United States v. Carlos Rodriguez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 15, 2016
• Docket: 15-15551
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 15-15551 Non-Argument Calendar ________________________

D.C. Docket No. 1:09-cr-21010-JEM-2

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

CARLOS RODRIGUEZ, Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(December 15, 2016)

Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM: Case: 15-15551 Date Filed: 12/15/2016 Page: 2 of 9

Carlos Rodriguez appeals the denial of his motion for a new trial based on

newly discovered evidence. After careful review, we affirm the district court’s

denial of Rodriguez’s motion as time-barred.

I.

This Court outlined the facts underlying Rodriguez’s convictions in a

previous opinion affirming his convictions on direct appeal. See United States v.

Esquenazi, 752 F.3d 912 (11th Cir. 2014). We summarize those facts here to the

extent necessary to decide this appeal. Rodriguez was the minority owner and

executive vice president of operations of Terra Telecommunications Corp.

(“Terra”), a Florida company that bought phone time from foreign vendors for

resale in the United States. Id. at 917. In 2001, Terra bought phone time from

Telecommunications D’Haiti (“Teleco”), a telephone company owned by the

Haitian government. Id. at 917–18. Terra owed Teleco over $400,000 by October

2001. Id. at 918. Antonio Perez (Terra’s comptroller) testified at trial that Joel

Esquenazi (Terra’s president and chief executive officer) asked him to contact

Teleco to either negotiate a deal reducing Terra’s obligations or offer a side

payment. Id. at 917–18. Robert Antoine (Teleco’s director of international

relations at the time) agreed to accept side payments in exchange for reducing

Terra’s debt and “suggested that Terra disguise the payments by making them to

sham companies.” Id. Perez went on to testify that he informed Esquenazi,

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Rodriguez, and James Dickey (Terra’s general counsel) of the side-payment

scheme during a meeting, and that both Dickey and Rodriguez congratulated him

on a “job well done.” Id. 917–18.

In November 2001, Terra began funneling payments to Antoine through J.D.

Locator, an otherwise insolvent company owned by Antoine’s friend, Juan Diaz.

Id. at 918–19. Rodriguez and Esquenazi authorized payments to J.D. Locator

using check requests, which allowed Terra to write checks without invoices. Id. at

919. Diaz testified that these payments were not for legitimate services and that

the money was actually disbursed to Antoine. Id. Then, in 2003, Antoine was

replaced by Jean Duperval. Terra continued to make side payments to Duperval

through Telecom Consulting Services Corporation (“TCSC”), a shell company

Esquenazi helped Duperval create. Id.

A grand jury indicted Rodriguez on twenty-one counts. Count 1 charged

Rodriguez with conspiracy to violate the Foreign Corrupt Practices Act (“FCPA”)

and commit wire fraud by bribing foreign officials Antoine and Duperval, all in

violation of 18 U.S.C. § 371. Counts 2 through 8 charged seven substantive

violations of the FCPA. Each corresponded to a different payment made to

Duperval. Count 9 charged a conspiracy to launder money by concealing and

disguising the bribes through intermediary shell corporations in violation of 18

U.S.C. § 1956. And Counts 10 through 21 charged substantive money laundering

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violations of 18 U.S.C. § 1956(a)(1)(B)(i) involving payments to Duperval hidden

through payments to TCSC. In August 2011, a jury convicted Rodriguez of all

charges. The district court sentenced Rodriguez to 84-months imprisonment.

This Court affirmed Rodriguez’s convictions on direct appeal. See

Esquenazi, 752 F.3d at 917. Relevant to this appeal, Rodriguez raised a challenge

in his direct appeal to a deliberate-ignorance jury instruction. He argued the

evidence at trial showed he did not know about Terra’s illegal activity. Id. at 930.

This Court held that the district court erred in including the jury instruction but that

any error was harmless because of the “overwhelming evidence” that Rodriguez

had actual knowledge he was authorizing unlawful payments. Id. at 931. In

describing this “overwhelming evidence,” we noted Perez’s testimony that

Rodriguez had congratulated him on a job well done when informed of the deal,

and we highlighted the fact that Rodriguez had authorized many payments to J.D.

Locator and TCSC. Id.

On May 18, 2015, Rodriguez filed a motion for a new trial based on newly

discovered evidence pursuant to Federal Rule of Criminal Procedure 33. The new

evidence was a sworn and notarized affidavit from Dickey stating that Dickey

never attended a meeting at Terra or anywhere else in which bribes were discussed.

Rodriguez argued the affidavit demonstrated the evidence the government relied

on to establish the knowledge elements of his convictions did not exist. Thus,

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there was a reasonable likelihood that the affidavit would have impacted the jury’s

judgment. Rodriguez also argued Dickey’s affidavit showed he was actually

innocent because it refuted the claim he was present at meetings where bribes were

discussed. He asserted he was entitled to a new trial based on his claim of actual

innocence.

The district court denied Rodriguez’s motion for a new trial because it was

time-barred and because the new evidence went only to impeaching a witness.

