U.S. v. Herrera

Decision Date04 April 2007
Docket NumberNo. 05-2219.,05-2219.
Citation481 F.3d 1266
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gilbert HERRERA, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Robert J. Gorence, Gorence & Oliveros, P.C., Albuquerque, NM, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, and Laura Fashing, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Albuquerque, NM, for Plaintiff-Appellee.

Before HENRY, SEYMOUR, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Gilbert Herrera was convicted of conspiring to traffic cocaine after a four-day jury trial. Four months after his conviction, Herrera filed a motion for a new trial claiming newly discovered evidence would show that he had not been competent during trial. The motion contended that the cognitive effects of acute diabetes combined with a severe staph infection which was diagnosed only after trial impaired Herrera's ability to interact with counsel at trial. The district court denied the motion without the benefit of an evidentiary hearing on competency, concluding that no bona fide doubt existed that Herrera had in fact been competent at trial.

On appeal, we must decide whether the district court erred in denying the motion for new trial without first conducting an evidentiary hearing. We hold that the district court did not abuse its discretion, and therefore AFFIRM.

I. Background

After nearly a four-year investigation conducted by the Federal Bureau of Investigation, the government charged Gilbert Herrera, along with his brother-in-law, Louis Chavez, with conspiracy to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. Herrera and Chavez were tried together before a jury beginning on November 9, 2004. After several witnesses testified against the two, including a Herrera family friend, a jury found them guilty of the charges on November 15, 2004.

Four months later Herrera filed a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure on the basis of newly discovered evidence that he was not competent to stand trial. Specifically, Herrera claimed he was diagnosed with adult diabetes on November 16, 2004, the day after his trial ended. Herrera contended that the previously undiagnosed and untreated diabetes coupled with a staph infection afflicting his lower body and extremities during trial rendered him unable to understand the legal proceedings against him or to ably assist his attorney.

A summary of medical records from his detention facility indicates that Herrera suffered from and was treated for a highly contagious and difficult to treat bacterial infection in the months leading up to trial. On September 7, 2004, Herrera complained of a foot wound, which was treated with an anti-fungal cream and antibiotic. Then on October 14, 2004, Herrera complained of foot pain and requested inserts for his shoes. Medical personnel again gave him an anti-fungal cream on November 3, 2004 for a bad rash on his legs. Nothing in the record indicates Herrera received any medications that could have impaired his cognitive abilities.

On the day before his trial began, Herrera made a sick call complaining, "I am bleeding all over the place. I need to be seen ASAP. I will be in trial tomorrow on 11/15/04. And I will advise my lawyer Robert Gorence about this problem. I am in Bad Pain. I need to be seen when I get back." I Aplt.App. at 39. On November 16, 2004, the day after the trial concluded, medical personnel noted Herrera's complaint of "red spots on arms and buttocks" and observed that the skin on his left forearm and buttocks was "red, swollen and tender." Id. He was administered an antibiotic for the skin infection.

At the November 16 visit, a physician for the detention facility formally diagnosed Herrera with diabetes and prescribed a diabetic medication and diet to control his blood-glucose levels. Before that date, the summary indicates that medical personnel had begun to administer tests to determine Herrera's blood-glucose levels, and diabetes was listed as a potential diagnosis as early as August 18, 2004. The tests indicated that Herrera's blood sugar level in the four months preceding trial averaged 234, where the normal range is 70-109. Before his November 16 diagnosis, Herrera received no treatment for his diabetes.

In an affidavit supporting his Rule 33 motion, Herrera claimed he felt "faint, nauseous, and for the most part delirious" at trial. Id. at 43. He argues that his undiagnosed diabetes exacerbated the problems. For example, he claims he ate many candy bars leading up to his trial because of stress.

In addition, Herrera affirmed,

[T]he sores on my body were so painful that I had trouble concentrating on issues during the trial to any degree whatsoever. . . . As much as I tried to overcome my medical problems during trial, I did not have the ability to understand the evidence presented at trial, nor did I have the ability to understand the legal issues presented at trial. . . . I now understand that I was not capable of assisting my attorney in my defense during the trial.

Id.

Herrera's defense counsel also included an affidavit in support of the Rule 33 motion. Counsel stated that Herrera reported various complaints about his health. Counsel further observed that Herrera seemed "lackadaisical and different" at the trial, and that he had a "very difficult time communicating with Mr. Herrera during the trial because of his listlessness and inability to concentrate." Id. at 55-56. In hindsight, counsel believed that Herrera was not capable of assisting him effectively because of the cognitive deficits associated with Herrera's medical condition during trial.

Herrera also provided the curriculum vitae of David H. Goldstein, M.D., a physician and medical consultant. Although Dr. Goldstein did not personally examine Herrera, counsel indicated that the doctor could opine generally to the cognitive manifestations of the onset of acute diabetes, magnified by a staph infection. According to Herrera's motion papers, the combination of medical conditions could cause "cognitive deficits related to a lack of concentration and diminished mental functioning." Id. at 53.

The government opposed the motion claiming that Herrera exhibited no irrational or bizarre demeanor or any signs of physical illness during the trial. The government noted that Herrera and his counsel failed to communicate his medical condition to the district court. Furthermore, the government argued that the district court had no jurisdiction over the motion since Herrera's complaint did not involve newly discovered evidence.

The district court denied Herrera's motion for a new trial without holding an evidentiary hearing. Herrera was sentenced to prison for 120 months followed by a supervised release term of eight years.

II. Analysis

Herrera's central claim is that the district court erred in denying his motion for a new trial on the basis of newly discovered evidence without first conducting an evidentiary hearing. Herrera contends that his post-trial diagnosis of acute adult diabetes constitutes newly discovered evidence of his incompetence to stand trial. He also claims the district court should have granted a mistrial after it admitted hearsay evidence in violation of his Sixth Amendment rights.

A. Motion to Grant a New Trial

Rule 33 authorizes trial courts to grant new trials "if the interest of justice so requires." Fed.R.Crim.P. 33(a). A motion for a new trial is not regarded with favor and is only issued with great caution. United States v. Trujillo, 136 F.3d 1388, 1394 (10th Cir.1998). We ordinarily review the denial of a new trial for abuse of discretion. United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir.1999). "A decision is an abuse of discretion only if it is arbitrary, capricious, whimsical, or manifestly unreasonable." United States v. Combs, 267 F.3d 1167, 1176 (10th Cir.2001) (internal quotes omitted).

Motions for new trial filed more than seven days after a verdict or a finding of guilt must be grounded on newly discovered evidence. Fed.R.Crim.P. 33(b). Since Herrera filed this motion four months after trial, newly discovered evidence is the only ground available to Herrera for a new trial. For Herrera to prevail on a motion for a new trial based on newly discovered evidence, he must show that:

(1) the evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by his own lack of diligence; (3) the new evidence is not merely impeaching; (4) the new evidence is material to the principal issues involved; and (5) the new evidence is of such a nature that in a new trial it would probably produce an acquittal.

United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir.1997) (internal quotes omitted).

In this case, Herrera's newly discovered evidence does not bear on the probability of his acquittal, but rather on his competence to stand trial. "It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Thus, "where the newly discovered evidence pertains not to the defendant's guilt, but to his competency to stand trial," the relevant inquiry is whether the new evidence indicates that the defendant did not have "`sufficient . . . [present] ability to consult with his lawyer with a reasonable degree of rational understanding' and `rational as well as factual understanding of the proceedings against him.'" United States v. McCarthy, 54 F.3d 51, 55 (2d. Cir.1995) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4...

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