United States v. Gonzalez-Gonzalez, GONZALEZ-GONZALE

• Decision Date: 04 June 2001
• Docket Number: DEFENDAN,APPELLANT,GONZALEZ-GONZALE,No. 00-2014,00-2014
• Citation: 258 F.3d 16
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. MANUEL Heard
• Court: U.S. Court of Appeals — First Circuit

Page 16

258 F.3d 16 (1st Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. MANUEL GONZALEZ-GONZALEZ, DEFENDANT, APPELLANT.

No. 00-2014

United States Court of Appeals For the First Circuit

Heard June 4, 2001

Decided July 19, 2001

Amended August 21, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Perez-Gimenez, U.S. District Judge] [Copyrighted Material Omitted]

Judith H. Mizner for appellant.

Rose A. Briceno, Attorney, Criminal Division, Department of Justice, for appellee.

Before Torruella, Selya and Lynch, Circuit Judges.

Lynch, Circuit Judge

This case presents a question this court previously reserved: what is the standard to be applied to a criminal defendant's motion for a new trial where the claim is that the prosecution knowingly used perjured testimony.

Manuel Gonzalez-Gonzalez, convicted of drug conspiracy and money laundering offenses in Puerto Rico, sought a new trial based on what he asserts is newly discovered evidence that two government witnesses recanted their testimony against him after his trial. Gonzalez says those two witnesses perjured themselves, and that the prosecution knew of at least one witness' perjury at the time. On this point the trial judge made no finding as to whether there was perjury or, if so, whether the government knew about it. Instead, the trial judge held that defendant did not, in any event, meet a "reasonable probability of a different result" standard, thus applying the standard used for claims of failure to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963). Gonzalez also sought a new trial based on the government's failure to disclose exculpatory evidence, and he claims that the prosecution engaged in misconduct during his trial by misstating the extent of a government witness' cooperation. The district court denied the motion. We affirm.

I.

Gonzalez was charged on November 2, 1994 with conspiracy to possess with intent to distribute cocaine and marijuana, possession with intent to distribute marijuana, possession with intent to distribute cocaine, importation of marijuana and cocaine, and aiding and abetting in the laundering of narcotics-related proceeds. After a nineteen-day jury trial, Gonzalez was found guilty as charged and sentenced to life imprisonment.

At Gonzalez's trial, several of Gonzalez's alleged co- conspirators testified about Gonzalez's involvement in the drug and money laundering offenses charged, as did several cooperating witnesses and federal agents involved in the investigation. In addition, the government introduced documentary evidence, such as tape recordings of telephone conversations, travel records, and surveillance photographs to corroborate the testimonial evidence. We summarize the evidence that was before the jury.

One of the government witnesses, Ricardo Rivero, testified that in 1991 Gonzalez recruited him to assist in retrieving and repackaging 900 pounds of marijuana imported into Puerto Rico from Colombia, and in transporting cocaine from Puerto Rico to New York. The drugs were stored at the home of Manuel Garrido. Luz Marina Giraldo, another witness cooperating with the government, corroborated Ricardo's testimony, as did an FBI agent who arrested Garrido and found the drugs.

Another of Gonzalez's alleged recruits, Roberto Garraton- Rivera, testified as a government witness that he had participated in drug trafficking activities with Gonzalez. Garraton described specific occasions on which he and other associates of Gonzalez smuggled drugs to New York at Gonzalez's behest. Both Garraton and Ricardo testified that they once called Gonzalez to resolve a dispute they had over Garraton's payment for a shipment of drugs.

Several witnesses, including Ricardo and Giraldo, testified about a large shipment of marijuana and cocaine that Gonzalez imported from Colombia to Puerto Rico in 1992, which was buried in the sand at a particular beach. Law enforcement officers testified that they seized a similar quantity of drugs in the same location as the one described in Ricardo's and Giraldo's testimony. Ricardo and Roberto Sierra Rivera, a paid government informant, also testified that they assisted Gonzalez's organization in importing cocaine from Colombia to Puerto Rico in 1992. Both Ricardo and Sierra testified that they delivered some of the shipment to New York, and returned to Puerto Rico with the drug sale proceeds; they also testified that another participant was arrested on the return trip to Puerto Rico, which was corroborated by the arresting officer. Sierra also testified about the activities of Gonzalez's drug trafficking enterprise during 1993. Law enforcement agents corroborated Sierra's testimony.

