United States District Court, N.D. Illinois, Eastern Division
August 22, 2005.
UNITED STATES OF AMERICA
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
The United States of America ("the Government") brought an
indictment charging Defendant, Martin Valadez, with conspiracy to
distribute multiple kilograms of cocaine, possession of cocaine,
and money laundering. After a five-day jury trial, Defendant was
convicted of all counts. Defendant has filed a Motion for a New
Trial, pursuant to Federal Rule of Criminal Procedure 33.
Defendant contends new evidence letters from other
co-defendants and prisoners demonstrates that he is entitled to
a new trial.
At the jury trial, the Government adduced evidence consisting
of: (1) eyewitness testimony of Defendant's drug dealing and drug
possession; (2) testimony of federal agents who recovered cocaine
hidden behind Defendant's home and seized $134,000.00 in cash
delivered by Defendant; (3) recorded statements wherein Defendant
admitted that he was involved in drug transactions and money
laundering; (4) financial records demonstrating Defendant and his
family spent money beyond their reported income; and (5) the
existence of a money counter in Defendant's garage. This evidence included testimony from two
co-defendants, Alfredo Juarez and Ricardo Galvan, which detailed
Defendant's drug dealing and drug possession. Hugo Salinas also
testified at trial as to some of Defendant's drug activities.
After trial, Defendant presented letters from five different
persons: (1) two letters from co-defendant Michael Petika, (2)
two letters from Craig Braun, (3) a letter from Angel Pacheco
Diaz, (4) a letter from Victor Castro, and (5) a letter from Juan
Petika testified before the grand jury incriminating Defendant
and ultimately pled guilty to conspiracy to distribute cocaine in
violation of 21 U.S.C. § 846, but Petika was a fugitive during
the trial and did not testify. The first letter states that
Petika had not observed Defendant involved with drugs and that
drugs were placed behind Defendant's house by Petika at the
instruction of Galvan and Juarez. Petika also states that he was
told by law enforcement officials including Drug Enforcement
Agency Special Agent David Brazao, who testified at trial to
lie; according to the letter, the law enforcement officers'
instructions to lie were accompanied by false promises and
physical coercion. The letter further states that Salinas told
Petika that Salinas lied to the grand jury. Petika's second
letter states that while Petika was on the same floor of the
prison with Juarez, Juarez told Petika that: (1) Special Agent
Brazao instructed Juarez to lie about where Defendant stored
cocaine; (2) Juarez lied before the grand jury and at trial; and
(3) Special Agent Brazao and other law enforcement physically
abused Juarez and threatened to hurt Juarez's family.
Braun testified before the grand jury against Defendant, and
his statement was given to Defendant in advance of trial; but
Braun did not testify at trial. His first letter states he lied
to the grand jury because: (1) he was unaware of any drug
activity committed by Defendant and (2) the drugs attributed to Defendant actually belonged to Juarez and
Galvan. Braun's second letter once again states that Braun lied
before the grand jury concerning Defendant's drug activity. Both
letters indicate that Braun was threatened with imprisonment by
Special Agent Brazao if Braun refused to lie.
Diaz, who did not testify at trial, was a prisoner at the same
facility as Alfredo Juarez. Diaz's letter claims that Juarez
stated that: (1) Juarez helped move cocaine belonging to Galvan
to a field and (2) Juarez lied, at the behest of law enforcement
officers, to obtain a deal.
Castro and Garcia were prisoners with both Galvan and
Defendant. Neither testified at trial. Both Castro's and Garcia's
letters state they observed a conversation between Galvan and
Defendant where Galvan admits to lying at trial about Defendant's
Defendant argues that a new trial is necessary because the
letters demonstrate that perjured testimony was used by the
Government in front of the grand jury and at trial and, even if
they do not demonstrate perjury was committed, constitute newly
discovered evidence requiring a new trial.
Federal Rule of Criminal Procedure (b)(1) provides that, within
three years after the verdict, a defendant may file a motion for
a new trial grounded on newly discovered evidence. "Upon the
defendant's motion, the court may vacate any judgment and grant a
new trial if the interest of justice so requires." Fed.R. Crim.
