United States Court of Appeals
For the First Circuit
Nos. 07-1471
07-1697
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL GARCÍA-ÁLVAREZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, Circuit Judge,
and Keenan,* District Judge.
Joannie Plaza-Martínez, Assistant Federal Public Defender,
with whom Joseph C. Laws, Jr., Federal Public Defender, and
Héctor L. Ramos-Vega, Assistant Federal Public Defender, were on
brief for appellant.
Vernon B. Miles, Assistant United States Attorney, with whom
Rosa E. Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney, and Germán A. Rieckehoff,
Assistant United States Attorney, were on brief for appellee.
September 4, 2008
*
Of the Southern District of New York, sitting by designation.
TORRUELLA, Circuit Judge. Following a jury trial, Ángel
García-Álvarez ("García") was convicted of carjacking and firearms
offenses. Thereafter, the district court denied his motion for new
trial, finding that the evidence it was premised on was not newly
discovered. García now appeals his conviction on sufficiency and
evidentiary grounds, and challenges the denial of his motion for a
new trial. Following a careful review, we reject all of García's
claims and affirm the district court.
I. Background
A. Facts
As García challenges the sufficiency of the evidence
proffered against him, we recite the facts in the light most
favorable to the verdict. See United States v. Vázquez-Botet, 532
F.3d 37, 42-43 (1st Cir. 2008) (quoting United States v. Colón-
Díaz, 521 F.3d 29, 32 (1st Cir. 2008)). On April 12, 2006, around
9:00 a.m., William Ramírez-Resto, a building janitor, was assaulted
by at least three armed individuals in the basement of an apartment
building in Condado, Puerto Rico. Ramírez-Resto was questioned
about the building and its residents, and he was then bound and
gagged. At 10:38 a.m., building resident Federico López-Villafañe
("López") was also assaulted in the building's parking lot by four
individuals who struck him in the head with rocks and a pistol
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butt.1 Three of the assailants wore masks, but López testified
that these fell off during the ensuing struggle. López was
eventually subdued and forced into the basement where he heard one
of the assailants state in Spanish with a Dominican accent: "This
motherfucker broke my arm!" Like Ramírez-Resto, López was also
bound and gagged. The assailants then emptied his pockets and took
possession of his house and car keys. Three of the assailants then
left to gain access to López's penthouse apartment. The fourth
assailant remained behind in the basement holding a gun to López's
head.
In López's apartment, Clemencia Lewis, a maid, saw a man
she did not recognize enter the apartment and head towards the home
office; she testified that it was approximately 10:30 a.m. Lewis
was then confronted by a different man armed with a silver-colored
gun who, with the help of a third assailant, pushed her into the
laundry room, placed her on the floor, and bound her with an iron
cord; her face was covered with a towel. The assailants then
proceeded to rob the home. They remained in the apartment until
approximately 11:20 a.m., when the assailant in the basement became
anxious and stepped out to place a call to the men upstairs. López
took this opportunity to escape by running into the street. Once
1
We pinpoint this based on a two-minute phone call López received
on his cell phone at 10:36 a.m. He was assaulted immediately after
hanging up.
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there he saw his car -- a Mercedes Benz -- being driven out of the
building's parking lot, apparently by the assailants.
B. Procedural History
Based on López's identification of him at a police
lineup, García was indicted on one count of carjacking resulting in
serious bodily injury under 18 U.S.C. § 2119(2), and one count of
possession of a firearm in relation to a crime of violence under 18
U.S.C. § 924(c)(1)(A)(ii). He was arraigned one week later, and
his trial date was set for August 14, 2006. Shortly before trial,
Lewis also identified García from a police photo spread. On
August 13, 2006, García moved to have both López's and Lewis's
identifications suppressed, but the district court denied this
motion during the course of the four-day trial.
