GREENBERG, Circuit Judge.
This matter comes on before this Court on appeal from judgments of conviction and sentence entered against two defendants in the District Court in which the government's case relied heavily on the testimony of an undercover informant. After the jury found defendants guilty at the trial, a state grand jury indicted the
German Quiles and Maria Quiles, husband and wife, owned Aruba, Inc., a money-servicing business operating as "Aruba Check Cashing and Auto Tags" in North Philadelphia.
In July of 2006, the government began an investigation into possible money laundering at Aruba Check Cashing. Immigration and Customs Enforcement Special Agent Steven Galambos, who relied on an undercover informant named Hector Ayala, led the investigation. Galambos instructed Ayala to enter Aruba Check Cashing and identify himself as a drug dealer's assistant who needed money laundered, making sure to ask for the name of the employee assisting him. For each visit, Galambos gave Ayala a bag full of small bills and told Ayala to request large bills, money orders, and wire transfers. Ayala could offer up to 10% of the money that Aruba was laundering as a "fee" in exchange for the laundering. After he exited the store, Ayala told Galambos what occurred, and Ayala's recitation would be confirmed by a recording device that Galambos had concealed inside Ayala's jacket or pants pocket. Ayala turned over the newly laundered bills, money orders, and wire transfer receipts to Galambos.
Operating under Galambos's instructions, Ayala entered Aruba Check Cashing as a confidential informant 30 different times.
After the government concluded its investigation, a grand jury charged German Quiles, Maria Quiles, and Gloria Quiles with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) (Count One) and 16 separate acts of money laundering or aiding and abetting money laundering in violation of 18 U.S.C. §§ 2, 1956(a)(3) (Counts Two through Seventeen). Defendants pled not guilty and the case proceeded to a jury trial.
At trial, the government's case rested primarily on the testimony of three witnesses. The first witness, IRS employee Ted Cunningham, explained the money laundering requirements that applied to Aruba Check Cashing. Galambos was the second witness and he recounted the details of his investigation and his interactions with the undercover informant. Galambos, however, could not testify about most of what had occurred inside of Aruba Check Cashing because he remained outside the business during Ayala's excursions. The government called Ayala as the third of these witnesses. Ayala described his actions and gave a step-by-step analysis of the events that his hidden device recorded. For example, Ayala explained where he was standing in the store and identified the voices heard on the recordings. He also testified to non-verbal actions that defendants took, such as smiling or nodding, and to unrecorded conversations such as his introduction to German Quiles at which Ayala explained that he was there to launder drug money.
It is obvious that Ayala's testimony was essential to the government's case. Without his explanations, the secret recordings would have been barely usable snippets of sounds and partial conversations. Understandably, therefore, defendants built their strategy around discrediting Ayala. Thus, in his opening statement, the attorney for German Quiles told the jury they would see an informant "run amok," by accusing innocent people in order to get paid. App. at 260. The government, in contrast, stated that Ayala had worked as a confidential informant for over 20 years, doing "good, old fashioned" undercover work. Id. at 252. The trial focused on this chasm.
The jury returned its verdict on January 17, 2008, convicting German Quiles and Maria Quiles on all the counts charged. The jury, however, found Gloria Quiles not guilty of conspiracy to commit money laundering (Count One) and of ten specific acts of money laundering (Counts Two through Eleven). But it convicted her of the remaining six specific acts of money laundering (Counts Twelve through Seventeen). Defendants moved for a judgment of acquittal or a new trial but the District Court denied their requests on August 13, 2008, in an order entered on August 14, 2008. United States v. Quiles, No. 07-391, 2008 WL 3561618 (E.D.Pa. Aug.13, 2008).
Soon after the District Court denied defendants' post-trial motions for acquittal or
The District Court then sentenced defendants. The Court calculated a guideline sentence for German Quiles of 78 to 97 months based on a guideline offense level of 28 and a criminal history category of I. German Quiles, however, requested leniency, contending that he had led an exemplary life, worked for many years, served in the national guard and in public office, and was 70 years old and infirm. The government, in contrast, emphasized that money laundering is necessary for drug dealing to survive, a fact German Quiles apparently understood. On February 25, 2009, the District Court sentenced German Quiles to a custodial term of 60 months to be followed by three years of supervised release and it imposed a $100,000 fine on him. The Court subsequently sentenced both Maria Quiles and Gloria Quiles to terms of five years on probation with six months of home confinement.
