United States Court of Appeals

                     For the First Circuit











No. 98-1729



                    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. Dom¡nguez, U.S. District Judge]







                              Before



                     Boudin, Circuit Judge,

                 Coffin, Senior Circuit Judge,

                   and Lynch, Circuit Judge.

                                

                                





     Marlene Aponte Cabrera, by appointment of the Court, for

appellant.

     Camille Velez-Rive, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Jose A. Quiles-

Espinosa, Senior Litigation Counsel, were on brief for appellee.











March 22, 1999







                                

                                

  COFFIN, Senior Circuit Judge.  Federal agents arrested

defendant-appellant Fernando Montilla Rivera ("Montilla") in a drug

sting, along with Miguel Calder¢n ("Calder¢n") and Ramon Zorilla

("Zorilla").  While Calder¢n and Zorilla were directly involved in

the transaction, the government claimed that Montilla was the

lookout.  After a four day jury trial, Montilla was convicted.  He

subsequently sought a new trial based on previously unavailable

evidence, but the court found that the evidence was not newly

discovered and denied his motion.  On appeal, we concluded that

Montilla's evidence was sufficiently new for the purposes of his

motion and remanded for a hearing on whether it met the standard

for ordering a new trial.  After the district court held the

hearing, it ruled that the standard had not been satisfied, and

denied his motion.  Montilla again appeals.  Because the district

court did not abuse its discretion in denying Montilla's motion, we

affirm its decision.

                          I. Background

  The factual background was detailed in our earlier

decision, United States v. Montilla, 115 F.3d 1060 (1st Cir. 1997). 

Rather than repeat ourselves, we will review only that evidence

relevant to the claim currently before us.

  On March 22, 1995, a confidential government informant

approached Calder¢n about purchasing drugs.  Calder¢n suggested

that they go "see the mechanic" and arranged to meet two days

later.  When they did meet, Calder¢n took the informant to an auto

repair shop behind a nightclub.  Zorilla and Montilla were

mechanics at that auto shop at various times, and were both waiting

there for Calder¢n and the informant.  When the two arrived, they

went with Zorilla and Montilla into a small room inside the back of

the shop.

     Calder¢n and Zorilla negotiated to sell the informant two

kilograms of cocaine while Montilla stood ten to twelve feet away

by the door "watching and looking."  Once the price and quantity

had been agreed upon, Zorilla made a call to have the drugs

delivered, and the informant called DEA Agent Carrasquillo ("Agent

Carrasquillo") to arrange for the money.  When the drugs were

delivered, the informant found the quality of the cocaine to be

good, so he and Calder¢n went to a nearby shopping center to meet

Agent Carrasquillo and get the money.  Zorilla and Montilla stayed

at the shop with the cocaine.

     After he had seen the money, Calder¢n returned to the

repair shop; the informant and Agent Carrasquillo followed ten

minutes later.  When they arrived, the informant reentered the

small room and told the others that his partner, Agent

Carrasquillo, would not come inside and would only buy the cocaine

outside where Carrasquillo was parked.  After some disagreement

about where the exchange would take place, Montilla, Zorilla, and

Calder¢n went outside.  Calder¢n approached Agent Carrasquillo's

car with the cocaine.  When the delivery was made, federal agents

quickly arrested Calder¢n, Zorilla and Montilla.  

     At trial there was conflicting testimony as to whether

Montilla was actually in the back room during the negotiations, and

as to precisely where he was when the agents converged to arrest

the three.  The government recorded the operation in two ways: the

informant wore an audio recording device, and a DEA agent named

Rodriguez videotaped the auto shop from across the street.  All

parties agree that Montilla neither appears in the videotape nor is

heard on the informant's audio tape.  However, several government

witnesses testified to Montilla's role as a lookout.

     While both Calder¢n and Zorilla pled guilty, Montilla

chose to go to trial.  Before trial, Montilla moved to produce his

codefendants to testify at trial, but they exercised their

privileges against self-incrimination and refused to testify.  The

jury found Montilla guilty, and the court sentenced him to 60

months of imprisonment and eight years of supervised release.

     After Calder¢n and Zorilla had been sentenced, Montilla

requested that they attest to his innocence.  He sent, and they

signed, nearly identical affidavits stating that Montilla was not

involved in the drug transaction for which they both had pled

guilty.  Claiming that Calder¢n's and Zorilla's testimony was

previously unavailable, Montilla filed a post-conviction motion for

a new trial.  The district court denied the motion because it found

that "the evidence was both known and available" at trial. 

Montilla, 115 F.3d at 1065.  On appeal, this court refused to apply

a categorical rule that exculpatory affidavits from codefendants

who did not testify at trial because they exercised their Fifth

Amendment privileges could never qualify as "newly discovered"

evidence for the purposes of a motion for a new trial.  Id. 

Instead, while "shar[ing] the general skepticism concerning [such

belated exculaptory] statements [of codefendants]," we remanded to

allow the district court to consider whether "the interests of

justice require a new trial."  Id. at 1067.  

