United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 96-1773
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. Dominguez, U.S. District Judge]
Before
Boudin, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
Peter Diaz-Santiago for appellant.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with
whom Guillermo Gil, United States Attorney, and Antonio R.
Baz n, Assistant United States Attorney, were on brief, for
appellee.
June 19, 1997
LYNCH, Circuit Judge. Three men have gone to prison as
LYNCH, Circuit Judge.
a result of the distribution of two kilograms of cocaine
within one thousand feet of a school in Carolina, Puerto
Rico. Two of the men are guilty, having pled so. The third,
Fernando Montilla-Rivera ("Montilla"), asserts that he is
innocent. He trusted his fate to a jury, and he was
convicted of aiding and abetting the crime, in violation of
21 U.S.C. 841(a)(1) and 860(a), and 18 U.S.C. 2. On
appeal, Montilla argues that the government's evidence showed
no more than that he was present during the sale, and that
this "mere presence" is insufficient to support the verdict.
He also argues that the trial judge erred in denying him a
new trial when, a year after his conviction, Montilla
presented affidavits from the other two men, each swearing
that Montilla was innocent.
I.
We recite the facts as the jury could have reasonably
found them. United States v. Andrade, 94 F.3d 9, 10 (1st
Cir. 1996). On March 22, 1995, Eladio Valerio, a Drug
Enforcement Agency confidential informant, made a phone call
in search of drugs. He called Miguel Calder n-Salmiento
("Calder n"), who would later become a codefendant in this
case. In a taped conversation, which was clearly about
arranging a drug purchase, Calder n told the informant, "Come
on down here to . . . to go over to the mechanic at 12." The
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informant explained that he could not "come on down" that day
because the funds were not ready. There were several other
taped conversations about the deal. At that time, the
mechanic working at the mechanic's shop to which Calder n
referred was Montilla.
A few days later, on March 24, 1995, the informant,
wired and accompanied by DEA Agent Domingo Carrasquillo, did
meet with Calder n. The informant and Calder n initially met
at a service station, where Calder n invited the informant to
go "see the mechanic." The informant understood that "by
seeing the mechanic," Calder n meant they would go "where the
material or the drug was." Agent Carrasquillo went ahead to
a shopping center where he expected the drug transaction to
take place.
Calder n drove the informant to an auto repair shop,
behind the Metreza night club in San Ant n, which was within
one thousand feet of a public school. The shop was a wooden
structure attached at one end to the club and open at the
other. There was a small room inside the shop; the repair
work took place outside of this room.
At the shop, the informant saw Ram n Zorrilla, who also
later became a codefendant in this case, and Montilla. The
informant shook hands with them, but did not speak to
Montilla. Montilla wore overalls and had grease on his
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clothes; Zorrilla did not. The four men then went into the
small room.
Once inside, the dealing began in earnest between the
informant, Calder n, and Zorrilla. During these
negotiations, Montilla was ten to twelve feet away, just
inside the entrance to the room, "watching [and] looking."
The informant and the other two negotiated and agreed on a
price of $12,100 per kilogram of cocaine. As Montilla stood
at the entrance, still watching, the three other men agreed
that if the quality of the initial two kilograms was high,
four more would be purchased. At that point, Zorrilla made a
call from the room to have the cocaine delivered to the shop,
requesting "two shoes." The informant called his "partner,"
in reality DEA Agent Carrasquillo, to arrange for the
exchange of the cocaine for cash. While they waited for the
delivery, and with Montilla still at the entrance, Calder n
loudly commented on the quality of the cocaine: "[H]ell, pure
cocaine." ("Diablo, coca na pura.")
The drugs were delivered to the shop. As Montilla
watched, the informant tasted the cocaine and pronounced that
it was good and that the "deal was on." The informant went
off with Calder n to the shopping center to meet the
informant's partner, who had the money. Montilla and
Zorrilla stayed behind with the cocaine at the shop.