German Quiles and Gloria Quiles now appeal to this Court asking us to reverse the District Court's order of February 24, 2009, denying their Rule 33 motions for a new trial. In addition, Gloria Quiles argues that the evidence was not sufficient for her conviction and asks us to reverse the District Court's order of August 13, 2008, denying her motion for a judgment of acquittal. Finally, German Quiles argues that the sentence the Court imposed on him on February 25, 2009, was procedurally and substantively unreasonable. We now will refer to German Quiles and Gloria Quiles as "appellants," excluding Maria Quiles who has not appealed.
The District Court had jurisdiction because the indictments charged violations of federal criminal law. 18 U.S.C. § 3231. We have jurisdiction because appellants filed timely notices of appeal after their conviction and sentencing. 28 U.S.C. § 1291; 18 U.S.C. § 3742(a).
Rule 33 provides that a district court "may vacate any judgment and grant a new trial if the interest of justice so requires." There are five requirements that must be met before a court may grant a new trial on the basis of newly discovered evidence:
United States v. Saada, 212 F.3d 210, 216 (3d Cir.2000) (quoting Government of the Virgin Islands v. Lima, 774 F.2d 1245, 1250 (3d Cir.1985)).
When the District Court denied appellants' motions for a new trial on February 24, 2009, it gave two reasons for its decision. First, the Court said that the newly discovered evidence regarding Ayala would not produce an acquittal during a new trial because it would not be admissible.
We think that we should focus on the District Court's second reason for denying the new trial because its first reason has lost some of its persuasive power inasmuch as five months after the District Court issued its February 24, 2009 opinion denying a new trial, a state jury convicted Ayala of the offenses charged against him.
A determination of whether it should grant a new trial is left to the discretion of a district court. United States v. Cimera, 459 F.3d 452, 458 (3d Cir.2006). Accordingly, we normally review a district court's determination of a new trial motion under the deferential "abuse of discretion" standard. United States v. Brown, 595 F.3d 498, 511 (3d Cir.2010) ("We will reverse a denial of a Rule 33 motion for a new trial based on newly discovered evidence only if we conclude that the district court abused its discretion in denying the motion."). At certain points, however, the District Court suggested that it was bound as a matter of law to deny appellants' Rule 33 motions. See Quiles, 2009 WL 466283, at *2, 4 (noting the "requirements" of Saada and then denying defendants' motions because "the plain language" of Saada required it to do so). Also, when ruling on a later motion to stay appellants' sentences pending appeal, the District Court referred to its earlier Rule 33 decision and stated, "[t]he Court's exercise of discretion ... in ruling on the defendant's Rule 33 Motion, was cabined by controlling precedent—the Federal Rules of Evidence and Third Circuit case law." United States v. Quiles, No. 07-391, 2009 WL 764306, *5 (E.D.Pa. Mar. 23, 2009). To the extent that we are reviewing a legal rather than discretionary decision of the District Court, we will apply a de novo standard of review. But the distinction between the two standards of review makes no difference on this appeal because we would affirm the District Court exercising complete de novo review.
Appellants say that they are not relying on mere impeachment evidence in seeking a new trial and thus our opinion in Saada that we quote above does not require that we deny them a new trial. Rather, they point out that when the government hired Ayala as a confidential informant he signed several statements acknowledging limitations on his conduct, including one reciting that he was "not permitted to violate any laws." Supp.App. 1536-43.
We agree with appellants that in certain unusual circumstances a court should not deny a new trial that a defendant seeks on the basis of newly discovered evidence merely because the evidence is impeaching in character. In stating our limited agreement with appellants we observe that Rule 33(a) as written permits courts to grant a new trial when the interest of justice requires it and does not distinguish between newly discovered circumstantial and direct evidence as a basis for granting such a motion. Yet we recognize that notwithstanding Rule 33's language, there are opinions that say that a court should not grant a motion for a new trial on mere impeachment evidence. But these cases do not seem to give enough significance to the wording of Rule 33 which, as we have indicated, makes clear that the interest of justice guides the courts on deciding Rule 33 motions and does not suggest that a court should distinguish between impeachment and direct evidence in making that determination. Accordingly, it is not surprising to find that the court in United States v. Taglia, 922 F.2d 413 (7th Cir. 1991), indicated that the statements that a new trial should not be granted on the basis of newly discovered impeachment evidence cannot
Id. at 415-16.
