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99 Cr. 258 (LAP).
July 14, 2003
MEMORANDUM AND ORDER
LORETTA A. PRESKA, United States District Judge: Defendant Jose Luis Garcia ("Garcia" or "defendant") was charged with one count of conspiracy to distribute, and to possess with an intent to distribute, 5 kilograms or more of cocaine in or about January 1999, in violation of Sections 812, 841(a)(1) and 841(b)(1)(A) of Title 21, United States Code. Garcia was convicted on this count after a jury trial beginning on November 30, 2000 and ending on December 6, 2000. On May 23, 2002, Garcia was sentenced to 121 months imprisonment. Garcia now moves, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, for a new trial. For the reasons set forth below, Garcia's motion is denied.
BACKGROUND
I. Facts Elicited At Trial
The facts elicited at the trial of Jose Luis Garcia and codefendant Fatima Solano ("Solano") were as follows: On December 27, 1998, three large metal shipping containers containing squash, pumpkin, and otoe (a root-like vegetable) arrived in Philadelphia from Panama. These containers were headed to "MM Tropical," at 47 Exterior Street, Bronx, New York, where Solano operated a warehouse for the wholesale of fruit and produce. (Trial Transcript, hereafter "Tr.," at 70-71). Customs inspectors found 952.1 pounds (433 kilograms) of cocaine in brick form concealed in the otoe container. (Tr. 75-78, 99). They removed the cocaine and substituted "sham cocaine" for a substantial part of the original amount, (Tr. 107), and then delivered the otoe on January 11, 1999 to Solano's warehouse, under surveillance by Customs agents. (Tr. 106-08). Law enforcement officers were able to continue surveillance with the aid of four video cameras they placed inside and outside the warehouse. (Tr. 172-81, 187-88).
On January 13 and 14, the majority of the boxes of otoe were transferred from the container to the warehouse while the cartons in the rear of the container (where the cocaine had been concentrated) were left inside the container. (Tr. 222-25). In the early afternoon of January 15, 1999, Solano, Garcia (who worked for Solano moving boxes and performing related tasks) and Ivan Morales ("Morales") (a representative of the Panamanian cocaine shippers) transferred four forklift loads of cartons from the back of the container outside the rear of the warehouse to a van at the front loading dock of the warehouse. (Tr. 236). In the course of taking these boxes through the warehouse to the van, Solano repeatedly bypassed the hundreds of boxes of otoe from the front of the container, which had been previously unloaded into the warehouse. (Id). Co-defendant Norman Betancourt ("Betancourt") then drove the van carrying the cocaine to Queens. (Tr. 340-342). After law enforcement officials arrested Betancourt in Queens, they searched the van, discovering 25 kilograms of sham cocaine. The rest of the sham cocaine was found in boxes inside Solano's warehouse. (Tr. 396-98).
Shortly thereafter, at about 4 p.m., Solano and Garcia were also arrested at the warehouse and received Miranda warnings. (Tr. 404-407, 464-469). Solano claimed to a Customs agent that she had not known there was cocaine in the container. However, when questioned further about why she went to the trouble of unloading particular boxes from the container to put in the van (rather than taking the ones at the front of the warehouse that had already been unloaded and were closer to the van) she replied "I guess you're right." (Tr. 118). Later that day, Solano made additional statements at the Customs Service office: that she had found out just that day about the cocaine in the container from Morales; that she expected to be paid a "couple thousand dollars" and to be able to sell the otoe; and that she had not notified the police about the drugs because she was expecting to be paid by Morales. (Tr. 474-475).
Garcia also made post-arrest statements after receiving Miranda warnings. (Tr. 404-405). He initially claimed to have been unaware of the presence of the cocaine, stating that he had picked some produce up from the warehouse at 6:30 a.m. on January 15, 1999 and left to deliver it to six locations in Manhattan. (Tr. 405). He could not, however, remember any of the names of the establishments that he made deliveries to, only that one of them was located on "165th Street and 111th Avenue," a non-existent address. (Tr. 406). Garcia also claimed that he had not been at the warehouse on the previous day, January 14, after 6:30 a.m. During the course of his post-arrest interview, Garcia received a numeric page and identified the telephone number to which he was paged as belonging to Morales. (Tr. 409). When Garcia was confronted with the fact that there had been electronic surveillance of his activities, Garcia admitted that he had been aware, prior to the time he helped transfer the boxes from the container to Betancourt's van, that there were narcotics in the boxes. (Tr. 414-15).