At trial, García maintained his innocence and presented
an alibi defense. The jury nonetheless found him guilty of the
firearms offense and the lesser included offense of simple
carjacking. See 18 U.S.C. § 2119(1). García moved for a judgment
of acquittal but was denied this on September 12, 2006. On
February 13, 2007, the day of his sentencing hearing, García filed
a motion for new trial based on newly discovered evidence. The
district court sentenced García to a total of 181 months'
imprisonment along with a period of supervised release. García
timely appealed arguing that the district court erred in admitting
López's and Lewis's out-of-court and in-court identifications, and
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in failing to grant judgment of acquittal based on the Government's
failure to sufficiently prove the carjacking charge.
On March 30, 2007, the district court also denied
García's motion for new trial because the evidence it was premised
on was not unknown or unavailable at the time of the trial and
could have been discovered with due diligence. García also appeals
this denial, and his three claims have been consolidated in this
appeal.
II. Discussion
A. Suppression Challenge
We review a district court's denial of a suppression
motion with deference; such denial will be upheld if any reasonable
view of the evidence supports it. See United States v. Brown, 510
F.3d 57, 64 (1st Cir. 2007) (quoting United States v. St. Pierre,
488 F.3d 76, 79 (1st Cir. 2007)). Where, as here, the district
court failed to make any specific findings regarding the motion to
suppress, we view the record in the light most favorable to the
district court's holding and draw all reasonably supported
inferences in its favor. United States v. McCarthy, 77 F.3d 522,
525 (1st Cir. 1996) (citations omitted).
An eyewitness identification, such as those of López and
Lewis, will be suppressed only upon a double showing: first, that
the identification was secured through impermissibly suggestive
means; and second, that under the totality of the circumstances the
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suggestiveness of the identification is such that the
identification itself is not reliable. United States v. de Jesús-
Ríos, 990 F.2d 672, 677 (1st Cir. 1993). Suppression of an
identification is only appropriate if we are convinced that there
is a "very substantial likelihood of irreparable
misidentification." United States v. Pérez-González, 445 F.3d 39,
48 (1st Cir. 2006). García asserts that López's and Lewis's
identifications were secured through impermissibly suggestive means
and are unreliable to the extent of meeting the de Jesús-Ríos
standard.
Immediately following the robbery and carjacking, López
provided the police with a description of the four assailants'
clothing. He also noted that the assailants spoke Spanish with a
Dominican accent. Six weeks after the incident, García voluntarily
attended a police lineup where he appeared with five other men.
All six men were dressed in orange jumpsuits, and García was made
to remove his eyeglasses. When the men were first presented to
López, he identified García and stated that he was ninety percent
certain that García was one of the assailants who had assaulted and
robbed him. Upon request, the six men then repeated in Spanish the
statement made by one of the assailants during the robbery: "This
motherfucker broke my arm!" Upon hearing this phrase, López
identified García with complete certainty.
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García argues that López's lineup identification of him
was impermissibly suggestive for three reasons: first, because
García alleges that he only became a suspect due to his family
connection to two other men suspected in the crime; second, because
he was made to remove his eyeglasses even though -- as his
optometrist later certified -- he is legally blind without them;
and third, because he was made to repeat the assailant's statement
even though he was the only man on the panel who spoke Spanish with
a Dominican accent.
García's first claim is quickly dismissed. García's
initial identification as a suspect, even if it resulted from his
family connection to two other wanted men, is not an impermissibly
suggestive procedure affecting López's lineup identification.
López was unaware of the circumstances under which García became a
suspect. As López was not privy to this information, there is no
way such knowledge could have influenced or colored his
identification of García.
The removal of García's eyeglasses was similarly not
suggestive. García's second claim here is peculiar in that most
identification challenges we and our sister circuits encounter
involve the presence of a distinguishing characteristic that stands
out during the identification process. See, e.g., Monteiro v.
