*1 in prej- resulted rights that denial of those America, at 1244. UNITED
udice to him. See id. STATES Plaintiff-Appellant, v. Rangel-Gon In United States v. zales, Cir.1980), we QUINTANILLA, Maribel prejudice that an alien establishes held Defendant-Appellee. he shows that “he did not know of
where officials, to consult with consular right his No. 97-2332. would have availed himself of that Appeals, United States Court of it, and that there right had he known Tenth Circuit.
was a likelihood that the contact ” him.... have resulted assistance to 1, Oct. applied The district court that test to Es parza-Ponce’s Esparza- case and held that
Ponce alleged- even
has not demonstrated-nor
that he contacted the consul would have right
if informed of he had been course, [Esparza-Ponce]
do so. Of fully right appar-
now aware of his but
ently still has not contacted the consul.
Moreover, [Esparza-Ponce] has not es-
tablished, nor even that the con- alleged, anything help have
sul would done had, and,
him if consul it would have anything attorney
been that his has not Johnson,
already done. See Faulder [v. (5th Cir.1996) (finding ] prejudice “the
no because evidence [for-
would have been obtained
eign] merely authorities is the same as
or cumulative of evidence defense coun- obtained”).
sel had or could have
Esparza-Ponce, F.Supp.2d at 1097. agree. Esparza-Ponce
We has not fact, prejudice;
shown he has not even prejudiced.
argued here he was His
claims under the Convention entitle
no relief.
AFFIRMED. *2 Friedman, Section, Appellate
Richard A. Division, Justice, Department of Criminal (John Washington, Kelly, D.C. J. Federici, and Fred As- Attorney, J. Attorney, sistant United States *3 brief), appellant. on the for the Mandel, Barbara A. Assistant Federal (Ann Steinmetz, Public Defender Federal brief), Defender, with her on the Public Cruces, Mexico, appellee. for the Las New SEYMOUR, Judge, Before Chief BALDOCK, BRISCOE, and Circuit Judges.
BRISCOE, Judge. Circuit appeals from the dis- The United States trict court’s following her conviction for for a new possess, possession conspiracy to kilogram one or more intent to distribute methamphetamine. juris- We exercise § 1291 and pursuant diction 28 U.S.C. reverse.
I. defendant Maribel On Charger Quintanilla, driving Dodge Ram at a plates, stopped truck with Texas checkpoint in Border Patrol response New Mexico. In Alamogordo, agent regarding from an her questioning she had been itinerary, defendant stated Paso, Texas, El Alamo- traveling from half-brother,1 claimed her gordo. She Aleman,2 Defen- owned the vehicle. Adan conflicting stories gave dant series visit, purpose of her several regarding the agent of which contained information Following false. this discus- knew to be sion, agent directed adjacent to the inspection area secondary if examine checkpoint and asked he could Defendant greater detail. the truck consented. employed Alfredo the aliases exact 2. Aleman often
1. Defendant nature described and, government, Sam according to the Ortiz ways. relationship in different noted, we refer to otherwise Ortiz. Unless him as Aleman. Alamogordo having repaired. of the underside of the truck Examination multiple gave stepson phone scratches on the truck revealed Sanchez number gas which, on the shiny vent hose and bolts where defendant could be reached tank, recently tank suggesting although purportedly repair that of the replaced. been With defen- garage, actually removed went to Sanchez’ cellular consent, agent brought drug- dant’s phone. scene, to the and the canine dog detection 30, 1994, evening, April The next Ale- alerted to the tank. As other officers re- Ortiz) (identifying man himself as Alfredo tank, agent moved the asked phone. called Sanchez’ cellular Sanchez happen what would to her and her two told defendant was not available but (who passengers children were in the truck being serviced truck) drugs if were found inside. *4 shop. phoned following Aleman back the agent told she would be arrest- morning at which time him Sanchez told Upon removing ed such scenario. paid repairs, defendant had for all re- tank, officers discovered metal box inside husband, Angeles turned to Los with her pounds containing thirty-five ninety-two of stating and left a note the owner of the A percent pure methamphetamine. subse- truck coming pick up would be quent registration check revealed li- (as promised pur- vehicle. Aleman plate on the truck registered cense owner) ported would arrange to have the belonging a different vehicle to an individ- truck retrieved. He called again later that Pecos, ual from Texas. Defendant was afternoon and stated an individual named arrested. then Manny arriving Bautista would be El from After being advised of her Miranda up pick Paso to the vehicle. rights, Agent told Susan San- arrived, When Bautista Sanchez re- chez she traveled from her home in quired verify permission his from Jurarez, Mexico, Angeles Los with her the truck’s owner to take vehicle. daughters and Aleman. At the time phone, Bautista called Aleman on Sanchez’ arrest, defendant maintained she was en and Aleman verified to Sanchez that Bau- party in Alamogordo route to a and was acting tista was at his direction. Aleman driving by a truck loaned to her Aleman. telephone also offered two numbers and an planned claimed she She to return the where address he could be reached. The apd Aleman in Alamogordo truck to then gave address he was that of defendant’s fly Angeles back to Los children. prior residence in Los Angeles. One of statements, attempt verify In an these phone numbers he gave was traced to Sanchez drove defendant to the site of an El by'Adan Paso home owned Saranda.3 alleged point, rendezvous but Aleman was That number was also the one Bautista nowhere to be found. had used to contact Aleman. As Bautista day, That same phoned Sanchez defen- off, got in the truck to drive he was imme- husband, Quintanilla, dant’s Tomas in Cali- diately arrested.
