Awon v. U.S.

• Decision Date: 25 October 2002
• Docket Number: No. 00-2129.,00-2129.
• Citation: 308 F.3d 133
• Parties: Fred AWON, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

308 F.3d 133

Fred AWON, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.

No. 00-2129.

United States Court of Appeals, First Circuit.

Heard March 6, 2002.

Decided October 25, 2002.

COPYRIGHT MATERIAL OMITTED

Robert A. George for appellant.

James Francis Lang, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before LYNCH, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

The petitioner-appellant, Fred Awon ("Awon") was convicted of arson and mail fraud arising from the orchestration, on two occasions, of the arson of a building and the submission of insurance claims. Following conviction, Awon moved for a new trial and to vacate his sentence pursuant to 28 U.S.C. § 2255 (2000), citing newly discovered evidence and a lack of federal jurisdiction. The newly discovered evidence contained in five, allegedly exculpatory affidavits. The district court, after holding an evidentiary hearing, denied both motions and, upon Awon's request, issued a certificate of appealability under 28 U.S.C. § 2253(c). Finding no error, we affirm.

I. Background

Awon and his father owned rental income property located at 106-108 Ames Street (the "Ames Street property") in Brockton, Massachusetts, that consisted of unimproved rental space on the first floor and two apartments on the second floor. On September 16, 1994, the Brockton Fire Department extinguished a fire in the vacant first floor space before significant damage occurred. The Awons filed a claim with their insurance company for the damage from this fire and were paid in settlement $4,171 for the damage. In the early morning hours of January 18, 1995, another fire at the building resulted in the destruction not only of the Awon's building but of three adjacent buildings as well. The Awons again filed a claim with their insurance company and negotiated a settlement of $85,000 for the loss of the building and demolition expenses, and $6,176 for lost rental income.

Investigation of the two fires resulted in an eight count indictment charging Awon and two co-defendants, James St. Louis and Joaquim Neves ("Joaquim") with arson and mail fraud. In Counts I through IV, Awon and James St. Louis were charged with arson, in violation of 18 U.S.C. § 844(i) (2000) (Count I), mail fraud in violation of 18 U.S.C. § 1341 (Counts II and III), and use of a fire to commit a felony, in violation of 18 U.S.C. § 844(h) (Count IV). Those four counts related to the September 16, 1994, fire and the subsequent filing of an insurance claim. Awon, James St. Louis and Joaquim were charged in Counts V through VIII with four corresponding offenses, arson (Count V), mail fraud (Counts VI and VII) and use of fire to commit a felony (Count VIII). The latter four counts pertained to the January 18, 1995, fire and the filing of the second insurance claim. Prior to trial, Joaquim pleaded guilty to Counts V, VI, and VII (Count VIII was dismissed) and, pursuant to a cooperation agreement with the government, testified at trial as a witness against his two co-defendants, Awon and James St. Louis.

A. The Trial

Joaquim, testifying pursuant to a plea agreement, stated at trial that, in the summer of 1994, Anse St. Louis had asked him, purportedly on Awon's behalf, if he would burn the Ames Street property. Although initially hesitant, he agreed to commit the arson and solicited the help of James St. Louis. Joaquim further testified that he had several conversations directly with Awon about the arson and the promised pay-off. According to Joaquim's testimony, Awon agreed to pay him $5,000 for committing the arson. Just prior to the first fire, however, Joaquim was detained by the Immigration and Naturalization Service ("INS") which had begun deportation proceedings against him.

Jorge Neves ("Jorge"), Joaquim's brother, testified at trial that while Joaquim was in INS custody, James St. Louis sought Jorge's help to burn the Ames Street property. Jorge said that James St. Louis promised that they would be paid by Awon for the arson. Jorge testified, however that he never spoke directly to Awon regarding the fire or payment. Jorge further testified that, on September 16, 1994, he and James St. Louis spread gasoline around the first floor of the building, ignited it, and fled in James St. Louis' car. The fire was quickly extinguished. Because "nothing happened," Jorge testified that he was never paid for the arson. As the result of his cooperation and testimony, Jorge was not prosecuted for his involvement in setting the September 16, 1994, fire.

