USCA1 Opinion
United States Court of Appeals
For the First Circuit
No. 98-1729
UNITED STATES OF AMERICA,
Appellee,
v.
FERNANDO MONTILLA RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dom¡nguez, U.S. District Judge]
Before
Boudin, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Marlene Aponte Cabrera, by appointment of the Court, for
appellant.
Camille Velez-Rive, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jose A. Quiles-
Espinosa, Senior Litigation Counsel, were on brief for appellee.
March 22, 1999
COFFIN, Senior Circuit Judge. Federal agents arrested
defendant-appellant Fernando Montilla Rivera ("Montilla") in a drug
sting, along with Miguel Calder¢n ("Calder¢n") and Ramon Zorilla
("Zorilla"). While Calder¢n and Zorilla were directly involved in
the transaction, the government claimed that Montilla was the
lookout. After a four day jury trial, Montilla was convicted. He
subsequently sought a new trial based on previously unavailable
evidence, but the court found that the evidence was not newly
discovered and denied his motion. On appeal, we concluded that
Montilla's evidence was sufficiently new for the purposes of his
motion and remanded for a hearing on whether it met the standard
for ordering a new trial. After the district court held the
hearing, it ruled that the standard had not been satisfied, and
denied his motion. Montilla again appeals. Because the district
court did not abuse its discretion in denying Montilla's motion, we
affirm its decision.
I. Background
The factual background was detailed in our earlier
decision, United States v. Montilla, 115 F.3d 1060 (1st Cir. 1997).
Rather than repeat ourselves, we will review only that evidence
relevant to the claim currently before us.
On March 22, 1995, a confidential government informant
approached Calder¢n about purchasing drugs. Calder¢n suggested
that they go "see the mechanic" and arranged to meet two days
later. When they did meet, Calder¢n took the informant to an auto
repair shop behind a nightclub. Zorilla and Montilla were
mechanics at that auto shop at various times, and were both waiting
there for Calder¢n and the informant. When the two arrived, they
went with Zorilla and Montilla into a small room inside the back of
the shop.
Calder¢n and Zorilla negotiated to sell the informant two
kilograms of cocaine while Montilla stood ten to twelve feet away
by the door "watching and looking." Once the price and quantity
had been agreed upon, Zorilla made a call to have the drugs
delivered, and the informant called DEA Agent Carrasquillo ("Agent
Carrasquillo") to arrange for the money. When the drugs were
delivered, the informant found the quality of the cocaine to be
good, so he and Calder¢n went to a nearby shopping center to meet
Agent Carrasquillo and get the money. Zorilla and Montilla stayed
at the shop with the cocaine.
After he had seen the money, Calder¢n returned to the
repair shop; the informant and Agent Carrasquillo followed ten
minutes later. When they arrived, the informant reentered the
small room and told the others that his partner, Agent
Carrasquillo, would not come inside and would only buy the cocaine
outside where Carrasquillo was parked. After some disagreement
about where the exchange would take place, Montilla, Zorilla, and
Calder¢n went outside. Calder¢n approached Agent Carrasquillo's
car with the cocaine. When the delivery was made, federal agents
quickly arrested Calder¢n, Zorilla and Montilla.
At trial there was conflicting testimony as to whether
Montilla was actually in the back room during the negotiations, and
as to precisely where he was when the agents converged to arrest
the three. The government recorded the operation in two ways: the
informant wore an audio recording device, and a DEA agent named
Rodriguez videotaped the auto shop from across the street. All
parties agree that Montilla neither appears in the videotape nor is
heard on the informant's audio tape. However, several government
witnesses testified to Montilla's role as a lookout.
While both Calder¢n and Zorilla pled guilty, Montilla
chose to go to trial. Before trial, Montilla moved to produce his
codefendants to testify at trial, but they exercised their
privileges against self-incrimination and refused to testify. The
jury found Montilla guilty, and the court sentenced him to 60
months of imprisonment and eight years of supervised release.
After Calder¢n and Zorilla had been sentenced, Montilla
requested that they attest to his innocence. He sent, and they
signed, nearly identical affidavits stating that Montilla was not
involved in the drug transaction for which they both had pled
guilty. Claiming that Calder¢n's and Zorilla's testimony was
previously unavailable, Montilla filed a post-conviction motion for
a new trial. The district court denied the motion because it found
that "the evidence was both known and available" at trial.
Montilla, 115 F.3d at 1065. On appeal, this court refused to apply
a categorical rule that exculpatory affidavits from codefendants
who did not testify at trial because they exercised their Fifth
Amendment privileges could never qualify as "newly discovered"
evidence for the purposes of a motion for a new trial. Id.
Instead, while "shar[ing] the general skepticism concerning [such
belated exculaptory] statements [of codefendants]," we remanded to
allow the district court to consider whether "the interests of
justice require a new trial." Id. at 1067.