fornia to alert him to his wife’s arrest and That same day, defendant wrote a note pick up the need to Upon children. to Agent jail Sanchez from her cell indicat- arriving day, the next defendant’s husband ing Aleman could be found at the El Paso agreed locating assist authorities Ale- note, home of Saranda. The translated Specifically, man. in the event Aleman Spanish, from read: called defendant’s home in Angeles Los her, Aleman, looking you please defendant’s Will follow you husband di- stepson, rected his who remained at will find that you something will find residence, to tell Aleman defendant inwas out. The name is Adan Saranda. This 3. Adan consistency, Saranda often used the aliases Salva- we refer to him as Saranda. Gallegos dor purposes and Alan Salamo. For silicone, rivets, necessary and other tools name is And the true
is the address. by compartment tank. goes gas but he a false on Gallegos, seal Salvador person Michigan. of a deceased jury, agents name not disclosed to the Although it. Please got here. I The address methamphet- grams also seized 264.7 him, regret will not it. you watch 53.7'grams marijuana. amine and San- that, experience, in her such chez noted Phone records later X at 750. R. Vol. 26, 1994, three April surroundings type often reflect the envi- that on revealed arrest, phone calls two by involved before ronment used individuals El Paso home from Saranda’s were made trafficking. narcotics Angeles Los resi- current to defendant’s items seized the residence Several 30, 1994, addition, April In on dence. to defendant. In one of were connected arrest, calls four day after bedrooms, agents discovered West- El home Paso made from Saranda’s were money gram receipt of ern Union $300 home. Angeles Los current to defendant’s to defendant on sent arrested and had been After Bautista day of her arrest. the interior 1, 1994, he May rights of his advised garage, agents and in the also of the house delivery of make a controlled agreed to receipts with defendant’s found numerous direction of At methamphetamine. Further, Angeles and Los address. name phoned Aleman at *5 Bautista agents, federal that in the two telephone records reflected stated the El Paso address and Saranda’s search of the Pico preceding months repairs. and needed leaking gas truck was residence, fifty-nine telephone calls Rivera to drive the ve- Bautista directed Aleman to made from that residence had been Ange- in Los location designated hicle to a El Paso home. Saranda’s Bau- agents, federal Accompanied les. Defendant, and along with Aleman directive. Once followed Aleman’s tista Viveros, in the May indicted in specified at the was arrived agents and the conspiracy Saranda Mexico for to Bautista called Saranda. District of New spot, drove to and the two picked up Bautista with intent to dis- possession and possess, Viveros, driving was a who meet with Luis kilogram or more metham- tribute one Fol- to defendant. Toyota registered red months Approximately two phetamine. discussion, parties went a brief lowing trial, before ways. dropping After Bau- separate their flurry of sever. As a result of a motion to a went to airport, at the Saranda tista motions, the court continued pre-trial Rivera, and in Pico California residence The multiple occasions. setting then drove to up Viveros. The two picked date, upon ordered latest trial Charger Dodge of the Ram the location motion, April was garage returned it to the truck and a mo- defendant filed April On home. Pico Rivera trial, to a continuance of the slated tion for time, federal period a short Within moved for days. in six Defendant begin the Pico Rivera resi- surrounded agents trial to be permit to Viveros’ continuance warrant, dence, and ar- a search executed might so his be- concluded first Agent Viveros. San- Saranda and rested trial. her come available to defendant the home looked like a “stash chez testified alia, stated, inter counsel Defendant’s refrig- there was no house.” She observed attorney and with spoken he had Viveros’ kitchen, none of the or in the erator stove deny knowing planned to learned Viveros cleaned, trashbags had been cabinets driving defen- claim he was everywhere with remnants were scattered third-party Toyota red because dant’s purchases. Addi- food restaurant of fast him, he had it to and state had loaned in cash hidden