Pickard, 443 F.2d 311, 312 (1st Cir. 1971) (appellant challenged
the suggestiveness of his lineup identification where he was the
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only man wearing civilian clothing while the rest of the panel wore
prison garb); United States v. Traeger, 289 F.3d 461, 474 (7th
Cir. 2002) (appellant challenged the suggestiveness of his lineup
identification because -- at six and a half feet and weighing over
300 pounds -- he was the largest man on the panel); United States
v. Triplett, 104 F.3d 1074, 1080 n.2 (8th Cir. 1997) (appellant
challenged the suggestiveness of the lineup identification during
which he wore a brightly colored but "surprisingly tasteful,
Hawaiian-type shirt"). In these cases, appellants usually argue
that they have been wronged because the composition of their lineup
was in some way not uniform. García's claim, then, is the converse
in that, if he had been allowed to wear his eyeglasses when the
rest of his panel did not wear any, he would have stood out. The
removal of García's eyeglasses as well as the use of the orange
jumpsuits were intended to preserve the integrity of the police
lineup and advance the goal of uniformity. As such, the removal of
the eyeglasses was not an impermissibly suggestive procedure.2
García's third challenge, however, requires a closer
look. As a starting point, making the lineup panel repeat the
assailant's statement was not an impermissibly suggestive
identification procedure. See United States v. Panico, 435 F.3d
2
In as far as García's argument is that, due to his eye
condition, he always wears glasses and would thus have worn them
during the robbery and carjacking, the jury already considered and
rejected this argument. We see no need to upset the jury's
determination.
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47, 49 (1st Cir. 2006) ("Lay witness identification, based on the
witness' prior familiarity with a voice, is a commonplace way in
which voices are identified."); Fed. R. Evid. 901(b)(5); 5
Christopher B. Mueller & Laird C. Kirkpatrick Federal Evidence §
9:13 (3d ed. 2008). The allegation that García was the only man on
the panel who spoke Spanish with a Dominican accent, however, is
troubling because the Dominican accent then became a distinguishing
characteristic that detracted from panel uniformity. Furthermore,
since López's description of the assailants to the police
highlighted their Dominican accents, that García was the only panel
participant who possessed this salient characteristic turned the
entire identification proceeding unduly suggestive. Cf. Frazier v.
New York, 156 F. App'x 423, 425 (2d Cir. 2005) (finding suggestive
a lineup identification where appellant was the only person with
dreadlocks, where dreadlocks were the most distinctive feature of
the crime victim's description of her assailant).
A suggestive identification may nonetheless remain in
evidence if, given the totality of the evidence, it is reliable.
De Jesús-Ríos, 990 F.2d at 677. In determining whether there was
a substantial likelihood of irreparable misidentification we
evaluate some or all of five factors: (1) the witness's opportunity
to view the criminal at the time of the crime, (2) the witness's
degree of attention at that time, (3) the accuracy of the witness's
prior description of the criminal, (4) the level of certainty
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demonstrated by the victim at the time of the identification, and
(5) the length of time between the crime and the identification.
Id. (quoting United States v. Drougas, 748 F.2d 8, 27 (1st Cir.
1984)); accord Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
Of these five factors, two clearly support reliability in
this case. Given the traumatic nature of the robbery and
carjacking, we assume López's degree of attention during the
incident to have been high. See Levasseur v. Pepe, 70 F.3d 187,
195 (1st Cir. 1995). In addition, López himself stated that he was
ninety, and later, one hundred percent certain of his
identification of García at the time of the police lineup. The
remaining three factors, however, are either neutral or weigh
against reliability. López's opportunity to view his assailants
during the criminal incident, though ample due to the hours-long
duration of the crime, was hampered by the assailants' intermittent
use of masks and blindfolds. López's initial description of the
assailants did not include any identifying physical
characteristics, and six weeks elapsed between the robbery and
carjacking and the police lineup. See United States v. Guzmán-
Rivera, 990 F.2d 681, 683 (1st Cir. 1993) (counting as factors
detracting from the reliability of an identification the fact that
the crime victim had not provided the authorities with a
description of the assailant and had made his final identification
one month after the crime); but see United States v. Mohammed, 27
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F.3d 815, 822 (2d Cir. 1994) ("[T]he absence of a prior description
by the witness does not necessarily render his or her subsequent
identification suspect." (internal quotation marks omitted)).
