United States v. Bonilla, Crim. No. 79-153.

• Citation: 503 F. Supp. 626
• Decision Date: 29 August 1980
• Docket Number: Crim. No. 79-153.
• Parties: UNITED STATES of America, Plaintiff, v. Antulio Parrilla BONILLA, Defendant.
• Court: U.S. District Court — District of Puerto Rico

503 F. Supp. 626

UNITED STATES of America, Plaintiff, v. Antulio Parrilla BONILLA, Defendant.

Crim. No. 79-153.

United States District Court, D. Puerto Rico.

August 29, 1980.

José A. Quiles, Asst. U. S. Atty., Hato Rey, P. R., for plaintiff.

Juan Mari Bras, Río Piedras, P. R., for defendant.

DECISION AND ORDER

TORRUELLA, District Judge.

This case is before us pursuant to an Order of the Court of Appeals entered June 20, 1980 remanding this matter "for the purpose of ruling on ... Defendant's Motion for a new trial." See also: United States v. Antulio Parrilla Bonilla, 626 F.2d 177 at 178 (1st Cir. 1980).¹

Rule 33 of the Federal Rules of Criminal Procedure reads as follows:

"The Court on motion of defendant may grant a new trial to him if required in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period."

The nature of Defendant's Motion to Dismiss within Rule 33 is clearly apparent from its content. Paragraph 2 of the affidavit in support of this Motion indicates that it "concerns newly-discovered evidence which could not have been discovered by trial counsel acting with due diligence."

These allegations relate to the indictment in January 1980 of one of the Government's witnesses in the present case, Navy Lieutenant Alex de la Zerda, for allegedly stealing government owned explosives, and for conspiring to bomb the Colegio de Abogados de Puerto Rico with an object "to threaten, intimidate and injure members of the Vieques Fishermen's Association of the Commonwealth of Puerto Rico, members of the Bar Association, members of Legal Services, Inc. of Puerto Rico, and others because of past or future support for demonstrations in opposition to the Navy's use of the Island of Vieques as a gunnery range." See United States v. De la Zerda et al., 500 F.Supp. 301. Defendant contends that this charge, together with related evidence uncovered by the Government in the investigation of that case, put at issue the motives, bias and credibility of that witness when he testified at the present trial of Defendant for trespassing on the Navy's gunnery range in Vieques. It is claimed that "De la Zerda's involvement in the conspiracy totally discredits his testimony at trial, pollutes the waters of justice" and requires the setting aside of Defendant's conviction.

Although we note for purposes of the record that on July 9, 1980 a jury found Lt. De la Zerda and his alleged coconspirators not guilty of all charges, we shall not in any way consider said fact of any relevance to our conclusions in the present matter.

We start out with the proposition that a motion for new trial on the grounds of newly discovered evidence is not favored by the courts and should be viewed with great caution. United States v. Plum, 558 F.2d 568 (C.A. 10, 1977); United States v. Lombardozzi, 343 F.2d 127, 128 (C.A. 2, 1965), cert. den. 381 U.S. 938, 85 S.Ct. 1771, 14 L.Ed.2d 702 (1935); United States v. Costello, 255 F.2d 876, 879 (C.A. 2, 1958), cert. den. 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958); Weiss v. United States, 122 F.2d 675, 691 (C.A. 5, 1941), cert. den. 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941). This has led to the development of exacting standards which must be met by movants. They include that: "(1) the evidence was unknown or unavailable to the defendant at the time of trial; (2) failure to learn of the evidence was not due to lack of diligence by the Defendants; (3) the evidence is material, and not merely cumulative or impeaching; and (4) it will probably result in an acquittal upon retrial of the defendant." United States v. Wright, supra, at page 1018; Pelegrina v. United States, 601 F.2d 18, 20-21 (C.A. 1, 1979); cf. Berry v. State, 10 Ga. 511, 527 (1851). Where the motion for new trial is based on an allegation that a material witness testified falsely at trial, a less stringent test than that of "probability-of-reversal" is applied, and in its stead the so-called Larrison rule is used, which only requires that the court be "reasonably well satisfied" that the testimony was false, and that without the false testimony the jury "might have reached a different conclusion", Larrison v. United States, 24 F.2d 82, 87 (C.A. 7, 1928); United States v. Wright, supra, at page 1020 (emphasis in the original). "The threshold for granting a new trial under Larrison is that the trial judge be satisfied that the testimony was perjured." United States v. Wright, supra.

Let us look at the facts of this case within this legal framework.

In our Decision and Order of April 2, 1980 previously referred to, we rely on the grounds stated for seeking remand in our ruling of that same day in United States v. Berkan, 502 F.Supp. 25, as supportive of similar action in this case. In Berkan, "the Court accepted that the witness whose testimony and motive are now being attacked was given credence and his testimony was used in findings of fact against the Defendant." See page 29 of Decision and Order entered April 2, 1980 in Criminal Number 79-152.

The Findings of Fact and Conclusions of Law, entered on August 18, 1979 by the Court, on the merits of the charges against Defendant, are thus our reference point.

In this respect we first look at the testimony of another witness:

"Lt. Sarah Moye, United States Navy, testified that as a regular course of business, a notice of the United States Navy maneuvers which will take place on Vieques is prepared by her. The purpose of said notice is to let fishermen, boaters, or anyone interested, know when to remain clear of the portions of Vieques that the United States Navy is using for the purpose of conducting maneuvers. Ms. Moye further testified that a set of the notices are sent by helicopter to Camp Garcia Annex in Vieques for distribution. Other notices are sent to the Island of Culebra, and to the Fajardo Ports Authority. In total approximately 67 Spanish notices are sent out and 16 English ones. A copy of a map of the Island of Vieques with the different zones is included with the notice."

. . . . .

Ms. Moye further testified that there were a series of signs on the beach and some offshore. She testified that these signs posted the beach area in question as a restricted area.... The signs are reminders that while on the property in question, visiting individuals are guests of the United States Navy."

Lt. De la Zerda's contribution to this case came next:

"Lt. Alex de la Zerda testified that upon receipt of the notices, one was posted on the main gate of Camp García, one on the Post Office, he kept one on his person for ready reference, one to a place of business across from the cemetery, one to the Fishermen's Association and one to the representatives of the North Fishermen's Association.

Mr. De la Zerda testified that Camp García is separated from the civilian side of Vieques by a fence that runs from the north to the south coast of Vieques and that the fence extends into the sea. The entrance to Camp García is a road with a guard house on its center. On either side of the guard house are two gates made out of steel tubing with stop signs on it. The guard house is manned on a 24-hour basis. In addition, there are several other guards that patrol the rest of the base on motor vehicles. Included in the areas of these patrols is Blue Beach."

Lt. De la Zerda was subjected to considerable cross-examination and voir dire.

Defendant was identified as within the prescribed...