U.S. v. Zuno-Arce

• Citation: 25 F.Supp.2d 1087
• Decision Date: 18 August 1998
• Docket Number: No. CV 98-2930-ER.,No. CR 87-422(G)-ER.,CV 98-2930-ER.,CR 87-422(G)-ER.
• Parties: UNITED STATES of America, Plaintiff, v. Ruben ZUNO-ARCE, Defendant-Movant.
• Court: U.S. District Court — Central District of California

25 F.Supp.2d 1087

UNITED STATES of America, Plaintiff, v. Ruben ZUNO-ARCE, Defendant-Movant.

No. CV 98-2930-ER.

No. CR 87-422(G)-ER.

United States District Court, C.D. California.

August 18, 1998.

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James E. Blancarte, James E. Blancarte Law Offices, Los Angeles, CA, Jack R. Luellen, Brega & Winters, Denver, CO, Timothy M. Thornton, Glodberg, Scott, Belfield & Cohen, Los Angeles, CA, for Ruben Zuno-Arce.

ORDER DISMISSING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT HIS SENTENCE

RAFEEDIE, Senior District Judge.

This case arises from the kidnapping, torture and murder of DEA Special Agent Enrique Camarena in Guadalajara, Jalisco, Mexico in February 1985. After being granted a new trial by the Court, a jury convicted defendant Ruben Zuno-Arce in a second trial on counts of conspiring to commit and committing violent crimes in aid of a racketeering enterprise, and conspiring to kidnap and kidnapping a federal agent. The Court of Appeals affirmed and the Supreme Court denied certiorari. Five years after Zuno-Arce's conviction, Hector Cervantes-Santos, a witness who testified at the first trial, signed a declaration stating that he had perjured himself at the urging of the Government. Based in large part on that declaration, Zuno-Arce, represented by counsel, has filed a motion for a new trial, which the Court has construed as a motion to vacate, set aside or correct a sentence, brought pursuant to 28 U.S.C. § 2255, in which he raises claims of double jeopardy, knowing use of perjured testimony, failure to disclose exculpatory evidence, and ineffective assistance of counsel. The Court has read and considered the papers filed in connection with this matter, conducted an evidentiary hearing on July 31, August 3 & 10, 1998, and now HEREBY DISMISSES IN PART and DENIES IN PART the motion for the reasons set forth below.

I

A

Zuno-Arce [is alleged to have been] part of an international narcotics enterprise based in Guadalajara, Jalisco, Mexico.... Enrique Camarena-Salazar, an agent of the United States Drug Enforcement Agency, was, according to the government's evidence at trial, tremendously successful during 1984-85 in the performance of his duties. Billions of dollars worth of marijuana were seized in a single raid at "El Bufalo," a ranch owned by another of the cartel's members, Rafael Caro-Quintero. The cartel struck back violently. Agent Camarena was kidnapped in February 1985, taken to Caro-Quintero's house at 881 Lope de Vega in Guadalajara, and interrogated and tortured for two days. The interrogation was directed at finding out what information Camarena had about the cartel. After getting the information, the criminals murdered Agent Camarena [and his pilot/informant Alfredo Zavala-Avelar] and buried [them].

United States v. Zuno-Arce, 44 F.3d 1420, 1422 (9th Cir.1995), cert. denied, 516 U.S. 945, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995); see also United States v. Zuno-Arce, 958 F.2d 380, 1992 WL 59017 (9th Cir.1992). Zuno-Arce was among those indicted for the crime.

Zuno-Arce was tried twice. The first trial commenced on May 15, 1990 (Zuno I); the defendants tried in that case were Zuno-Arce, Juan Ramon Matta-Ballesteros, Juan Jose Bernabe-Ramirez, and Javier Vasquez-Velasco. Hector Cervantes-Santos, a bodyguard to cartel member Javier Barba-Hernandez, testified on behalf of the Government and implicated Zuno-Arce, among others, in the conspiracy to kidnap and murder Agent Camarena. All four defendants were convicted. The Court granted Zuno-Arce a new trial, however, because the prosecutor had made an inappropriate reference in closing argument to a matter on which the Court had earlier prevented Zuno-Arce from presenting evidence. The jury's decision had been rendered without access to a defense exhibit that might have, in light of the prosecutor's comments, been helpful to Zuno-Arce's defense. The Court of Appeals affirmed the grant of a new trial in an unpublished disposition. See United States v. Zuno-Arce, 958 F.2d 380, 1992 WL 59017 (9th Cir.1992).