Rodriguez filed a motion for reconsideration, which the district court denied. This

appeal followed.

II.

Rodriguez argues on appeal that his motion for new trial is not time-barred.

His argument has two parts. First, he asserts his motion is timely because it

contains a claim of actual innocence. Second, he argues equitable tolling should

apply to extend the time for filing his motion. We review the denial of a motion

for a new trial for an abuse of discretion. United States v. Isaacson, 752 F.3d 1291,

1308 (11th Cir. 2014). We also review the denial of a motion for reconsideration

for an abuse of discretion. Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir.

2010) (per curiam).

The Federal Rules of Criminal Procedure permit the district court to grant a

new trial if the interests of justice require one. Fed. R. Crim. P. 33(a). A

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defendant has three years after the verdict to file a Rule 33 motion if it is based on

newly discovered evidence. Fed. R. Crim. P. 33(b)(1). Rodriguez did not file his

motion until May 2015, almost four years after his August 2011 convictions. He

therefore does not fall within the three-year window provided by Rule 33. The

Supreme Court has told us that Rule 33’s time limitations are not jurisdictional, but

it has also said that they are “admittedly inflexible” because of Federal Rule of

Criminal Procedure 45(b)’s “insistent demand for a definite end to proceedings.”

Eberhart v. United States, 546 U.S. 12, 19, 126 S. Ct. 403, 407 (2005) (per

curiam).

Rodriguez’s argument that his motion is timely because it contains a claim

of actual innocence cannot overcome the Rule 33 hurdle. Assuming the actual-

innocence exception applies to Rule 33 time limitations, a movant can invoke the

exception only by showing that, in light of the new evidence, “it is more likely than

not that no reasonable juror would have convicted [him].” McQuiggin v. Perkins,

569 U.S. ___, 133 S. Ct. 1924, 1933 (2013) (quotation omitted). Rodriguez has

not made such a showing. Rodriguez says the new affidavit invalidated Perez’s

trial testimony about Perez informing Rodriguez and others about the bribery

scheme during a meeting, and Rodriguez’s congratulations of Perez on a job well

done. He argues Perez’s testimony was the only evidence of his knowledge of the

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bribery scheme, so if Dickey’s testimony had been presented at trial, it is likely

that no reasonable juror would have convicted him on any count.

But Perez’s testimony was not the only evidence of Rodriguez’s knowledge.

As this Court recognized on direct appeal, there was “overwhelming evidence” that

Rodriguez knew he was authorizing unlawful payments. See Esquenazi, 752 F.3d

at 931. Aside from Perez’s testimony there was: (1) evidence that Rodriguez had

authorized many payments from Terra to J.D. Locator and TCSC, see id.; (2)

testimony that Rodriguez paid close attention to Terra’s finances and took the

“unusual” step of authorizing payments to J.D. Locator and TCSC without backup

documentation or invoices; and (3) testimony that Rodriguez instructed a Terra

accountant to use Teleco’s vendor code on check requests for payments to J.D.

Locator, which suggests Rodriguez attempted to conceal the true nature of the

payments in Terra’s books. Because Perez’s testimony was only one piece of the

“overwhelming evidence” showing Rodriguez knew about the bribery scheme,

Rodriguez has not shown a sufficient likelihood that no reasonable juror would

have convicted him in light of his new evidence. He therefore cannot take

advantage of any actual-innocence exception to Rule 33’s time bar.

Neither can Rodriguez’s equitable tolling argument get him past the time

bar. Rodriguez is entitled to equitable tolling only if he shows “(1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstance

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stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631,

649, 130 S. Ct. 2549, 2562 (2010) (quotation omitted). In his briefs, Rodriguez

says he pursued an affidavit from Dickey for a year and was prevented from

getting it earlier because Dickey was concerned about incriminating himself. Even

taking these allegations as true, they are not enough to show that Rodriguez

diligently pursued the affidavit. At the time of trial, Rodriguez knew who Dickey

was—Dickey’s affidavit refers to a meeting for which Rodriguez was present.

And if Perez had in fact presented false testimony about the meeting at trial,

Rodriguez would have known then to look for ways to rebut or impeach Perez’s

testimony. However, Rodriguez says he tried to get an affidavit from Dickey for a

year before he eventually got it. This means he did not start pursuing the affidavit

until more than two years after he was convicted. On this record, Rodriguez has

not met his burden of showing he exercised reasonable diligence in obtaining

Dickey’s affidavit. He is therefore not entitled to equitable tolling.

III.

Rodriguez also argues the district court erred by (1) concluding his newly

discovered evidence was merely impeaching; (2) denying his motion for a new

trial even though he had a valid claim based on Giglio v. United States, 405 U.S.

150, 92 S. Ct. 763 (1972); (3) denying his motion for a new trial without

conducting an evidentiary hearing; and (4) denying his motion for reconsideration.

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Because we affirm the district court’s denial of Rodriguez’s motion for a new trial

as time-barred, we need not and do not rule on these claims.

AFFIRMED.