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United States v. Llorca-Meneses

United States District Court, M.D. Alabama, Northern Division

November 13, 2018

UNITED STATES OF AMERICA
v.
EUNISES LLORCA-MENESES

          OPINION AND ORDER

          MYRON H. THOMPSON, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Procedural History

         February 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.

         July 27: Perez-Rives pled guilty pursuant to a plea agreement.

         September 8: A jury found Llorca-Meneses guilty of all five charges.

         September 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.

         October 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.

         October 27: Llorca-Meneses filed her first motion for a new trial, which was then later briefed by the government.

         January 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 object.

         January 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. no. 118).

         February 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 9.)

         July 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 ruling.

         II. Timeliness of Motions for New Trial

         The 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).

         Before 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.

         The 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).

         The 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.

         Furthermore, 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 resolution.

         III. Legal Standard

         Under 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.

         However, 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 standard.

         IV. Factual Background

         Llorca-Meneses 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.

         At 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 passengers.[1]

         Llorca-Meneses's 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.

         In 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 the court:

“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. Perez['s] case?
“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 ...


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