U.S. v. Del-Valle

• Decision Date: 12 May 2009
• Docket Number: No. 08-1234.,08-1234.
• Citation: 566 F.3d 31
• Parties: UNITED STATES of America, Appellee, v. Douglas Gorbea DEL-VALLE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

566 F.3d 31

UNITED STATES of America, Appellee, v. Douglas Gorbea DEL-VALLE, Defendant, Appellant.

No. 08-1234.

United States Court of Appeals, First Circuit.

Submitted March 4, 2009.

Decided May 12, 2009.

Lorenzo J. Palomares and Lorenzo Palomares, P.S.C. on brief for appellant.

Nelson Pérez-Sosa, Assistant United States Attorney, Germán A. Rieckehoff, Assistant United States Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

Before LYNCH, Chief Judge, SELYA and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

This appeal is about the denial of a new trial to a convicted significant drug conspirator. Even given that we are the only circuit which has ruled that an affidavit from a convicted codefendant who refused to testify at trial may be used to support a new trial motion because it was "unavailable" at trial, this defendant's appeal fails.

Douglas Gorbea Del-Valle, the appellant here, and José Ramón Hernández-Rodríguez were involved in a conspiracy to import, possess, and distribute a large amount of cocaine. Gorbea played a major role in the conspiracy: the trading company that he ran and partly owned was responsible for importing the cocaine shipment from Venezuela to Puerto Rico, and Gorbea was personally involved in many of the details of this operation. Hernández, by contrast, was a more peripheral figure: he owned a trucking company that Gorbea's company employed to transport the shipment from the docks to a nearby truck yard. Gorbea and Hernández were tried together and convicted in 1998 on four and five counts, respectively, arising from this conspiracy. This court affirmed both convictions in 2000. United States v. Hernández (Hernández I), 218 F.3d 58, 61 (1st Cir.2000).

In 2002, Hernández filed a motion for a new trial under Fed.R.Crim.P. 33 based on an affidavit from Gorbea. The district court rejected the motion, but in 2006, this court reversed. United States v. Hernández-Rodríguez (Hernández II), 443 F.3d 138, 140 (1st Cir.2006). We found that the government's case against Hernández had relied heavily on a theory that was directly undercut by Gorbea's affidavit and that, given the weak nature of the other evidence presented against Hernández, this new evidence could create a likelihood of acquittal upon retrial. See id. at 145-47.

In 2003, almost five years after his conviction, Gorbea filed his own motion for a new trial. Gorbea's Rule 33 motion was based primarily on an affidavit from his codefendant, Hernández. The district court summarily denied the new trial motion. Gorbea's case is entirely unlike that of his codefendant. A great deal of evidence links Gorbea to the conspiracy and demonstrates his substantial involvement with it. None of this evidence is undercut by the evidence presented in Gorbea's Rule 33 motion. We affirm the district court's ruling.

I.

The facts underlying this case are described more fully in our prior opinions. See Hernández II, 443 F.3d at 140-43; Hernández I, 218 F.3d at 61-63, 65-67. The essential facts are briefly recounted below.

On September 27, 1997, U.S. Customs officials received information that a container arriving from Venezuela at Crowley Yard in San Juan, Puerto Rico, contained contraband. Customs officials located the container the following day and moved it to Customs facilities in Cataño for inspection. The bill of lading stated that the container held plastic cups and that the consignee was a supermarket. The consignee's representative was South Atlantic Trading Company (SATCO), which Gorbea ran and partly owned; Gorbea was listed as the person to be notified upon the container's arrival. Inside the container, customs officials discovered not only plastic cups but also 7,514 pounds (approximately 3,415 kilograms) of cocaine. The container was fitted with electronic tracking equipment, repackaged, and returned to Crowley Yard.

On September 29, Gorbea called the Customs office to inquire about the container. He identified himself as its owner and asked why it had been moved to Cataño. He was told there was no problem and that the container would be ready to be picked up soon. Later, Gorbea went personally to the customs broker to arrange for payment of the freight charges; an employee there reported that Gorbea seemed in a hurry to receive the shipment. Gorbea had also instructed his secretary to call the customs broker several times to "see what the status [of this shipment] was and to hasten them."

