U.S. v. Hernandez-Rodriguez

• Decision Date: 06 April 2006
• Docket Number: No. 05-1121.,05-1121.
• Citation: 443 F.3d 138
• Parties: UNITED STATES of America, Appellee, v. José Ramón HERNÁNDEZ-RODRÍGUEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

443 F.3d 138

UNITED STATES of America, Appellee, v. José Ramón HERNÁNDEZ-RODRÍGUEZ, Defendant, Appellant.

No. 05-1121.

United States Court of Appeals, First Circuit.

Heard November 8, 2005.

Decided April 6, 2006.

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Lorenzo J. Palomares, for appellant.

Timothy R. Henwood, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Senior Appellate Assistant United States Attorney, and H.S. García, United States Attorney, were on brief, for appellee.

Before TORRUELLA, LIPEZ and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

On September 3, 1998, a jury returned a verdict against José Ramón Hernández-Rodríguez ("Hernández"), finding him guilty of five offenses associated with conspiracy to import, possess, and distribute a large quantity of cocaine. His co-defendant, Douglas Gorbea-Del Valle ("Gorbea") was also convicted. Hernández was sentenced to five concurrent terms of imprisonment, each 293 months in duration. He filed a timely appeal, and this court affirmed the conviction and sentence on July 17, 2000. United States v. Hernandez, 218 F.3d 58 (1st Cir.2000), cert. denied, 531 U.S. 1103, 121 S.Ct. 840, 148 L.Ed.2d 720 (2001).

On July 29, 2002, Hernández filed a Motion for a New Trial under Fed. R.Crim.P. 33¹ ("Rule 33") alleging that he was misidentified and offering newly discovered evidence. Two years later, in June 2004, a magistrate judge issued a Report and Recommendation that Hernández be granted a new trial. On December 22, 2004, the district judge rejected the magistrate's recommendation and denied the motion for a new trial.

Hernández herein appeals from the district court's denial of his motion for a new trial. Because we find that the district court erred both in its analysis of the new evidence and insofar as it rejected the magistrate's credibility determination without first hearing the evidence, we reverse the district court and remand the case for action consistent with this opinion.

I.

On September 27, 1997, U.S. Customs officials intercepted a container at Crowley Yard in San Juan, Puerto Rico. It had just arrived from Venezuela, and although the bill of lading indicated that the container held only plastic cups, there was contraband inside as well. The consignee was a supermarket, and the consignee's representative was South Atlantic Trading Company (SATCO), of which Gorbea was part owner. Customs agents unloaded 7,514 pounds of cocaine, worth nearly one billion dollars. They then re-packed the containers with approximately 24 pounds of cocaine.

On October 2, driver Alain Ruiz-Galíndez ("Ruiz"),² an employee of J.R. Transport—a company owned by Hernández— arrived at Crowley Yard to retrieve the container. The truck stopped several times during its route, sometimes for thirty minutes or more. A trip that the district court judge estimated should have taken thirty minutes took about four hours. Although other cars on the road at that time had their headlights on, Ruiz drove without headlights. From the moment the truck left Crowley Yard, Hernández followed it in a gray van. During one of the stopovers he exited the van and entered the truck, where he remained until it arrived at J.R. Transport's truck yard. At some point, the van stopped following the truck.

It appeared to the officers following the truck that a Crown Victoria with several passengers inside arrived at the truck yard at the same time as the truck, and that one passenger carried an object that might have been a gun. The officers reported seeing people in the truck yard greeting and congratulating one another once the container was inside the lot. After surveying the scene, the officers moved in and made arrests. The container had not been opened.

When Gorbea was arrested in December 1997, a faxed document was found in his briefcase ("the fax"). It was dated February 5, 1997—nearly ten months prior to his arrest and almost eight months before the container was intercepted—from a Marina Kassert in Venezuela regarding an earlier shipment of plastic cups. It said, "I urgently need the information of your friend that has the truck to square everything with him." On the back of the two-page fax, among several other handwritten notes, was the name José Hernández.

At their joint trial, neither Gorbea nor Hernández presented any evidence and both were convicted on September 3, 1998. Ruiz, also a defendant, was acquitted. After this court affirmed his conviction, Hernández, 218 F.3d at 71, Hernández filed a 28 U.S.C. § 2255 petition claiming ineffective assistance of counsel. Hernández v. United States, No. 97-228, 2004 WL 1737361, *2 (D.P.R. June 29, 2004). In that petition, Hernández specifically pointed to his attorney's failure to interview Gorbea, alleging that such an interview would have revealed exculpatory evidence. Id. at *2. His § 2255 petition was denied in June 2002. Id. On July 29, 2002, Hernández filed a Motion for a New Trial under Fed.R.Crim.P. 33, alleging newly discovered evidence and innocence.