Prior to Garcia and Solano's trial, on June 7, 2000, counsel for Garcia requested a severance on the grounds that Solano, if called as a witness, could exonerate Garcia from criminal liability in the matter, but would invoke her Fifth Amendment right if called as a defense witness in the trial. (See Letter from Martin Siegel, dated June 7, 2000). I denied this motion on June 19, 2000 because Garcia failed to make a sufficient showing that a severance was required. (See Memo Endorsement dates June 19, 2000, Docket Entry No. 76).
At the end of the trial Garcia and Solano were found guilty of conspiracy to distribute, and to possess with an intent to distribute, 5 kilograms or more of cocaine in or about January 1999, in violation of Sections 812, 841(a)(1) and 841(b)(1) (A) of Title 21, United States Code. (Tr. 722-724).
II. The Sentencing of Solano and Garcia
On May 23, 2001, Garcia was sentenced to 121 months of imprisonment. Solano appeared for sentencing on September 4, 2001. During her sentencing hearing, Solano stated that she told Garcia of the conspiracy shortly before he moved the boxes of narcotics into the van. (Supplementary Appendix, hereafter "Sa." at 41). Solano also said that she complied with Morales out of fear and that Garcia's presence did not assuage her fears since Garcia was "a young boy" and she did not know what "kind of help he could give us." (Sa. 42)
III. The Instant Motion
On April 1, 2002 Garcia filed a motion in the Court of Appeals seeking a remand to this Court for the purpose of filing a Rule 33 motion. In that motion, Garcia claimed Solano's sentencing statements constitute "newly discovered evidence" that would warrant a new trial. On May 29, 2002, the Court of Appeals denied that motion without prejudice and provided that it would entertain the motion if this Court certified that it would grant Mr. Garcia's Rule 33 motion.
DISCUSSION
Under Rule 33 of the Federal Rules of Criminal Procedure, a timely motion for a new trial may be granted, "if the interests of justice so require." Fed.R.Crim.P. 33(a). Specifically, Rule 33 provides that "newly discovered evidence" may provide the basis for such a motion. Fed.R.Crim.P. 33(b). However, "a motion for a new trial based on newly discovered evidence is not favored and a district court must exercise great caution . . . and may grant the motion only in the most extraordinary circumstances." United States v. Petrillo, 237 F.3d 119, 123 (2d. Cir. 2000) (citation omitted). In order to prevail on a new trial motion based on newly discovered evidence, the defendant must satisfy all elements of a five-prong test:
First, the motion will not be granted unless the newly discovered evidence could not with due diligence have been discovered before or during the trial. . . . Second when the newly discovered evidence focuses on the perjury of a witness, a threshold inquiry is whether the evidence demonstrates that the witness in fact committed perjury. . . . Third the newly discovered evidence must be material. . . .Fourth, consideration must also be given to whether the newly discovered evidence is cumulative, that is simply additional evidence to that which was presented at trial as to a fact, or unique evidence that tends to prove a fact at issue. . . . [Fifth, the Court must consider] the effect the evidence would have on the jury's verdict had it been submitted at [the] trial."United States v. White, 972 F.2d 16, 20-21 (2d Cir. 1992).
The fifth prong of the test controls the inquiry here. This Circuit requires that new evidence be so material that it would "probably" cause a result of acquittal upon retrial. See United States v. Int'l Brotherhood of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001); Sanders v. Sullivan, 863 F.2d 218, 225 (2d Cir. 1988). Although he asserts otherwise, Garcia cannot sustain this burden, and his motion accordingly must fail.
Garcia also argues that, regardless of Rule 33, denying him a new trial would violate his rights of due process. (Defendant's Brief at 11) As the Court of Appeals in Sanders noted, due process and materiality of testimony are closely intertwined. Specifically, the Sanders court observed that, in order to be material enough to violate due process, evidence must be likely to result in an acquittal. Sanders, 863 F.2d at 225. Because the evidence Garcia seeks to introduce would not change the outcome of his prior trial, it is not material, and no due process violation has occurred.