Joaquim testified that, after his own release from INS custody in November, 1994, he was again approached by Anse St. Louis, on behalf of Awon, with the request that he burn the Ames Street property. Joaquim said he agreed and that he again solicited James St. Louis to help him. According to Joaquim, Joaquim was to receive a cash payment for his involvement while James St. Louis had directly negotiated with Awon for the receipt of a used Ford Taurus from Awon's car dealership. On January 18, 1995, Joaquim and James St. Louis drove to the Ames Street property in the car of Joaquim's girlfriend, Sandy Casamiro, and set the building on fire. The two men returned to Joaquim's house, placed their soiled clothes in a bag, awakened Casamiro, and had her drive them to a nearby dumpster to discard their clothing. Casamiro corroborated Joaquim's testimony about the late night excursion to discard the clothing worn at the time of the arson. The next day, according to the records of Awon's used car dealership, Awon transferred a Ford Taurus to James St. Louis for $2,000. Joaquim testified that, a week later, he received $2,100 in cash from Awon.

Testifying on behalf of Awon, Anse St. Louis said that he never spoke with Awon or Joaquim about the burning of the Ames Street property. Awon's parents testified that they were the owners and actual parties in interest with respect to the building and that Awon's involvement was limited to responding to maintenance requests and showing the building to prospective tenants. In essence, it was their testimony that Awon had no financial stake in the property. Awon testified that he believed that Joaquim had set the fire in retaliation for Awon's refusal to post bail for Joaquim when he was in INS custody and in reaction to an argument between the two men prior to the second fire.

The jury found Awon guilty of all counts. James St. Louis was acquitted of the first four counts, those related to the September 16, 1994, fire, and found guilty of the remaining four counts. Awon was sentenced to a 153-month term of imprisonment, which represented a downward departure from the applicable guideline sentencing range of 198 to 217 months. Awon was also ordered to pay restitution to the Scottsdale Insurance Company in the amount of $95,788.36. This court affirmed his conviction on February 2, 1998. United States v. Awon, 135 F.3d 96 (1st Cir.1998).

B. Post-conviction Proceedings

On February 1, 1999, pursuant to 28 U.S.C. § 2255, Awon filed a Motion to Set Aside, Vacate, or Correct Sentence and, in an essentially duplicative pleading, he filed a motion for a new trial. In the two motions, Awon pursued identical claims: (1) that newly-discovered evidence warranted a new trial; and (2) that with respect to Count V of the indictment the government's evidence at trial was insufficient to satisfy the federal jurisdictional element of 18 U.S.C. § 841(i) (2000).¹

The newly-discovered evidence was set out in five affidavits. In their affidavits, Jorge Neves and Joaquim Neves recanted their trial testimony implicating Awon in the fires. Joaquim averred that he had falsified his testimony in the hopes of gaining favor with law enforcement officials and avoiding deportation. Jorge disavowed any statement he made on the stand implicating Awon and stated he had fingered Awon to avoid prosecution. James St. Louis, who did not testify at trial, averred that he was solely responsible for the planning of the second fire and that Awon played no part in the arson. Roberto Neves, the brother of Jorge and Joaquim Neves, stated that he and his family were threatened by the police that if Joaquim did not implicate Awon, their sister's children would be taken away and Roberto would be jailed. Roberto also reported that Joaquim had confessed to Roberto that he, Joaquim, had lied about Awon's involvement to "save himself" and receive a lower sentence. Roberto did not testify at trial. Finally, Awon submitted his own affidavit denying any involvement in the planning or execution of the fire and averring that James St. Louis had confessed to him that he and Joaquim had set the January 18, 1995, fire.

The district court held an evidentiary hearing on Awon's two motions. Through counsel, Joaquim notified the court that he withdrew his affidavit and recanted the statements he had made therein. Thereafter, at the hearing, the government called Joaquim to testify. During his testimony at the evidentiary hearing, Joaquim described a four and one-half hour meeting with Awon's attorney that only ended when Joaquim agreed to sign the hand-written affidavit compiled by Awon's attorney. Joaquim stated that Awon's attorney informed him that he would not submit the affidavit to the court until Joaquim had signed and returned a typed copy of the affidavit. When Joaquim received the typed copy he discarded it and assumed the matter was closed. He reported being "surprised" when he discovered that Awon's attorney had filed the handwritten copy. Awon himself did not testify at the hearing on his two motions nor did James St. Louis or Jorge testify concerning the facts they had averred in their affidavits. Roberto, having been deported, was unavailable to testify. Although Awon's attorney was available to testify,² he did not take the stand to counter...