tionally, agents found $8900 direction to defendant at the money wired plastic entertainment inside a hollowed-out motion for continu- third-party. The of a handguns. two nine-millimeter center and attorney had ance further states gun, found a rivet agents In the garage, Juarez, informed defendant’s counsel Viveros her brief time in she claimed she his Fifth Amendment rights would assert and Aleman went to in El Saranda’s home prior comple- if called to the as witness “get Paso to to know” Texas. She insisted upon Based these repre- tion his trial. she knew Saranda as a car salesman attorney, sentations from Viveros’ defen- and Aleman’s at boss. While Saranda’s dant a continuance of her trial requested house, defendant stated she made two permit proceed to phone calls to her Angeles Los home to (On the Viveros’ case first. date this mo- request family send her credit filed, yet agreed tion was Viveros had not cards. In attempting explain the note plead denied guilty.) regarding Saranda that she wrote to motion in a minute explana- order without cell, Agent jail Sanchez from her defen- 10,1995. tion before trial on dant merely stated she directing agents to where Aleman Friday, April might
On three be found. days begin, before defendant’s trial was to As she had told Border Patrol authori- three after defendant had filed her ties, defendant testified Aleman loaned her continuance, motion for a gave Viveros the Dodge Charger Ram truck so she Agent Danny statement Garcia could Alamogordo travel with her (DEA). Drug Enforcement Administration daughters. She maintained that when she date, By this had agreed plead Viveros stopped checkpoint, the border she guilty, although yet he had not entered a lied itinerary about her travel out of a fear plea negotiated plea agreement. or Ac- officers would family, arrest the Aleman cording summary, to Garcia’s interview whom she was helping enter the United (1) Viveros stated the Pico Rivera resi- illegally. She also conceded she (2) Ortiz,4 dence belonged to Sam continued to lie to federal agents about had wired to defendant at Sam Ortiz’ $300 this matter following arrest and during *6 (3) request, Viveros had no familiarity with period the purported her cooperation family arrest, defendant or prior her to his with federal authorities. (4) and believed the red Toyota, Viveros In explaining why Viveros driving was defendant, which titled belonged to to Toyota arrest, her red at the time of his Sam essentially Ortiz. These statements defendant stated she had received the car allegations mirrored the set in sup- forth gift as a from previous Aleman the month. 4, 1995, port of April days prior Two departure to her for Jua- for a continuance. rez, she loaned the car to Aleman and had Defendant’s trial April commenced on not seen it since. Her husband testified to herself, 1995. Taking the stand defen- the same facts. As far as the in receipts dant knowledge insisted she had no her name found in the Pico Rivera resi- methamphetamine in concealed the truck’s dence, she put claimed she had the re- gas tank. She testified three ceipts glove in the compartment of her arrest, before her she traveled with her Toyota, but had no idea receipts how the Jurarez, Mexico, children and Aleman to got insisted, however, into the house. She assist Aleman in and his wife bringing she never had been inside the Pico Rivera their illegally children into the United residence. States. She agreed stated she to do so brother, Moreno, because Aleman’s wife is her niece and the Defendant’s Juventino two very alleged are close. This then relation- testified he had traveled to Mexico (a ship to Aleman year was different from the March 1995 after ar- rest) connections defendant had claimed to au- look Aleman. March On previous thorities on During occasions. allegedly Moreno found Aleman and 4. The maintains Sam Ortiz one there is no evidence of such a connection. suggests Aleman's aliases. Defendant