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At the shopping center, the partner showed Calder n the
cash. The men agreed that Calder n would return alone to
the repair shop, and that ten minutes later, the informant
and his partner would bring the money for the exchange. Back
at the shop, the "partner" agent told the informant to get
out of the car, go into the mechanic's shop, and bring out
the people involved in the transaction. The informant went
into the small room, told Montilla, Zorrilla, and Calder n
that "someone was waiting for them in the car, [and] for them
to take the material and give them the money." Zorrilla and
the informant approached the car and asked the partner to
come into the shop, where they would make the exchange. The
partner refused and said the delivery should be made outside.
Zorrilla complied and went back into the shop to get the
drugs. The three men -- Calder n, Zorrilla, and Montilla --
came back toward the street, with Calder n carrying the
drugs. Montilla and Zorrilla had moved to where they could
watch the transaction from the front of the shop, about
thirty feet away from the partner's car.
All three men were arrested where they stood when
Calder n made the delivery. At the time of arrest, others
were in the shop, including the shop owner and a visitor. At
no time during the transaction did the informant see Montilla
working on a car.
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As the government conceded, its videotape of the drug
delivery and arrest did not show Montilla; nor do any of the
audiotapes of the transactions contain recordings of
Montilla's voice. In fact, the government at trial described
Montilla as a minor participant, but a knowing participant
nonetheless, who had acted as a lookout.
Montilla's defense was mistaken identity, that Zorrilla
was the "mechanic" referred to in the initial conversation.
Zorrilla was a mechanic and had worked at this shop some four
months earlier. Calder n was not a mechanic.
Montilla did not testify at trial. His first witness,
the shop owner, testified that Montilla had worked for him
there for about a month, that Zorrilla, not Montilla, lived
in the room at the shop, and that Montilla had just been
doing his job, repairing a car that was to be picked up that
day. The owner also said that Zorrilla had worked for him at
the shop for over a year, but had not worked there during the
previous four months. The owner explained that just before
Montilla went outside to the front of the shop where he was
arrested, Montilla had said that he was stepping outside to
have a soft drink and to smoke. Montilla's second witness,
who was visiting the shop during the incident, testified that
he had seen Montilla working on a car until he stepped
outside to have a cigarette since the owner did not allow
smoking inside the shop. The jury convicted Montilla, and he
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was sentenced to five years in prison and eight years of
supervised release.
Montilla originally planned to call both Zorrilla and
Calder n as witnesses. The two entered guilty pleas on June
27, 1995. On June 29, 1995, Montilla filed a motion to have
the Marshal's Service produce his codefendants to testify.
The court granted the motion, but the two codefendants
informed the court, on advice of and through their counsel,
that they would not testify for Montilla. Montilla was
convicted on July 1, 1995. Calder n and Zorrilla were not
sentenced until September 26, 1995.
On July 17, 1996, Montilla filed a motion for a new
trial under Fed. R. Crim. P. 33. The motion attached nearly
identical affidavits from Zorrilla and Calder n. Zorrilla's
affidavit said in relevant part:
I never knew Mr. Fernando Montilla as qa [sic] drug
dealer nor that he was or has been involved in drugs
[sic] dealing but as a good har [sic] worker as a
mechanic.
I state that Mr. Fernando Montilla was not involve
[sic] in the drugs [sic] transaction occurred on the
date of my arrest and for which I pled guilty.
Calder n's affidavit stated in part:
At no time, I have [sic] been aware that Mr.
Fernando Montilla has been involved in any illegal
activity like the one for which he was convicted,
possession with intent to distribute cocaine. In other
words, Mr. Fernando Montilla was not involve [sic] in
the offense for which I pled guilty.
At all time [sic] I knew Mr. Fernando Montilla as a
hard mechanic worker and anything [sic] else.
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Citing United States v. Tibolt, 72 F.3d 965 (1st Cir.), cert.
denied, 116 S. Ct. 2554 (1995), the district court denied the
new trial motion on the grounds that the witnesses were known
and available at the time of trial. Thus, in the court's
view, Montilla did not meet the requirements of Fed. R. Crim.
