UNITED STATES OF AMERICA, Appellee, v. JOSÉ RAMÓN HERNÁNDEZ-RODRÍGUEZ, Defendant, Appellant.
No. 05-1121
United States Court of Appeals For the First Circuit
April 6, 2006
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before Torruella, Lipez and Howard, Circuit Judges.
Timothy R. Henwood, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Senior Appellate Assistant United States Attorney, and H.S. García, United States Attorney, were on brief, for appellee.
In June 2002, Hernández filed a Motion for a New Trial under
Hernández herein appeals from the district court‘s denial of his motion for a new trial. Because we find that the district court erred both in its analysis of the new evidence and insofar as it rejected the magistrate‘s credibility determination without
I.
On September 27, 1997, U.S. Customs officials intercepted a container at Crowley Yard in San Juan, Puerto Rico. It had just arrived from Venezuela, and although the bill of lading indicated that the container held only plastic cups, there was contraband inside as well. The consignee was a supermarket, and the consignee‘s representative was South Atlantic Trading Company (SATCO), of which Gorbea was part owner. Customs agents unloaded 7,514 pounds of cocaine, worth nearly one billion dollars. They then re-packed the containers with approximately 24 pounds of cocaine.
On October 2, driver Alain Ruiz-Galindez (“Ruiz“),2 an employee of J.R. Transport -- a company owned by Hernández -- arrived at Crowley Yard to retrieve the container. The truck stopped several times during its route, sometimes for thirty minutes or more. A trip that the district court judge estimated should have taken thirty minutes took about four hours. Although other cars on the road at that time had their headlights on, Ruiz drove without headlights. From the moment the truck left Crowley Yard, Hernández followed it in a gray van. During one of the
It appeared to the officers following the truck that a Crown Victoria with several passengers inside arrived at the truck yard at the same time as the truck, and that one passenger carried an object that might have been a gun. The officers reported seeing people in the truck yard greeting and congratulating one another once the container was inside the lot. After surveying the scene, the officers moved in and made arrests. The container had not been opened.
When Gorbea was arrested in December 1997, a faxed document was found in his briefcase (“the fax“). It was dated February 5, 1997 -- nearly ten months prior to his arrest and almost eight months before the container was intercepted -- from a Marina Kassert in Venezuela regarding an earlier shipment of plastic cups. It said, “I urgently need the information of your friend that has the truck to square everything with him.” On the back of the two-page fax, among several other handwritten notes, was the name José Hernández.
At their joint trial, neither Gorbea nor Hernández presented any evidence and both were convicted on September 3, 1998. Ruiz, also a defendant, was acquitted. After this court affirmed his conviction, Hernández, 218 F.3d at 71, Hernández filed
The new evidence was an affidavit from Gorbea, declaring that he and Hernández did not know each other personally until they met, after their arrest, in a detention facility in Puerto Rico. According to his affidavit, at the time of his arrest Gorbea told U.S. Customs agents Ricardo Rivera (“Agent Rivera“) and Brenda Talavera (“Agent Talavera“) that he did not know Hernández personally, and the agents took note of this information. Id. at *4. At the evidentiary hearing before the magistrate judge, Gorbea testified that he never told Hernández about the drugs in the truck, and that because no one in Venezuela knew Hernández either, Hernández had “no reason to know” of the drugs in the container. Id. at *5. Gorbea testified that he never told truckers what they were hauling, and -- although he did not admit his own guilt -- he explained that if he were to import drugs, he would never inform
Of particular significance was Gorbea‘s testimony regarding the fax. At the evidentiary hearing, he explained that in May 1997 (approximately three months after the fax transmission) he was in Venezuela looking for information regarding a shipment of soda crackers that was scheduled to go to Puerto Rico from Venezuela. Id. at *6. Gorbea stated that he called the company representing Crowley Maritime Shipping in Venezuela and spoke to an individual by the name of José Hernández-Avilés, or some similar name, who was unable to help him. Id. That employee transferred him to two or three other people at Crowley in Puerto Rico until
After filing for a new trial but before the evidentiary hearing, Hernández moved to compel Crowley Maritime Corporation to produce personnel records regarding the existence of any employees with the name José Hernández during the time period in question. The records indicate that from May to October 1997, the following were Crowley employees: 1) José Hernández-Vélez (San Juan); 2) José Hernández-Marrero (San Juan); 3) José Hernández-Febus (San Juan); 4) José Hernández (Venezuela).