H45 let pre-trial cited in her motion for him to write a two-sentence convinced truck Dodge Charger Ram continuance and for new trial. stating the ter him, (1) and tricked defendant belonged Specifically, Viveros he did not stated asking (2) her to by husband; the vehicle driving into or know defendant family Alamogordo him to accompany had third-party6 to take instructed purportedly After Aleman reasons. Toyota, parked the at the red which was in Moreno’s the unnotarized letter signed Pico Rivera residence and which Viveros Moreno it to defendant’s presence, faxed not know was registered did origi allegedly destroyed and the counsel help person, another he later and whom also throwing it a well. Moreno by nal Saranda, pick up Dodge learned was the to call allegedly convinced Aleman (3) truck; Charger Ram and he had wired investigator, Public Federal Defender’s money to defendant via Western Union conversation, say and taped who third-party’s upon the instruction. knowledge no of the meth had defendant Viveros also denied the Pico Rivera resi- gas in the truck’s amphetamine secreted was a “stash He testified dence house.” (The a motion government filed tank. arrest, at time of he had his been Fed. to exclude this evidence under limine guest of an staying home as 804(b)(3), but the district court R.Evid. had unidentified individual in Mexico who govern the motion as well as denied (Viveros’) entry into illegal facilitated objection.)5 contemporaneous trial ment’s Contrary photo- States. the United 20, 1995, April jury found defen- On testimony of graphs, affidavits and sworn charged in guilty of both counts dant home, agents searching federal 27, 1995, April On indictment. relatively kept the house was insisted pursuant a motion for new trial filed refrigerator and the had a clean kitchen motion, In her defen- Fed.R.Crim.P. ample cooking utensils. Viveros ad- argued she “believed” Viveros dant knowing gun of one mitted the existence information, proceeded exculpatory house, he never saw in the but maintained allegations regarding identical assert any gun, illegal drugs, a second $8900 purported testimony referenced agents, tools located found or the 4,1995, motion for a continuance. Defendant maintains she garage. commenced, Only after her hearing before that Viveros not aware stated, learn purported did she of Viveros’ any- Pico Rivera residence *7 considered to invoke his Fifth Amendment intention than a thing other stash house. sentencing. until his Defen- rights formal newly 23, 1995, filed a testimony was defendant argued dant Viveros’ On October the court to evidence and asked trial based supplemental discovered motion for new delay ruling gather “until counsel is able to exculpatory evi- upon discovered mo- information this further in motion, argued In the defendant dence. II, R. tion.” Vol. Doc. 185. testimony was detail that Viveros’ greater testimony exculpatory to and his defendant 30, 1995, sentencing August Viveros’ On set forth requirements satisfied all the same hearing was conducted before Sutton, v. 726 United presiding who was over defendant’s judge (10th Cir.1985), for a motion Viveros, alien, granting illegal who an trial. is evi- upon newly based discovered new trial on departure a downward based sought 1996, 20, the district February dence. On aberrant behavior. Viveros testified hearing a on defendant’s defendant court convened the same information largely 804(b)(3), clearly trustworthi- indicate the applies to "unavail- cumstances 5. Rule which declarants, ness of the statement.” provides statement "[a] able” tending expose declarant to criminal third-party as Sam 6. Viveros identified liability exculpate the accused and offered to suggests Viveros Ortiz. corroborating cir- admissible is not unless referring to Aleman. 1146 Gutierrez-Hermosillo, called v. for new trial. Defendant United States
motion 1225, Cir.), echoed the stand and he de cert. Viveros —nied, —, 230, sentencing gave his own U.S. 119 S.Ct. hearing, (1998); At the conclusion of the hearing. L.Ed.2d 189 1248, defendant’s motion under the court took F.3d Hughes, 33 Cir. 1996, 1994). defen- On March advisement'. an mo- supplemental dant filed additional based her trial original Defendant new motion, new trial. In defen- tion for ground: “newly motion on one discovered government’s failure to dant asserted supplemented evidence.” She motion provide defendant with the information it with evidence and filed an additional later inter- from Viveros when he was received supplemental asserting a additional prior Sep- On
