U.S.A. v. Desir, 00-2423

• Decision Date: 11 September 2001
• Docket Number: No. 00-2423,00-2423
• Citation: 273 F.3d 39
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Plaintiff, Appellee, v. DONALD PAUL DESIR, Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 39

273 F.3d 39 (1st Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff, Appellee, v. DONALD PAUL DESIR, Defendant, Appellant.

No. 00-2423

United States Court of Appeals For the First Circuit

Heard Sept. 11, 2001

Decided December 10, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

[Copyrighted Material Omitted]

Mark J. Gardner, for appellant.

Donald C. Lockhart, Assistant U.S. Attorney, with whom Margaret E. Curran, United States Attorney, was on brief, for appellee.

Before Torruella and Selya, Circuit Judges, and Lisi,^* District Judge.

TORRUELLA, Circuit Judge.

Appellant Donald P. Desir was convicted on charges of conspiracy and attempt to possess cocaine with the intent to distribute. After sentencing, Desir filed a Rule 33 motion for a new trial based on newly discovered evidence. The district court, after an evidentiary hearing, denied appellant's motion for failure to satisfy the "newly discovered evidence" standard. Desir then appealed to this Court. Because we find that the district court's denial of the motion was not an abuse of discretion, we hereby affirm.

Background

On October 30, 1997, Desir was arrested on charges of conspiracy and attempt to possess cocaine with the intent to distribute. Appellant retained an experienced criminal defense attorney, David Cicilline, as his counsel. On January 6, 1998, a jury was impaneled before a magistrate judge. Neither appellant nor his counsel objected to the magistrate judge conducting the impanelment.

One of the jurors selected was Bruno Sukys, who identified himself as a Social Services Director at the International Institute of Rhode Island, an organization that, inter alia, provides immigration assistance to non-citizens. During voir dire, the jurors were asked whether they knew appellant. Sukys did not indicate any prior knowledge of or acquaintance with Desir.

The jury found Desir guilty, and he was sentenced to 240 months' imprisonment on June 5, 1998. More than a year later, in July of 1999, appellant, acting pro se, filed a Rule 33 motion for a new trial based on newly discovered evidence. Appellant cited two grounds for his motion: (1) that he was deprived of his right to a fair and impartial jury because Sukys knew him and had knowledge of a previous conviction, which biased him against appellant; and (2) that he was deprived of his right to have an Article III judge, rather than a magistrate judge, conduct voir dire.

After the district court concluded that an evidentiary hearing would be required, Desir retained John P. Larochelle as his counsel. At the hearing, on September 29 and October 2, 2000, appellant claimed a prior connection with juror Sukys. Desir asserted that Sukys had previously assisted him and his family in immigration matters, but that he did not recognize Sukys during impanelment because Sukys was wearing a suit and had a different haircut. The district court determined that appellant's explanation was not credible because Sukys identified himself in court and appellant and attorney Cicilline had specifically discussed the desirability of having Sukys as a juror. Moreover, appellant's sisters, Michelle Larracuente and Nadine Desir, who both attended appellant's trial, recognized Sukys and mentioned his presence to Desir. Therefore, the district court determined that appellant waived any claim to a new trial because he voluntarily chose not to challenge Sukys under the belief that Sukys would be favorably inclined towards him.

The district court further determined that there was no credible evidence to support Desir's allegation that Sukys had knowledge of Desir's prior conviction or was predisposed to find him guilty. As a result, the district court denied the motion for a new trial on appellant's "newly discovered evidence" of juror misconduct or bias.

The district court also denied appellant's motion for a new trial on the "newly discovered evidence" that voir dire had been conducted by a magistrate judge, as opposed to an Article III judge. The district court denied the motion because neither appellant nor his counsel contemporaneously objected to impanelment by the magistrate.

Desir appeals the denial of his motion for a new trial on both grounds. He further claims that the district court abused its discretion by ordering attorney Cicilline to testify at the evidentiary hearing, in violation of the attorney-client privilege, as to Desir's knowledge of the jurors.

