United States v. Ortega

842 F. Supp. 48, 1994 U.S. Dist. LEXIS 1028, 1994 WL 29995
CourtDistrict Court, D. Connecticut
DecidedJanuary 19, 1994
DocketCrim. No. 3-92-92 (WWE)
StatusPublished
Cited by1 cases

This text of 842 F. Supp. 48 (United States v. Ortega) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ortega, 842 F. Supp. 48, 1994 U.S. Dist. LEXIS 1028, 1994 WL 29995 (D. Conn. 1994).

Opinion

RULING ON DEFENDANT’S MOTION FOR A NEW TRIAL

EGINTON, Senior District Judge.

On December 2, 1993, Defendant, Pablo Ortega, was convicted, after a jury trial, of (1) conspiracy to possess with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and (2) possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). Defendant has moved for a new trial pursuant to Fed. R.Crim.P. 33 on the basis of newly discovered evidence, i.e., evidence that a government witness committed perjury in the course of defendant’s trial.

BACKGROUND

Richard Morales is a former drug dealer who once sold as much as 10 to 15 kilograms of cocaine per week. Morales has a criminal history that involves felony drug convictions. Recently, Morales pleaded guilty to charges of drug distribution. As part of his plea agreement, Morales agreed to cooperate with the government in the investigation and prosecution of the drug crime at issue.

In October and November of 1992, Morales and Juan Medrano arranged a drug deal involving the sale of one kilogram of cocaine. The drug deal was to be consummated on November 19, 1992, at Medrano’s apartment in New Haven, Connecticut. According to the plan, Medrano would receive the cocaine from New York. Throughout this drug transaction, Morales was cooperating with FBI Special Agent John Kavanagh who testified at trial. Because of Morales’ cooperation, investigating authorities were able to closely monitor the activity at issue.

On November 19,1992, Special Agent Kavanagh conducted surveillance of Medrano’s apartment. In cooperation with the investigation, Morales proceeded to Medrano’s apartment to see if the cocaine had arrived from New York. Because Medrano had not yet received the cocaine, Morales left the apartment and reported back to the Special Agent. Thereafter, defendant pulled up to Medrano’s residence in Medrano’s car. Defendant and Medrano met on the porch of the residence and then entered the apartment.

Morales was instructed to re-enter Medrano’s apartment. After a brief exchange with defendant and Medrano, Morales left the apartment under the guise that he needed to get money. Morales again reported to the special agents and informed them that defendant had arrived with the expected kilogram of cocaine.

Agents of the DEA, the FBI, and the Statewide Narcotics Task Force entered Medrano’s apartment with a search warrant. The search uncovered a myriad of evidence indicating that a drug deal had been in progress immediately before the search. The agents found Medrano in the bathroom along with a bag of cocaine in the bathtub. The [50]*50bag had a hole in it indicating that the cocaine may have been sampled. Confirming this suspicion, the agents found a set of keys, on which they found cocaine residue. Underneath the keys, they found a brown bag on which appeared a finger print of the defendant.

In addition, the investigating authorities found that defendant and Medrano each had telephonic devices known as “beepers.” Defendant’s beeper number was found in Medrano’s wallet. Likewise, Medrano’s number was found among defendant’s personal belongings.

MORALES’ TESTIMONY

At trial, the government called Morales as a witness. Morales testified that, on November 19, 1992, he entered Medrano’s apartment. Defendant had just arrived with a brown bag from which he removed a package of cocaine. Morales testified that he observed Medrano use a key to cut into the package of cocaine and dig out a sample.

In the course of his testimony, Morales revealed the substance of his plea and cooperation agreement with the government. He testified that his sentence might ultimately reflect his cooperation with the government. Furthermore, Morales acknowledged his pri- or felony convictions. He also stated that he had used cocaine on two or three occasions in violation of his agreement with the government and that the government did not seek to void the agreements as a result of his drug use.

Critical to the instant motion, Morales testified that he had not used cocaine since July, 1998. However, shortly after trial, the Pretrial Services Office issued a report regarding a test on a urine specimen taken from Morales on November 17, 1993. The report indicated that Morales had used cocaine in November, 1993, in blatant contradiction of his testimony to the jury. The government promptly disclosed the information to defense counsel. This motion ensued.

DISCUSSION

Defendant has moved for a new trial pursuant Rule 33. In defendant’s view, a new trial is warranted because, unbeknownst to the jury, Morales committed perjury when he testified that he had not used drugs since July, 1993.

Rule 33 provides that “[t]he court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice.” A court will grant a new trial only “in the most extraordinary circumstances.” United States v. Locascio, 6 F.3d 924, 949 (2d Cir.1993); United States v. Spencer, 4 F.3d 115, 118 (2d Cir.1993). Generally, when new evidence is at issue, a new trial is warranted if the new evidence would probably lead to an acquittal. United States v. Imran, 964 F.2d 1313, 1318 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 626, 121 L.Edüd 558 (1992).

If new evidence concerns the false testimony of a government witness, the court must initially determine whether the government was aware or should have been aware of the perjured testimony. If the government knew or should have known of the witness’ perjury, a new trial is required “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976); United States v. Wallach, 935 F.2d 445, 456 (2d Cir.1991). If the government was unaware of a witness’ perjury at trial, the standard differs markedly. In such cases, a new trial is not required unless the court determines that “but for the perjured testimony, the defendant would most likely not have been convicted.” Sanders v. Sullivan, 863 F.2d 218, 226 (2d Cir.1988).

In the present case, the government was unaware of Morales’ perjury until after the jury rendered its verdict. Six days after the jury’s verdict, on December 8, 1993, Pretrial Services reported the results of Morales’ urinalysis.

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Related

United States v. Ortega
43 F.3d 1459 (Second Circuit, 1994)

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Bluebook (online)
842 F. Supp. 48, 1994 U.S. Dist. LEXIS 1028, 1994 WL 29995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ortega-ctd-1994.