United States v. Montilla Rivera ( 1999 )

  • USCA1 Opinion

                     United States Court of Appeals
    For the First Circuit

    No. 98-1729





    Defendant, Appellant.



    [Hon. Daniel R. Dom¡nguez, U.S. District Judge]


    Boudin, Circuit Judge,
    Coffin, Senior Circuit Judge,
    and Lynch, Circuit Judge.

    Marlene Aponte Cabrera, by appointment of the Court, for
    Camille Velez-Rive, Assistant United States Attorney, with
    whom Guillermo Gil, United States Attorney, and Jose A. Quiles-
    Espinosa, Senior Litigation Counsel, were on brief for appellee.

    March 22, 1999

    COFFIN, Senior Circuit Judge. Federal agents arrested
    defendant-appellant Fernando Montilla Rivera ("Montilla") in a drug
    sting, along with Miguel Calder¢n ("Calder¢n") and Ramon Zorilla
    ("Zorilla"). While Calder¢n and Zorilla were directly involved in
    the transaction, the government claimed that Montilla was the
    lookout. After a four day jury trial, Montilla was convicted. He
    subsequently sought a new trial based on previously unavailable
    evidence, but the court found that the evidence was not newly
    discovered and denied his motion. On appeal, we concluded that
    Montilla's evidence was sufficiently new for the purposes of his
    motion and remanded for a hearing on whether it met the standard
    for ordering a new trial. After the district court held the
    hearing, it ruled that the standard had not been satisfied, and
    denied his motion. Montilla again appeals. Because the district
    court did not abuse its discretion in denying Montilla's motion, we
    affirm its decision.
    I. Background
    The factual background was detailed in our earlier
    decision, United States v. Montilla, 115 F.3d 1060 (1st Cir. 1997).
    Rather than repeat ourselves, we will review only that evidence
    relevant to the claim currently before us.
    On March 22, 1995, a confidential government informant
    approached Calder¢n about purchasing drugs. Calder¢n suggested
    that they go "see the mechanic" and arranged to meet two days
    later. When they did meet, Calder¢n took the informant to an auto
    repair shop behind a nightclub. Zorilla and Montilla were
    mechanics at that auto shop at various times, and were both waiting
    there for Calder¢n and the informant. When the two arrived, they
    went with Zorilla and Montilla into a small room inside the back of
    the shop.
    Calder¢n and Zorilla negotiated to sell the informant two
    kilograms of cocaine while Montilla stood ten to twelve feet away
    by the door "watching and looking." Once the price and quantity
    had been agreed upon, Zorilla made a call to have the drugs
    delivered, and the informant called DEA Agent Carrasquillo ("Agent
    Carrasquillo") to arrange for the money. When the drugs were
    delivered, the informant found the quality of the cocaine to be
    good, so he and Calder¢n went to a nearby shopping center to meet
    Agent Carrasquillo and get the money. Zorilla and Montilla stayed
    at the shop with the cocaine.
    After he had seen the money, Calder¢n returned to the
    repair shop; the informant and Agent Carrasquillo followed ten
    minutes later. When they arrived, the informant reentered the
    small room and told the others that his partner, Agent
    Carrasquillo, would not come inside and would only buy the cocaine
    outside where Carrasquillo was parked. After some disagreement
    about where the exchange would take place, Montilla, Zorilla, and
    Calder¢n went outside. Calder¢n approached Agent Carrasquillo's
    car with the cocaine. When the delivery was made, federal agents
    quickly arrested Calder¢n, Zorilla and Montilla.
    At trial there was conflicting testimony as to whether
    Montilla was actually in the back room during the negotiations, and
    as to precisely where he was when the agents converged to arrest
    the three. The government recorded the operation in two ways: the
    informant wore an audio recording device, and a DEA agent named
    Rodriguez videotaped the auto shop from across the street. All
    parties agree that Montilla neither appears in the videotape nor is
    heard on the informant's audio tape. However, several government
    witnesses testified to Montilla's role as a lookout.
    While both Calder¢n and Zorilla pled guilty, Montilla
    chose to go to trial. Before trial, Montilla moved to produce his