The district court held an evidentiary hearing at which
both Calder¢n and Zorilla testified. The court subsequently issued
an opinion and order finding that they were not credible, and that
the inconsistency between their post-conviction statements and the
trial testimony made it unlikely that the new evidence would lead
to acquittal if a retrial were granted. Consequently, the court
denied Montilla's motion, and he now appeals that decision to us.
II. Discussion
Federal Rule of Criminal Procedure 33 empowers a district
court to grant a new trial "if required in the interest of
justice." As we said in Montilla's previous appeal, if "the motion
is based on new or previously unavailable evidence, the defendant
has to establish that the evidence was: (i) unknown or unavailable
at the time of trial, (ii) despite due diligence, (iii) material,
and (iv) likely to result in an acquittal upon retrial." Montilla,
115 F.3d at 1064-65 (citations omitted).
Citing our earlier opinion, the district court determined
that the first three elements had been met. Calder¢n's and
Zorilla's statements were unavailable to Montilla because each was
exercising his Fifth Amendment privilege against self-
incrimination. Montilla apparently exercised due diligence in his
attempt to obtain their statements because he had tried on several
occasions to interview them. And their statements were material
because, if believed, the affidavits exculpated Montilla from any
involvement in the drug transaction. The district court,
therefore, found that the only element still in dispute was whether
it was likely that the new evidence would result in acquittal if a
new trial were held. Reiterating our skepticism about whether to
believe the post-sentencing exculpatory testimony of two
codefendants whose guilt was beyond dispute, the court found that
Calder¢n's and Zorilla's testimony did not warrant a new trial.
The decision to grant or deny a new trial is committed to
the sound discretion of the district court. See United States v.
Soto-Alvarez, 958 F.2d 473, 479 (1st Cir. 1992). We will reverse
only if its decision constitutes a "manifest abuse of discretion."
United States v. Tibolt, 72 F.3d 965, 972 (1st Cir. 1995). Based
on an assessment of the facts revealed at the trial and the new
evidence, we are firmly convinced that the district court did not
abuse its discretion. Instead, we agree with the district court
that the new evidence "would [not] so undermine the government's
case as to give rise to a 'reasonable' probability of acquittal on
retrial." Id. (quoting United States v. Sepulveda, 15 F.3d 1216,
1220 (1st Cir. 1993)). Montilla argues that the new testimony was
crucial in four ways, but we are unpersuaded that it would lead to
a different result.
A. The identity of "the mechanic." Montilla contends
that he was not "the mechanic" to whom Calder¢n was referring when
Calder¢n and the informant went to "see the mechanic," and that
testimony at the evidentiary hearing revealed that "the mechanic"
was a man named Ramads, the supplier who delivered the two
kilograms to Zorilla.
Montilla's conviction as a lookout at the drug
transaction did not turn on the identity of someone called "the
mechanic." It revolved around whether Montilla was in the back
room when the initial agreement was reached, and whether he was
acting as a lookout outside when Calder¢n delivered the cocaine to
Agent Carrasquillo's car. Although our previous opinion suggested
that Montilla was the mechanic, see Montilla, 115 F.3d at 1062, it
was not clear from the testimony at trial whether "the mechanic"
even referred to an individual. In any event, it is unlikely that
the jury would have found that Calder¢n was referring to Montilla
when he went to "see the mechanic" because Montilla was only a
minor participant in the deal and not directly involved in setting
the terms and price.
Testimony that Montilla was not "the mechanic" makes it
no less likely that the jury would conclude that he was a lookout
during the drug transaction.
B. Sharing the profits from the transaction. Montilla
also points to Calder¢n's and Zorilla's testimony that they were
not going to share the profits from the drug transaction with him.
Again, this assertion fails to undermine the strength of the
government's case in any meaningful way. The conviction was based
on a finding that he was a lookout because he was carefully
watching the initial negotiation and observed the delivery from a
distance. Whether or not he would receive a share of the profits
does not invalidate the evidence on which his conviction was based.
Although the conviction certainly would be bolstered by testimony
to the contrary, the fact that Montilla was not going to receive a
portion of the proceeds does not discredit the jury's finding. It
certainly does not create the requisite "reasonable probability"
that he would be acquitted upon retrial.
C. Montilla's location during the transaction. Next
Montilla argues that Calder¢n's and Zorilla's testimony about his
whereabouts during both the negotiation and the exchange
significantly changes the picture presented by the trial evidence.
Because this argument directly implicates the basis for the jury's
decision, we will consider testimony involving Montilla's location
in detail.
At the trial and the evidentiary hearing, the court heard
a substantial amount of evidence regarding Montilla's position at
the moment of the actual transaction. The government's witnesses
all agreed that Montilla was standing in front of the workshop.
First, Agent Rodriguez stated that he saw Montilla being arrested
"in front of the [auto] repair shop" near a blue van. Next, the
informant noted that Montilla witnessed the transaction outside
next to the shop door, close to the same van. Finally, Agent
Carrasquillo testified that Calder¢n, Zorilla and Montilla came out
of the shop together, and, when Calder¢n approached the car with
the drugs, Montilla was standing just to the left of the entrance
to the workshop.
