Filed: Jun. 13, 2001
Latest Update: Feb. 21, 2020
Summary: HANSEL NU Howard R. Leader for appellants.Assistant United States Attorney, were on the brief, for appellee.evidence, the motion must be made within three years after the verdict.cooperate after obtaining new counsel post-trial.United States v. Rosario-Peralta, 199 F.3d 552, 570 (1st Cir.
[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
________________
No. 99-1249
UNITED STATES OF AMERICA,
Appellee,
v.
HANSEL NUÑEZ,
Defendant, Appellant.
______________________
No. 99-1250
UNITED STATES OF AMERICA,
Appellee,
v.
EDDISON NUÑEZ,
Defendant, Appellant.
________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
________________________
Before
Lynch, Circuit Judge,
Coffin, Senior Circuit Judge, and
Schwarzer,* Senior District Judge.
*
Of the Northern District of California, sitting by designation.
____________________
Howard R. Leader for appellants.
Thomas F. Klumper, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, were on the brief, for appellee.
_______________
JUNE 6, 2001
_______________
SCHWARZER, Senior District Judge. Appellants Eddison and
Hansel NuÁez appeal their conviction on two counts of conspiracy to
distribute and distribution of cocaine in violation of 21 U.S.C.
§ 841(a)(1) and 21 U.S.C. § 846. They contend that the district court
erred in denying: (1) their motion for a new trial based on what they
claim is newly discovered evidence of trial counsel’s ineffective
assistance; (2) their motion for a downward departure; and (3) their
request for a sentence adjustment for acceptance of responsibility.
I. MOTION FOR NEW TRIAL
Eddison and Hansel, brothers who were born in the Dominican
Republic but are lawful permanent residents of this country, were
originally represented by attorneys Carlos Pérez-Olivo and Guillermo
Batille-Olivo, respectively. On January 31, 1997, following a jury
trial, they were found guilty on both counts. On August 26, 1998, more
than a year and a half after the verdict but before sentencing,
appellants, represented by new counsel, moved for a new trial pursuant
to Federal Rule of Criminal Procedure 33. Their motion was based on
ineffective assistance of counsel claims. In supporting declarations,
they alleged that they had not discovered until after trial that their
counsel had failed to inform them of the government’s interest in a
plea bargain and that counsel had instead actively discouraged, if not
prevented, them from negotiating a plea or cooperation agreement with
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the government. They alleged that this was due in part to attorney
Pérez-Olivo’s conflicting loyalty to another client who might have been
prejudiced by their cooperation with the government. They also alleged
that counsel misled them by minimizing and misstating the government’s
evidence against them and by failing to advise them about the
consequences of going to trial and to provide them with guidance
regarding sentencing procedures. The district court denied the motion
without prejudice on January 5, 1999.
Rule 33 requires that a motion for a new trial on grounds
other than newly discovered evidence be filed within seven days after
the verdict. Fed. R. Crim. P. 33. If based on newly discovered
evidence, the motion must be made within three years after the verdict.
Id.; see also United States v. Lema, 909 F.2d 561, 566 n.6 (1st Cir.
1990) (holding that a defendant whose new trial motion is based on the
alleged ineffectiveness of trial counsel "may bypass Rule 33's seven-
day time limit only if his claim that his counsel . . . [was
ineffective] was based on information unavailable to the defendant at
the time of trial").
"A motion for new trial based on newly discovered
evidence will not be allowed unless the movant establishes 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." United States v. Tibolt, 72 F.3d 965, 971
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(1st Cir. 1995). Under the fourth requirement, "the evidence must
create an actual probability that an acquittal would have resulted if
the evidence had been available." United States v. Sepulveda, 15 F.3d
1216, 1220 (1st Cir. 1993).
The district court, assuming arguendo that the first two
requirements were met, concluded that appellants failed to meet the
remaining requirements because their claims of ineffective assistance
of counsel were immaterial and unlikely to result in an acquittal upon
retrial because they had no bearing on the issue of guilt.