At the evidentiary hearing, the government presented the testimonies of Agents Talavera and Rivera. Agent Talavera testified that she went to Crowley as part of her investigation to determine whether José Hernández had ever worked there. Although she did not remember the outcome of the inquiry, she stated her belief that knowledge of a Crowley employee by the same name in
Agent Talavera was asked to describe the evidence -- aside from the fax -- of Hernández‘s willing and knowing participation in the crime. Id. at *8. Agent Talavera responded with the following: employees of J.R. Trucking obtained the paperwork for the shipment and moved the container which held the drugs; a surveillance video recorded Ruiz walking around the truck prior to departure, inspecting the seal, the locks, and the tires; agents following the truck saw Hernández and Ruiz periodically getting out of the truck to examine it from behind during the unusually long journey from Crowley Yard to the J.R. Trucking yard; and the truck drove without headlights. Id. Agent Talavera testified that she had no knowledge of whether the truck had mechanical problems, but the magistrate judge found that Agent Talavera‘s report clearly contained the driver‘s explanation as to his circuitous route: the truck had no serviceable lights and he used the back roads so as to avoid police detection of the fact that the truck was driving without lights. Id.
Notes
II.
Our standard of review of a district court‘s denial of a Rule 33 motion for a new trial is “manifest abuse of discretion.” United States v. Falú-González, 205 F.3d 436, 442 (1st Cir. 2000). The issue before us on appeal is thus whether the district court abused its discretion when it found the newly proffered evidence insufficient to warrant a new trial under Rule 33.5
The district court did not analyze the first two prongs, finding that Hernández could not surmount either the third or fourth part. We will consider appellant‘s claim with respect to the test in its entirety, cognizant of our own precedent which dictates that we have no discretion to grant a motion for a new trial if any one of the four factors is lacking. United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991).
Hernández claims, and the magistrate judge agreed, that the new evidence proffered in this case -- Gorbea‘s affidavit -- was unavailable at the time of trial. This circuit has long held that exculpatory affidavits from co-defendants who exercised their Fifth Amendment privilege not to testify at trial may constitute “newly discovered evidence” for Rule 33 purposes. Montilla-Rivera, 115 F.3d at 1065-66. Contra United States v. Theodosopoulos, 48 F.3d 1438, 1448 (7th Cir. 1995); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir. 1994). Nevertheless, we have also emphasized the need for “great skepticism” in such cases because “[a]
The district court assumed arguendo, without further discussion, that the defendant established due diligence. The magistrate, however, considered the issue and found persuasive an affidavit by Hernández‘s counsel in response to Hernández‘s unsuccessful § 2255 motion in which he detailed his efforts to solicit Gorbea‘s testimony at trial. Hernández, 2004 WL 1737361, at *12. He stated that in pretrial meetings with both defendants and their counsel,
it was agreed that Defendant Gorbea would take the stand and testify in a way favorable to both him and Hernández. However, when the government rested its case Gorbea had made up his mind, and refused to testify although his counsel had advised him to do so and explained to him that the defense needed his testimony to convey to the jury the fact that the defendants had no knowledge at all about the presence of cocaine in the container.
A survey of the circuits reveals that the requisite measure of diligence in a Rule 33 inquiry is dependent upon the nature of the evidence in question. See, e.g., United States v. Villarreal, 324 F.3d 319, 326 (5th Cir. 2003) (finding that defendant was not sufficiently diligent where the new evidence proffered consisted of details in a video that was introduced at trial, and which would have been visible had the tape been played more slowly); United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980) (observing that defendant should have been more diligent in attempting to obtain a letter -- offered after conviction as the basis of a Rule 33 motion -- the existence of which he had been aware at trial).
We find that the diligence factor -- where the new evidence in question is the testimony of a co-defendant who exercised his Fifth Amendment privilege at trial -- does not require more than Hernández has shown in this case. He did not have the power to compel Gorbea to waive the privilege against self-incrimination, and since both defendants and their counsel agreed in pretrial meetings that Gorbea should and would testify, it seems certain that Hernández‘s diligence burden has been discharged. Hernández has thus satisfied the second prong of Montilla-Rivera.
