The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER DENYING DEFENDANT'S
MOTION FOR NEW TRIAL AND/OR
JUDGMENT OF ACQUITTAL
On February 1, 2012, Ramiro Hernandez was convicted by a jury of conspiracy to distribute and posses methamphetamine, possession of methamphetamine, and attempted possession of methamphetamine. He now seeks a new trial pursuant to Rule 33(a) of the Federal Rules of Criminal Procedure. In the alternative, he seeks a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure.
Hernandez argues that a new trial is warranted because he was deprived of his Sixth Amendment right of confrontation when, at trial, a Drug Enforcement Administration agent testified about statements made by a witness who had refused to testify, and when an expert witness for the United States did not answer a question asked on cross-examination. Hernandez argues that acquittal is alternatively appropriate because the evidence presented at trial was insufficient to sustain his conviction.
Hernandez raised each of these arguments at trial. For the same reasons this court rejected his arguments at trial, the court denies Hernandez's present motion.
Hernandez was convicted of (1) conspiracy to distribute
and possess with the intent to distribute 50 grams or more of methamphetamine, its salts, isomers and salts of its isomers; (2) possession with intent to distribute of 50 grams or more of methamphetamine, its salts, isomers and salts of its isomers; and
(3) attempted possession with intent to distribute of 50 grams or more of methamphetamine, its salts, isomers and salts of its isomers.
At trial, the United States presented evidence showing that Hernandez was involved in two shipments of methamphetamine, totaling twenty-eight pounds, from California to Hawaii. Law enforcement agents intercepted one of the shipments in Honolulu and arrested two men who were to receive the methamphetamine. While in custody, one of those men, Jose Perez, agreed to cooperate with the DEA and identified Hernandez as the source of the methamphetamine. At the DEA's request, Perez made three recorded phone calls to Hernandez.
The United States had also planned to call Raymond Villagomez as a witness at trial. After being charged with committing separate drug offenses in California, Villagomez, seeking leniency, provided the DEA with statements directly implicating Hernandez in the methamphetamine shipments to Hawaii. Interviewed by DEA special agent Sean Zelka, Villagomez explained that he and Hernandez had orchestrated the methamphetamine shipments, and he recounted the events leading up to the shipments.
About two months after he was interviewed by Zelka, Villagomez ended his cooperation and informed the DEA that he would not testify against Hernandez at trial. He told Zelka that he had been threatened and was afraid. Despite being subpoenaed as a witness, Villagomez refused to testify at trial.
The United States filed a motion to limine seeking to introduce at trial Villagomez's statements implicating Hernandez, pursuant to Rules 804(a)(2) and 804(b)(6) of the Federal Rules of Evidence. Rules 804(a)(2) and 804(b)(6) permit the admission of a declarant's hearsay statement when the declarant is unavailable, the statement is being offered against a party, and that party caused or acquiesced in causing the declarant's unavailability. The United States argued that Hernandez had caused Villagomez to be unavailable by orchestrating the threats.
After holding a two-day evidentiary hearing, this court agreed with the United States that Hernandez had intentionally caused Villagomez to be unavailable. The court then permitted Zelka to testify about what Villagomez had told him regarding the methamphetamine shipments. Zelka did not testify before the jury about the threats Villagomez said had been made. Hernandez argues that Zelka's testimony denied his Sixth Amendment right of confrontation.
Hernandez's defense at trial focused on the recorded phone calls from Perez. Hernandez argued that the United States failed to prove that he was the speaker on the other end of the line in the recorded phone conversations with Perez. An expert witness from the DEA, Special Agent Ryan Johnson, who regularly does voice identification analyses across the country, testified for Hernandez. Initially contacted by the United States, Johnson had performed pretrial spectrographic voice analyses of voice exemplars taken from Hernandez and of the recorded phone calls, and had concluded that the unidentified speaker on the phone calls was not Hernandez. The United States turned over this exculpatory evidence to Hernandez before trial. When Hernandez then listed Johnson as a defense witness, the United States moved to bar Johnson's testimony as unreliable. This court was unpersuaded by the United States on this point.
At trial, the United States called Dr. Hirotaka Nakasone, a senior scientist with the Federal Bureau of Investigation, as an expert witness to rebut Johnson's testimony. After reviewing the tests performed by Johnson, Nakasone concluded that the quality of the phone call recordings was too poor to allow a meaningful comparison and that the voice exemplars acquired from Hernandez were flawed. He opined that Johnson's conclusion that Hernandez's voice was not on the phone calls was unwarranted. On cross-examination, Nakasone was asked whether certain samples taken from the voice exemplars and the recorded phone calls were "similar" or "dissimilar." Nakasone declined to render the requested opinion, noting that the quality of the recorded phone calls was insufficient to support an opinion. Hernandez argues that Nakasone's refusal to answer was also a denial of his constitutional right of confrontation.
III. MOTION FOR NEW TRIAL.
A. Rule 33(a) Legal Standard.
Rule 33(a) of the Federal Rules of Criminal Procedure provides: "Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment." The burden of justifying a new trial rests with the defendant, see United States v. Endicott, 869 F.2d 452, 454 (9th Cir. 1989), and a "motion for new trial is directed to the discretion of the judge." United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981); accord United States v. Mack, 362 F.3d 597, 600 (9th Cir. 2004) (reviewing the denial of a motion for new trial under Rule 33(a) under an abuse of discretion standard). "A district court's power to grant a motion for a new trial is much broader than its power to grant a motion for judgment of acquittal," United States v. Alston, 9 ...