U.S. v. Maldonado-Rivera

• Decision Date: 04 June 2007
• Docket Number: No. 05-2572.,05-2572.
• Citation: 489 F.3d 60
• Parties: UNITED STATES of America, Appellee, v. Christian MALDONADO-RIVERA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

489 F.3d 60

UNITED STATES of America, Appellee, v. Christian MALDONADO-RIVERA, Defendant, Appellant.

No. 05-2572.

United States Court of Appeals, First Circuit.

Heard March 5, 2007.

Decided June 4, 2007.

Victor González-Bothwell, Assistant Federal Public Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, was on brief, for appellant.

Lynn M. Doble-Salicrup, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney (Chief, Appellate Division), and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, SELYA, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Senior Circuit Judge.

Defendant-appellant Christian Maldonado-Rivera appeals from the denial of his motion for a new trial in this criminal case. Concluding, as we do, that the district court did not abuse its discretion in denying the motion, we affirm the judgment below.

I. BACKGROUND

This case had its genesis in a surveillance of suspected drug-trafficking activity at the Los Laureles housing project in Bayamón, Puerto Rico. The facts are uncomplicated.

On July 14, 2004, Nancy Méndez Acevedo (Méndez), a police officer with twelve years of seniority on the force, was assigned to surveil a known drug point at Los Laureles. To reach her surveillance post, she drove an unmarked vehicle with tinted windows and parked near a basketball court. Within a few minutes of her arrival, she noticed a yellow Nissan Xterra drive up and park on the opposite side of the basketball court.

Méndez observed an individual, later identified as the defendant, exit the Xterra with a nickel-plated pistol in his right hand. Upon seeing the weapon, Méndez radioed for backup. As patrol cars sped to the scene, she observed the defendant turn, throw the firearm into the Xterra, and begin to flee. An arriving officer, Luis Lebrón Ramos (Lebrón), ran the defendant to ground in an apartment at the housing project. In the meantime, Méndez seized a loaded handgun and additional ammunition from within the Xterra.

In due course, a federal grand jury charged the defendant, in a single-count indictment, with being a felon in possession of a firearm and ammunition. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The defendant proclaimed his innocence. Following some procedural skirmishing (not relevant here, except for the defendant's stipulation to a prior felony conviction), the case was reached for trial before a jury on January 18, 2005.

Méndez and Lebrón, among others, testified for the prosecution about the day's events. As part of its case, the government offered testimony that the defendant's wallet and identification were found inside the Xterra. Finally, the government introduced an inventory slip for the contents of the Xterra signed by the defendant as the vehicle's owner or driver.

Because the defendant denied actual or constructive possession of the firearm, the exact location of Méndez's parked vehicle became a hotly contested issue at trial. This emphasis stemmed from a sense that the vehicle's location directly affected the clarity of Méndez's line of sight and, thus, the accuracy of her eyewitness testimony. On cross-examination, defense counsel pressed Méndez for details about where she had parked her vehicle. Presented with an inexact diagram of the scene, Méndez indicated that she had parked in the "second parking space" from the corner.¹ Méndez also described the Xterra as being parked all the way across the basketball court and slightly to the left of where she had parked.

The defense case rested mainly on an alibi: the defendant was neither driving the car at the time in question nor toting a pistol. Several witnesses testified on the defendant's behalf. Some of them offered testimony that bore upon Méndez's account of what she had observed. One such witness was Rodolfo Bladuell, who had taken photographs of the parking lot from different angles. Several photographs taken from parking space two reflected a clear line of sight to the point at which the Xterra allegedly was parked.² Photographs taken from the parking spaces immediately to the right of parking space two reflected a partially obstructed line of sight.

Ana María Alicea-Aponte, who worked in the administrative offices of the Los Laureles housing project, testified that a junked green van occupied parking space two on July 14, 2004. Alicea-Aponte remembered the van because it had been situated in the same spot for well over a year while the administration attempted to effect its removal.

In its rebuttal case, the government recalled Méndez, who reiterated that she had stopped her car in parking space two. She also testified that vehicles were parked on either side of her car; a vehicle with flat tires was to her right, and a black vehicle was to her left.

