U.S. v. Borda

• Decision Date: 27 April 2011
• Docket Number: Criminal Action No. 07–0065(GK).
• Citation: 786 F.Supp.2d 25
• Parties: UNITED STATES of America, Plaintiff,v.Christian Fernando BORDA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

786 F.Supp.2d 25

UNITED STATES of America, Plaintiff,

v.Christian Fernando BORDA, et al., Defendants.

Criminal Action No. 07–0065(GK).

United States District Court, District of Columbia.

April 27, 2011.

A. Eduardo Balarezo, Law Offices of A. Eduardo Balarezo, David Walker Bos, Federal Public Defender for D.C., Paul W. Laymon, Robert J. Raymond, Charles D. Griffith, Jr., U.S. Department of Justice, Washington, DC, Carmen D. Hernandez, Highland, MD, William B. Purpura, Baltimore, MD, Mark John Carroll, Mark John Carroll, Esquire, Potomac, MD, Jorge Rios–Torres, Annandale, VA, Oscar Arroyave, Law Offices of Oscar Arroyave, P.A., Coconut Grove, FL, for Defendant.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Defendants Christian Fernando Borda and Alvaro Alvaran–Velez bring this Motion for New Trial, pursuant to Federal Rule of Criminal Procedure 33. On December 9, 2010, Defendants were convicted under the Controlled Substances Import and Export Act, 21 U.S.C. §§ 951 et seq., of conspiracy to distribute five kilograms or more of cocaine with the intent or knowledge that the cocaine would be unlawfully imported into the United States. See Verdict Form as to Christian Fernando Borda [Dkt. No. 207]; Verdict Form as to Alvaro Alvaran–Velez [Dkt. No. 209]; 21 U.S.C. §§ 959, 960, 963. Under Federal Rule of Criminal Procedure 29, Defendants first moved for judgment of acquittal, which this Court denied in a Memorandum Opinion on March 9, 2011, 768 F.Supp.2d 289 (D.D.C.2011) [Dkt. No. 238].

On January 15, 2011, Defendants filed a Joint Motion for New Trial, (Defs.' Mot.) [Dkt. No. 227], under Federal Rule of Criminal Procedure 33, arguing that a new trial is warranted in the interest of justice as the Jury's verdict is against the weight of the evidence and resulted from numerous errors.

Upon consideration of the Motion, the Opposition, the Reply, the entire record herein, and the applicable case law, Defendants' Joint Motion for New Trial is denied.¹

I. Background

Defendants were each convicted of conspiring, beginning in January 2005 and continuing at least to October 2005, to distribute five or more kilograms of cocaine with the intent or knowledge that the cocaine would be unlawfully imported into the United States. See 21 U.S.C. §§ 959, 963. At trial, Defendants did not dispute that they had distributed cocaine during that period, but argued that they neither knew nor intended that the cocaine would be unlawfully imported into the United States.

The Government offered evidence of three separate drug deals in 2005. The first deal, “Palm Oil One,” took place between January and May 2005. In Palm Oil One, Defendants Borda and Alvaran arranged to ship 1,553 kilograms of cocaine concealed in drums of palm oil from Cartagena, Colombia to Puerto Progreso, Mexico. Upon the shipment's arrival in Puerto Progreso, an associate named Raul Valladeres, or “Junior,” contacted Defendants to say that he could transport the cocaine to Monterrey, Mexico and would pay Borda $9,100 per kilogram within ten days after receipt of the drugs. Tr. at 18:24–20:18, 25:10–28:15 A.M. Session, Nov. 4, 2010. Defendants agreed to Junior's proposal, and Junior transported the cocaine north to Monterrey. Id.; Gov't Ex. 40b at 3–4.

The Government introduced evidence that Monterrey is located less than two hours away from the United States border. The Government's evidence also showed that Monterrey is an inland city in Mexico with insufficient demand for a load of cocaine as large as the Palm Oil One load. See Gov't Ex. 40b at 6 (Defendant Alvaran stated that Monterrey is “not a market for personal use”).

In addition, the Government introduced the following evidence to prove that Defendants were aware that Junior was trying to sell the cocaine across the Mexican border into the United States.

First, on June 15, 2005, Defendant Alvaran met with the Government's confidential informant, Camilo Suarez, after Junior had failed to pay Defendants for Palm Oil One within ten days of his receipt of the drugs. Suarez testified at trial that, in the course of that meeting, Alvaran expressed his understanding that the cocaine had been moved north of Mexico City to Monterrey. Tr. at 22:2–9 P.M. Session, Nov. 15, 2010; Gov't Ex. 34b.

Second, on July 20, 2005, Borda met with Alvaran and Suarez to discuss Junior's progress in making payments for Palm Oil One. Suarez defended Junior's delay to Borda by explaining that the “market went bad because the border got, [ ] harder for him.” Gov't Ex. 40b at 3–7. Defendants then discussed the conditions at the border in further detail. Id. At one point, Borda noted that he understood Junior's difficulties because he had once been a drug dealer in the United States. Id. at 10. Borda also went on to explain that his source for cocaine in Colombia had told him how such transactions usually proceed:

[Mexicans] get the merchandise, they say they'll take it, they pay us nine thousand in Monterrey and they go and sell it on the other side ² for, for fourteen thousand or fifteen thousand pesos, and we're the ones that are losing because we lose time, money and everything else.

