U.S. v. LaFuente, 91-3342
| Decision Date | 19 April 1993 |
| Docket Number | No. 91-3342,91-3342 |
| Citation | 991 F.2d 1406 |
| Parties | UNITED STATES of America, Appellee, v. Richard John LaFUENTE, also known as Ricky LaFuente, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jonathan T. Garaas, Fargo, ND, argued, for appellant.
Dennis D. Fisher, Asst. U.S. Atty., Fargo, ND, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, and LARSON, * Senior District Judge.
Richard J. LaFuente appeals from the district court's denial of his motion for a new trial based on allegations of newly discovered evidence and prosecutorial misconduct. We vacate the district court's order and remand for an evidentiary hearing.
This case comes before us for the sixth time in as many years. On August 28, 1983, Jerome Edward ("Eddie") Peltier was found dead on Highway 57 near Ski Jump Road on the Devils Lake Indian Reservation in North Dakota. An autopsy revealed that Peltier had died as a result of being run over by a motor vehicle. Although law enforcement authorities suspected foul play from the beginning, their investigation was unproductive for nearly two years. Beginning in July 1985, however, the authorities were able to obtain statements from several individuals who had witnessed the events surrounding Eddie Peltier's death. On January 9, 1986, the government indicted eleven individuals for their involvement in Eddie Peltier's death.
On April 14, 1986, a six-week jury trial commenced against the eleven defendants. The government presented four primary witnesses: Patricia DeMarce, Shirley Greywater, Mary McDonald, and Fred Peltier. According to these witnesses, Eddie Peltier attended a party at Bernice Cavanaugh Juarez's residence the morning he was killed. He was involved in several confrontations at the party. These confrontations escalated to the point where the defendants chased Eddie Peltier to nearby Highway 57, beat him, and left him lying on the highway, where LaFuente drove over him with his automobile. For a fuller recitation of the facts, see United States v. Grey Bear, 828 F.2d 1286, 1288, 1293-96 (8th Cir.1987) ("Grey Bear I ").
On May 21, 1986, LaFuente was convicted of first-degree murder and sentenced to life in prison. In Grey Bear I, we held the evidence was sufficient to support the conviction, but we reversed the conviction on the ground of prejudicial misjoinder and ordered a new trial. Id. at 1294, 1299. On rehearing en banc, an equally divided court affirmed the district court's ruling that joinder was proper, thus reinstating LaFuente's murder conviction. United States v. Grey Bear, 863 F.2d 572 (8th Cir.1988) (en banc). We subsequently rejected LaFuente's other challenges to his conviction. United States v. Grey Bear, 883 F.2d 1382 (8th Cir.1989), cert. denied, 493 U.S. 1047, 110 S.Ct. 846, 107 L.Ed.2d 840 (1990). 1
Based on allegations of newly discovered evidence and prosecutorial misconduct, LaFuente moved for a new trial. Without conducting an evidentiary hearing, the district court filed a memorandum and order denying the motion. This appeal followed.
We first examine LaFuente's contention that he is entitled to a new trial because of newly discovered evidence. We look upon motions for a new trial based on newly discovered evidence with disfavor. See, e.g., United States v. Liebo, 923 F.2d 1308, 1313 (8th Cir.1991) (quoting United States v. Gustafson, 728 F.2d 1078, 1084 (8th Cir.), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984)). Accordingly, we have adopted a stringent five-part test for granting such motions. All of the following requirements must be met:
(1) the evidence must be in fact newly discovered since the trial;
(2) facts must be alleged from which the court may infer diligence on the part of the movant;
(3) the evidence relied upon must not be merely cumulative or impeaching;
(4) it must be material to the issues involved; and
(5) it must be of such a nature that, on a new trial, the newly discovered evidence would probably produce an acquittal.
Id. The grant or denial of a motion for a new trial based on newly discovered evidence is within the trial court's broad discretion, and we will reverse a trial court's decision only if we find a clear abuse of discretion. Id.
LaFuente's motion alleged that he should be granted a new trial based upon the following items of newly discovered evidence: (1) Shirley Greywater's allegation of judicial misconduct; (2) Greywater's recantation; (3) Greywater's allegations of police misconduct; (4) John Wells's alleged testimony; (5) Linda Alberts's alleged testimony; and (6) Kevin Mindt's alleged testimony.