After seven days of trial, the jury found the defendant guilty. On April 28, 2005 — approximately three months after the verdict — the defendant moved for a new trial based on newly discovered evidence. He relied upon a series of administrative reports and two photographs depicting the presence of a junked green van in or near parking space two.

The provenance of these items is relevant to this appeal. The defendant claims that, during the trial, Alicea-Aponte's supervisor at the Los Laureles administrative offices received a telephone call from an unidentified government agent. As she related it, the agent requested documentation anent an abandoned vehicle in parking space two. The supervisor later checked her files and found monthly reports (the most relevant of which spanned the ten-month period from March through December of 2004) listing the locations of abandoned vehicles at Los Laureles. She also found a photograph, apparently taken in August of 2004, depicting a junked green van in or near parking space two.

The supervisor never received a follow-up call from the agent. However, she told Alicea-Aponte, at an unspecified date, about the inquiry and about the items that she had retrieved. Alicea-Aponte then put the supervisor in touch with the defendant. The motion papers do not elaborate upon the date on which either the defendant or his counsel first learned of these events.

The new trial motion made reference to a third piece of evidence as well. That item was a photograph that the defendant claimed he had obtained from Janifer Cortés, his former girlfriend and the mother of his child. The photograph showed the defendant's infant daughter in the arms of a friend standing next to a green van in parking space two. Cortés had testified as a defense witness at the trial but had not been queried about the photograph (which purportedly was taken in October of 2004). In a sworn statement attached to the motion, she explained that the roll of film containing the picture had not been developed until after the trial had ended.

The defendant maintained that these pieces of evidence, singly and in the aggregate, would have impeached Méndez's testimony and, thus, bolstered the credibility of his alibi witnesses. The evidence was newly discovered, the defendant said, because he was not aware of it prior to or during the trial, and, in all events, he could not have predicted how Méndez's trial testimony would evolve. Finally, he asserted that the new evidence would in all likelihood have been outcome-determinative.

The government opposed the motion. It argued that the evidence was not new in the requisite sense but, rather, easily could have been made available for use at the trial; that it was cumulative and, therefore, not material; and that it would not have resulted in an acquittal.

On August 10, 2005, the district court denied the new trial motion. The court concluded that the proffered evidence was available to the defendant prior to and during the trial and that, in the exercise of due diligence, he could (and should) have discovered it. The court noted specifically that, given Alicea-Aponte's trial testimony, the defendant had every incentive to seek verification of the green van's location. With respect to the Cortés photograph, the court explained that the defendant had not advanced any satisfactory reason as to why the photograph was not available prior to or during the trial.

The court added that even if the various pieces of evidence cited in the motion could be regarded as newly discovered, they served only to impeach Méndez's testimony as to her exact position when she saw the defendant and to corroborate Alicea-Aponte's testimony about the presence of the junked green van. Given the undisputed evidence that a nickel-plated pistol was retrieved from the Xterra and that the defendant had signed an inventory of the Xterra's contents as that vehicle's driver or owner, the court concluded that the "new" evidence was not sufficiently material to guilt or innocence to justify a new trial. See United States v. Maldonado-Rivera, No. 04-390, slip op. at 8 (D.P.R. Aug. 10, 2005) (unpublished) (concluding that "[r]egardless of whether agent Méndez saw the defendant from the first, second, or third parking space, the evidence in this case proves beyond [a] reasonable doubt that she indeed could see the defendant from where she was parked").

Following the denial of the new trial motion, the district court sentenced the defendant to serve a 48-month incarcerative term. This timely appeal ensued.

II. ANALYSIS

Federal Rule of Criminal Procedure 33 provides that a district court, upon motion of the defendant, may "grant a new trial if the interest of justice so requires." To the extent that such a motion is grounded upon newly discovered evidence, it may be filed at any time within three years of the verdict. See id. The defendant's new trial motion was, therefore, timely. The district court nonetheless denied it.

On appeal, the defendant argues that the district court applied...