Id. at 22–23.

Third, Suarez testified at trial that “[a]ll 1,553 [kilograms] went to the United States.” Tr. at 44:5–9 A.M. Session, Nov. 18, 2010. Suarez also testified that he did not recall any discussion that Borda's 724 kilogram share of the Palm Oil One cocaine was going to Europe. Tr. at 46:13–17 P.M. Session, Nov. 18, 2010.³ Finally, both Suarez and Borda's secretary in Mexico City, Juan Montoya, testified at trial that payment was received from Junior for Palm Oil One in United States currency. Tr. at 45:17–24 A.M. Session, Nov. 17, 2010; Tr. at 71:9–18 A.M. Session, Nov. 24, 2010.

In the second deal, “Palm Oil Two,” Defendants discussed shipping additional cocaine from Colombia to Mexico, but ultimately never did so because of their difficulties in receiving payment for Palm Oil One. Finally, the third deal, named the “Chino Load,” was scheduled for September 2005. In this third deal, Borda, Alvaran, and an associate named “El Chino” agreed to transport a second load of 3,000 kilograms of cocaine from Colombia to Mexico City, Mexico in two “go-fast boats,” one of which was a Venezuelan-registered fishing vessel. However, the crew of that fishing vessel, which was carrying half of the Chino Load, threw the cocaine into the Caribbean Sea shortly before being intercepted by the United States Coast Guard. Tr. at 41:24–42:17 A.M. Session, Nov. 16, 2010. Consequently, the United States Coast Guard found no cocaine on the ship.

On the basis of this evidence, the Jury returned a verdict of guilty against Defendant Borda and Defendant Alvaran, concluding that each conspired to distribute more than five kilograms with the knowledge or intent that the cocaine would be unlawfully imported into the United States.

II. Standard of Review

Under Federal Rule of Criminal Procedure 33(a), “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” In deciding a motion for new trial, the court has broad discretion. United States v. Lam Kwong–Wah, 924 F.2d 298, 308 (D.C.Cir.1991); United States v. Reese, 561 F.2d 894, 902 (D.C.Cir.1977).

Motions for new trial are “not favored and are viewed with great caution.” United States v. Blackthorne, 378 F.3d 449, 452 (5th Cir.2004) (citations omitted). Contrary to the Government's burden at trial to prove guilt beyond a reasonable doubt, Defendants bear the burden of proof under Rule 33 to demonstrate that a new trial is warranted. United States v. Mangieri, 694 F.2d 1270, 1285 (D.C.Cir.1982); Reese, 561 F.2d at 902.

Despite the court's broad authority to order a new trial, it should be “exercised sparingly” and “limited to situations presenting a serious danger that a miscarriage of justice has occurred—that is, that an innocent person has been convicted.” United States v. Wilkerson, 656 F.Supp.2d 22, 28 (D.D.C.2009)(internal quotations and citations omitted). A new trial may be granted “only in the extraordinary circumstances where the evidence preponderates heavily against the verdict,” United States v. Rogers, 918 F.2d 207, 213 (D.C.Cir.1990)(internal quotations and citations omitted).

Unless an error, defect, irregularity, or variance affects a defendant's substantial rights, it shall be disregarded. United States v. Lawson, 494 F.3d 1046, 1053 (D.C.Cir.2007). In cases where such rights are adversely affected, the error must have a “substantial and injurious effect or influence in determining the ... verdict” in order to warrant a new trial. United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)(alteration in original)(internal quotations and citation omitted). The Government “ ‘bears the burden of proving the absence of such an effect.’ ” United States v. Smith, No. 09–3119, 640 F.3d 358, 366, 2011 WL 1437378, at *6 (D.C.Cir. Apr. 15, 2011) (quoting United States v. Linares, 367 F.3d 941, 952 (D.C.Cir.2004)).

In deciding whether a new trial should be held, the court may weigh the evidence and consider the credibility of witnesses to determine whether a serious miscarriage of justice has occurred. Tibbs v. Florida, 457 U.S. 31, 38 n. 11, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Rogers, 918 F.2d at 213. As noted by the Supreme Court in Tibbs, the court in making this determination essentially sits as a “thirteenth juror.” 457 U.S. at 42, 102 S.Ct. 2211; Brodie v. United States, 295 F.2d 157, 160 (D.C.Cir.1961) (internal quotations and citation omitted); Wilkerson, 656 F.Supp.2d at 28 (internal quotations and citation omitted).

III. Analysis

Defendants raise the following five claims to support their motion for a new trial: (1) the evidence offered by the Government is insufficient to sustain the Jury's verdict that Defendants had the necessary intent, as required by statute, for conviction of...