Zuno-Arce was retried along with a new defendant, Humberto Alvarez-Machain,¹ in a second trial on December 1, 1992 (Zuno II). Cervantes-Santos did not testify in Zuno II. Instead, the Government used two new witnesses not previously called in Zuno I to implicate Zuno-Arce—Jorge Godoy-Lopez and Rene Lopez-Romero.² On December 21, 1992, after deliberating for only three and a half days, the jury found Zuno-Arce guilty of (1) conspiring to commit violent crimes in aid of a racketeering enterprise, 18 U.S.C. §§ 1959(a)(5), 2; (2) committing violent crimes in aid of a racketeering enterprise, 18 U.S.C. §§ 1959(a)(1), 2; (3) conspiring to kidnap a federal agent, 18 U.S.C. § 1201(c); and (4) kidnapping a federal agent, 18 U.S.C. §§ 1201(a)(5), 2. The Court sentenced Zuno-Arce on March 23, 1993 to life imprisonment on each of the kidnapping counts and ten years on each of the racketeering counts, all terms to run concurrently.

B

The timing of later federal proceedings is critical to the issues raised in this case. The defendant appealed several of the Court's rulings. The Ninth Circuit Court of Appeals affirmed on January 11, 1995, see United States v. Zuno-Arce, 44 F.3d 1420, 1422 (9th Cir.1995), and issued its mandate of affirmance on April 7, 1995. See Docket for Appeal No. 93-50311. The mandate was neither stayed nor recalled by the Court of Appeals or the United States Supreme Court. The Supreme Court denied the petition for a writ of certiorari on October 30, 1995. See Zuno-Arce v. United States, 516 U.S. 945, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995).

On July 1, 1997, five years after Zuno-Arce was convicted at the second trial, and seven years after Cervantes-Santos testified at the first trial, Cervantes-Santos signed a declaration in Los Angeles wherein he recanted his Zuno I testimony and stated that his perjury was guided and directed by the case agent, former DEA Special Agent Hector Berrellez, and one of the prosecutors, former Assistant United States Attorney Manuel Medrano.

Aside from the fact that the Cervantes-Santos declaration was obtained under dubious circumstances, a subject which the Court addresses in due course, the matter is further complicated by the fact that Cervantes-Santos has since changed his story — three times. On January 16, 1998, Cervantes-Santos repudiated his July 1, 1997 recantation. He disavowed the substance of his declaration in a videotape interview with DEA agents in Guadalajara, Jalisco, Mexico. According to Cervantes-Santos, the recantation was the product of coercion, both physical and psychological, at the hands of representatives of Zuno-Arce and Manuel Bartlett-Diaz, presently the Governor of the State of Puebla, Mexico. On March 8, 1998, Cervantes-Santos allegedly changed his story again. John Brown, a private investigator working on behalf on Bartlett-Diaz and now affiliated with the defense, claims that Cervantes-Santos told him that the DEA extracted the January 16, 1998 repudiation by threatening to send him to prison, promising to give him $162,000, and promising to place him in the witness protection program. And finally, on May 6, 1998, Cervantes-Santos again stepped forward, this time telling counsel for the Government in a videotape interview that he never said any such thing to John Brown.

Based on the July 1, 1997 declaration and other "newly discovered" evidence, Zuno-Arce filed on October 29, 1997 a motion for a new trial, pursuant to Rule 33 of the Rules of Criminal Procedure. The motion raised two claims: (1) Mooney-Napue violations: the Government knowingly presented false evidence in Zuno II, namely the perjured testimony of Godoy-Lopez and Lopez-Romero; and (2) Brady-Bagley violations: the Government failed to disclose exculpatory and impeachment evidence, including, among other things, that Cervantes-Santos lied during Zuno I, and that Godoy-Lopez and Lopez-Romero received additional pecuniary assistance from the Government.

Noting that the motion for a new trial was probably untimely, the Court issued an order on February 25, 1998, see CR docket # 2213, in which it invited both parties to address whether the Court should dismiss the motion, pursuant to United States v. Cook, 705 F.2d 350, 351 (9th Cir.1983), for lack of jurisdiction. Both parties timely responded, and the Court issued an order on March 30, 1998 dismissing the motion for lack of jurisdiction— the motion had been filed six months too late. See CR docket # 2226. In a gesture normally afforded to pro se litigants, the Court construed the motion for a new trial as a motion to vacate, set aside or correct a sentence, brought pursuant to 28 U.S.C. § 2255. The Court ordered the defendant to file and serve the § 2255 forms required by our local rules and noted that it would deem such forms and the § 2255 motion filed nunc pro tunc on the date of October 29, 1997 (the date the motion for a new trial was filed).³ The Court also ordered that the papers filed in connection with the motion for a new trial, including the Government's already-filed opposition, become part of the record to be considered in resolving Zuno-Arce's § 2255 motion.

Zuno-Arce filed the forms as required. See CR docket # 2231. But the forms that were submitted added two claims not previously set forth in the motion for a new trial — double jeopardy and ineffective assistance of counsel. Specifically, Zuno-Arce now also argues that (1) the Government's knowing use of Cervantes-Santos's perjured testimony in Zuno I precluded Zuno-Arce's retrial in Zuno II under the Double Jeopardy Clause and (2) counsel's failure to timely file the motion for a new trial constituted ineffective assistance of counsel. The Government has objected to the inclusion of these new claims.

II⁴

The Court first addresses Zuno-Arce's claim that his...