Although the district court correctly points out the seven month gap between the date of the fax (February 5) and the interception of the shipment at issue in this case (September 27), we find the materiality analysis to have been too limited. New evidence is material if it has the potential “to alter the outcome of the lawsuit under the applicable legal tenets.” Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996).7
Hernández was convicted of conspiracy. The bulk of Gorbea‘s affidavit and testimony speaks directly to the question of whether Hernández knew or had reason to know that there were drugs in the container. This alone, in our opinion, would be sufficient to satisfy the materiality element. As for Gorbea‘s testimony regarding the fax, despite the seven month delay between the fax and the shipment, we clearly stated in our affirmance of his conviction that “[o]f great weight is the fact that Gorbea wrote Hernández‘s name on the back of the fax” because it suggested the existence of conspiracy at an earlier date. Hernández, 218 F.3d at 67. Furthermore, we find significant the fact that in its closing argument at trial, the government made specific reference to the fax, asking the jury, “[n]ow, ladies and gentlemen, why does a shipper in Venezuela need the name of the trucker in Puerto Rico, to square what?” Hernández, 2004 WL 1737361, at *15. And in its rebuttal the government argued:
The fourth count deals only with Mr. Douglas Gorbea and Mr. Hernández and that is a conspiracy to import and what is the evidence there. Mr. Gorbea, as early as March, starts importing paper cups and who is his friend and trucker, Mr. J.R. In Government‘s Exhibit 11, the telefax, Mr. Gorbea writes in his own handwriting, Juan Hernández and what is Marina Kassert asking him, give me the name of your trucker, your friend. So now you know that Mr. Hernández had participated in that
importation and that the importation did succeed.
Id. (emphasis added). The government specifically told the jury that the fax constituted evidence of at least one count with which Hernández was charged and ultimately convicted. Gorbea‘s alternative explanation for the name on the fax, coupled with new corroborating evidence of multiple employees with the same name working at Crowley during the time period in question, goes directly to Hernández‘s claim of misidentification. Thus, we find that Hernández has satisfied Montilla-Rivera‘s third prong.
Finally, Hernández must demonstrate that the new evidence is “likely to result in an acquittal upon retrial.” Falú-González, 205 F.3d at 442 (quoting Montilla-Rivera, 115 F.3d at 1064-65). The district court began its analysis with a statement that it would assume, arguendo, that the defendant‘s proffered evidence is credible. Hernández, 350 F. Supp. 2d at 344. The court nonetheless held that Hernández had not made a sufficient showing under this prong because
[w]hile there may be other explanations for the truck‘s evasive route, and even for the name written on the fax, “[a] reasonable jury could infer [petitioner‘s] knowledge of the contents of the container and his participation in the larger scheme,” from his suspicious behavior in transporting the container, to wit, tailing the truck in a van for four hours, when it should have taken an unaccompanied truck driver no more than a half hour.
The district court considered the primary value of the defendant‘s new evidence to be Gorbea‘s suggestion of an alternative explanation for the name written on the fax. We think, however, that this assessment fails to account for the full implications of the new evidence. If the jury were to believe Gorbea‘s affidavit and testimony at a new trial, it would find that: Hernández and Gorbea did not know one another personally prior to arrest; Gorbea never spoke to Hernández about transporting drugs and gave Hernández no reason to think that he was transporting anything but ordinary cargo that had cleared U.S. Customs in the ordinary fashion; Gorbea never mentioned Hernández to anyone in Venezuela; Gorbea only hired Hernández to haul the container because he was the lowest bidder for the job; and the name on the back of the February 5 fax referred to an altogether different person.
