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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12198 Non-Argument Calendar ________________________
D.C. Docket No. 1:14-cr-20221-PAS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ALEJANDRO RODRIGUEZ CUYA,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(April 25, 2019)
Before WILLIAM PRYOR, BRANCH and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 18-12198 Date Filed: 04/25/2019 Page: 2 of 17
Juan Alejandro Rodriguez Cuya appeals pro se the denial of his motion for a
new trial following his convictions for conspiracy, 18 U.S.C. § 1349, mail and wire
fraud, id. §§ 1341, 1343, and attempted extortion, id. § 1951(a), related to his and
his mother’s use of their companies in Peru and Miami, Florida, to defraud
Spanish-speaking residents of the United States. See Fed. R. Crim. P. 33.
Rodriguez Cuya argued his newly-discovered evidence established that
government witnesses Fernando Moio, Cinthya Guerrero, and Pia Silva testified
falsely at trial. The district court ruled that Rodriguez Cuya’s evidence did not
warrant a new trial and denied his request for an evidentiary hearing. We affirm.
I. BACKGROUND
We divide our background in two parts. First, we describe the scheme to
defraud and the trial testimony of Moio, Guerrero, and Silva and other evidence
that supported Rodriguez Cuya’s 26 convictions. Second, we describe Rodriguez
Cuya’s motion for a new trial and its denial by the district court.
A. Rodriguez Cuya’s Scheme to Defraud and Resulting Convictions
The government presented testimony from Rodriguez Cuya’s employees and
victims, bank records, email communications, recorded telephone conversations,
and internal business records that established Rodriguez Cuya supervised his
employees in Peru as they used scripts he had composed to extort money from
victims by demanding they pay for fabricated orders by threatening them with
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bogus lawsuits, detentions, and seizures of property. United States v. Cuya, 724 F.
App’x 720, 723–24 (11th Cir. 2018). After victims agreed to pay fictional “fees,”
their calls were routed to Miami where his mother, Luzula, and her employees
processed credit card payments. Id. at 723. Between October 2012 and January
2014, their conspiracy swindled over $2 million from more than 8,000 victims. Id.
Moio, a telecommunications engineer, contracted with Rodriguez Cuya and
Luzula to build an electronic database and telephone recording system shared by
their Peru and Miami offices. Moio described discussions he had with Rodriguez
Cuya and Luzula about the system, and he authenticated recordings of extortion
calls and customer files catalogued on the system. Moio also recounted visiting the
Peru office several times between 2010 and 2012 and observing Rodriguez Cuya in
control of its operations, which was consistent with numerous emails Rodriguez
Cuya sent identifying himself as the “Manager” of “Everglades.”
Emails Moio exchanged with Luzula corroborated his testimony about his
trips to Peru. On April 27, 2012, Luzula sent Moio an email asking “what time . . .
[he would] arrive in Lima.” On May 14, 2012, Moio sent Luzula an email that, “as
you know I remain in Lima . . . to modify[] a few errors” in the system.
Moio, who was a native of Argentina, admitted to misrepresenting that he
was Cuban. During direct examination, he testified about purchasing a fraudulent
birth certificate that identified him as a native of Cuba and that he used to remain
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in the United States and to obtain a tourist visa and a marriage license in Florida.
Moio stated during cross-examination that he had been convicted of and faced
deportation for using a fraudulent Cuban passport.
Guerrero, who was hired in July 2012 by Rodriguez Cuya to work in
Luzula’s Miami office, testified about its conversion to extortion activities by the
fall of 2012. Guerrero described how employees in the call centers that Rodriguez
Cuya managed in Lima and Cajamarca, Peru, would represent they were attorneys,
would threaten to institute legal actions against victims unless they paid a large
fine for items they had not ordered or had not received, and would relent when the
victims agreed to pay 10 to 30 percent of the fine with a credit card. Guerrero also
testified that Rodriguez Cuya and Luzula shared equal ownership of a single
company, that they talked daily using Skype or the telephone, that she overheard
Rodriguez Cuya ask Luzula for more cash to purchase customer lists, and that
Rodriguez Cuya sent emails using the assumed name Henry Ivanovich. Guerrero
also testified that Luzula sent half of the extortion proceeds to Rodriguez Cuya.