    codefendants to testify at trial, but they exercised their
    privileges against self-incrimination and refused to testify. The
    jury found Montilla guilty, and the court sentenced him to 60
    months of imprisonment and eight years of supervised release.
    After Calder¢n and Zorilla had been sentenced, Montilla
    requested that they attest to his innocence. He sent, and they
    signed, nearly identical affidavits stating that Montilla was not
    involved in the drug transaction for which they both had pled
    guilty. Claiming that Calder¢n's and Zorilla's testimony was
    previously unavailable, Montilla filed a post-conviction motion for
    a new trial. The district court denied the motion because it found
    that "the evidence was both known and available" at trial.
    Montilla, 115 F.3d at 1065. On appeal, this court refused to apply
    a categorical rule that exculpatory affidavits from codefendants
    who did not testify at trial because they exercised their Fifth
    Amendment privileges could never qualify as "newly discovered"
    evidence for the purposes of a motion for a new trial. Id.
    Instead, while "shar[ing] the general skepticism concerning [such
    belated exculaptory] statements [of codefendants]," we remanded to
    allow the district court to consider whether "the interests of
    justice require a new trial." Id. at 1067.
    The district court held an evidentiary hearing at which
    both Calder¢n and Zorilla testified. The court subsequently issued
    an opinion and order finding that they were not credible, and that
    the inconsistency between their post-conviction statements and the
    trial testimony made it unlikely that the new evidence would lead
    to acquittal if a retrial were granted. Consequently, the court
    denied Montilla's motion, and he now appeals that decision to us.
    II. Discussion
    Federal Rule of Criminal Procedure 33 empowers a district
    court to grant a new trial "if required in the interest of
    justice." As we said in Montilla's previous appeal, if "the motion
    is based on new or previously unavailable evidence, the defendant
    has to establish that the evidence was: (i) unknown or unavailable
    at the time of trial, (ii) despite due diligence, (iii) material,
    and (iv) likely to result in an acquittal upon retrial." Montilla,
    115 F.3d at 1064-65 (citations omitted).
    Citing our earlier opinion, the district court determined
    that the first three elements had been met. Calder¢n's and
    Zorilla's statements were unavailable to Montilla because each was
    exercising his Fifth Amendment privilege against self-
    incrimination. Montilla apparently exercised due diligence in his
    attempt to obtain their statements because he had tried on several
    occasions to interview them. And their statements were material
    because, if believed, the affidavits exculpated Montilla from any
    involvement in the drug transaction. The district court,
    therefore, found that the only element still in dispute was whether
    it was likely that the new evidence would result in acquittal if a
    new trial were held. Reiterating our skepticism about whether to
    believe the post-sentencing exculpatory testimony of two
    codefendants whose guilt was beyond dispute, the court found that
    Calder¢n's and Zorilla's testimony did not warrant a new trial.
    The decision to grant or deny a new trial is committed to
    the sound discretion of the district court. See United States v.
    Soto-Alvarez, 958 F.2d 473, 479 (1st Cir. 1992). We will reverse
    only if its decision constitutes a "manifest abuse of discretion."
    United States v. Tibolt, 72 F.3d 965, 972 (1st Cir. 1995). Based
    on an assessment of the facts revealed at the trial and the new
    evidence, we are firmly convinced that the district court did not
    abuse its discretion. Instead, we agree with the district court
    that the new evidence "would [not] so undermine the government's
    case as to give rise to a 'reasonable' probability of acquittal on
    retrial." Id. (quoting United States v. Sepulveda, 15 F.3d 1216,
    1220 (1st Cir. 1993)). Montilla argues that the new testimony was
    crucial in four ways, but we are unpersuaded that it would lead to
    a different result.
    A. The identity of "the mechanic." Montilla contends
    that he was not "the mechanic" to whom Calder¢n was referring when
    Calder¢n and the informant went to "see the mechanic," and that