Discussion

Rule 33 permits a defendant, in light of newly discovered evidence, to file a motion for a new trial within three years of the verdict. Fed. R. Crim. P. 33. A court may grant defendant's motion "if the interests of justice so require." Id. We have held that a defendant seeking a new trial based on newly discovered evidence must prove four factors: (1) the newly discovered evidence was unknown or unavailable at the time of trial; (2) the defendant was duly diligent in trying to discover it; (3) the evidence was material; and (4) the evidence was such that it would probably result in an acquittal upon retrial. See United States v. Conley, 249 F.3d 38, 45 (1st Cir. 2001); see also United States v. Levy-Cordero, 67 F.3d 1002, 1018 (1st Cir. 1995); United States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980). If the defendant fails to prove any one of these four factors, the motion must be denied. See Conley, 249 F.3d at 45 (noting that the "remedy of a new trial must be used sparingly, and only where a miscarriage of justice would otherwise result").

In determining whether or not the defendant has satisfied the four-factor test, the district court "has broad power to weigh the evidence and assess the credibility of both the witnesses . . . [and the] 'new' evidence." Wright, 625 F.2d at 1019. Denial of a new trial will be affirmed unless the court has "manifestly abused its discretion." Id.

A. Juror Misconduct or Bias

Appellant claims that he was unaware that Sukys was a member of the jury until after the trial had ended. Therefore, he asserts that this information, which potentially supports a claim for juror bias or misconduct because of the prior relationship between Sukys and Desir, is "newly discovered evidence" within the meaning of Rule 33. After an evidentiary hearing on appellant's motion, however, the district court determined that Desir's claim was not credible and that he was aware of Sukys' presence on the jury.

On appeal, a trial court's "findings of fact will not be overturned unless they are without any support in the record." Wright, 625 F.2d at 1019. The record indicates that Sukys identified himself by name, occupation, and place of employment during jury impanelment. In addition, Desir discussed Sukys with his attorney, and Desir's sister Nadine testified that she told Desir of Sukys' presence. Given this evidence, we cannot say that the district court's determination that Desir had knowledge of Sukys' presence on the jury was "without any support in the record."

Thus, accepting the district court's finding of fact that Desir did recognize Sukys at impanelment, we agree that there is no "newly discovered" evidence to support a claim for juror misconduct or bias. Rather, if Desir recognized Sukys during jury impanelment, then the facts supporting his potential claim for juror misconduct or bias were known at that time. Therefore, these facts cannot constitute "newly discovered" evidence. See United States v. Osorio-Pena, 247 F.3d 14, 19 (1st Cir. 2001) (noting that facts known at the time of trial cannot be considered "newly discovered"). Thus, appellant has not even satisfied the first prong of the Rule 33 standard for a new trial.

Moreover, we have previously held that a defendant who has knowledge of juror misconduct or bias at the time of trial waives such a claim by failing to raise it until after trial. See United States v. Costa, 890 F.2d 480, 482 (1st Cir. 1989). Otherwise, "[a]ny other rule would allow defendants to sandbag the court by remaining silent and gambling on a favorable verdict, knowing that if the verdict went against them, they could always obtain a new trial by later raising the issue of juror misconduct." Id.

In addition, Desir asserts that he has a claim for juror bias based on Sukys' alleged knowledge of his prior conviction. This proposed evidence of juror bias also fails the test for "newly discovered" evidence. First, the district court noted in its opinion that it found no evidence that Sukys had actual knowledge of Desir's prior conviction. Second, even if Sukys did have knowledge of the prior conviction, this aspect of potential bias was not newly discovered. Since the district court found that Desir was aware of Sukys' presence on the jury at the time of trial, Desir likewise must have known that Sukys may have had knowledge of the prior conviction. Therefore, since the predicate for a claim of juror bias was known at the time of trial, it is not newly discovered. And, once again, because Desir knew of this claim for juror bias at the time of trial but did not raise it, the claim was waived.

Thus, since appellant has failed to satisfy even the first prong for a Rule 33 motion based on newly discovered evidence, we cannot say the district court abused its discretion in denying appellant's motion on his claim of juror bias. See Conley, 249 F.3d at 45 (stating that court must deny motion for new trial if defendant fails to prove any of the four factors).

B. Impanelment by a Magistrate Judge

The district court also denied appellant's motion for a new trial based on the "newly discovered" evidence that jury selection was conducted by a magistrate judge, rather than by an Article III judge. Appellant alleges that this new evidence, of which he was personally unaware until post-trial, demonstrates that his trial was infected with constitutional error, thereby requiring a new trial.

Desir's...