Emails that Rodriguez Cuya sent revealed the extent of his activities. For
example, on February 12, 2013, Rodriguez Cuya forwarded to Luzula a script of
“the final sales speech” in which his caller said he was from the “Legal
Notifications Department” giving notice of “a subpoena . . . [being issued] next
week from the Legal Department of your city” for a “lawsuit . . . filed against [the
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victim] for PROVEN LACK OF FULFILLMENT OF COMMITMENT” for
which was owed a “PREVENTATIVE FINE of $1714.00,” but the victim could
“file an SETTLEMENT ACTION . . . to dismiss the proceeding” by “pay[ing]
16% of [the] fine . . . through a credit, debit or prepaid card . . . .” On August
19, 2013, Rodriguez Cuya sent Luzula an email about buying customer lists. And
on July 23, 2013, Rodriguez Cuya sent an email instructing an employee to
“review the closing company speech” script and to submit “any changes.”
Guerrero stated on cross-examination that she made no legitimate sales calls
between October 2012 and December 2013. She stated that she began feeling
uncomfortable with her job between March and April of 2012, but she remained
with Luzula because she needed the income. Guerrero also stated that she secretly
cooperated in exposing the fraud.
Rodriguez Cuya attempted to impeach Guerrero with an affidavit and by
asking about her bias, but he abandoned using the affidavit. When Rodriguez Cuya
asked Guerrero whether she prepared an affidavit that did not mention seeing him
manage the Peruvian office, the government objected to a lack of foundation. The
district court advised Rodriguez Cuya that he had to authenticate the affidavit, and
he withdrew the question. Rodriguez Cuya next asked Guerrero about testifying to
avoid prosecution, and she denied being worried and said she was blameless.
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Like Guerrero, Silva testified that Luzula changed her business from sales to
extortion. According to Silva, in 2010, Luzula’s Miami office marketed natural
products through commercials that connected purchasers to sales employees in
Peru. In 2012, the Miami office began collecting payments for extortion calls made
by employees in the Peru offices who had threatened to report the victims to credit
agencies or to commence legal actions if they refused to pay by credit card for
items they had not ordered or received. Silva testified that the database and
recording system catalogued records of the victims’ accounts and related extortion
calls. She also testified that the Miami office sent half of its proceeds to the Peru
office and, by the end of 2013, 99 percent of the calls from Peru involved
extortion. Silva said that she continued to work for Luzula, even after visiting the
Peru office in December 2012 and hearing its employees make extortion calls
under the supervision of Rodriguez Cuya, and that she waited until December 2013
to resign from the Miami office because she had to pay for college. Silva testified
about intercepting emails Luzula received from Rodriguez Cuya, who used the
email address “henry-ivanovich@hotmail.es,” and about discussing the emails with
Rodriguez Cuya.
Silva stated during cross-examination that she lied to and failed to warn
victims who called the Miami office to complain. Silva also stated that she faced a
long sentence and deportation if prosecutors decided to indict her. When defense
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counsel asked Silva if she would lie to remain free, Silva responded that she
resigned because she disagreed with the extortion.
The government also presented testimony from some of Rodriguez Cuya’s
victims and corresponding extortion calls that had been stored on his recording
system. Victim Luz Padron, a nurse, testified that she purchased a belt advertised
on a Spanish-speaking television channel and that, a few months after receiving a
box containing the belt and some weight-loss pills that she had not ordered, she
received a call demanding payment for the pills to avoid a legal action. In the
recording of the call to Padron, the caller said that he was an attorney, that he had
mailed her a summons, and that she needed to appear in court with counsel and pay
a fee of $1,700, but he ultimately accepted $200 from her in settlement. The
recording of the telephone call to victim Paula Tinoco corroborated her testimony
that a caller said he was from a legal department and threatened to detain her for
failing to pay for more shipments of weight loss patches than she had ordered. In
the recording, the caller said he worked for the state legal department, he warned
her about being sued, detained, and having her property seized for failing to pay a
fine of $1,700, and she settled the matter by paying $255. In another series of
recorded calls played for the jury, Rene Gonzalez contested being double-charged
for weight-loss products and being threatened with a lawsuit, and an extortion
caller demanded a fine exceeding $2,000 for Gonzalez’s wife purchasing and
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wrongfully returning treatments and also threatened to sue Gonzalez to recover an
$800 fine ostensibly owed to the FDA for returned packages.
