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United States v. Cuya

United States District Court, S.D. Florida

May 17, 2018

UNITED STATES OF AMERICA
v.
JUAN ALEJANDRO RODRIGUEZ CUYA, Defendant.

          ORDER GRANTING MOTION FOR RECONSIDERATION AND DENYING MOTION FOR NEW TRIAL

          PATRICIA A. SEITZ UNITED STATES DIST T JUDGE.

         THIS MATTER is before the Court on the Mandate of the Eleventh Circuit Court of Appeals [DE 297] in which the Eleventh Circuit remanded this matter to the Court for the Court to (1) grant the Government's Motion to Reconsider Jurisdictional Nature of Court's Order Denying Defendant's Motion for a New Trial [DE 282] and (2) deny Defendant's Motion for New Trial Pursuant to Rule 33 [DE 275], as the Court previously indicated it would do in its January 22, 2018 Order [DE 283]. Based on the Eleventh Circuit's mandate, Federal Rule of Criminal Procedure 37, and Eleventh Circuit Rule 12.1-1, the Government's Motion to Reconsider is granted. Having considered Defendant's Motion for New Trial Pursuant to Rule 33, the Government's response, and Defendant's reply, the Motion for New Trial is denied on the merits.

         I. Procedural History

         On October 19, 2017, Defendant filed a Motion for New Trial Pursuant to Rule 33 [DE 275]. On November 16, 2017, the Court denied that motion finding that it lacked jurisdiction because Defendant's appeal was still pending in the Eleventh Circuit Court of Appeals [DE 278]. The Government then filed its Motion to Reconsider Jurisdictional Nature of Court's Order Denying Defendant's Motion for a New Trial [DE 282]. The Government argued that the Court should not have denied the Motion for a New Trial on jurisdictional grounds but instead should have ruled on the Motion for a New Trial pursuant to Federal Rule of Criminal Procedure 37, which allows a Court, which lacks authority to grant a motion because of a pending appeal, to defer ruling on the motion, deny the motion, or state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. In response to the Government's Motion for Reconsideration, the Court entered its January 22, 2018 Order stating that "if the Eleventh Circuit were to remand, the Court would GRANT the Government's Motion to Reconsider Jurisdictional Nature of Court's Order Denying Defendant's Motion for a New Trial [DE-282] and would DENY the Motion for a New Trial [DE-275] on its merits." On April 27, 2018, the Eleventh Circuit issued its mandate vacating the Court's Order Denying Defendant's Motion for a New Trial and granting the Government's motion for remand for consideration of the Government's Motion for Reconsideration and Defendant's Motion for a New Trial on the merits.

         II. Motion for Reconsideration

         The Government's Motion to Reconsider Jurisdictional Nature of Court's Order Denying Defendant's Motion for New Trial seeks reconsideration of the Court's November 16, 2017 order because the Court denied the Motion for New Trial on jurisdictional grounds, instead of using the authority set out in Federal Rule of Civil Procedure 37 and Eleventh Circuit Rule 12.1-1 to deny the Motion for a New Trial on its merits. Based on the Eleventh Circuits' mandate and remand, it is clear that the Court has the jurisdiction to address the Motion for New Trial on its merits and will do so herein. Accordingly, the Motion to Reconsider is granted.

         III. Motion for New Trial

         Defendant's Motion seeks a new trial on the basis of newly discovered evidence, specifically (1) the travel records of Government witness Cinthya Guerrero; (2) a voice recording of Cinthya Guerrero; (3) the travel records of Government witness Fernando Moio; and (4) the pay check of Government witness Pia Mirabel Silva. The Government maintains that Defendant has not met his burden for a court to grant him a new trial.

         Motions for a new trial are "highly disfavored" and district courts "should use great caution in granting a new trial based on newly discovered evidence." United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (citations and internal quotation omitted). The Eleventh Circuit has set out the following standard for a new trial:

To succeed on a motion for new trial based on newly discovered evidence, the movant must establish that (1) the evidence was discovered after trial, (2) the failure of the defendant to discover the evidence was not due to a lack of due diligence, (3) the evidence is not merely cumulative or impeaching, (4) the evidence is material to issues before the court, and (5) the evidence is such that a new trial would probably produce a different result.

Jernigan, 341 F.3d at 1287 (quoting United States v. Ramos, 179 F.3d 1333, 1336 n.1 (11th Cir. 1999)).

         i. The Travel Records of Government Witness Cinthya Guerrero

         At trial witness Cinthya Guerrero testified that she traveled to Peru in 2012 and visited Defendant's call center and observed that Defendant was in charge. Defendant has subsequently requested and received travel records from a Peruvian government agency which, he argues, indicate that Guerrero was not in Peru in 2012. The record is attached to Defendant's motion as Exhibit 1. Thus, Defendant maintains that Guerrero perjured herself which effected the outcome of the trial. In response, the Government points out that Defendant did not attach the entire certificate as an exhibit to his motion and that the back of the certificate indicates that there is a possibility that the information contained on the certificate is incomplete. The Government has attached the complete certificate to its response as Exhibit 4. The Government further contends that because Defendant did not believe Guerrero's testimony at the time of trial, he could have cross-examined her during trial on this issue but did not.

         As to this evidence, Defendant has failed to meet three of the requirements set out above. First, he has failed to show that his failure to discover the travel record was not due to a lack of diligence. In fact, Defendant offers no reason why he did not have this evidence earlier. Second, Defendant has not shown that the evidence is anything more than impeachment evidence. Third, Defendant has failed to show that had the certificate been used at trial that a different outcome would have been likely. Defendant, who states he was surprised by Guerrero's testimony, had the opportunity to question Guerrero about her travels on cross examination and did not. Further, given the other evidence presented at trial that Defendant was in charge of the Peruvian call ...


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