While the government's witnesses consistently insisted
that Montilla observed the deal, Montilla's witnesses contradict
one another. At trial, Montilla produced both Angel Morla
("Morla"), who was the owner of the auto repair shop, and Louis
Alfonseca ("Alfonseca"), who was visiting with Morla and Montilla.
Alfonseca claimed that when Montilla "went out[side] to smoke a
cigarette," the federal agents rushed in. Similarly, Morla alleged
that just before the arrests were made, Montilla went outside for
a cigarette and a soft drink. Later in his testimony Morla
suggested that Montilla was arrested under a car outside in front
of the nightclub adjoining the auto shop, and not in the shop
itself. Hence, both these witnesses placed Montilla outside the
shop at the time of the arrests.
On the other hand, Calder¢n and Zorilla both place
Montilla somewhere inside the shop. At the evidentiary hearing
Calder¢n testified that at the time of the arrests he saw Montilla
being pulled from underneath the car he was working on in the shop.
Zorilla claimed to have seen Montilla being brought from the back
of the shop.
In short, then, Calder¢n's and Zorilla's statements do
not furnish new evidence supporting Montilla's defense. Instead,
they provide an entirely different version of the events. All
witnesses at trial agreed that Montilla was somewhere outside the
shop. The government's theory was that he was standing by the
entrance to the workshop acting as a lookout. Montilla's defense
at the time was that he was having a cigarette or was under a car
in front of the adjoining nightclub. Now Montilla claims he was
inside the shop either under a car or in the back. This
inconsistency regarding the central aspect of his defense
substantially weakens Montilla's assertion that he is likely to be
acquitted upon retrial.
As for whether Montilla was involved in the initial
negotiations, there is a direct contradiction between the
informant's testimony and that of Calder¢n and Zorilla. The
confidential informant testified that Montilla was present during
the initial negotiation. Although Montilla is not heard on the
audio recording, the informant testified that Montilla was standing
silently inside the room by the entrance. The informant noted that
Montilla was "ten or twelve feet" away from the negotiation and
"was watching, looking" while Calder¢n and Zorilla were negotiating
the drug transaction. The informant also stated that when the
drugs were delivered and tested, Montilla was in essentially the
same place observing him. On the other hand, at the evidentiary
hearing Calder¢n and Zorilla claimed that Montilla was not in the
room during the initial negotiations.
These statements present two different versions of the
initial negotiations. In assessing whether an acquittal is likely,
the court had to weigh the witnesses' credibility. Montilla, 115
F.3d at 1067. Here again we have no doubt that the district court
properly believed the government's witnesses and questioned both
Calder¢n's and Zorilla's credibility. With respect to the
informant the district court specifically found neither any "potent
reason for discrediting [his] testimony[,]" nor any "motive, bias,
contradiction or inherent error in [his] factual testimony as to
Montilla." United States v. Montilla, 9 F. Supp. 2d 81, 88 (D.P.R.
1998).
Although there was no reason to disbelieve the informant,
the court cited a variety of grounds on which to question
Calder¢n's and Zorilla's statements. In addition to the
inconsistency with the testimony at trial regarding Montilla's
whereabouts during the exchange, the court noted that each provided
exculpatory testimony only after sentencing pursuant to a guilty
plea. At the time of their affidavits Calder¢n and Zorilla had
nothing to lose by exonerating Montilla. Both had already been
convicted and sentenced. They were in a position to say "whatever
they [thought] might help their co-defendant, even to the point of
pinning all the guilt on themselves, knowing they [were] safe" from
any increased punishment for the transaction. United States v.
Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992). Numerous
courts have found such post-sentencing exculpatory testimony of
co-conspirators to be "inherently suspect." United States v.
Simmons, 714 F.2d 29, 31 (5th Cir. 1983). Under the circumstances,
we have no reason to disagree with the court's finding that
Calder¢n and Zorilla were not credible.
D. Statements of Montilla's innocence. Montilla's final
basis for a new trial is that Calder¢n and Zorilla filed nearly
identical affidavits stating that he was not involved in the drug
transaction in question. As we have stated, however, the district
court justifiably discounted their testimony. By nature, this sort
of blanket exoneration of Montilla by two alleged co-conspirators
who had pled guilty and had been sentenced is "'untrustworthy and
should not be encouraged.'" Montilla, 115 F.3d at 1066 (quoting
Reyes-Alvarado, 963 F.2d at 1188). As with the other evidence,
these statements do not lead to a reasonable probability that
Montilla would be acquitted on retrial.
III. Conclusion
Because it is "sheer speculation" that "the newly
discovered evidence would change the jury's decision," United
States v. Nero, 733 F.2d 1197, 1205 (7th Cir. 1984), the district
court did not abuse its discretion in denying Montilla's motion for
a new trial.
Affirmed.