The jury found Rodriguez Cuya guilty of conspiring to commit mail and
wire fraud, 18 U.S.C. § 1349, nine counts of mail fraud, id. § 1341, fourteen counts
of wire fraud, id. § 1343, and two counts of attempted extortion, id. § 1951(a). The
district court sentenced him to 210 months of imprisonment. We affirmed his
convictions and sentence on appeal. Cuya, 724 F. App’x at 723–26.
B. Rodriguez Cuya’s Motion for a New Trial
While his appeal was pending, Rodriguez Cuya moved pro se for a new trial
and an evidentiary hearing. Fed. R. Crim. P. 33. He argued that newly-discovered
evidence revealed that the government had presented perjured testimony from
Guerrero, Moio, and Silva; that the falsehoods were material under Giglio v.
United States, 405 U.S. 150 (1972); and that the introduction of or failure to
correct testimony that the government knew was false violated Napue v. Illinois,
360 U.S. 264 (1959). Rodriguez Cuya contended that reports obtained from the
Peruvian government proved that Guerrero and Moio testified falsely about
traveling to that country in 2012; that Guerrero admitted during a recorded
telephone call to testifying falsely about visiting the Peru office; and that a
paycheck Luzula’s office issued in January 2014 established that Silva testified
falsely that she had resigned in December 2013. Rodriguez Cuya alleged that he
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was surprised by what he knew to be false statements from the three witnesses
during trial and later he collected evidence that proved they committed perjury.
Rodriguez Cuya identified four items as newly-discovered evidence. He
produced one-page travel reports for Guerrero and for Moio that were issued in
2016 by the Immigration National Superintendency of Peru and that stated
Guerrero and Moio last entered Peru in March 2008. Rodriguez Cuya also
produced a transcript of a telephone call that his wife made to Guerrero after trial
in which she supposedly admitted that an American coerced her to testify against
him and an affidavit from his wife stating that she called Guerrero on July 9, 2016,
“asked her why she mentioned in the trial of . . . Rodriguez Cuya, having gone to
the Everglades office,” and “[s]he answered that was not true, she never went there
(office Peru), and that her work was only in office Miami.” Rodriguez Cuya also
produced a check, which his wife discovered while inventorying Luzula’s office,
that was made payable to Silva for $548.04 on January 4, 2014, for working at the
Miami office between December 23, 2013, and January 4, 2014.
The government opposed Rodriguez Cuya’s motion and argued that an
evidentiary hearing was unnecessary. With respect to the travel reports, the
government argued that Rodriguez Cuya knew whether Guerrero and Moio had
traveled to Peru in 2012 and should have raised the subject during cross-
examination; that the reports were missing their second page, which stated, “the
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database is in the process of audit, in case of notic[ing] an imprecision, we
appreciate communicat[ing] with the General Of. Of Administration and
Finances”; and that the reports constituted impeachment material. Additionally, the
government argued that the trial record contained evidence corroborating Moio’s
travel to Peru and that Guerrero’s recorded statements were contrived, ambiguous,
and unsubstantiated and the call was inadmissible as recorded without her
permission. With regards to Silva, the government argued that Rodriguez Cuya
could have obtained the paycheck during trial, it never was deposited, and it was
immaterial.
Rodriguez Cuya filed a supplemental motion to which he attached a copy of
the entire transcript of the telephone call between his wife and Guerrero. During
the telephone call, Rodriguez Cuya’s wife asked Guerrero why she refused to
cooperate with the defense and testified falsely, and his wife suggested that
surveillance recordings would show that Guerrero had not visited the Peru office.
The transcript of this telephone call states as follows:
RCW: . . . the last time we spoke was to see if you were willing to cooperate and you never went (unintelligible)
...
G: . . . nobody ever called me . . . . But likewise I haven’t heard any more about that, moreover when I moved to Chicago I told Brian . . . It was Brian, right?
RCW: Uh. 10 Case: 18-12198 Date Filed: 04/25/2019 Page: 11 of 17
G: . . . I said to him, “Brian, look, . . . I’m not going to do anything more, so don’t count on me for anything because (unintelligible) what we knew, in brief.