Nonetheless, given the totality of the circumstances, we
cannot say that the fact that García was the only one in the lineup
who spoke with a Dominican accent produced a "very substantial
likelihood of irreparable misidentification." Pérez-González, 445
F.3d at 48. We are not required to accord each factor equal weight
or even to consider all five factors. See, e.g., United States v.
Gatewood, 230 F.3d 186, 193 (6th Cir. 2000) (considering only two
factors); United States v. Johnson, 56 F.3d 947, 954 (8th Cir.
1995) (considering only three factors); United States v. Butler,
970 F.2d 1017, 1021 (2d Cir. 1992) (considering only four factors).
In this case, the fact that López was able to identify García with
a very high degree of certainty before García was even asked to
speak at the lineup weighs heavily in favor of reliability. Cf.
United States v. Wilkerson, 84 F.3d 692, 695-96 (4th Cir. 1996)
(placing particular emphasis on the certainty with which multiple
witnesses identified the defendant). As such, the district court
did not err in admitting López's out-of-court identification into
evidence.3
3
We see no evidence that the unduly suggestive procedure in any
way tainted the in-court identification or made it unreliable. See
United States v. Maguire, 918 F.2d 254, 264 (1st Cir. 1990)
(stating that an in-court identification is generally admissible
unless it is based on an out-of-court identification that was both
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García's challenge to Lewis's out-of-court and in-court
identifications is far less developed. One week before García's
trial was to begin, an FBI agent visited Lewis at her place of work
and showed her a photo spread containing six pictures, one of which
was of García. Lewis initially picked a different man from the
photo spread, but indicated that she was uncertain. Lewis then
stated that the man who had assaulted her was tall and had a dark
complexion and a very pointy chin. She subsequently picked
García's photograph. García does not flag any of the procedures
utilized during this identification as impermissibly suggestive;
and therefore his claim fails. See de Jesús-Ríos, 990 F.2d at
677.4 The district court properly denied García's motion to
suppress.
B. Sufficiency Challenge
We review a sufficiency of the evidence claim de novo,
"evaluating whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt." United States v. Meléndez-Torres, 420 F.3d 45, 48-49 (1st
Cir. 2005) (quoting United States v. Grace, 367 F.3d 29, 34 (1st
Cir 2004)). We also review de novo a district court's denial of a
suggestive and unreliable).
4
As the out-of-court photo spread identification was proper,
Lewis's in-court identification was proper as well. See id.
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motion for acquittal, "examining the evidence . . . in the light
most favorable to the government to determine whether a reasonable
jury could find guilt beyond a reasonable doubt." United States v.
Rodríguez-Durán, 507 F.3d 749, 758 (1st Cir. 2007).
It is the Government's duty to prove all the elements of
a charged crime. For carjacking under 18 U.S.C. § 2119(1) those
elements are: (1) taking or attempted taking from the person or
presence of another; (2) a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce; (3) through
the use of force, violence, or intimidation; (4) with the intent to
cause death or serious bodily harm. See 18 U.S.C. § 2119(1).
García argues that the Government has not met its burden of
establishing the intent element beyond a reasonable doubt because
López's assailants did not intend to take his car but only to rob
his home. The car was only an improvised getaway vehicle.
García's argument is unavailing. In carjacking offenses,
the element of intent must be established at the time the defendant
takes control of the motor vehicle. United States v. Evans-García,
322 F.3d 110, 114 (1st Cir. 2003) (quoting Holloway v. United
States, 526 U.S. 1, 8 (1999)). At the time of such taking, the
victim need not be in close proximity to the motor vehicle. See
United States v. Vega Molina, 407 F.3d 511, 528 (1st Cir. 2005).
In García's case, the "taking" of the motor vehicle occurred in the
apartment building's basement, when López was forced to turn over
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his car keys. It was at that point that the assailants gained
constructive control over López's car. See id.; accord United
States v. Savarese, 385 F.3d 15, 20 (1st Cir. 2004).