P. 33.
II.
Sufficiency of the Evidence
In our sufficiency of the evidence review, we determine
whether, drawing all reasonable inferences in the
government's favor, a rational jury could find guilt beyond a
reasonable doubt. Andrade, 94 F.3d at 12.
Montilla argues that the jury was faced with two equally
likely scenarios, one of which was that he was innocent. He
asserts that under United States v. Andujar, 49 F.3d 16 (1st
Cir. 1995), this is insufficient to meet the government's
burden of proof of guilt beyond a reasonable doubt.
Montilla's statement of the law is correct. Id. at 22
("When a jury is confronted . . . with equally persuasive
theories of guilt and innocence, it cannot rationally find
guilt beyond a reasonable doubt."). However, Montilla
understates the case against him.
The guilt of Zorrilla and Calder n is admitted. When
Calder n and Zorrilla were negotiating the deal at the shop,
Montilla was constantly present. Criminal conspirators do
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not often "welcome innocent nonparticipants as witnesses to
their crimes." United States v. Batista-Polanco, 927 F.2d
14, 18 (1st Cir. 1991); see also United States v. Cuevas-
Esquivel, 905 F.2d 510, 515 (1st Cir. 1990). No effort was
made to keep the illicit deal from Montilla's ears. Indeed,
Zorrilla loudly bragged about the purity of the cocaine in
front of Montilla.
Still, mere association with a principal or mere
presence while criminal activity is going on around one is
not enough to establish aiding and abetting, even when
combined with knowledge that a crime will be committed. See
United States v. Luciano-Mosquera, 63 F.3d 1142, 1150 (1st
Cir. 1995), cert. denied, 116 S. Ct. 1879 (1996). As
Montilla points out, this was a crime-ridden neighborhood and
knowledge by Montilla that those around him were committing
crimes does not necessarily mean that he was aiding and
abetting those crimes.
While knowledge is certainly an element of the offense,
id., (and the facts here abundantly show knowledge),
something more, some action to assist the crimes, is needed.
See id. To convict Montilla of aiding and abetting, the
government had to prove that his codefendants committed the
crime, and that Montilla associated himself with, and
participated in the drug transaction as something he wished
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to bring about, and sought by his actions to make it succeed.
United States v. Ruiz, 105 F.3d 1492, 1499 (1st Cir. 1997).
The government says that the something more is that
Montilla acted as a lookout. Several inferences from the
evidence support the government's position. The first is
that Montilla was at the entrance to the small room where he
could act as a lookout while the drug deal negotiations were
being conducted and was not in the shop repairing cars. The
second is that, when the informant told the men it was time
to deliver the drugs to his partner, all three men, including
Montilla, left the small room to go out toward the car. The
third is that Montilla, who did not have the drugs, stopped
just outside the shop, and from that vantage watched. He was
well-situated to act as a lookout, and an arresting agent
thought that was exactly what Montilla was doing.
The evidence is thin, but not so thin as to invalidate
the jury's reasonable assessment that Montilla is guilty.
New Trial Motion
The district court's denial of the motion for a new
trial is reviewable only for a manifest abuse of discretion.
Andrade, 94 F.3d at 14. A district court's power to order a
new trial is greater than its power to grant a motion for
acquittal. Ruiz, 105 F.3d at 1500.
Rule 33 of the Federal Rules of Criminal Procedure
authorizes a district court to grant a new trial "if required
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in the interest of justice."1 Where, as here, 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." Tibolt, 72 F.3d at 971.
Although the new statements by the two principals of the
drug transaction that Montilla is innocent appear facially to
satisfy the third and fourth elements of the test,2 our focus
is on the first element of the test. The district court
denied the motion on the ground that the evidence was both
known and available. Similarly, the government, apparently
conceding the third and fourth elements, argues that the
1. Fed. R. Crim. P. 33 states in relevant part:
The court on a motion of a defendant may grant a
new trial to that defendant if required in the
interest of justice. . . . 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.