Appellants’ claims therefore were not based on newly discovered
evidence for purposes of Rule 33 and were jurisdictionally barred. See
Lema, 909 F.2d at 565 ("[R]ule [33] is jurisdictional, and the district
court is without discretion to grant a motion for new trial that is not
timely filed.").
We review the district court's denial of the motion for a new
trial for "manifest abuse of discretion." United States v.
Montilla-Rivera, 115 F.3d 1060, 1064 (1st Cir. 1997). Appellants do
not address the grounds on which the district court denied their
motion, i.e., that their claims of ineffective assistance are
immaterial and unlikely to result in an acquittal. Instead they argue
that given the "breadth and sophistication of the government’s case
against them" and the heavy punishment they faced, their counsel were
ineffective in failing to negotiate a favorable bargain for them in
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exchange for cooperation. While appellants may have a viable claim for
post-conviction relief, see United States v. Rodriguez Rodriguez, 929
F.2d 747 (1st Cir. 1991)--an issue on which we express no opinion--they
have failed to show error in the district court’s denial of their
motion. Nor, as appellants had not yet been sentenced at the time of
their motion, do we find error in the court’s failing to treat the Rule
33 motion as one filed pursuant to 28 U.S.C. § 2255.
II. DOWNWARD DEPARTURES UNDER § 5K2.0
In their Rule 33 motion, appellants moved in the alternative
for a downward departure. They argue that the district court should
have exercised its discretion to depart under U NITED STATES SENTENCING
GUIDELINES MANUAL (U.S.S.G.) § 5K2.0 (1998) and 18 U.S.C. § 3553(b)
because of the misconduct of their counsel on which their new trial
motion was based. The district court considered the various grounds
presented by appellants and found they did not warrant a departure.
A district court’s refusal to depart downward is not
appealable. See United States v. Tardiff, 969 F.2d 1283, 1290 (1st
Cir. 1992). Where, as here, the district court recognized that it had
discretion to depart but decided that the factors cited by appellants
did not warrant a departure, we are without jurisdiction to review its
decision.
III. ACCEPTANCE OF RESPONSIBILITY UNDER § 3E1.1
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Finally, appellants contend, on the same grounds on which
their new trial motion was based, that the district court erred in
denying them a two-point adjustment for acceptance of responsibility
under U.S.S.G. § 3E1.1(a) (1998). Acknowledging that defendants who
put the government to its proof at trial are rarely awarded such an
adjustment, they argue that they were prevented from actively
demonstrating acceptance of responsibility by trial counsel’s
obstruction. They also contend that they made substantial efforts to
cooperate after obtaining new counsel post-trial.
The adjustment for acceptance of responsibility is applicable
when "the defendant clearly demonstrates acceptance of responsibility
for his offense." U.S.S.G. § 3E1.1(a). Only in rare circumstances
will a defendant who elects to go to trial qualify for this adjustment.
See United States v. Baltas, 236 F.3d 27, 37 (1st Cir. 2001); see also
U.S.S.G. § 3E1.1(a), App. Note 2 (1998) (noting that "[i]n rare
situations a defendant may clearly demonstrate an acceptance of
responsibility for his criminal conduct even though he exercises his
constitutional right to trial"). The burden is on the defendant to
demonstrate that he or she should have received the reduction. See
United States v. Rosario-Peralta,
199 F.3d 552, 570 (1st Cir. 1999).
Here, the district court found no indication in the record of any "rare
circumstances" warranting the adjustment after appellants had put the
government to its burden of proof at trial. See
id.
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We discern no clear error in the district court’s denial.
Baltas,
236 F.3d 37. Our conclusion is reinforced by the tenor of
appellants’ allocution at sentencing which, rather than reflecting
remorse, was devoted largely to an attack on their former attorneys.
The judgment is affirmed.
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