The intent required at the time of the vehicle taking,
however, need not be set in stone. It will suffice that a
defendant had a conditional intent to cause death or serious bodily
harm; that is, a willingness to cause such injury if necessary to
take the vehicle. Evans-García, 322 F.3d at 114 (citing Holloway,
526 U.S. at 11-12). Such conditional intent is more than amply
established in this case by the fact that the assailants did, from
their initial contact with López, use force and inflict serious
physical harm upon him. Such force involved the use of guns, and
it was only upon being threatened with further violence and even
death that López surrendered his car keys. As the assailants'
violent assault left López bleeding and requiring medical care and
even surgery, it is beyond question that the assailants possessed
the requisite intent to cause death or serious bodily harm.
Finally, and in direct response to García's "getaway
vehicle" argument, we have previously said that "nothing in the
statute requires that the taking [of a motor vehicle] be an
ultimate motive of the crime." United States v. Rivera-Figueroa,
149 F.3d 1, 4 (1st Cir. 1998). "It is enough that the defendant be
aware that the action in which he is engaged . . . involves the
taking of a motor vehicle." Id. In this case, the Government
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presented evidence that García was both present and active in
López's assault, and that he later rode away from the robbery scene
in López's Mercedes, which was started with the car keys López was
forced to surrender. Based on this evidence, García could not but
be aware that he was involved in the taking of a motor vehicle, and
the intent requirement of the carjacking offense is resoundingly
met. The Government has thus satisfied its burden of proving each
element of the carjacking offense beyond a reasonable doubt. The
district court correctly denied García's motion for judgment of
acquittal.
C. Motion for New Trial
The remedy of a new trial is to be granted sparingly and
only to avoid a miscarriage of justice. United States v. Conley,
249 F.3d 38, 45 (1st Cir. 2001). We recognize that trial judges
are in the best position to determine whether a new trial based on
newly discovered evidence is warranted, and we thus review any such
determination only for abuse of discretion. See United States v.
Montilla-Rivera, 171 F.3d 37, 40 (1st Cir. 1999) (quoting United
States v. Tibolt, 72 F.3d 965, 972 (1st Cir. 1995)). Nevertheless,
the district court's analysis and our review are also guided by the
principle that a new trial should be granted "if the interest of
justice so requires." Fed. R. Crim. P. 33(a); see also United
States v. Rodríguez-Marrero, 390 F.3d 1, 13-14 (1st Cir. 2004).
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In order to reverse a district court's denial of a
motion for new trial based on newly discovered evidence, the
defendant carries the heavy burden of showing that the new evidence
submitted was: (1) unknown or unavailable at the time of trial; (2)
despite due diligence; (3) material; (4) and likely to result in an
acquittal upon retrial. United States v. Falú-González, 205 F.3d
436, 442 (1st Cir. 2000) (quoting United States v. Montilla-Rivera,
115 F.3d 1060, 1064-65 (1st Cir. 1997)). García asserts that the
evidence grounding his motion for new trial meets this high
standard. Such evidence consists of a report and hearing testimony
from Centennial cell phone company engineers stating that all cell
phone calls made from García's phone on the morning of the crime
were placed from the municipality of Carolina and not from the
crime scene in Condado ("cell site evidence").5 García submits
this evidence as probative of the alibi defense he presented at
trial.6
5
The district court took judicial notice of the fact that the
municipalities of San Juan -- where Condado is located -- and
Carolina border each other, and are geographically close.