     The district court held an evidentiary hearing at which

both Calder¢n and Zorilla testified.  The court subsequently issued

an opinion and order finding that they were not credible, and that

the inconsistency between their post-conviction statements and the

trial testimony made it unlikely that the new evidence would lead

to acquittal if a retrial were granted.  Consequently, the court

denied Montilla's motion, and he now appeals that decision to us.

                          II. Discussion

     Federal Rule of Criminal Procedure 33 empowers a district

court to grant a new trial "if required in the interest of

justice."  As we said in Montilla's previous appeal, if "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."  Montilla,

115 F.3d at 1064-65 (citations omitted). 

     Citing our earlier opinion, the district court determined

that the first three elements had been met.  Calder¢n's and

Zorilla's statements were unavailable to Montilla because each was

exercising his Fifth Amendment privilege against self-

incrimination.  Montilla apparently exercised due diligence in his

attempt to obtain their statements because he had tried on several

occasions to interview them.  And their statements were material

because, if believed, the affidavits exculpated Montilla from any

involvement in the drug transaction.  The district court,

therefore, found that the only element still in dispute was whether

it was likely that the new evidence would result in acquittal if a

new trial were held.  Reiterating our skepticism about whether to

believe the post-sentencing exculpatory testimony of two

codefendants whose guilt was beyond dispute, the court found that

Calder¢n's and Zorilla's testimony did not warrant a new trial.

     The decision to grant or deny a new trial is committed to

the sound discretion of the district court.  See United States v.

Soto-Alvarez, 958 F.2d 473, 479 (1st Cir. 1992).  We will reverse

only if its decision constitutes a "manifest abuse of discretion." 

United States v. Tibolt, 72 F.3d 965, 972 (1st Cir. 1995).  Based

on an assessment of the facts revealed at the trial and the new

evidence, we are firmly convinced that the district court did not

abuse its discretion.  Instead, we agree with the district court

that the new evidence "would [not] so undermine the government's

case as to give rise to a 'reasonable' probability of acquittal on

retrial."  Id. (quoting United States v. Sepulveda, 15 F.3d 1216,

1220 (1st Cir. 1993)).  Montilla argues that the new testimony was

crucial in four ways, but we are unpersuaded that it would lead to

a different result.

     A. The identity of "the mechanic."  Montilla contends

that he was not "the mechanic" to whom Calder¢n was referring when

Calder¢n and the informant went to "see the mechanic," and that

testimony at the evidentiary hearing revealed that "the mechanic"

was a man named Ramad‚s, the supplier who delivered the two

kilograms to Zorilla.

     Montilla's conviction as a lookout at the drug

transaction did not turn on the identity of someone called "the

mechanic."  It revolved around whether Montilla was in the back

room when the initial agreement was reached, and whether he was

acting as a lookout outside when Calder¢n delivered the cocaine to

Agent Carrasquillo's car.  Although our previous opinion suggested

that Montilla was the mechanic, see Montilla, 115 F.3d at 1062, it

was not clear from the testimony at trial whether "the mechanic"

even referred to an individual.  In any event, it is unlikely that

the jury would have found that Calder¢n was referring to Montilla

when he went to "see the mechanic" because Montilla was only a

minor participant in the deal and not directly involved in setting

the terms and price.

     Testimony that Montilla was not "the mechanic" makes it

no less likely that the jury would conclude that he was a lookout

during the drug transaction.

     B. Sharing the profits from the transaction.  Montilla

also points to Calder¢n's and Zorilla's testimony that they were

not going to share the profits from the drug transaction with him. 

Again, this assertion fails to undermine the strength of the

government's case in any meaningful way.  The conviction was based

on a finding that he was a lookout because he was carefully

watching the initial negotiation and observed the delivery from a

distance.  Whether or not he would receive a share of the profits

does not invalidate the evidence on which his conviction was based. 

Although the conviction certainly would be bolstered by testimony

to the contrary, the fact that Montilla was not going to receive a

portion of the proceeds does not discredit the jury's finding.  It

certainly does not create the requisite "reasonable probability"

that he would be acquitted upon retrial.

     C. Montilla's location during the transaction.  Next

Montilla argues that Calder¢n's and Zorilla's testimony about his

whereabouts during both the negotiation and the exchange

significantly changes the picture presented by the trial evidence. 

Because this argument directly implicates the basis for the jury's

decision, we will consider testimony involving Montilla's location

in detail.  

     At the trial and the evidentiary hearing, the court heard

a substantial amount of evidence regarding Montilla's position at

the moment of the actual transaction.  The government's witnesses

all agreed that Montilla was standing in front of the workshop. 

First, Agent Rodriguez stated that he saw Montilla being arrested

"in front of the [auto] repair shop" near a blue van.  Next, the

informant noted that Montilla witnessed the transaction outside

next to the shop door, close to the same van.  Finally, Agent

Carrasquillo testified that Calder¢n, Zorilla and Montilla came out

of the shop together, and, when Calder¢n approached the car with

the drugs, Montilla was standing just to the left of the entrance

to the workshop.

