United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
H. THOMPSON, UNITED STATES DISTRICT JUDGE.
criminal case is currently before the court on two motions
for a new trial made by defendant Eunices Llorca-Meneses. In
her first, she argues that the "interest of
justice," Fed. R. Crim. P. 33(a), requires a new trial
because inculpatory testimony was improperly admitted at
trial. As ground for her second, she argues that newly
discovered evidence warrants a new trial. For reasons that
follow, the first motion will be granted, albeit not for all
the reasons advanced, and the second one denied.
9, 2017: Llorca-Meneses and codefendant Reinier
Perez-Rives were charged in a five-count indictment
with one count of conspiracy to commit wire fraud in
violation of 18 U.S.C. § 1349, two counts of aiding and
abetting aggravated identity theft in violation of 18 U.S.C.
§§ 1343 and 2, and two counts of aiding and
abetting aggravated identity theft in violation of 18 U.S.C.
§§ 1028A and 2.
27: Perez-Rives pled guilty pursuant to a plea agreement.
8: A jury found Llorca-Meneses guilty of all five
18: Llorca-Meneses filed a motion seeking an extension
of time to file a motion for a new trial. The government did
not object, the extension motion was granted, and she was
given until October 13.
11: Prior to the expiration of the first extension,
Llorca-Meneses moved for a second extension based in part on
defense counsel's inability to reach her following
Hurricane Irma. The government did not object, the court
granted the second extension motion, and Llorca-Meneses was
given until October 27.
27: Llorca-Meneses filed her first motion for a new
trial, which was then later briefed by the government.
25, 2018: After her first motion for new trial had been
briefed and was under submission, Llorca-Meneses orally
sought leave to file a second motion for new trial, this time
based on newly discovered evidence. The government did not
26: The court granted the January 25 oral motion, and
gave Llorca-Meneses until February 8 to file a “new or
amended” motion for a new trial. Briefing Order (doc.
9: Llorca-Meneses filed a “First Amended Motion
for New Trial, ” which was then later briefed by the
government. (Due to defense counsel's lack of familiarity
with filing documents under seal, the amended motion,
although due on February 8, was not docketed until February
10: Because of the seriousness of the matter presented,
up through July 10 the court obtained and received
transcripts of various parts of the trial to rely upon in its
Timeliness of Motions for New Trial
court must first determine whether Llorca-Meneses's
motions for new trial were timely filed. Motions for new
trial are governed by Federal Rule of Criminal Procedure 33,
which states: “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). Rule 33(b) divides motions for new trial into two
general categories: those based on newly discovered evidence
and those based on all other grounds. While defendants have
three years after the verdict to file motions based on newly
discovered evidence, see Fed. R. Crim. P. 33(b)(1),
motions based on all other grounds must be filed within 14
days of the verdict. See Fed. R. Crim. P. 33(b)(2).
the court are two interest-of-justice motions, one based on
newly discovered evidence, and the other based on
'another ground.' Llorca-Meneses's first motion
for new trial is based on another ground, and, thus, is a
Rule 33(b)(2) motion subject to a 14-day limitation. As the
court granted extensions of time before the allowed time
periods had elapsed, the motion was timely. See Fed.
R. Crim. P. 45(b)(1) (“When an act must be done within
a specific period, the court may extend the time either (A)
before the originally prescribed or previously extended time
expires....”). The second motion argues a new trial is
warranted due to “newly discovered evidence.” As
this was a Rule 33(b)(1) motion, the three-year filing
deadline applies, and it was timely.
government argues that, because the second motion was
labelled an “amended” motion and did not
expressly incorporate the first motion, Llorca-Meneses
abandoned the ground for her first motion. As support for
this assertion, the government relies on the rule from the
civil context that “an amended pleading supersedes the
former pleading," and thus "the original pleading
is abandoned by the amendments, and is no longer part of the
pleader's averments against his adversary.”
Pintando v. Miami-Dade Housing Agency, 501 F.3d
1241, 1243 (11th Cir. 2007).
court is not persuaded by this argument. Aside from the fact
that this is a criminal case, not a civil one, a motion for
new trial is not a pleading even in the civil context.
See PLEADING, Black's Law Dictionary (10th ed.
2014) (“A formal document in which a party to a legal
proceeding (esp. a civil lawsuit) sets forth or responds to
allegations, claims, denials, or defenses. In federal civil
procedure, the main pleadings are the plaintiff's
complaint and the defendant's answer.”). While
there are good reasons to adopt such a rule in the case of
pleadings, such formality is not called for in the case of
motions. Moreover, the government has not put forward and the
court has not identified any rules of criminal procedure or
cases indicating this rule applies to motions for a new trial
in the criminal context.
the court will not rely on a label when the substance of the
motion clearly seeks independent relief under Rule 33(b)(1).
To do so would exalt form over substance, and create a trap
for unseasoned litigators. In addition, the court may have
unintentionally contributed to counsel's labelling error
when, in response to notice of the new evidence, it entered
an order to file a “new or amended motion.” In
light of this history, the court finds it more likely that
counsel made an honest mistake than that he intended to
abandon his earlier motion by labeling the second motion
“amended.” Especially given the court's
possible contribution to the labelling error, it is unwilling
to take the draconian step of holding that Llorca-Meneses
abandoned her first motion by implication. Thus, the court
finds that both motions are properly before the court for
Rule 33(b)(2), the court is empowered to grant a new trial
“if the interest of justice so requires.” Fed. R.