RCW: . . . [my husband is] already involved in the appeal and searching for evidence . . . he mentioned, when you testified, you mentioned that you had gone to the office, to Peru . . . this could not have been true, well, right? . . .
G: Well, the truth, (unintelligible) because I don’t recall anything because the day that I went there, I don’t know what day it was, but I had to (unintelligible) they put us in a separate room and when I spoke with . . .
RCW: Right . . .
G: . . . an American, (unintelligible). He was (unintelligible), what we knew, the truth, we had to say that.
RCW: Um, because, this, well, since they’re analyzing all that for their defense . . . you know that there, in San Borja, there are cameras and all that and that according to the date . . . that you were supposedly there, eh, they’re trying to find out . . . all the movement well of that month . . . Because they’re going to analyze this because you know that his father knows how to handle things down there and all that . . . Cynthia, why did you say that? . . .
G: But I really don’t recall what I said. (unintelligible) barely what I had to be saying all that . . .
RCW: . . . But, (unintelligible), that is, I don’t know, did they require you to testify that way? Because, because if that’s that way, they’re surely going to be going at some time.
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G: And I don’t want them to be calling me . . . . I don’t know what he’s saying . . . . And another thing, let me tell you, and my boyfriend now I told him (unintelligible) . . . everything, everything that had happened.
RCW: . . . due to the appeal I looking for and collecting everything that could be used for his defense and among those thing Alex was mentioning that part, right? That you said that you went to the office and that’s not true, since you’ve never been to the office.
G: No, no, in San Borja and Peru, no. The only office that I went to was the one here in Miami.
The district court dismissed Rodriguez Cuya’s motion for lack of
jurisdiction, but after we vacated that order and remanded for further consideration,
the district court denied the motion. The district court ruled that the travel reports
and the paycheck could have been discovered with diligence, constituted
impeachment evidence, and would not have changed the outcome of Rodriguez
Cuya’s trial. The district court also ruled that Rodriguez Cuya knew of and could
have cross-examined Guerrero and Moio about their allegedly false testimony and
that the date Silva left Luzula’s employ was immaterial to the issues at trial. The
district court also rejected Rodriguez Cuya’s claim involving the telephone call
with Guerrero because “there [was] nothing in the transcript indicating that [she]
knew she was being recorded” and because “the contents of the transcript . . . at
best, is the basis for impeachment.” The district court denied Rodriguez Cuya’s
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request for an evidentiary hearing as “unwarranted” based on the evidence and the
“knowledge [it] gained from presiding over the trial . . . .”
II. STANDARD OF REVIEW
We review the denial of a motion for new trial, United States v. Isaac
Marquez, 594 F.3d 855, 860 (11th Cir. 2010), and for an evidentiary hearing,
United States v. Schlei, 122 F.3d 944, 990 (11th Cir. 1997), for abuse of discretion.
That “standard allows a range of choice for the district court, so long as that choice
does not constitute a clear error of judgment.” United States v. Frazier, 387 F.3d
1244, 1259 (11th Cir. 2004) (en banc) (internal quotation marks and citation
omitted).
III. DISCUSSION
Rodriguez Cuya raises two issues. First, he argues that the district court
should have held an evidentiary hearing to evaluate his claims of prosecutorial
misconduct because the government did not submit a responsive affidavit. Second,
Rodriguez Cuya argues that he is entitled to a new trial because the government
knowingly used perjured testimony at trial, which he proved with his newly-
discovered evidence. We address these arguments in turn.
The district court reasonably determined that an evidentiary hearing was
unnecessary. Although Rodriguez Cuya alleged prosecutorial misconduct, which
we have identified as a “unique circumstance” that may warrant an evidentiary
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hearing, United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977), he
submitted no evidence that the government suborned perjury. The district court
was equipped to evaluate the evidence that Rodriguez Cuya submitted and to rule
on his posttrial motion based on “the acumen [it] gained . . . over the course of the
proceedings . . . without a hearing.” Schlei, 122 F.3d at 994 (quoting Hamilton, 559
F.2d at 1373–74).