The government also provided evidence that Gonzalez and his associates laundered the proceeds from the drug sales through financial institutions in Puerto Rico, then sent the money to Colombia. A cooperating government witness, Angel Santiago Mora, and an undercover FBI agent, Martin Suarez, testified about several instances when Gonzalez and others in his organization delivered several hundred thousand dollars in cash to them to be laundered. In addition to the testimony of Mora and Suarez, the government also produced audiotapes of Gonzalez and his associates in which Gonzalez made admissions about his participation in drug trafficking and money laundering activities.

After he was convicted and we affirmed his conviction on appeal, see United States v. Gonzalez-Gonzalez, 136 F.3d 6 (1st Cir. 1998), Gonzalez moved for a new trial under Rule 33, Fed. R. Crim. P., based on newly discovered evidence which, Gonzalez claimed, demonstrated that both Garraton and Giraldo had testified falsely against him at trial. In support of those claims, Gonzalez offered sworn statements of two inmates attesting that they had overheard Giraldo recanting her trial testimony, and one inmate attesting that Garraton had recanted his testimony. Gonzalez also claimed he was entitled to a new trial because the government knowingly permitted the introduction of false testimony by Giraldo and pressured Giraldo to testify falsely. In addition, Gonzalez cited Brady violations and prosecutorial misconduct, claiming that the government failed to disclose exculpatory evidence, including an FBI report of Giraldo's debriefing, and also misled both Gonzalez and the court about the status of Giraldo's cooperation with the government.

The district court denied Gonzalez's motion, concluding that there was no reasonable probability that the evidence in the affidavits would lead to Gonzalez's acquittal upon retrial in light of the extensive evidence against Gonzalez in addition to Giraldo and Garraton's testimony. The court also found that any Brady violations by the government did not compromise Gonzalez's right to a fair trial because the undisclosed evidence was merely cumulative of evidence Gonzalez used at trial to impeach Giraldo's credibility.

II.

We review for manifest abuse of discretion the district court's denial of Gonzalez's motion for a new trial. United States v. Alicea, 205 F.3d 480, 486 (1st Cir. 2000). The district court's interpretation of legal standards is reviewed de novo. United States v. Josleyn, 206 F.3d 144, 151 (1st Cir. 2000).

Gonzalez brought his new trial motion under Fed. R. Crim. P. 33, which allows the court to order a new trial "if the interests of justice so require," and under a theory of alleged violations of Brady v. Maryland, 373 U.S. 83 (1963), which requires the prosecution to disclose material exculpatory evidence in its possession.

A. Standards for Motions for New Trial

Generally under Rule 33, a defendant who seeks a new trial based on newly discovered evidence must show 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 defendant; (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, 625 F.2d 1017, 1019 (1st Cir. 1980); see also Alicea, 205 F.3d at 487. A defendant's new trial motion must be denied if he fails to meet any one of these factors. United States v. Falu-Gonzalez, 205 F.3d 436, 442 (1st Cir. 2000).

Different standards as to the third and fourth showings govern the consideration of new trial motions depending on the grounds for the motion. As we described in Josleyn, if the basis is that the government has failed to disclose information required by Brady, then the more defendant-friendly Kyles v. Whitley standard applies. See Josleyn, 206 F.3d at 151-52. Under the Kyles standard, the defendant must show a "reasonable probability" that had the evidence been disclosed to the defense the result of the proceeding would have been different, and that, in turn, requires an analysis of whether the trial resulted, in the absence of such evidence, in a verdict worthy of confidence. Kyles v. Whitley, 514 U.S. 419, 434 (1995). If, however, the motion is a routine Rule 33 motion based on newly discovered evidence that does not involve an alleged Brady violation, then the standard is more onerous for defendants, and defendant must show the new material evidence "will probably result in an acquittal." Wright, 625 F.2d at 1019. This means an "actual probability that an acquittal would have resulted if the evidence had been available." United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993).

A further application of these two basic standards -- the Kyle "verdict worthy of confidence" standard and the Rule 33 "actual probability" of acquittal standard -- was addressed in United States v. Huddleston, 194 F.3d 214 (1st Cir. 1999). The question there was what standard to apply to a new trial motion which alleged that the prosecutor had unwittingly used perjured testimony. See 194 F.3d at 221-22....