viewed defendant’s trial. Brady granting claim. defendant’s mo- 10, 1997, opin- the court an tember issued tion, analysis court the district divided its defendant a trial. The granting ion new (1) categories: into two Rule “interest 33’s (1) gave court held statements Viveros (2) justice” prong, prosecutorial and Agent to DEA Garcia before trial reflected Brady violations. The court examined de- (2) unknown to if information allegedly newly fendant’s evi- discovered been informed Viveros would justice” analysis, in its dence “interest privi- Fifth asserting be Amendment provision holding this obviated the need to commenced, defendant’s trial it lege before examine the discovered evidence granted would have continu- ap- claim under the traditional standards completion ance until after the plicable such a theory. As discussed (3) sentencing, government’s fail- below, court stan- misconstrued the turn DEA summary ure to over the and, evaluating dard for new trial motions Agent Garcia’s interview with con- process, in the abused its discretion Brady violation. stituted granting defendant new trial. Newly Discovered Evidence Claim II. Under Rule if a trial mo new Rule Federal of Criminal Proce within tion is filed seven after dure authorizes a district verdict, may request required trial if the interests any on basis that in the required is justice.7 Although a trial court is afforded justice. seven-day interest of After the motion, ruling on discretion such a expired, however, period has a defendant’s is to weigh free the evidence and assess request new trial may granted only be Florida, credibility, witness Tibbs v. the basis of A discovered evidence. & n. U.S. 37-38 S.Ct. stated, number of circuits (1982), have without L.Ed.2d a motion new trial any explanation substantive with and often regarded disfavor and should dicta, be that a for new trial which is great caution. *8 Sinclair, 1527, v. based on discovered and is 109 1531 evidence F.3d (10th Cir.1997). ordinarily days asserted within seven ver We review after the dict, rulings subject heightened such for an discretion. is to a abuse of discretion Schlei, Id. If a new trial on an standard. See motion is based United States v. violation, however, 944, alleged Brady Cir.1997); we re F.3d 990-91 908, view district de ruling court’s novo. v. Pinkney, United States 543 F.2d provides: grounds "On any may only Rule a defendant’s mo- on other be made with- tion, may grant days finding guilty a new trial to the after verdict or of if the justice may defendant interests of so re- or within such further time as the court quire A motion during 7-day period.” quoted .... for a new based on trial fix The only may changes discovered evidence made be rule includes minor made in Decem- years finding three any within after the or of verdict ber none which have relevance guilty.... A trial motion for a new based to this case.
H47
(citations
(D.C.Cir.1976);
Sinclair,
at
tal.
109 F.3d
n. 56
omitted).
Rachal,
Cir.
473 F.2d
Johnson,
1973);
see
States v.
but
The substance of Viveros’
(motion
(7th Cir.1994)
for
Agent
interview
Garcia
evi
discovered
new trial based on
well
her trial
known
defendant
before
subject
stan
rigorous
is
to same
dence
only
poten
commenced. The
comments
date).
irrespective
its
We
filing
dard
tially helpful
in that
to defendant elicited
The
reasoning.
this
“interest
reject
suggestions
interview were Viveros’
applies
all motions
justice” standard
(1)
belonged
Pico Rivera
residence
trials,
on
predicated
those
including
new
(2)
Aleman,
had wired
Viveros
$300
defining
newly discovered evidence.
even
request,
at Aleman’s
defendant
justice” in the
of a
context
“interest
(3)
not know
though Viveros did
however,
claim,
newly discovered evidence
familiarity
had
with defendant
no
a multi-pronged
have established
courts
(4)
husband,
and
Viveros believed
or
Sinclair,
If
at 1531.
test. See
Toyota
red
titled to
be
defendant
applied
“newly
were
dis
this test
not
clearly
This
longed to Aleman.
evidence
as
evidence” new trial motions
covered
was not
does not warrant a new trial as it
verdict,
days
within
after the
serted
seven
Indeed,
“newly discovered.”
defendant
no
obli
diligence
would have
defendants
days
before
cited
same information six
evidentiary
keep an
and could
gation
motion
a contin
trial
of her
of a
trump card in the event
conviction.
Moreover,
uance.
as we describe
detail
penalize
rule
convicted
also would
Such
below, the
would not have been
evidence
evi
exculpatory
defendants who discover
material
her defense.