Since the trial, Shirley Greywater has given two sworn statements: one on April 20, 1988, and another on December 29, 1989. On the basis of Greywater's second statement, LaFuente alleges that Greywater, without her attorney present, attended ex parte chambers conferences between the government and the district court. LaFuente asserts that Greywater was told at these conferences that she would be placed in jail if she spoke to defense lawyers or the press. The government vehemently denies that any such ex parte proceedings ever occurred. In its order, the district court did not make any express finding on this allegation.
We acknowledge that a district court has broad discretion in deciding whether to hold an evidentiary hearing on a motion for a new trial based on newly discovered evidence. See, e.g., United States v. Begnaud, 848 F.2d 111, 113-15 (8th Cir.1988). This type of motion can ordinarily be decided upon affidavits without a hearing. Id. There are cases, however, in which an evidentiary hearing should be held, see, e.g., United States v. Massa, 804 F.2d 1020, 1023 (8th Cir.1986), and we believe that this case falls into that category. LaFuente has made a serious allegation concerning the district court. The government denies the allegation, but has not offered any affidavit to refute it. Accordingly, we must remand this case to the district court with directions that it hold an evidentiary hearing to determine whether any such ex parte conferences occurred. 2 If the court finds that any ex parte conferences did occur, it must then determine whether the nature of those conferences was such that LaFuente's due process right to a fair trial was violated.
In both of her post-trial statements, Greywater also recanted her trial testimony, claiming that she had lied at trial about being at the Juarez party. Without stating whether it found Greywater's recantation credible, the district court concluded that her recantation did not satisfy all the requirements of Liebo's five-part test. Neither rejecting nor endorsing the district court's determination, we direct the court to review this finding after it has held the evidentiary hearing and has made findings on LaFuente's allegations of newly discovered evidence--none of which the district court addressed when it initially considered LaFuente's motion.
Again based on Greywater's sworn statements, LaFuente alleges that Greywater testified falsely at trial because two law enforcement officers had threatened her. LaFuente further alleges that one of these officers also provided Greywater with information so that her testimony could be consistent with other testimony.
Without stating the source of this allegation, LaFuente alleges that in a new trial John Wells would provide testimony that impeaches Mary McDonald's testimony and corroborates LaFuente's trial position concerning his whereabouts at pertinent times.
Based on the notes of investigator Ross Rolshoven's interview with Linda Alberts, LaFuente asserts that Alberts was on Ski Jump Road near the Juarez residence at 5:46 on the morning of Eddie Peltier's death. LaFuente maintains that Alberts would testify that she did not see anyone or anything near the Juarez residence except a red stationwagon. LaFuente contends that her testimony would thereby establish that Eddie Peltier could not have been killed in the manner the government claims he was.
On the basis of Rolshoven's interview with Kevin Mindt, LaFuente alleges that Mindt would testify that he was pressured by the federal government to testify falsely at trial that he had been at the Juarez party. (We note, however, that Mindt was not called to testify at trial.) According to LaFuente, Mindt would further testify that Fred Peltier had also been pressured into coming up with a story and that Peltier and Patricia DeMarce had felt compelled to testify as they did because of the money the government had paid them.
On remand, we direct the district court to first determine which of these allegations, if any, are credible. See United States v. Coleman, 460 F.2d 1038, 1040 (8th Cir.) ( that on a motion for a new trial based on newly discovered evidence it is the trial court's function to determine the credibility of evidence), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972); Connelly v. United States, 271 F.2d 333, 335 (8th Cir.1959) (same), cert. denied, 362 U.S. 936, 80 S.Ct. 755, 756, 4 L.Ed.2d 750 (1960). If the court finds that any of LaFuente's allegations are credible, it must then apply to them the five-part test for newly discovered evidence.
On appeal, LaFuente attempts to raise additional allegations of newly discovered evidence by recharacterizing some of his prosecutorial misconduct claims as newly discovered evidence claims. Because these claims were not raised below, we will not consider them here.
We now turn to LaFuente's contention that he should be granted a new trial because he was...
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