    testimony at the evidentiary hearing revealed that "the mechanic"
    was a man named Ramad‚s, the supplier who delivered the two
    kilograms to Zorilla.
    Montilla's conviction as a lookout at the drug
    transaction did not turn on the identity of someone called "the
    mechanic." It revolved around whether Montilla was in the back
    room when the initial agreement was reached, and whether he was
    acting as a lookout outside when Calder¢n delivered the cocaine to
    Agent Carrasquillo's car. Although our previous opinion suggested
    that Montilla was the mechanic, see Montilla, 115 F.3d at 1062, it
    was not clear from the testimony at trial whether "the mechanic"
    even referred to an individual. In any event, it is unlikely that
    the jury would have found that Calder¢n was referring to Montilla
    when he went to "see the mechanic" because Montilla was only a
    minor participant in the deal and not directly involved in setting
    the terms and price.
    Testimony that Montilla was not "the mechanic" makes it
    no less likely that the jury would conclude that he was a lookout
    during the drug transaction.
    B. Sharing the profits from the transaction. Montilla
    also points to Calder¢n's and Zorilla's testimony that they were
    not going to share the profits from the drug transaction with him.
    Again, this assertion fails to undermine the strength of the
    government's case in any meaningful way. The conviction was based
    on a finding that he was a lookout because he was carefully
    watching the initial negotiation and observed the delivery from a
    distance. Whether or not he would receive a share of the profits
    does not invalidate the evidence on which his conviction was based.
    Although the conviction certainly would be bolstered by testimony
    to the contrary, the fact that Montilla was not going to receive a
    portion of the proceeds does not discredit the jury's finding. It
    certainly does not create the requisite "reasonable probability"
    that he would be acquitted upon retrial.
    C. Montilla's location during the transaction. Next
    Montilla argues that Calder¢n's and Zorilla's testimony about his
    whereabouts during both the negotiation and the exchange
    significantly changes the picture presented by the trial evidence.
    Because this argument directly implicates the basis for the jury's
    decision, we will consider testimony involving Montilla's location
    in detail.
    At the trial and the evidentiary hearing, the court heard
    a substantial amount of evidence regarding Montilla's position at
    the moment of the actual transaction. The government's witnesses
    all agreed that Montilla was standing in front of the workshop.
    First, Agent Rodriguez stated that he saw Montilla being arrested
    "in front of the [auto] repair shop" near a blue van. Next, the
    informant noted that Montilla witnessed the transaction outside
    next to the shop door, close to the same van. Finally, Agent
    Carrasquillo testified that Calder¢n, Zorilla and Montilla came out
    of the shop together, and, when Calder¢n approached the car with
    the drugs, Montilla was standing just to the left of the entrance
    to the workshop.
    While the government's witnesses consistently insisted
    that Montilla observed the deal, Montilla's witnesses contradict
    one another. At trial, Montilla produced both Angel Morla
    ("Morla"), who was the owner of the auto repair shop, and Louis
    Alfonseca ("Alfonseca"), who was visiting with Morla and Montilla.
    Alfonseca claimed that when Montilla "went out[side] to smoke a
    cigarette," the federal agents rushed in. Similarly, Morla alleged
    that just before the arrests were made, Montilla went outside for
    a cigarette and a soft drink. Later in his testimony Morla
    suggested that Montilla was arrested under a car outside in front
    of the nightclub adjoining the auto shop, and not in the shop
    itself. Hence, both these witnesses placed Montilla outside the
    shop at the time of the arrests.
    On the other hand, Calder¢n and Zorilla both place
    Montilla somewhere inside the shop. At the evidentiary hearing
    Calder¢n testified that at the time of the arrests he saw Montilla
    being pulled from underneath the car he was working on in the shop.
    Zorilla claimed to have seen Montilla being brought from the back
    of the shop.
    In short, then, Calder¢n's and Zorilla's statements do