6
At trial, García argued that at the time of the charged crimes
he was working on his side business delivering furniture in the
municipality of Carolina. In this endeavor he was accompanied by
his employee Juan Espaillat, who submitted an unsworn statement in
García's favor. According to both men, on the morning in question
they met at about 9:00 a.m. at the American Furniture store in
Carolina. García advised Espaillat that he needed to go pay his
cell phone bill before making the delivery, and Espaillat loaded
the furniture into a white box truck by himself. When he was done,
Espaillat spoke to García on his cell phone and set out to make the
furniture delivery at about 10:30 a.m. According to Espaillat,
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According to the Centennial engineers, the cell site
evidence demonstrates that, on the morning of the robbery and
carjacking, all calls made by García's cell phone were handled by
cell sites within the municipality of Carolina and along the
purported delivery route. Based on this finding, the engineers
assert that it is almost certain that García's calls were placed
from Carolina. This is because cell phone calls are usually
handled by the cell site closest to where the cell phone is
located; only rarely are phone calls referred to a cell site that
is farther away.7
On appeal, the Government does not dispute the engineers'
testimony, but argues that the cell site evidence does not entitle
García to a new trial because it is not newly discovered as
required by Federal Rule of Criminal Procedure 33. Moreover, even
if the evidence is accepted as true, it only shows that García's
cell phone was in Carolina, not that García himself was there.
With these arguments in mind, we proceed to our analysis.
after conversing with García a few more times to get directions, he
arrived at the delivery residence at approximately 11:00 a.m.
García arrived in his gray Toyota Tundra pickup truck five minutes
later. With both men's efforts, the delivery of the furniture was
finished around noon.
7
Indeed, to ascertain the rate of call referrals within the
Condado area, the engineers carried out an experiment where they
placed one hundred cell phone calls during the span of one hour
while situated at the scene of the robbery. All one hundred of
those calls were handled by the same cell site in Condado, and none
was handled by a cell site in Carolina. Thus, according to the
engineers, the rate of call referral in Condado is extremely low.
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Falú-González asks whether the new evidence "could have
been discovered with due diligence and was thus not 'new'" at the
time of trial. Id. at 443. It is undisputed that defense counsel
was in possession of García's cell phone records before the start
of trial. On those records, each phone call has a billing code
(e.g., "9E," "VP," "P2") listed to its right and a legend at the
bottom of the page that matched each code to a general geographic
area (e.g., "9E - San Fernando," "VP - Villa Palmeras," "P2 -
Puerto Nuevo"). The call records did not indicate the significance
of these billing codes nor did they suggest that Centennial had the
capability to further delineate the geographical provenance of each
call to almost street level. Both parties accept that defense
counsel did not learn of the possibility of such specific call
triangulation until after the jury's verdict, and that Centennial
only generated the cell site evidence upon the defense's post-
judgement request.
Nonetheless, the trial judge did not abuse his discretion
in finding that this evidence could have been discovered with due
diligence and was thus not new. We understand due diligence to be
"a context-specific concept" generally akin to the degree of
diligence a reasonably prudent person would exercise in tending to
important affairs. United States v. Maldonado-Rivera, 489 F.3d 60,
69 (1st Cir. 2007). As stated above, García's counsel did not know
-- and did not endeavor to learn prior to trial -- that through
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cell site location Centennial would be able to pinpoint the
provenance of the calls made from García's and Espaillat's cell
phones to nearly street level. Defense counsel also admit that
they were so certain of García's innocence that they made the
tactical decision to rely solely on the strength of their other
alibi evidence.
García's counsel made a conscious decision to go to trial
using the evidence they had available. Counsel's work log further
indicates that counsel did not inquire about the billing codes on
García's call records until more than two months after the jury had
entered its guilty verdict. That being the case, even if it is
true that the development and production of the cell site evidence
was so complex and time-consuming that it took two and a half
months to complete -- and hence could not have been achieved in the
three weeks between the district court's initial status conference
and the beginning of García's trial -- García cannot now establish
his counsel's due diligence. Defense counsel did not do anything
before or during trial to secure the post-judgment evidence upon
which García's motion for new trial is premised. Rule 33 does not
give counsel a second opportunity to rectify a faulty trial
strategy. As such, García's motion for new trial was properly
denied.
García may choose to raise by collateral attack under 28
U.S.C. § 2255 the issue of whether his counsel's performance
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amounted to ineffective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). If so, it is likely that evidence
will have to be taken on a number of points, which are beyond the
scope of this opinion.
III. Conclusion
For the foregoing reasons, we affirm the district court's
judgment and denial of new trial.
Affirmed.
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