United States v. Diaz-Rodriguez, 72-2436

• Decision Date: 19 June 1973
• Docket Number: No. 72-2436,72-2624.,72-2436
• Citation: 478 F.2d 1005
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Teodulo DIAZ-RODRIGUEZ, Defendant-Appellant (two cases).
• Court: U.S. Court of Appeals — Ninth Circuit

478 F.2d 1005 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Teodulo DIAZ-RODRIGUEZ, Defendant-Appellant (two cases).

Nos. 72-2436, 72-2624.

United States Court of Appeals, Ninth Circuit.

April 26, 1973.

Certiorari Dismissed June 19, 1973.

Joseph Milchen (argued) McInerney, Milchen & Frank, San Diego, Cal., for defendant-appellant.

Matthew T. Kissane, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Douglas G. Hendricks, Stephen G. Nelson, Asst. U. S. Attys., San Deigo, Cal., for plaintiff-appellee.

Before CHAMBERS and BARNES, Circuit Judges, and LUCAS, District Judge.

Certiorari Dismissed June 19, 1973. See 93 S.Ct. 3024.

PER CURIAM:

These appeals are from Diaz' conviction of one count of conspiracy to violate the immigration laws, under 18 U.S.C. § 371 and 8 U.S.C. § 1324, and of twenty-two substantive counts of harboring aliens illegally, under 8 U.S.C. § 1324(a) (3), and from the district court's denial of his motion for a new trial subsequent to those convictions.

The Government alleged a conspiracy to introduce aliens unlawfully into the United States, and to harbor them at Diaz' place of residence in San Diego preparatory to further transportation of the aliens to the Los Angeles area. The evidence adduced, which was directly contradicted in part at trial, demonstrated that Diaz participated in the harboring of the unlawfully admitted aliens at his residence on April 14-15, 1972 under a prior agreement made with three co-conspirators.

The sole issue on appeal as to the merits of the judgment of conviction is whether the district court erred in commenting on the evidence while instructing the jury. A Federal court judge has full discretionary power to offer observations on the evidence during instructions if it is clearly demonstrated that the jury has the exclusive function of making the final finding as to the facts. See Duke v. United States, 255 F.2d 721, 728 (9th Cir., 1958); cert. denied 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365 (1958); Jones v. United States, 124 U. S.App.D.C. 83, 361 F.2d 537, 540 (1966); rehear. denied en banc (1966). Diaz isolates the district court's comments pertaining to the evidence submitted supporting the existence of the conspiracy, and the overt act of the rented truck delivering the aliens to his residence. This isolation of these comments apart from the complete record of instruction is not an accurate interpretation of the scope and overall tenor of the district court's communications to the jury. The district court deemed it to be its duty to focus in its comments and instructions upon the one element of the Government's case which seemed to be based on contradictory testimony and to be located at the center of the factual controversy—Diaz' knowledge of the conspiracy and of the substantive violations. Any emphasis made upon those two elements in the instructions was more than compensated for by the subsequent and final admonition to the jury that it should disregard and reject the district court's preliminary analysis of the evidence in the course of their deliberations. Thus, viewed on the whole, there is no indication that the district court abused its discretion, or otherwise sought to usurp the jury's function as the ultimate finder of the facts.

With respect to the post-trial motion before the district court, Diaz raises two intimately related issues for consideration. He alleges that newly discovered evidence in the form of a pretrial statement by a co-conspirator, undisclosed by the Government prior to and during the trial, necessitated a retrial, and that, alternatively, this statement was not merely cumulative or impeachment evidence, but bore directly upon the question of guilt or innocence and therefore necessitated a retrial. The substance of the statement was that, on the dates in question, the co-conspirator, Mireles, did not either see Diaz, or converse with him on the telephone as to their purported plans to transport the aliens.¹ At trial, Diaz' counsel was finally notified that Mireles would not be called as a witness. His trial counsel never made any request as to any statements the co-conspirator might have made to the Government. After the trial, Diaz' counsel learned for the first time, through a third party, of the co-conspirator's statements. A subsequent interview with Mireles by Diaz' counsel corroborated this statement as to the absence of involvement on the part of Diaz in the activities on the dates in question.

The standard for review of an order denying a motion for a new trial on the ground of newly discovered evidence is very narrow.

"`The generally held essentials for a new trial based on newly discovered evidence are the following: (1) the evidence must have been discovered since the trial; (2) it must be material to the factual issues at the trial, and not merely cumulative nor impeaching the character or credit of a witness; (3) it must be of such a nature that it would probably produce a different verdict in the event of a retrial. United States v. Costello, 255 F.2d 876 (2 Cir.), cert. denied 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958).\'" United States v. Durgin, 444 F.2d 308, 308-309 (9th Cir., 1971); cert. denied 404 U.S. 945, 92 S.Ct. 297, 30 L.Ed.2d 260 (1971) quoting United States v. Polisi, 416 F.2d 573, 576-577 (2nd Cir., 1969).

Exceptions to this general rule exist. The Government may not suppress evidence of an exculpatory or of an otherwise favorable nature where it is material to the issue of guilt, irrespective of the good faith of the prosecution. Brady v. State of Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A test has been phrased whether the...