(but
days
than seven
within
dence more
years)
the verdict. Rule
three
after
at
respect to
elicited
With
evidence
no
dictates
such result.8
new
sentencing and defendant’s
Viveros’
hearing,
trial motion
information
testimony
proposed Viveros
potentially helpful and unknown to
both
granting
as the basis for
cited
de
prior to trial
Viveros’
catego
trial can
into two
new
be divided
as
scription of the Pico Rivera residence
(1)
Gar
Agent
ries:
Viveros’ statements to
clean,
not
home which did
fully-equipped
trial,
cia three
before defendant’s
Importantly,
as a
house.”
serve
“stash
(2)
testimony at his
sentenc
own
however,
none of
defendant satisfied
trial
hearing
new
ing
regarding this evidence.
Sinclair elements
five-part
A
test must be
hearing.
employed
diligence
no
Defendant’s counsel
whether this “new
applied
determining
information.
attempting
gather
warrants a
ly discovered evidence”
a witness at
did
call Viveros as
Counsel
not
(1)
evi
Defendant must show
trial.
trial,
any
did
adduce
nor
counsel
(2)
trial,
after
dence was discovered
jury’s presence
that Viveros
outside
not
to learn of the evidence was
failure
rights
assert his Fifth Amendment
(3)
diligence,
caused
own lack
formally
until
(4)
testify
and not
been
merely impeaching,
evidence
not
Further, defendant concedes
sentenced.
princi
evidence is material to the
the new
spoke
(5)
attorney “never
in her brief that her
involved, and
the new evi
pal issues
hearing
[defen
Viveros until the
nature
in a new with
is of such a
dence
held on
for new trial was
produce
acquit-
probably
dant’s]
it would
an
*9
establishing
perversion Rule 33
allow a defendant
law
a dis-
of
8. Even under the case
by filing
deliberately manipulate the standard
cretion continuum for new trial motions
trial,
motion,
boilerplate
predicated
new
motion for
timing
the
the
the district
a
based on
of
evidence,”
“newly
within seven
approach
on
discovered
court’s
here is troublesome.
verdict,
days
ask the court
after
then
involved new trial motions
the
cases identified all
ruling
defendant
refrain
while the
newly
known at
from
based on
discovered evidence
attempts
gather
new evidence.
is a
time the
was asserted.
It
the
motion
Miller,
1418,
Appellee’s Br. at v.
869 F.2d
Cir.
February
199[6].”
1989).
32.
a
Other than claim of
discov
evidence,
may
ered
“a defendant
not add
proposed
of Viveros’
testimo
None
arguments
new
in
of a motion for
prin
ny
been material to the
would have
by including
new trial
them in an amend
cipal
involved in the case. His
issues
ment filed after the time
Rule
under
regarding
Pico Rivera res
the
statements
Custodio,
expired.”9
v.
has
United States
idence,
best,
impeached
at
would have
the
(10th Cir.),
141 F.3d
cert.
de
credibility
agents
the
the
conducting
of
—nied,
—,
U.S.
S.Ct.
search
home. The critical
in
of the
issue
(1998);
v.
Anthony
L.Ed.2d
pri-
this case
whether defendant had
States,
667 F.2d
875-76
Cir.
drugs
or
of the
hidden in the
knowledge
1981).
may
Nor
the
court
new
Dodge
Charger
Ram
truck. The govern
on a
basis
asserted
the
by
not
defen
argued
guilt
ment never
defendant’s
Newman,
dant.
v.
United States
hinged
presence
on her
at
Pico Rivera
(3d Cir.1972).
668, 670
her
residence. Evidence of
connection to
designed only
the residence was
to show
Defendant
insists the district court’s
that her association with Aleman was
holding
is supported
United States v.
single trip
than
more extensive
to Jua
Patterson,
(10th Cir.1994).
1149 cumulative, rendering had been dence is considered an inference concluded court the immaterial. suppressed evidence Id. testimony was that the brother’s raised defense, thereby preju- the unfavorable IV. n. 2. Id. at & the defendant. dicing here. Defen- prejudice present No is of district court judgment such the is case at bar never and the attorney the case is REMAND- dant’s REVERSED testify ED jury to the Viveros with instructions to reinstate defen- suggested dant’s conviction. at trial.
Brady Violation
SEYMOUR,
dissenting.
Judge,
Chief
To
a violation of Bra
establish
Ms.
filed
Rule 33
Quintanilla
motion
S.Ct.
dy Maryland,
v.