Inasmuch as the district judge failed to consider the full import of the defendant‘s new evidence, we conclude that the district court abused its discretion. As we view the evidence in
In a new trial, the government would be left to contest Gorbea‘s credible testimony (so assumed by the district court) with the circumstantial evidence of the truck‘s long route, the strange behavior of the defendant and the driver, and the celebration that ensued upon the truck‘s arrival. The district court placed great weight on this circumstantial evidence in its analysis, relying on our assessment of the sufficiency of the evidence on direct review. However, a determination on direct review that certain evidence is sufficient to support a verdict does not eliminate the possibility that, if new evidence is later presented, a court may grant a motion for a new trial. Indeed, we have previously stated that where the government‘s case against a defendant is “sufficient, but underwhelming,” new, credible testimony “could lead to a different outcome.” Montilla-Rivera, 115 F.3d at 1066. On direct review, we determined that the circumstantial evidence presented against Hernández was sufficient to support the guilty verdict when viewed in the light most favorable to the government. Hernández, 218 F.3d at 67 & n.6. However, we also acknowledged that, “[a]s with much of the evidence in this case, the record provides other possible explanations for the[] facts” regarding the “suspicious” transport of the container. Id. The record shows that the jury heard testimony from a government witness that Ruiz, Hernández‘s employee
In considering the motion for a new trial, we must carefully consider the strength of the government‘s case in light of the new evidence. In so doing, we find it difficult to understand how the government‘s circumstantial evidence could so overwhelm the direct testimony of Gorbea (that the district court assumed was credible and which, by its terms, undermines the government‘s theory that Gorbea and Hernández were conspiring to transport the drugs) as to preclude a likelihood of acquittal upon retrial.
To the extent that the district court‘s denial of the motion for a new trial may have been influenced by a negative assessment of Gorbea‘s credibility, there was another error in the judge‘s ruling. Despite the district court‘s strong suggestion to
Although we have not previously addressed this question, a few other circuits have had occasion to consider it, and they are in broad agreement: A district judge may not reject a magistrate‘s findings as to the credibility of a witness without hearing the witness testify first-hand. See United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001); Hill v. Beyer, 62 F.3d 474, 482 (3d Cir. 1995); Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980).
III.
In summary, we conclude that the district court abused its discretion by failing to consider the full import of defendant‘s new evidence given its decision to assume, arguendo, Gorbea‘s credibility. Furthermore, to the extent that the district court‘s analysis rested upon the rejection of the magistrate judge‘s credibility determination without hearing the evidence, it abused its discretion. In light of these errors, we remand for further proceedings.
In considering this case, however, we are faced with a dilemma as to whether we should remand to a different district judge. This dilemma arises because it will become necessary for the district court, if it chooses not to accept the credibility findings of the magistrate judge on remand, to hear Gorbea testify first-hand and make its own credibility determination. Although we believe that, upon remand, the district judge in this case would
For the foregoing reasons, we remand this case to a different district judge for proceedings consistent with this opinion.
Remanded.
(Dissenting opinion follows.)
In stating that Gorbea‘s testimony, if believed, would “greatly undermine the conspiracy charges against Hernández,” ante at 17, the majority analyzes the matter as if Gorbea has now admitted to knowing that drugs were in the truck and belatedly stepped forward to accept responsibility and exonerate the innocent Hernández. But Gorbea has not admitted to any such knowledge. In fact, Gorbea told the magistrate judge that he was innocent, and that “I can say over my mother right there that that cocaine wasn‘t mine. That I didn‘t know that the cocaine was there.” If Gorbea had no knowledge of the cocaine, of what probative value is the fact that he did not meet Hernández until after they were arrested? And of what probative value are the facts that he did not tell the truckers he hired what they were hauling, that he gave Hernández no reason to think that he was transporting anything other than ordinary cargo, and that the “José Hernández” on the fax was someone other than the defendant? Little if any.
I understand the impulse not to terminate the Rule 33 proceedings, which the government has botched by (1) failing to bring to the attention of the magistrate judge, the district judge, or this court the fact that Hernández‘s motion was untimely,10 and
(2) failing to highlight clearly and effectively the immateriality of Gorbea‘s testimony, given Gorbea‘s concomitant insistence that he did not know about the drugs. Under the rule established in Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 404-07 (2005) (Rule 33 time limits are not jurisdictional and may be forfeited), the government appears to have forfeited any timeliness argument that it might have had. But Gorbea‘s testimony still is what it is, and, for the reasons set forth above, it is insufficient as a matter of law to ground a new trial order.
Accordingly, I respectfully dissent.