United States v. Franklin Vargas , 243 F. App'x 456 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 15, 2007
No. 06-16004 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00442-CR-T-27-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANKLIN VARGAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 15, 2007)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Franklin Vargas, proceeding pro se, appeals the district court’s denial of his
motion for new trial grounded in newly discovered evidence, submitted after he
pled guilty, pursuant to a written plea agreement, to possession with intent to
distribute five kilograms or more of cocaine while on board a vessel subject to the
jurisdiction of the United States, in violation of 46 App. U.S.C. § 1903(a) and (g),
18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii). In support of his motion for new
trial, Vargas claimed that a 1997 treaty between the United States and Colombia, a
1982 extradition treaty, and § 1903 itself constituted newly discovered evidence.
The district court denied this motion on the grounds that this evidence was not
newly discovered. Vargas has also moved us to hear his appeal en banc and to seal
his reply brief.
We review the district court’s disposition of a motion for new trial for abuse
of discretion. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).
One of the grounds on which a defendant might move the district court for a new
trial is his alleged discovery of new evidence. See Fed.R.Crim.P. 33(b)(1). Our
predecessor court defined “newly discovered evidence” as “evidence that could not
have been discovered with due diligence at the time of trial.” United States v.
Johnson, 596 F.2d 147, 148 (5th Cir. 1979) (quotation omitted).1 The district court
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this
Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
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may grant a motion for new trial based on such evidence if the interest of justice so
requires and if (1) the evidence was in fact discovered after trial, (2) the defendant
exercised due care to discover the evidence, (3) the evidence was not merely
cumulative or impeaching, (4) the evidence was material, and (5) the evidence was
of such a nature that a new trial would probably produce a different result.
Fed.R.Crim.P. 33(a); United States v. Lee, 68 F.3d 1267, 1273-74 (11th Cir. 1995).
Each element of this test must be satisfied or else a new trial is not warranted. Lee,
68 F.3d at 1273-74. Furthermore, motions for new trial are “highly disfavored,”
and district courts “should use great caution in granting a new trial motion based
on newly discovered evidence.” United States v. Jernigan, 341 F.3d 1273, 1287
(11th Cir. 2003) (quotation omitted). Moreover, a motion for new trial is an
improper way to challenge the validity of a guilty plea. United States v. Prince,
533 F.2d 205, 208 (5th Cir. 1976).
The district court did not abuse its discretion in concluding that Vargas had
not presented newly discovered evidence. See Martinez, 763 F.2d at 1312.
Regarding § 1903, the written plea agreement pursuant to which Vargas pled guilty
listed this statute as the statute he violated so that he was aware of its existence and
importance to his case before he pled guilty. Likewise, the 1997 treaty between the
United States and Colombia and the 1982 extradition treaty were signed well
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before Vargas pled guilty. Therefore he could have discovered and read them
through the exercise of due diligence before he pled guilty. Accordingly, because
this evidence was available before he pled guilty, Vargas did not discover it after
entering his plea and therefore cannot satisfy the test. See Johnson, 596 F.2d at
148; Lee, 68 F.3d at 1273-1274. Furthermore, because a motion for new trial is
not the appropriate vehicle for guilty plea challenges, the district court could have
appropriately denied Vargas’s motion for new trial despite its finding that the
evidence was not newly discovered. See Prince, 533 F.2d at 208. Thus, we
AFFIRM the district court’s denial of Vargas motion for new trial.2 Furthermore,
we DENY Vargas’s motion to seal his reply brief.
AFFIRMED.
2
By separate order, Vargas’s motion to hear his appeal en banc has been denied.
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