Crim. P. 33. Outside the context of claimed newly discovered
evidence, this standard is broad, and the decision to grant a
new trial is within the sound discretion of the trial court,
see United States v. Vicaria, 12 F.3d 195, 198 (11th
Cir. 1994); the trial court may grant a motion for new trial
even where the defect does not constitute reversible error,
or even legal error at all. See Id. at 198-99.
Rather, the court “has very broad discretion in
deciding in whether there has been a miscarriage of
justice.” United States v. Hall, 854 F.2d
1269, 1271 (11th Cir. 1988). Indeed, the power of a district
court to grant a new trial “is not limited to cases
where the district court concludes that its prior ruling,
upon which it bases the new trial, was legally
erroneous.” Vicaria, 12 F.3d at 198-99. In
addition, “the cumulative effect of multiple errors may
so prejudice a defendant's right to a fair trial that a
new trial is required, even if the errors considered
individually are non-reversible.” United States v.
Thomas, 62 F.3d 1332, 1343 (11th Cir. 1995).
Llorca-Meneses's first motion, which does not rely on
newly discovered evidence, is governed by this standard.
defendants seeking a new trial based on newly discovered
evidence under Rule 33(b)(1) must satisfy a five-part test:
(1) the evidence must be discovered following the trial; (2)
the movant must show due diligence to discover the evidence;
(3) the evidence must not be merely cumulative or impeaching;
(4) the evidence must be material to issues before the court;
and (5) the evidence must be of such a nature that a new
trial would probably produce a new result. See United
States v. Taohim, 817 F.3d 1215, 1223 (11th Cir. 2013).
Of course, for evidence to be likely to produce a different
result, it must be admissible at trial. See United States
v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003)
(affirming the denial of a motion for a new trial because the
evidence offered was not admissible under Fed.R.Evid.
804(b)(3), and, thus, would not have produced a different
result at trial). Failure to satisfy any one of the five
elements is fatal to a motion for new trial on this basis.
Taohim, 817 F.3d at 1223. Motions for new trial
based on newly discovered evidence are “highly
disfavored, ” and district courts “should use
‘great caution' in granting a new trial motion
based on newly discovered evidence.” Jernigan,
341 F.3d 287 (internal quotations omitted).
Llorca-Meneses's second motion is governed by this
and codefendant Perez-Rives were each charged with one count
of conspiracy to commit wire fraud, two counts of aiding and
abetting aggravated identity theft, and two counts of aiding
and abetting aggravated identity theft. Perez-Rives pled
guilty, pursuant to a plea agreement, to one count of
conspiracy to commit wire fraud and one count of aggravated
identity theft, and the government dismissed the other
charges against him. Llorca-Meneses pled not guilty and
proceeded to trial.
trial, the government presented evidence that Llorca-Meneses
and Perez-Rives embarked on two road trips across the
southern United States in December 2017--the first with
another couple and the second by themselves. Video evidence
showed the vehicles they rented stopping at multiple gas
stations where 'skimming devices' were planted. These
skimming devices recorded credit- and debit-card information
from customers who used the gas pump where the devices were
placed. The devices then relayed that information to
persons--Perez-Rives and allegedly Llorca-Meneses--with
access to the devices, who then activated or re-encoded
'access devices' such as gift cards with the stolen
information. Those access devices were then used as if they
were the credit or debit cards scanned by the skimming
devices. Video evidence and police testimony showed that
Perez-Rives and several others, including Llorca-Meneses,
stopped at a number of the impacted gas stations, and
skimming devices were found on the pumps they allegedly used.
Although Perez-Rives and another unidentified male were on
camera using an ATM at one of the gas stations, the video
surveillance did not definitively show who used the impacted
pumps. When Llorca-Meneses and Perez-Rives were apprehended,
Perez-Rives was caught with 38 re-encoded cards on his
person. Police found one re-encoded gift card, a gas pump
key, and six thousand dollars in cash in Llorca-Meneses's
purse, which was located either in the center console or at
Perez-Rives's feet, and therefore accessible to both
counsel's theory throughout trial was that Perez-Rives
was the mastermind of the conspiracy, and that
Llorca-Meneses, while present, did not know what Perez-Rives
was doing with the skimming devices. In particular, her
defense counsel attempted to show that she and Perez-Rives
had recently rekindled their romantic relationship from high
school, and Perez-Rives convinced her to ride around the
country with him without mention of his criminal scheme.
Llorca-Meneses--according to her defense counsel--was naive
and wanted to travel outside her home state of Florida for
the first time; she agreed to the road trip but not the
criminal conspiracy. The defense attempted to demonstrate
that Llorca-Meneses lacked the sophistication to participate
in the offense, pointing to the fact Llorca-Meneses
immigrated to the United States from Cuba as an adult, speaks
limited English, and has worked as a cleaner for the duration
of her time in the United States.
pursuit of this theory, Llorca-Meneses's defense counsel
wanted to ask a testifying officer, Agent Frith, if he knew
the outcome of Perez-Rives's case. During a break while
the jury was excused, defense counsel sought guidance from
“DEFENSE COUNSEL: I want to the get the Court's
direction on this. On cross-examination, I don't want to
step out of line. On cross-examination, I was planning on
asking the investigator does he know the outcome of Mr.
Perez's case. I think that's a proper question,
Judge; but once again, I wanted to air that out.
“THE COURT: Do you know the outcome of Mr.
“AGENT FRITH: I know he pled guilty under--is what
I've been told.
“DEFENSE COUNSEL: That's all I was going to ask
him, Judge, but I wanted to make sure that was appropriate.
“THE COURT: Are you objecting to that question?
“THE GOVERNMENT: No.
“THE COURT: Very good.”
Tr. Transcript Sterling Frith Testimony (doc. no. 90) at
31:4-17. When the jury returned, the ...