USA v. LIZ et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOELVIS ACOSTA LIZ, ISA NOEL,
KIRSTEN ALEXANDER, EDISSON
PEGUERO ORTIZ,
Defendant.
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) Criminal No. 2013-31
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ATTORNEYS:
Jocelyn Hewlett, Acting United States Attorney
Meredith Jean Edwards, AUSA
Office of the United States Attorney
St. Thomas, U.S.V.I.
For the United States of America,
Omodare Jupiter, FPD
Gabriel J. Villegas, AFPD
Office of the Federal Public Defender
St. Thomas, U.S.V.I.
For Joelvis Acosta Liz,
Carl R. Williams
Smith, Williams, PLLC
St. Thomas, U.S.V.I.
For Isa Noel,
David J. Cattie
Ogletree, Deakins, Nash, Smoack & Stewart LLC
St. Thomas, U.S.V.I.
For Kirsten Alexander,
Pedro K. Williams
Law Office of Pedro K. Williams
St. Thomas, U.S.V.I.
For Edisson Peguero Ortiz.
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United States v. Liz, et al.
Criminal No. 2013-31
Page 2
ORDER
GÓMEZ, J.
Before the Court is the motion of Isa Noel for a new trial.
I. FACTUAL AND PROCEDURAL HISTORY
On June 19, 2013, the Grand Jury returned an indictment
charging Isa Noel (“Noel”) with one count of Conspiracy to
Possess with Intent to Distribute Cocaine in violation of 21
U.S.C. §§ 841 and 846; and two counts of Possession with Intent
to Distribute Cocaine in violation of 21 U.S.C. § 841. On August
20, 2013, the Grand Jury returned a superseding indictment
charging Noel with the same offenses.
On November 12, 2013, the Court selected the jury for the
trial of this matter. During voir dire, Noel was present and
introduced to the prospective jurors. The Court then asked the
prospective jurors if they had “read or heard anything about
this case.” ECF No. 172 at 13. There was no response. The Court
also asked the prospective jurors if any juror, or “a close
friend, or a close relative [of a juror had] been involved in
the criminal justice system.” Id. Juror No. 111 responded in the
1 Before being selected to sit on the jury panel, this juror was identified as
Juror No. 75. After selection, the juror was identified as Juror No. 11. For
consistency, the Court will refer to this juror as Juror No. 11 in this
order.
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United States v. Liz, et al.
Criminal No. 2013-31
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affirmative. At sidebar, the following exchange took place with
Juror No. 11:
THE COURT: Okay. You raised your card in response
to the question about being involved in the
criminal justice system. Tell us why.
JUROR MEMBER: I worked 26 years as a correction
officer and I been involved in making the arrests
and support and all that stuff.
THE COURT: Were you involved in any arrest in this
case?
JUROR MEMBER: No.
THE COURT: All right. You're currently employed by
whom?
JUROR MEMBER: I'm retired now but I have a contract
with the U.S. Marshal's office.
THE COURT: All right. Is there anything in that
experience that would prevent you from following my
instructions on the law?
JUROR MEMBER: No, sir.
THE COURT: Is there anything in that experience
that would prevent you from listening to the
evidence in this case fairly and impartially?
JUROR MEMBER: No, sir.
THE COURT: All right. Thank you.
Id. at 22-23.
Noel moved to strike Juror No. 11 for cause because he “is
in law enforcement. Currently a worker for [the] U.S. Marshal’s
Service” under a contract “[p]roviding security officers.” Id.
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at 32. The position of the United States was “that [Juror No.
11] also indicated he had no dealings with these particular
defendants in this case.” Id. The Court denied Noel’s motion to
strike, and Juror No. 11 was selected for the jury panel.
On November 14, 2013, the jury found Noel guilty of each
charged count. On April 17, 2014, the Court sentenced Noel to
151 months imprisonment.