    not furnish new evidence supporting Montilla's defense. Instead,
    they provide an entirely different version of the events. All
    witnesses at trial agreed that Montilla was somewhere outside the
    shop. The government's theory was that he was standing by the
    entrance to the workshop acting as a lookout. Montilla's defense
    at the time was that he was having a cigarette or was under a car
    in front of the adjoining nightclub. Now Montilla claims he was
    inside the shop either under a car or in the back. This
    inconsistency regarding the central aspect of his defense
    substantially weakens Montilla's assertion that he is likely to be
    acquitted upon retrial.
    As for whether Montilla was involved in the initial
    negotiations, there is a direct contradiction between the
    informant's testimony and that of Calder¢n and Zorilla. The
    confidential informant testified that Montilla was present during
    the initial negotiation. Although Montilla is not heard on the
    audio recording, the informant testified that Montilla was standing
    silently inside the room by the entrance. The informant noted that
    Montilla was "ten or twelve feet" away from the negotiation and
    "was watching, looking" while Calder¢n and Zorilla were negotiating
    the drug transaction. The informant also stated that when the
    drugs were delivered and tested, Montilla was in essentially the
    same place observing him. On the other hand, at the evidentiary
    hearing Calder¢n and Zorilla claimed that Montilla was not in the
    room during the initial negotiations.
    These statements present two different versions of the
    initial negotiations. In assessing whether an acquittal is likely,
    the court had to weigh the witnesses' credibility. Montilla, 115
    F.3d at 1067. Here again we have no doubt that the district court
    properly believed the government's witnesses and questioned both
    Calder¢n's and Zorilla's credibility. With respect to the
    informant the district court specifically found neither any "potent
    reason for discrediting [his] testimony[,]" nor any "motive, bias,
    contradiction or inherent error in [his] factual testimony as to
    Montilla." United States v. Montilla, 9 F. Supp. 2d 81, 88 (D.P.R.
    Although there was no reason to disbelieve the informant,
    the court cited a variety of grounds on which to question
    Calder¢n's and Zorilla's statements. In addition to the
    inconsistency with the testimony at trial regarding Montilla's
    whereabouts during the exchange, the court noted that each provided
    exculpatory testimony only after sentencing pursuant to a guilty
    plea. At the time of their affidavits Calder¢n and Zorilla had
    nothing to lose by exonerating Montilla. Both had already been
    convicted and sentenced. They were in a position to say "whatever
    they [thought] might help their co-defendant, even to the point of
    pinning all the guilt on themselves, knowing they [were] safe" from
    any increased punishment for the transaction. United States v.
    Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992). Numerous
    courts have found such post-sentencing exculpatory testimony of
    co-conspirators to be "inherently suspect." United States v.
    Simmons, 714 F.2d 29, 31 (5th Cir. 1983). Under the circumstances,
    we have no reason to disagree with the court's finding that
    Calder¢n and Zorilla were not credible.
    D. Statements of Montilla's innocence. Montilla's final
    basis for a new trial is that Calder¢n and Zorilla filed nearly
    identical affidavits stating that he was not involved in the drug
    transaction in question. As we have stated, however, the district
    court justifiably discounted their testimony. By nature, this sort
    of blanket exoneration of Montilla by two alleged co-conspirators
    who had pled guilty and had been sentenced is "'untrustworthy and
    should not be encouraged.'" Montilla, 115 F.3d at 1066 (quoting
    Reyes-Alvarado, 963 F.2d at 1188). As with the other evidence,
    these statements do not lead to a reasonable probability that
    Montilla would be acquitted on retrial.
    III. Conclusion
    Because it is "sheer speculation" that "the newly
    discovered evidence would change the jury's decision," United
    States v. Nero, 733 F.2d 1197, 1205 (7th Cir. 1984), the district
    court did not abuse its discretion in denying Montilla's motion for
    a new trial.