2. The statements are material and appear to give rise to a
"reasonable" probability of acquittal upon retrial. United
States v. Sepulveda, 15 F.3d 1216, 1229 (1st Cir. 1993). In
saying this, we are taking account of the ambiguity and
thinness of the inculpatory evidence and are taking the
exculpatory statements at face value. Whether the latter
would retain their force after close examination is a
different question; as we note below, a hearing might cast a
different light on these statements.
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testimony was neither unknown, nor unavailable. It also
asserts that Montilla did not exercise due diligence.
In this lies the problem. Both the government's
arguments and the district court's ruling assume that
Zorrilla and Calder n were "available" to testify at
Montilla's trial. But Montilla, who, it facially appears,
had diligently attempted to secure their testimony,3 did not
have the power to compel them to testify at his trial in
light of their Fifth Amendment privileges once they changed
their minds about testifying.
Montilla's trial commenced on June 27, 1995. On that
same day, Calder n and Zorrilla entered pleas of guilty and
the court accepted their pleas. Their sentencing was
deferred until September, 1995. Calder n's and Zorrilla's
counsel each advised his client not to testify for Montilla
because the testimony might incriminate them with regard to
other transactions and because the men still had to face
sentencing proceedings. Exercising their privilege against
self-incrimination, Calder n and Zorrilla informed the court
that they would not testify, and they were excused.
3. According to Montilla's trial attorney's affidavit
submitted in support of the motion for a new trial, he tried
on two separate occasions to interview Zorrilla and Calder n,
but they refused to give him any information. (The dates of
these attempts are unclear). Despite not knowing the
contents of their testimony, the trial attorney moved to have
Zorrilla and Calder n subpoenaed to testify. His client
Montilla insisted that the testimony would exculpate him
rather than hurt him.
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We have recognized that an unsentenced defendant who has
pled guilty retains a legitimate protectable Fifth Amendment
interest as to matters that could affect his sentence.
United States v. De La Cruz, 996 F.2d 1307, 1312 (1st Cir.
1993); see United States v. Zirpolo, 704 F.2d 23, 25 & n.2
(1st Cir. 1983); see also Estelle v. Smith, 451 U.S. 454,
461-63 (1981) (state's efforts to compel criminal defendant
to testify at sentencing phase of capital trial would
contravene Fifth Amendment). Further, the potential
importance of the presentence phase of criminal proceedings
to a defendant is highlighted by Fed. R. Crim. P. 32(e) which
expressly permits a defendant to withdraw a guilty plea
before a sentence is imposed by showing "any fair and just
reason." It was an error of law for the district court to
hold that the testimony of these witnesses was available per
se.
This then poses a legal question, not explicitly
addressed by the government. Rule 33 permits new trial
motions to be filed within two years only if the evidence is
"newly discovered." If the evidence is not "newly
discovered," and the motion was not filed within the seven
days otherwise required, then the district court lacks
jurisdiction to hear the motion. United States v. DiSanto,
86 F.3d 1238, 1250 n.12 (1st Cir. 1996), cert. denied, 117 S.
Ct. 1109 (1997).
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The legal question is whether exculpatory affidavits
from codefendants who did not testify at trial because they
exercised their Fifth Amendment privileges may ever qualify
as "newly discovered" evidence within the meaning of Rule 33.
Most other circuits have expressed hostility to this notion,
usually on the ground that the defendant was aware of the
potential testimony at trial, even if that testimony was
unavailable due to assertions of privilege. These courts
have held that such testimony is not newly discovered. See,
e.g., United States v. Theodosopoulos, 48 F.3d 1438, 1448-50
(7th Cir. 1995), United States v. Muldrow, 19 F.3d 1332, 1339
(10th Cir. 1994); United States v. Dale, 991 F.2d 819, 838-39
(D.C. Cir. 1993); United States v. DiBernardo, 880 F.2d 1216,
1224-25 (11th Cir. 1989); United States v. Metz, 652 F.2d
478, 480-81 (5th Cir. 1981), United States v. Diggs, 649 F.2d
731, 739-40 (9th Cir. 1981).