The district court did not abuse its discretion by discounting Rodriguez
Cuya’s arguments for a new trial based on Giglio and Napue. Even if we were to
assume that Moio, Guerrero, and Silva testified falsely, Rodriguez Cuya failed to
prove that the prosecutor knew of or “failed to correct what he subsequently
learned was false testimony” from those witnesses. See United States v. McNair,
605 F.3d 1152, 1208 (11th Cir. 2010); United States v. Agurs, 427 U.S. 97, 103
(1976). Moio’s testimony about visiting the Peru office in 2012 was corroborated
by emails Moio exchanged with Luzula. Rodriguez Cuya argues that the telephone
call established that the government coached Guerrero to lie about traveling to
Peru, but Guerrero stated that she was instructed to tell the truth and testified at
trial that she met with prosecutors twice “for them to know what she knew” and
“not for them to prepare [her] regarding the questions.” Rodriguez Cuya also
argues that his cross-examination should have alerted the prosecutor that
Guerrero’s testimony was false, but “the suggestion that [Guerrero’s] statement
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[about observing him in Peru] may have been false is simply insufficient;
[Rodriguez Cuya had to] conclusively show that the statement was actually false.”
See Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d 1292, 1313 (11th Cir. 2005).
And the prosecutor could not have known that Silva lied about the date her
employment ended when the paycheck was not listed in the company bank records
and was discovered unexpectedly in Luzula’s office.
The district court also did not abuse its discretion when it rejected Rodriguez
Cuya’s arguments for a new trial based on newly-discovered evidence. To merit a
new trial based on newly-discovered evidence, Rodriguez Cuya had to prove that
he discovered the evidence after trial, that the failure to discover the evidence
earlier was “not due to [his] lack of due diligence,” that the evidence was “not
merely cumulative or impeaching,” that the evidence was material, and that “the
evidence [was] such that a new trial would probably produce a different result.”
United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003). Rodriguez Cuya’s
failure to satisfy those elements “defeat[ed] [his] motion for a new trial.” See
United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995).
Rodriguez Cuya failed to act with due diligence to discover the reports. See
United States v. Champion, 813 F.2d 1154, 1171 (11th Cir. 1987) (observing that
appellant “offered very little . . . explanation” why he failed to discover the new
evidence earlier). Rodriguez Cuya alleged that he knew during trial that Moio and
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Guerrero testified falsely. Because the travel reports were available through a
public website, Rodriguez Cuya could have obtained and used the reports to cross-
examine Moio and Guerrero. Moreover, with respect to Moio, the travel report was
nothing “more than impeachment evidence” to the extent it conflicted with his
testimony and the emails he and Luzula sent in 2012 about his presence in Peru.
Guerrero’s recorded statements also were, “at best, . . . the basis for
impeachment,” and were unlikely to “result[] in a different outcome at trial.”
Guerrero stated during the recorded telephone call that she did not go to the office
in Peru, but most of her trial testimony that Rodriguez Cuya managed the Peruvian
office was based on her familiarity with the hierarchy of the company and her
knowledge of emails that Rodriguez Cuya sent Luzula and of conversations she
overheard between the two of them. See id. (“Newly discovered impeaching
evidence is insufficient to warrant a new trial.”). Even if Rodriguez Cuya had
impeached Guerrero’s testimony about observing him manage the Peru office, that
impeachment would not have tipped the balance of the evidence to call into
question the jury’s verdicts. See United States v. Reed, 887 F.2d 1398, 1404–05
(11th Cir. 1989). The government presented numerous emails, business and bank
records, and recorded telephone conversations that established Rodriguez Cuya’s
managing role in the scheme to extort. Furthermore, Silva testified about traveling
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several times to Peru where she saw Rodriguez Cuya supervising the call center
employees, and he does not challenge her testimony.
The district court also did not abuse its discretion in determining that Silva’s
paycheck was not material to the issues at trial. Rodriguez Cuya argues that Silva’s
paycheck proved that she did not genuinely object to the extortion, but Rodriguez
Cuya explored Silva’s culpability and motives on cross-examination. See United
States v. Jones, 601 F.3d 1247, 1266–67 (11th Cir. 2010). And nothing about the
paycheck calls into question Silva’s testimony about the role Rodriguez Cuya
played in the extortion. See United States v. Taohim, 817 F.3d 1215, 1223 (11th
Cir. 2013).
IV. CONCLUSION
We AFFIRM the denial of Rodriguez Cuya’s motion for a new trial.