P. 33(a). The decision whether to grant a motion for a new trial
is committed to the discretion of the district court. United
States v. Ryan, 213 F.3d 347, 351 (7th Cir. 2000); United
States v. Ferguson, 35 F.3d 327, 331 (7th Cir. 1994) (Ferguson). The decision whether to hold an evidentiary hearing
is also committed to the discretion of the district court, and a
hearing is not required unless there are "unique circumstances."
Olson v. United States, 989 F.2d 229, 233 (7th Cir. 1993).
For Defendant to obtain a new trial on the use of perjured
testimony, he must show that: (1) the Government's case included
perjured testimony, (2) the Government knew or should have known
of the perjury, and (3) there is any likelihood that the perjured
testimony could have affected the judgment of the jury.
Ferguson, 35 F.3d at 332. The allegedly perjured testimony must
be related to Defendant's guilt or innocence and material facts
instead of collateral issues. Ferguson, 35 F.3d at 332. An
evidentiary hearing is not required in this regard if the
district court can make "a determination based upon its
observations of the relevant witness(es) at trial." United
States v. Griffin, 84 F.3d 912, 930 (7th Cir. 1996).
The letters produced by Defendant do not demonstrate that the
Government's case included perjured testimony. The letters
which include alleged statements attributed to Juarez, Galvan,
Salinas arguably may relate to the credibility and weight of
their trial testimony but do not establish that lies were told
under oath at trial. None of the letters came from a trial
witness, and none of the letters is a sworn statement.
Furthermore, the Court had an opportunity to observe and hear
Juarez, Galvan, and Salinas testify at trial; and their testimony
was credible and consistent with other evidence adduced by the
Government. As detailed above, this evidence included admissions
by the Defendant that he was involved with drug transactions and
money laundering; detailed financial records demonstrating
Defendant and his family spent money beyond their reported
income; and the credible testimony of federal agents who
recovered cocaine concealed behind Defendant's home and a large sum of cash
delivered by Defendant. For these reasons, even if the disputed
testimony was perjured, there was no likelihood that the perjured
testimony could have affected the judgment of the jury.
For Defendant to obtain a new trial based on newly discovered
evidence not based upon perjured testimony, he must demonstrate
that the evidence: "(1) came to his knowledge only after trial;
(2) could not have been discovered sooner had due diligence been
exercised; (3) is material and not merely impeaching or
cumulative; and (4) would probably lead to an acquittal in the
event of a retrial." United States v. Severson, 49 F.3d 268,
271 (7th Cir. 1995). Defendant contends that: (1) the new
evidence casts doubt on the credibility of Special Agent Brazao;
(2) the letters from Petika, who was unavailable for trial, and
Braun state that Defendant was not involved with drug activities;
and (3) the letters from Petika, Diaz, Castro, and Garcia cast
doubt on the credibility of Juarez and Galvan.
However, to the extent the letters cast doubt on the
credibility of Juarez, Galvan, Special Agent Brazao, or any other
witness, they are not appropriate to consider in a motion for a
new trial based upon newly discovered evidence as that material
is merely impeaching, at best. Defendant has also not shown why
the alleged new evidence from Braun could not have been
discovered before trial with due diligence, as the Government
provided Defendant with Braun's grand jury testimony before
trial. Defendant also fails to explain why Diaz's alleged new evidence could not have been discovered before trial with due
diligence. Further, even if the letters were considered and their
authors testified consistently at trial, this evidence would
probably not lead to an acquittal in the event of a retrial,
based on the evidence discussed above.
Finally, the circumstances regarding the creation of the
letters are suspicious. Petika and Castro provided statements, in
the presence of their attorneys, explaining that Defendant or
another gang member coerced their creation. Petika and Castro
also assert that they only recopied letters that Defendant wrote
himself. Braun was interviewed by the Government officials and
said that he was coerced into writing the letter by Defendant's
Defendant has failed to identify any unique circumstances
mandating an evidentiary hearing. For the foregoing reasons,
Defendant's Motion for a New Trial is denied.
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