We believe the question is resolved affirmatively by our
precedent. This circuit has, for almost twenty years, held
that the "newly discovered" language of Rule 33 encompasses
evidence that was "unavailable." See Vega Pelegrina v.
United States, 601 F.2d 18, 21 (1st Cir. 1979). In this, our
test has differed from that of other circuits, as the cases
cited above demonstrate. Indeed, in Vega Pelegrina, the
newly discovered evidence was the testimony of a codefendant
who had refused to testify for defendant at trial, or to
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recant a prior inculpatory statement until the statute of
limitations had run. Id.
This court has adhered to the four part test outlined in
United States v. Wright, 625 F.2d 1017 (1st Cir. 1980), for
almost two decades, saying that the first question is whether
the evidence "was unknown or unavailable to the defendant at
time of trial." Id. at 1019 (emphasis added); see, e.g.,
United States v. Ortiz, 23 F.3d 21, 27 (1st Cir. 1994);
United States v. Benavente Gomez, 921 F.2d 378, 382 (1st Cir.
1990); United States v. Glantz, 884 F.2d 1483, 1486 (1st Cir.
1989); United States v. Martin, 815 F.2d 818, 824 (1st Cir.
1987). This panel is not free, on its own, to alter circuit
precedent absent some intervening reason such as a Supreme
Court decision or new legislation.
Furthermore, given the "[i]n the interests of justice"
standard of Fed. R. Crim. P. 33, there seems little
distinction between evidence which a defendant could not
present because he did not know of it and evidence which he
could not present because the witness was unavailable despite
exercising due diligence. At least in the context of newly
available evidence from one not a codefendant, at least two
circuits appear to agree. See United States v. Garland, 991
F.2d 328, 335 (6th Cir. 1993) (ordering new trial where
"although the defense knew of [witness's] existence before
and during the trial, [the witness] was not located until
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after the trial."); United States v. Ouimette, 798 F.2d 47,
51-52 (2d Cir. 1986) (ordering hearing on new trial where
witness, while known of at trial, was unavailable after
police allegedly pressured him not to testify).
We believe the better rule is not to categorically
exclude the testimony of a codefendant who asserted his Fifth
Amendment privilege at trial under the first prong but to
consider it, albeit with great skepticism, in the context of
all prongs of our four part test. It is true that there is a
greater need for caution in considering Rule 33 motions where
the new evidence comes from a codefendant who was
"unavailable" at trial because he chose to exercise his
privilege. See DiBernardo, 880 F.2d at 1224; United States
v. Jacobs, 475 F.2d 270, 286 n.33 (2d Cir. 1973). It is not
unusual for the obviously guilty codefendant to try to assume
the entire guilt. United States v. Alejandro, 527 F.2d 423,
428 (5th Cir. 1976). A convicted, sentenced codefendant has
little to lose (and perhaps something to gain) by such
testimony. United States v. Freeman, 77 F.3d 812, 817 (5th
Cir. 1996). "Such testimony [by sentenced codefendants]
would be untrustworthy and should not be encouraged." United
States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.
1992).
Nonetheless, there is, here, at least a facial showing
of compliance with the other prongs sufficient to warrant
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further inquiry. On its face, the proffered testimony in the
affidavits is material, and the testimony, if believed, could
lead to a different outcome, especially in light of the
government's sufficient, but underwhelming, case against
Montilla. See Benavente Gomez, 921 F.2d at 383 ("It is true
that where the trial evidence was noticeably thin, new
exculpatory evidence may be of increased importance."). The
new testimony, while it may not be true, is not inherently
implausible. And we note that Montilla has steadfastly
maintained his innocence, even through sentencing, at some
cost. Because he refused to acknowledge that he had
committed a crime, Montilla was ineligible for sentence
reductions for acceptance of responsibility under the U.S.