The new evidence was an affidavit from Gorbea, declaring that he and Hernández did not know each other personally until they met, after their arrest, in a detention facility in Puerto Rico. According to his affidavit, at the time of his arrest Gorbea told U.S. Customs agents Ricardo Rivera ("Agent Rivera") and Brenda Talavera ("Agent Talavera") that he did not know Hernández personally, and the agents took note of this information. Id. at *4. At the evidentiary hearing before the magistrate judge, Gorbea testified that he never told Hernández about the drugs in the truck, and that because no one in Venezuela knew Hernández either, Hernández had "no reason to know" of the drugs in the container. Id. at *5. Gorbea testified that he never told truckers what they were hauling, and—although he did not admit his own guilt—he explained that if he were to import drugs, he would never inform the truckers because he would need to pay them extra otherwise.³ Id. Gorbea also testified that he chose to use J.R. Transport only because its rates undercut those of the other trucking companies he had considered. Id. For his part, Hernández testified that he had only one telephone conversation with Gorbea prior to their arrest, and that conversation pertained only to the negotiation of his fee for transporting the cargo.⁴ Id. Under the agreed terms, Hernández had transported two shipments of plastic cups prior to the final shipment, at issue in this case. Id.

Of particular significance was Gorbea's testimony regarding the fax. At the evidentiary hearing, he explained that in May 1997 (approximately three months after the fax transmission) he was in Venezuela looking for information regarding a shipment of soda crackers that was scheduled to go to Puerto Rico from Venezuela. Id. at *6. Gorbea stated that he called the company representing Crowley Maritime Shipping in Venezuela and spoke to an individual by the name of José Hernández-Avilés, or some similar name, who was unable to help him. Id. That employee transferred him to two or three other people at Crowley in Puerto Rico until Gorbea found someone who knew when the container was due to arrive. Id. Gorbea testified that the person who finally provided the information he needed was called José Hernández, and that he wrote the name on the back of the fax paper as he was being transferred from one person to the next. Id. Finally, Gorbea stated his belief that Defendant Hernández was not the individual to whom he spoke on the phone that day. Id. at *7. He explained that if he had been referring to Defendant Hernández, he would have known and used Hernández's nickname, "Papito," or the name of his company, "J.R. Trucking." Id.

After filing for a new trial but before the evidentiary hearing, Hernández moved to compel Crowley Maritime Corporation to produce personnel records regarding the existence of any employees with the name José Hernández during the time period in question. The records indicate that from May to October 1997, the following were Crowley employees: 1) José Hernández-Vélez (San Juan); 2) José Hernández-Marrero (San Juan); 3) José Hernández-Febus (San Juan); 4) José Hernández (Venezuela).

At the evidentiary hearing, the government presented the testimonies of Agents Talavera and Rivera. Agent Talavera testified that she went to Crowley as part of her investigation to determine whether José Hernández had ever worked there. Although she did not remember the outcome of the inquiry, she stated her belief that knowledge of a Crowley employee by the same name in Venezuela would have been "important and significant" to her investigation. Id. at *8. Similarly, Agent Rivera testified that he did not personally verify whether a person with the name José Hernández worked at Crowley, and when asked whether such information would have been important to his investigation, he replied "[w]ell, now it is. Perhaps back then it wasn't." Id. at *9.

Agent Talavera was asked to describe the evidence—aside from the fax—of Hernández's willing and knowing participation in the crime. Id. at *8. Agent Talavera responded with the following: employees of J.R. Trucking obtained the paperwork for the shipment and moved the container which held the drugs; a surveillance video recorded Ruiz walking around the truck prior to departure, inspecting the seal, the locks, and the tires; agents following the truck saw Hernández and Ruiz periodically getting out of the truck to examine it from behind during the unusually long journey from Crowley Yard to the J.R. Trucking yard; and the truck drove without headlights. Id. Agent Talavera testified that she had no knowledge of whether the truck had mechanical problems, but the magistrate judge found that Agent Talavera's report clearly contained the driver's explanation as to his circuitous route: the truck had no serviceable lights and he used the back roads so as to avoid police detection of the fact that the truck...