373 U.S.
requesting a new
days,
within seven
trial
(1963), defendant must
a
L.Ed.2d
justice.
in the
of
I am
interests
thus
(1)
prosecution sup
demonstrate
majority’s
unable
with
deter-
agree
(2)
evidence,
evidence
fa
pressed
was
present-
first issue
mination
resolve
(3)
the evidence
vorable to
only
newly
under the
appeal
ed on
discov-
87,
olds,
F.3d
vored,
question
only
is
what the
and the
is whether the
inquiry
relevant
“The
”
justice requires.
.interest
‘exculpatory.’
Id. Nev
information
ertheless,
independent
A.
&
WRIGHT,
FEDERAL PRACTICE
3 CHARLES
(2ed.1982)
(footnote
exculpatory
evidence is
§
awareness of
Procedure
omitted).
a Brady
majority
whether
cites for
determining
critical
The case the
dealing
If a
al
with a
proposition
has occurred.
its
fact one
violation
evidence,
request
new trial on the basis
particular piece
ready has
evi- discovered evidence.
prosecution’s
disclosure
claims.
See
Brady
cal
discovered evidence
of a
claim asserted in
10. Evaluation
Robinson,
application
an
a new
involves
above,
1994).
the three elements identified
Cir.
typi
five-prong
test utilized in
Sinclair
not the
*11
Indeed,
Moreover,
argument in
agree
I am unable to
with the
defendant’s
ground
initial
of her new trial motion
II
opinion
mirrors
majority’s
continuance,
motion
solely on the
of her
for a
which
trial
was based
motion
out the
she set
substance of Viveros’ al-
evidence and
discovered
ground
leged exculpatory testimony and
grant
sought
court’s failure to
not on the district
continuance because she would be unable
initial motion
filed
continuance. The
if
to call
as a
she were
verdict,
witness
tried
after
days
seven
the
thus
within
to his
of his
first due
invocation
Fifth
allowing
to seek a
trial
defendant
rights.
Amendment
Motion
See
for Con-
justice.”
the “interests of
See
Fed.
tinuance, rec.,
II,
vol.
doc. 164 at 4-6. As
construed,
Fairly
I believe
R.CrimP. 83.
motion,
argued
in her new trial
she
harm
substance of that motion was the
to a fair
right
required providing
her
trial
resulting
court’s
from the
failure to
present
opportunity
her the
to
Viveros’
motion,
her
a continuance.
testimony. She cited several of the same
pointed
was unable to call Viveros
out she
cases in her new trial motion that she had
he
as witness because was unavailable
in her
relied on
motion for
continuance.
testify due to
invocation of
Fifth
his
Compare Motion for Continuance at 4-6
due,
That
Amendment.1
situation was
with Motion for New Trial at 1-3.
course, to the court’s denial of defendant’s
re
a continuance. Defendant
that,
granting
It is also clear
defen
government’s
cited in the
evi
trial,
dant’s motion for a new
the trial
house,
linking
point
dence
her to the stash
asserting
court understood defendant to be
out
government’s
ed
reliance
this
error in the denial of a
The
continuance.
trial,
evidence at
noted the
substance
recognized
court
that a new trial could be
purported exculpatory testimony,
granted
justice
if
interest
testimony
and asserted that his
neces
motion were filed within seven
even if
sary to
a fair
Although
afford her
trial.
the evidence could not
considered
be
the motion recited
govern
standards
Granting
discovered. See Order
New Tid
ing a
sought
new trial
on the basis of
al, rec.,
II,
vol.
at
(citing
doc. 239
18-20
evidence,
discovered
it is clear that
Patterson,
United States v.
H51
*12
proposed testimony prior
his Fifth
of the
to trial.
continue
assert
would
DiBernardo,
sentencing,
privilege until his
See United States v.
Amendment
Cir.1989) (new
granted
(11th
have
the court would
F.2d
1224-25
rec.,
II,
vol.
continuance. See
motion for
testimony of
ly
exculpatory
available
co-
Thus,
based
21-22.
the court
doc.
not newly
discovered because
part
in
on its
a new trial
grant
the
trial).
known to defendant before
the
had been
continuance
conclusion
Patterson,
Accordingly, in
v.
United States
abili-
denied
that defendant’s
wrongly
(10th Cir.1994),
the stash house. case obviously close one for jury, as the record re-
flects that deliberations lasted six to seven
hours. arguing After that its evidence tied
defendant to the house and stash therefore
to the conspiracy, is hard-
inly position appeal contend that offering evidence negation some
of that connection would have had no value