On October 2, after the necessary paperwork was completed, two employees from J.R. Transport, a company owned by codefendant Hernández, arrived to retrieve the container. Their truck pulled out of Crowley Yard and drove to a nearby truck yard, followed by Hernández in a gray van — and law enforcement officers. The truck took a halting and meandering route. It traveled along back roads and made several stops, sometimes remaining stopped for a half hour or more. It made U-turns and was often without its headlights (although other cars on the road had their headlights on). All told, a trip that would normally take about half an hour lasted about four.

At long last, the truck arrived at the truck yard. Officers observing the scene reported that another car arrived at the same time as the truck; the car contained several people, one of whom was carrying an object that may have been a gun. The people in the truck yard greeted and congratulated one another once the container was inside the lot. Their celebration was short-lived; officers moved in, made arrests, and seized the container.

Gorbea was arrested two months later. In his possession, officers discovered a fax dated February 5, 1997. The fax was addressed to Gorbea from a person in Venezuela about 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 fax, among other handwritten notes, Gorbea had written the name José Hernández.

Gorbea and Hernández were tried together. Gorbea was charged with four counts related to the cocaine conspiracy; Hernández faced five charges.¹ At trial, neither presented any evidence and neither testified.

The prosecution also presented significant amounts of circumstantial evidence that linked Gorbea to the scheme, showing that he had knowledge of its workings. At the time of the cocaine shipment, Gorbea's company, SATCO, had primarily been in the business of importing crackers. When SATCO began importing plastic cups, these shipments were handled differently. Gorbea was personally involved in these shipments to a greater extent than he was in the usual cracker shipments. Around the time the shipments began, he insisted on taking private calls from a person identifying himself as "Wallace." Once, a shipment of plastic cups arrived at SATCO in a state that suggested it had been opened and that something had been removed; when Gorbea's secretary reported this to him, Gorbea responded that he "already knew" and that it "didn't matter." SATCO employed a different trucking company — the company owned by Hernández — to transport the plastic cup shipments.² SATCO imported the plastic cups even though it lost money on them; previous shipments had been sold at a loss. Finally, the supermarket listed as the consignee on the shipment at issue had never purchased plastic cups from SATCO and had no intention of purchasing any of the cups in this shipment.

By contrast, the government's case against Hernández was weaker. The prosecution relied heavily on the theory that Hernández and Gorbea were close and trusted partners. To prove that Hernández knowingly participated in the scheme, the government relied on the fax found in Gorbea's possession, which had the name "José Hernández" written on it, as well as on the circumstantial evidence surrounding Hernández's presence on the night the shipment was seized. The defense theory was that the government had not shown that Hernández knew of the existence of cocaine inside the container his company had been hired to transport or that he knowingly participated in or helped facilitate the importation or distribution scheme.

A jury convicted both defendants of all the charges on September 3, 1998. On appeal in 2000, this court affirmed both Gorbea's and Hernández's convictions.³ Hernández I, 218 F.3d at 71. We rejected inter alia, Gorbea's challenge to the sufficiency of the evidence, finding that there was "sufficient evidence in the record to support the conclusion that Gorbea knew of and actively participated in the scheme to import and distribute cocaine." Id. at 66. Given the evidence presented, we added, "[i]t strains credulity to suggest that [Gorbea] would not have known the container's contents or the plans for distributing them." Id. We also found there was sufficient evidence to convict Hernández I, id. at 66-67, noting that it was "[o]f great weight ... that Gorbea wrote Hernández's name on the back of the fax," id. at 67, but acknowledging that the evidence on the record against Hernández was not overwhelming, see id. at 67 & n. 6; see also Hernández II, 443 F.3d at 147.

A. Hernández's Successful Motion for a New Trial

Two years later, on July 29, 2002, Hernández filed a motion for a new trial based on purportedly "newly discovered evidence." See Fed.R.Crim.P. 33(b)(1). Hernández's motion was based on an affidavit from Gorbea, in which Gorbea stated that he and Hernández did not know each other personally at the time of their arrest. See Hernández II, 443 F.3d at 141.

An evidentiary hearing was held on August 26, 2003 before a magistrate judge, at which Gorbea testified. Gorbea did not admit his own guilt, but stated that he never told truckers what they were hauling and that if he were to import drugs, he would never inform the truckers because this would raise the cost of their services. See id. at 141-42. He also testified that the José Hernández to whom he had...