     While the government's witnesses consistently insisted

that Montilla observed the deal, Montilla's witnesses contradict

one another.  At trial, Montilla produced both Angel Morla

("Morla"), who was the owner of the auto repair shop, and Louis

Alfonseca ("Alfonseca"), who was visiting with Morla and Montilla. 

Alfonseca claimed that when Montilla "went out[side] to smoke a

cigarette," the federal agents rushed in.  Similarly, Morla alleged

that just before the arrests were made, Montilla went outside for

a cigarette and a soft drink.  Later in his testimony Morla

suggested that Montilla was arrested under a car outside in front

of the nightclub adjoining the auto shop, and not in the shop

itself.  Hence, both these witnesses placed Montilla outside the

shop at the time of the arrests.  

     On the other hand, Calder¢n and Zorilla both place

Montilla somewhere inside the shop.  At the evidentiary hearing

Calder¢n testified that at the time of the arrests he saw Montilla

being pulled from underneath the car he was working on in the shop. 

Zorilla claimed to have seen Montilla being brought from the back

of the shop.

     In short, then, Calder¢n's and Zorilla's statements do

not furnish new evidence supporting Montilla's defense.  Instead,

they provide an entirely different version of the events.  All

witnesses at trial agreed that Montilla was somewhere outside the

shop.  The government's theory was that he was standing by the

entrance to the workshop acting as a lookout.  Montilla's defense

at the time was that he was having a cigarette or was under a car

in front of the adjoining nightclub.  Now Montilla claims he was

inside the shop either under a car or in the back.  This

inconsistency regarding the central aspect of his defense

substantially weakens Montilla's assertion that he is likely to be

acquitted upon retrial.

     As for whether Montilla was involved in the initial

negotiations, there is a direct contradiction between the

informant's testimony and that of Calder¢n and Zorilla.  The

confidential informant testified that Montilla was present during

the initial negotiation.  Although Montilla is not heard on the

audio recording, the informant testified that Montilla was standing

silently inside the room by the entrance.  The informant noted that

Montilla was "ten or twelve feet" away from the negotiation and

"was watching, looking" while Calder¢n and Zorilla were negotiating

the drug transaction.  The informant also stated that when the

drugs were delivered and tested, Montilla was in essentially the

same place observing him.  On the other hand, at the evidentiary

hearing Calder¢n and Zorilla claimed that Montilla was not in the

room during the initial negotiations.

     These statements present two different versions of the

initial negotiations.  In assessing whether an acquittal is likely,

the court had to weigh the witnesses' credibility.  Montilla, 115

F.3d at 1067.  Here again we have no doubt that the district court

properly believed the government's witnesses and questioned both

Calder¢n's and Zorilla's credibility.  With respect to the

informant the district court specifically found neither any "potent

reason for discrediting [his] testimony[,]" nor any "motive, bias,

contradiction or inherent error in [his] factual testimony as to

Montilla." United States v. Montilla, 9 F. Supp. 2d 81, 88 (D.P.R.

1998).

     Although there was no reason to disbelieve the informant,

the court cited a variety of grounds on which to question

Calder¢n's and Zorilla's statements.  In addition to the

inconsistency with the testimony at trial regarding Montilla's

whereabouts during the exchange, the court noted that each provided

exculpatory testimony only after sentencing pursuant to a guilty

plea.  At the time of their affidavits Calder¢n and Zorilla had

nothing to lose by exonerating Montilla.  Both had already been

convicted and sentenced.  They were in a position to say "whatever

they [thought] might help their co-defendant, even to the point of

pinning all the guilt on themselves, knowing they [were] safe" from

any increased punishment for the transaction.  United States v.

Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992).  Numerous

courts have found such post-sentencing exculpatory testimony of

co-conspirators to be "inherently suspect."  United States v.

Simmons, 714 F.2d 29, 31 (5th Cir. 1983).  Under the circumstances,

we have no reason to disagree with the court's finding that

Calder¢n and Zorilla were not credible.

     D. Statements of Montilla's innocence. Montilla's final

basis for a new trial is that Calder¢n and Zorilla filed nearly

identical affidavits stating that he was not involved in the drug

transaction in question.  As we have stated, however, the district

court justifiably discounted their testimony.  By nature, this sort

of blanket exoneration of Montilla by two alleged co-conspirators

who had pled guilty and had been sentenced is "'untrustworthy and

should not be encouraged.'"  Montilla, 115 F.3d at 1066 (quoting

Reyes-Alvarado, 963 F.2d at 1188). As with the other evidence,

these statements do not lead to a reasonable probability that

Montilla would be acquitted on retrial.

                         III. Conclusion

     Because it is "sheer speculation" that "the newly

discovered evidence would change the jury's decision,"  United

States v. Nero, 733 F.2d 1197, 1205 (7th Cir. 1984), the district

court did not abuse its discretion in denying Montilla's motion for

a new trial.

     Affirmed.