We agree with this statement from Taglia and we do not believe that Saada requires us to reject it. District courts do not and should not ignore a claim that there has been a miscarriage of justice just because the newly discovered evidence supporting the claim could be categorized as impeachment in character. Taglia is not alone in recognizing this point. E.g., United States v. Davis, 960 F.2d 820, 825 (9th Cir.1992) ("In some situations ... the newly-discovered impeachment evidence may be so powerful that, if it were to be believed by the trier of fact, it could render the witness' testimony totally incredible."); United States v. Leary, 378 F.Supp.2d 482, 492 (D.Del.2005) ("[T]here is precedent indicating that impeachment evidence alone may sometimes be a basis
At the same time long experience has shown that newly discovered evidence that is merely impeaching is unlikely to reveal that there has been a miscarriage of justice. There must be something more, i.e. a factual link between the heart of the witness's testimony at trial and the new evidence. This link must suggest directly that the defendant was convicted wrongly. See Saada, 212 F.3d at 216 (describing this link as a necessary "exculpatory connection"). When this connection is not present, then the new evidence is merely impeaching and its revelation does not warrant granting a new trial.
When asked to grant a new trial solely on the basis of new impeachment evidence, a court carefully should examine whether the defendant has demonstrated the necessary exculpatory connection between the evidence and the offense or has demonstrated that the newly discovered evidence totally undermined critical inculpatory evidence. And courts, in practice, have done so. In Lipowski the prosecution relied on several tape recordings that the primary government witness had made. After the trial, it was discovered that the witness, in effect, had manufactured a tape recording that threatened him and that he intended the threats to be attributed to an unknown person. While this evidence did not prove that the defendants had been convicted wrongly, and in any event was not used at the trial, the court found it had "serious implications regarding the truth and veracity of [the witness's] testimony" and the evidence "casts serious doubt over the authenticity of the tapes introduced into evidence." Lipowski 423 F.Supp. at 867-68.
Similarly, in Taglia the key government witness was an FBI informant. After the jury convicted the defendants, it was discovered that the informant had given false testimony in an earlier case. The court of appeals in limiting earlier cases indicating that a new trial cannot be granted on the basis of newly discovered impeachment evidence, stated that a trial court has discretion to grant a new trial when it is shown that the witness "lied consistently in a string of previous cases." Taglia, 922 F.2d at 415. And in Davis, a jury convicted the defendants on drug charges in part on the basis of testimony of an undercover police officer. Some months later the same officer was convicted of stealing drug money that the government had confiscated as evidence. The court in Davis said that "[i]f newly-discovered evidence establishes that a defendant in a narcotics case has been convicted solely on the uncorroborated testimony of a crooked cop involved in stealing drug money, the `interest of justice' would support a new trial under Rule 33." Davis, 960 F.2d at 825.
In each of the cases that we have described, the courts focused on what we believe was the correct question: was there a strong exculpatory connection between the newly discovered evidence and
The facts in these three cases can be contrasted with those in Saada. In Saada, a witness named Rishty agreed to testify for the government pursuant to a cooperation agreement. Rishty later was caught on tape advising a friend to give false testimony in exchange for a reduced sentence. Obviously, this new information cast doubt on Rishty's testimony. If he had been willing to advise a friend to give false testimony in exchange for leniency, would he not take his own advice? Nonetheless, we found that the new evidence offered in Saada was "only" impeaching, because there was "no exculpatory connection" between the new evidence and defendants' criminal acts. 212 F.3d at 216. Even though the new evidence greatly undermined Rishty's credibility, we felt that the exculpatory connection between Rishty's testimony and his advice to a friend in an unrelated case was too tenuous to require granting a new trial.
We do not cite the preceding examples in an attempt to define the exact "exculpatory connection" required.
In considering Saada we observe that we could not have intended to hold that evidence germane only for impeachment purposes never could be the basis for granting a new trial.
In the District Court, appellants argued that the jury never would have believed Ayala if it had known he was a convicted child rapist. See Mills v. Estelle, 552 F.2d 119, 120 (5th Cir.1977) (convictions show that the witness is unlikely to have the normal witness's respect for the necessity of giving truthful testimony because of his obvious disrespect of the law). Appellants' argument made it clear that their newly discovered evidence was mere impeachment evidence and thus, by definition, it is not a sufficient basis for a new trial.
In their appellate briefs and at oral argument, appellants wisely attempt to focus on the negative effect that the new evidence has on Ayala's credibility and, therefore, on his critical testimony.
Notwithstanding appellants' arguments, we find that critical evidence has not been so severely weakened as to justify granting a new trial. Ayala has testified as a confidential informant in three other cases. If it was shown that he committed blatant perjury in these other cases then there
Appellants are not entitled to a new trial merely because the principal witness adverse to them has turned out to be a vile person. A practice supporting the granting of a new trial when such a post-trial showing is made would not be workable. How bad would the witness's unrelated conduct have to be before a new trial should be granted? What if Ayala had been stealing cars instead of raping children? For this reason, appellants here and defendants generally are not entitled to a new trial solely on the basis of newly discovered impeachment evidence. However, if there is a strong exculpatory connection between the newly discovered impeachment evidence and the charge against the defendant, or if the new evidence totally undermines critical evidence of the defendant's guilt, then the newly discovered impeachment evidence can serve as the basis for a new trial. But impeachment evidence which lacks this connection—evidence that is merely impeaching without an exculpatory connection with respect to the charge against the defendant or without undermining critical inculpatory evidence—will not suffice. Whether our standard of review is de novo or abuse of discretion, the evidence in this case is merely impeaching. Therefore, the District Court correctly denied appellants' motion for a new trial.
