality of the evidence, it is reliable. de Jesús-Ríos,
Of these five factors, two clearly support reliability in this case. Given the traumatic nature of the robbery and carjacking, we assume Lopez’s degree of attention during the incident to have been high. See Levasseur v. Pepe,
Nonetheless, given the totality of the circumstances, we cannot say that the fact that Garcia was the only one in the lineup who spoke with a Dominican accent produced a “very substantial likelihood of irreparable misidentification.” Pérez-González,
Garcia’s challenge to Lewis’s out-of-court and in-court identifications is far less developed. One week before Garcia’s trial was to begin, an FBI agent visited Lewis at her place of work and showed her a photo spread containing six pictures, one of which was of Garcia. Lewis initially picked a different man from the photo spread, but indicated that she was uncertain. Lewis then stated that the man who had assaulted her was tall and had a dark complexion and a very pointy chin. She subsequently picked Garcia’s photograph. Garcia does not flag any of the procedures utilized during this identification as imper-missibly suggestive; and therefore his claim fails. See de Jesús-Ríos,
B. Sufficiency Challenge
We review a sufficiency of the evidence claim de novo, “evaluating whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Meléndez-Torres,
It is the Government’s duty to prove all the elements of a charged crime. For carjacking under 18 U.S.C. § 2119(1) those elements are: (1) taking or attempted taking from the person or presence of another; (2) a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce; (3) through the use of force, violence, or intimidation; (4) with the intent to cause death or serious bodily harm. See 18 U.S.C. § 2119(1). Garcia argues that the Government has not met its burden of establishing the intent element beyond a reasonable doubt because Lopez’s assailants did not intend to take his car but only to rob his home. The car was only an improvised getaway vehicle.
Garcia’s argument is unavailing. In carjacking offenses, the element of intent must be established at the time the defendant takes control of the motor vehicle. United States v. Evans-García,
The intent required at the time of the vehicle taking, however, need not be set in stone. It will suffice that a defendant had a conditional intent to cause death or serious bodily harm; that is, a willingness to cause such injury if necessary to take the vehicle. Evans-Garcia,
Finally, and in direct response to Garcia’s “getaway vehicle” argument, we have previously said that “nothing in the statute requires that the taking [of a motor vehicle] be an ultimate motive of the crime.” United States v. Rivera-Figueroa,
C. Motion for New Trial
The remedy of a new trial is to be granted sparingly and only to avoid a
[20] In order to reverse a district court’s denial of a motion for new trial based on newly discovered evidence, the defendant carries the heavy burden of showing that the new evidence submitted was: (1) unknown or unavailable at the time of trial; (2) despite due diligence; (3) material; (4) and likely to result in an acquittal upon retrial. United States v. Falú-González,
According to the Centennial engineers, the cell site evidence demonstrates that, on the morning of the robbery and carjacking, all calls made by Garcia’s cell phone were handled by cell sites within the municipality of Carolina and along the purported delivery route. Based on this finding, the engineers assert that it is almost certain that Garcia’s calls were placed from Carolina. This is because cell phone calls are usually handled by the cell site closest to where the cell phone is located; only rarely are phone calls referred to a cell site that is. farther away.
On appeal, the Government does not dispute the engineers’ testimony, but argues that the cell site evidence does not entitle Garcia to a new trial because it is not newly discovered as required by Fed
Falú-GonzMez asks whether the new evidence “could have been discovered with due diligence and was thus not ‘new1 ” at the time of trial. Id. at 443. It is undisputed that defense counsel was in possession of Garcia’s cell phone records before the start of trial. On those records, each phone call has a billing code (e.g., “9E,” “VP,” “P2”) listed to its right and a legend at the bottom of the page that matched each code to a general geographic area (e.g., “9E-San Fernando,” “VP — Villa Palmeras,” “P2 — Puerto Nuevo”). The call records did not indicate the significance of these billing codes nor did they suggest that Centennial had the capability to further delineate the geographical provenance of each call to almost street level. Both parties accept that defense counsel did not learn of the possibility of such specific call triangulation until after the jury’s verdict, and that Centennial only generated the cell site evidence upon the defense’s post-judgement request.
Nonetheless, the trial judge did not abuse his discretion in finding that this evidence could have been discovered with due diligence and was thus not new. We understand due diligence to be “a context-specific concept” generally akin to the degree of diligence a reasonably prudent person would exercise in tending to important affairs. United States v. Maldonado-Rivera,
Garcia’s counsel made a conscious decision to go to trial using the evidence they had available. Counsel’s work log further indicates that counsel did not inquire about the billing codes on Garcia’s call records until more than two months after the jury had entered its guilty verdict. That being the case, even if it is true that the development and production of the cell site evidence was so complex and time-consuming that it took two and a half months to complete — and hence could not have been achieved in the three weeks between the district court’s initial status conference and the beginning of Garcia’s trial — Garcia cannot now establish his counsel’s due diligence. Defense counsel did not do anything before or during trial to secure the post-judgment evidence upon which Garcia’s motion for new trial is premised. Rule 33 does not give counsel a second opportunity to rectify a faulty trial strategy. As such, Garcia’s motion for new trial was properly denied.
Garcia may choose to raise by collateral attack under 28 U.S.C. § 2255 the issue of whether his counsel’s performance amounted to ineffective assistance of counsel. See Strickland v. Washington,
III. Conclusion
For the foregoing reasons, we affirm the district court’s judgment and denial of new trial.
Affirmed.
Notes
. We pinpoint this based on a two-minute phone call López received on his cell phone at 10:36 a.m. He was assaulted immediately after hanging up. '
. In as far as Garcia’s argument is that, due to his eye condition, he always wears glasses and would thus have worn them during the robbery and carjacking, the jury already considered and rejected this argument. We see no need to upset the jury’s determination.
. We see no evidence that the unduly suggestive procedure in any way tainted the in-court identification or made it unreliable. See United States v. Maguire,
. As the out-of-court photo spread identification was proper, Lewis’s in-court identification was proper as well. See id.
. The district court took judicial notice of the fact that the municipalities of San Juan— where Condado is located — and Carolina border each other, and are geographically close.
. At trial, Garcia argued that at the time of the charged crimes he was working on his side business delivering furniture in the municipality of Carolina. In this endeavor he was accompanied by his employee Juan Es-paillat, who submitted an unsworn statement in Garcia’s favor. According to both men, on the morning in question they met at about 9:00 a.m. at the American Furniture store in Carolina. Garcia advised Espaillat that he needed to go pay his cell phone bill before making the delivery, and Espaillat loaded the furniture into a white box truck by himself. When he was done, Espaillat spoke to Garcia on his cell phone and set out to make the furniture delivery at about 10:30 a.m. According to Espaillat, after conversing with Garcia a few more times to get directions, he arrived at the delivery residence at approximately 11:00 a.m. Garcia arrived in his gray Toyota Tundra pickup truck five minutes later. With both men’s efforts, the delivery of the furniture was finished around noon.
.Indeed, to ascertain the rate of call referrals within the Condado area, the engineers carried out an experiment where they placed one hundred cell phone calls during the span of one hour while situated at the scene of the robbery. All one hundred of those calls were handled by the same cell site in Condado, and none was handled by a cell site in Carolina. Thus, according to the engineers, the rate of call referral in Condado is extremely low.