On June 10, 2015, over a year after judgment was entered,
Noel filed a motion for a new trial under Federal Rule of Civil
Procedure 33. In that motion, Noel indicates that on May 22,
2015, he subpoenaed from the United States Marshals Service
documents related to Juror No. 11’s job description and work
history. On June 1, 2015, Noel received a job description, work
orders, and timesheets from the United States Marshals Service.
The job description explained that Juror No. 11 provided
contract services as a “District Security Officer.” See ECF No.
182, Exh. 2. In that position, Juror No. 11 provided various
guard services, including transporting prisoners to and from
court and guarding prisoners in court. Juror No. 11’s time
sheets indicated that he was working for the United States
Marshals Services on July 11, 2013, and July 12, 2013.
Noel asserts that
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United States v. Liz, et al.
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On July 11, 2013, on information and belief, Juror
[No.] 11, at the direction of the U.S. Marshals
Service, applied arm and leg shackles to [Noel] and
accompanied [Noel] . . . , in a U.S. Marshals
Service van, from the Annex to the District Court
of the Virgin Islands. Thereafter, on information
and belief, Juror #11 was then present in the
Courtroom during the initial appearance of [Noel].
At the conclusion of [Noel]’s initial appearance,
[Noel] was remanded into the custody of the U.S.
Marshals Service, until such time as he could meet
the terms of his release. . . . On or about July
12, 2013, on information and belief, Juror #11 then
applied both arm and leg shackles to [Noel] and
accompanied [Noel] in a U.S. Marshals Service van,
from the District Court of the Virgin Islands to
the “Annex,” six miles away.
ECF No. 182 at 6-7(citations omitted).
In light of the failure of the United States to file a
timely response to Noel’s motion, on May 4, 2016, the Court
ordered the United States to respond to Noel’s motion for a new
trial no later than 3:00 P.M. on May 18, 2016. The United States
failed to file a response by that deadline. On August 1, 2016,
the Magistrate Judge ordered the United States to show cause why
the government should not be sanctioned for failing to comply
with the Court’s May 4, 2016, order. At a hearing on August 3,
2016, the United States indicated that it had not received
notice of the Court’s May 4, 2016, order, and that as a result
of a technological glitch, the order did not appear in the
government’s ECF account. Thereafter, the Magistrate ordered the
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United States v. Liz, et al.
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United States to respond to Noel’s motion for a new trial no
later than 12:00 P.M. on August 5, 2016.
On August 5, 2016, well over a year after Noel filed his
motion for a new trial, the United States filed an opposition to
Noel’s motion for a new trial. On May 16, 2017, more than nine
months after the United States filed its opposition, Noel filed
his reply.
II. DISCUSSION
Federal Rule of Criminal Procedure 33 (“Rule 33”) provides
that, “[u]pon the defendant’s motion, the court may vacate any
judgment and grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). If a motion for a new trial
is “grounded on newly discovered evidence,” a defendant must
file his motion “within three years after the verdict or finding
of guilty.” Fed. R. Crim. P. 33(b)(1). Motions “grounded on any
reason other than newly discovered evidence must be filed within
14 days after the verdict or finding of guilty.” Fed. R. Crim.
P. 33(b)(2).
For evidence to qualify as “newly-discovered evidence,” the
defendant must establish five elements:
(a) The evidence must be in fact newly discovered,
i.e., discovered since trial; (b) facts must be
alleged from which the court may infer diligence on
the part of the movant; (c) the evidence relied on
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must not be merely cumulative or impeaching; (d) it
must be material to the issues involved; and (e) it
must be such, and of such nature, as that, on a new
trial, the newly discovered evidence would probably
produce an acquittal.
United States v. Schneider, 801 F.3d 186, 201–02 (3d Cir. 2015)
(alterations omitted) (quoting United States v. Quiles, 618 F.3d
383, 388–89 (3d Cir.2010)).