Sentencing Guidelines.
The term "on its face" is used deliberately here and
with no suggestion that the codefendants' newly available
testimony is true. That the codefendants waited a year to
come forward hardly supports the strength of their
assertions. But there is enough to commit the matter back to
the district court, which is itself, under the law,
responsible for weighing the factors under Rule 33:
Motions for new trial are directed to the
discretion of the trial court. In considering such
a motion, the court has broad power to weigh the
evidence and assess the credibility of both the
witnesses who testified at trial and those whose
testimony constitutes "new" evidence.
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Wright, 625 F.2d at 1019. The judge may, of course, use the
knowledge he gained from presiding at the trial, as well as
the showing made in the motion. 3 Wright, Federal Practice
and Procedure 557, at 337 (2d ed. 1982).
We follow our precedent in United States v. Abou-Saada,
785 F.2d 1 (1st Cir. 1986), and remand to the district court
to reconsider the motion for a new trial and to hear
evidence. There is no suggestion that such hearings are
required in the usual course; they are not. Cf. United
States v. Kearney, 682 F.2d 214, 218 (D.C. Cir. 1982). Had
the district court itself ruled otherwise on the issue of
unavailability, it might have chosen to have a hearing. We
think it wiser here for the district court to hold such a
hearing given the unusual combination of circumstances here.
Montilla's conviction rests almost entirely on the testimony
of the DEA informant. Neither the videotape nor the
audiotape directly incriminate Montilla. The reference on
the audiotape to the mechanic could equally well be
understood to refer to the location of the deal, and not to
the role of the mechanic. Only the informant places him in
the small room; Montilla's other witnesses say he was
repairing a car. A hearing will be helpful4 where the
4. In different contexts, such as reported improper
communications with jurors, hearings have been thought
necessary before there is a ruling on a new trial motion.
Remmer v. United States, 347 U.S. 227, 229-30 (1954).
Although different institutional interests are admittedly at
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matters presented by the proffer are not "conclusively
refuted as to the alleged facts by the files and records of
the case." United States v. Carbone, 880 F.2d 1500, 1502
(1st Cir. 1989) (internal quotation marks and citation
omitted). The credibility of the witnesses is important.
Neither Calder n nor Zorrilla testified before -- this is not
a recantation of testimony situation where the court has had
an opportunity to assess credibility.5
We believe the district court should, after a hearing,
reconsider whether, as Rule 33 provides, "the interests of
justice require a new trial." See Ouimette, 753 F.2d at 192-
93 (remanding to the district court for hearing on new trial
motion where affidavit presented new testimony going to issue
of defendant's guilt); Lyles v. United States, 272 F.2d 910,
913 (5th Cir. 1959) (on new trial motion, district court
"will be in a better position to exercise its functions"
after holding hearing).
stake, we have required a hearing be held on motions to
withdraw guilty pleas, where affidavits raise substantial
issues of whether the defendant is guilty. United States v.
Crooker, 729 F.2d 889, 890 (1st Cir. 1984); United States v.
Fournier, 594 F.2d 276, 279 (1st Cir. 1979).
5. Some courts have concluded that affidavits from others
recanting their earlier testimony may be deemed inherently
not credible. See, e.g., United States v. Leibowitz, 919
F.2d 482, 483 (7th Cir. 1990) (only partial hearing conducted
on new trial motion).
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As already observed, we disagree with the decisions
treating the belated statements of codefendants aimed at
exculpating the moving defendant as per se insufficient under
Rule 33. But we share the general skepticism concerning
those statements, and the present opinion by no means confers
any automatic right in such a case to a new trial or even to
a hearing. Our judgment here turns on unusual circumstances
including the weakness of the government's case against the
defendant, significant efforts to procure the codefendants'
testimony before his own conviction, and the plausible
explanation as to why the evidence was not available earlier.
The case is remanded for proceedings consistent with
this opinion.
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