When evaluating a challenge to a jury's verdict, we apply a particularly deferential standard of review. United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998). We do not re-weigh the evidence or assess the credibility of witnesses. Id. (citing United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996)). Instead, we view the evidence in the light most favorable to the government before deciding whether any rational trier of fact could have found the presence of the essential elements of the crime beyond a reasonable doubt. Id. (citing United States v. Thomas, 114 F.3d 403, 405 (3d Cir.1997)). In this case, our standard of review requires that we view Ayala as a credible witness.
Inasmuch as the jury acquitted Gloria Quiles on the conspiracy charge (Count One) we examine evidence of her personal involvement in every transaction of which she was convicted. The evidence shows that Ayala spoke with Gloria Quiles on October 19, 2006, and on December 6, 2006. On both occasions, Ayala told Gloria Quiles that he was there to launder drug money. For reasons that we do not know
The audio tapes confirm that Gloria Quiles was present for transactions with Ayala on December 6 (Count Twelve), December 7 (Count Thirteen), December 8 (Count Fourteen), January 11 (Count Sixteen), and January 12 (Count Seventeen). Although her interaction with Ayala may have been minimal on some of these days, she knew Ayala was laundering drug money and, by processing his transactions, she was helping the venture to succeed and was participating in it. See United States v. Moses, 220 F.2d 166, 169 (3d Cir.1955) ("In order to aid and abet another to commit a crime it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.") (quoting Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769-70, 93 L.Ed. 919 (1949)) (internal quote omitted).
The government acknowledges that on two of these occasions Gloria Quiles told Ayala that he had to return later if he wanted to complete his transaction. When Ayala did return, someone else completed the money laundering transaction. However, because Gloria Quiles knew that Ayala was there to launder money, her admonition to Ayala to return later was sufficient to support her conviction for aiding and abetting. In short, she knew what Ayala was doing and sought by her actions to help him succeed. On those days when Gloria Quiles performed the transactions herself, she structured them to avoid money laundering requirements.
With respect to the transaction on January 10 (Count Fifteen) the evidence suggested that Gloria Quiles was at Aruba Check Cashing, but did not interact with Ayala that day. However, Ayala was unable to complete the transaction that day and had to return the next day. When Ayala returned, Gloria Quiles spoke to him about the money he had left the previous day. This conduct was sufficient to show that she had involved herself in the January 10 transaction after Ayala departed.
We see no basis to conclude that a reasonable juror could not have voted to convict Gloria Quiles on the facts presented at trial. Viewing the evidence in the light most favorable to the government, we cannot overturn the jury's verdict. Thus, we will affirm Gloria Quiles's conviction in full.
German Quiles challenges the procedure used to arrive at his sentence. He argues that the Court failed to consider evidence suggesting that a lower sentence would have been appropriate and failed to justify the sentence that it imposed. See 18 U.S.C. § 3553(c) (court should state the reasons for its imposition of a particular sentence). But the record demonstrates that the Court was involved closely at every stage of the trial and sentencing. The
Next, German Quiles argues that the District Court failed to explain why he was sentenced to prison while his wife and daughter were not.
German Quiles also challenges his sentence as substantively excessive. When a district court imposes a sentence after a procedurally sound review, a court of appeals will consider the sentence imposed under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We cannot say that German Quiles's below-guideline sentence was beyond the discretion of the District Court here.
We have considered whether newly discovered impeachment evidence, standing alone, can be the basis for a new criminal trial, assuming all the other requirements of Rule 33 are met. We have concluded that it can be in situations in which the evidence is more than merely impeaching or in which it severely undermines the credibility of a crucial government witness whose testimony was essential to the government's case. Thus, there must be an exculpatory connection between the new impeachment evidence and the witness's testimony at trial or the impeachment evidence must undermine critical trial testimony. When those connections are missing, as they are here, or the impeachment evidence is less significant, as it is here, the newly discovered evidence is merely impeaching and a new trial should not be granted on its basis. For this reason, we will affirm the District Court's order entered on February 25, 2009, denying a new trial. We also will affirm the order entered on August 14, 2008, denying appellant Gloria Quiles's motion for a new trial. Viewing the evidence in the light most favorable to the government, there was