Because Garcia cannot demonstrate that the "newly discovered evidence" would probably cause an acquittal, thereby failing the fifth prong of the Rule 33 test, the issue of whether the evidence presented here constitutes "newly discovered evidence" (the first prong of the test) need not be addressed. However, were that issue to be decided here, Garcia's argument would most likely fail as well. In the case of newly discovered evidence, a court may provide relief only where the defendant makes a showing that the evidence could not have been discovered, in the exercise of due diligence, before or during trial. See United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993). Garcia contends that previously discovered but newly "available" evidence constitutes newly "discovered" evidence for the purposes of Rule 33. Specifically, he argues that Solano's exercise of her Fifth Amendment rights made her testimony unavailable to him at trial and therefore justice demands a new trial. Garcia relies on United States v. Montilla-Rivera, 115 F.3d 1060 (1st Cir. 1997), where the First Circuit noted that the testimony of a co-defendant who asserted his Fifth Amendment right at trial should not be categorically excluded but rather considered with great skepticism under the prongs of the First Circuit's test for admissibility under Rule 33. United States v. Montilla-Rivera 115 F.3d at 1066. There is no guarantee that Solano's testimony would be considered "newly discovered" under the rule articulated in Montilla-Rivera. Regardless, however, the majority rule is that testimony known to the defendant at the time of the trial cannot be considered "newly discovered" on the grounds that a potential witness's Fifth Amendment rights made him unavailable as a witness. See United States v. Jasin, 280 F.3d 355, 362-369 (3d Cir. 2002), (defendant found guilty of conspiracy to circumvent the arms embargo against South Africa was not entitled to a new trial under Rule 30 because he offered no proof that during his trial he was unaware of the allegedly "newly discovered evidence." The court rejectedMontilla-Rivera and followed the leaf of most other circuits) (citing cases); United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996) (motion for new trial denied because evidence would not likely result in an acquittal upon retrial) United States v. Theodosopoulos, 48 F.3d 1438, 1448-49 (7th Cir. 1995) (same); United States v. Glover, 21 F.3d 133, 138 (6th Cir. 1994) (because Glover was unable to demonstrate a manifest miscarriage of justice here, his insufficiency of the evidence claim was barred); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir. 1994) (the evidence was known to defendant at the time of the trial); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992) (same). This Court is inclined to follow the majority view as well. Because Garcia's counsel sought a severance based Ms. Solano's alleged ability to exonerate Mr. Garcia from criminal liability if called as a witness at a joint trial, the evidence Garcia seeks to introduce presently was clearly known to him before the trial. Accordingly, such evidence is insufficient on the present motion.
A determinative fact here is that Solano's testimony during her safety valve proceeding, which Garcia contends exculpates him, in fact confirms that he was guilty of knowingly participating in the controversy. As the government observes, Solano testified that she told Garcia there was contraband in the boxes of otoe before the narcotics customers arrived to pick up the boxes containing the sham cocaine, (Sa. 41), and Garcia himself admitted knowing of the narcotics before moving the boxes. (Tr. 415). Even assuming he learned about the narcotics shortly before moving the boxes, Garcia still acted knowingly in furtherance of the conspiracy by assisting Solano and Morales in unloading the boxes. At any rate, there was extensive evidence presented at trial that established that Garcia assisted in the conspiracy and knew about the presence of the narcotics before January 15. Garcia was present at the warehouse on the 13 and 14, moving boxes of otoe on Jan 14. (Tr. 219, 222-23, 227-33, 248-49). On January 15, he played an integral role in transferring the boxes from the container at the back of the warehouse to the van, (Tr. 236, 238, 254-55, 257, 259-62), he conversed with Morales at the warehouse, (Tr. 246-47, 249), and was paged by Morales later that afternoon. (Tr. 409).
In addition to evidence of the assistance he provided to the conspiracy, the government also introduced evidence at trial in the form of Garcia's own post-arrest statements. As is evident from the above discussion, his claims — that he had left the warehouse at 6:30 am on January 14 and that he had similarly left the warehouse at 6:30 am on January 15 and returned at 2:30 to collect a debt (Tr. 404-407) — were contrary to the evidence on the videotapes, which showed him present there throughout both days. (Tr. 222-223, 233, 248-263). His assertion that he had been delivering produce to six locations, despite the fact he could not remember any of the locations and even fabricated one, was also blatantly false. (Tr. 414-415). The combination of these false exculpatory statements as well as substantial circumstantial evidence was more than enough for a jury to find Garcia guilty of the crime charged. See United States v. Middlemiss, 217 F.3d 112, 119 (2d. Cir. 2000). Indeed, "acts that exhibit a consciousness of guilt" can constitute evidence of guilty knowledge. See United States v. Rosa, 17 F.3d 1531, 1547 (2d Cir. 1994).
In sum, the extensive evidence against Garcia weighs heavily against the possibility that a jury would find Garcia not guilty on the basis of Solano's allegedly exculpatory testimony. In fact, Solano's testimony, stating that she told Garcia about the contraband in the otoe containers is not exculpatory but instead confirms Garcia's guilt (Sa. 41-42).
Because Garcia has not established that a new trial, in which Solano could testify as a defense witness, would likely result in an acquittal (United States v. White, 972 F.2d at 20-21 (2d Cir. 1992), defendant's motion should be denied.
CONCLUSION
For the foregoing reasons, this Court hereby certifies that it would not grant defendant's Rule 33 motion for a new trial.
SO ORDERED.