III. ANALYSIS
In McDonough Power Equip. Inc. v. Greenwood, 464 U.S. 548
(1984), the United States Supreme Court held that, to prevail on
a motion for a new trial because of errors during voir dire, a
defendant must show (a) “that a juror failed to answer honestly
a material question on voir dire”; and (2) “that a correct
response would have provided a valid basis for challenge for
cause.” Id. at 556. “Entitlement to an evidentiary hearing
requires a defendant to present ‘clear, strong, substantial and
incontrovertible evidence that a specific, nonspeculative
impropriety has occurred which could have prejudiced the
trial.’” United States v. James, 513 F. App'x 232, 233 (3d Cir.
2013) (quoting United States v. Stewart, 433 F.3d 273, 302-03
(2d Cir. 2006)).
“To satisfy the first prong of McDonough, a defendant must
show that the juror's answer was dishonest, as opposed to merely
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‘mistaken, though honest.’” United States v. James, 513 Fed.
App'x 232, 234 (3d Cir. 2013) (quoting McDonough, 464 U.S. at
555). In United States v. Hawkins, 796 F.3d 843 (8th Cir. 2015)
,a prospective juror, “who was ultimately selected as a member
of the jury (‘Juror No. 2’), stated that she worked as a tailor
at ‘Hall's on the Plaza.’” Id. at 858. When the trial court
identified David Nordquist (“Nordquist”) as a potential witness,
Juror No. 2 did not indicate that she knew him. Id. During
trial, Nordquist “testified that he had worked in the Men’s
Department at Hall’s Clothing Company” and knew the defendant as
a customer. Id. The defendant “briefly cross-examined Nordquist
but did not ask whether Nordquist knew any of the jurors. Juror
No. 2 also did not indicate whether she knew Nordquist.” Id.
Following his conviction, the defendant moved for a new
trial. Id. The defendant “claimed that, after the trial, he
realized he knew Juror No. 2 because she worked at Hall’s and
had performed alterations on some of his suits.” The defendant
also filed an affidavit from an investigator indicating that
Nordquist “claimed that he had known Juror No. 2 for fifteen
years, that they had both worked at Hall's for twelve years, and
that she would fit and tailor items for customers. However,
Nordquist also stated that he was unaware that Juror No. 2
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served on the jury.” Id. The district court denied the motion
for a new trial, and the defendant appealed. Id. at 858-59.
The Eight Circuit affirmed the denial of the motion for a
new trial. Id. at 864. The Eighth Circuit explained that, to
show entitlement to a new trial for concealed juror bias, a
defendant must prove “that the juror answered dishonestly, not
just inaccurately.” Id. at 863-64. Reviewing the record, the
Eighth Circuit concluded that the district court did not err in
concluding that Juror No. 2 was not dishonest. Id. at 865. As
the Eighth Circuit explained, “Juror No. 2 freely disclosed that
she worked at Hall’s.” Id. Because “Nordquist apparently did not
recognize her among the members of the jury, it was reasonable
to infer that Juror No. 2 did not lie about her relationship
with Nordquist but instead simply did not recognize his name or
face.” Id. Moreover, there was “little, if any, evidence that
Juror No. 2 had any reason to lie about her alleged relationship
with Nordquist.” Id.
Similarly, in the instant matter, Juror No. 11 freely
admitted that he worked for the United States Marshals on a
contracting basis. Juror No. 11 did not respond when the Court
asked the panel if anyone had “a relationship by . . . blood,
marriage, or business with the defendant, Isa Noel.” ECF No. 172
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at 12. Juror No. 11 also did not respond when the Court asked
the panel if anyone had “read or heard anything about this
case.” Id. at 13. When personally asked whether he was “involved
in any arrest in this case,” Juror No. 11 responded “No.” Id. at
22. Assuming that Juror No. 11 interacted with Noel while Juror
No. 11 worked as a contract employee with the United States
Marshals, it is significant that Noel did not recognize Juror
No. 11.2 In this light, the Court finds it more likely than not
that Juror No. 11 did not recognize Noel either. Therefore, even
if incorrect, Juror No. 11 honestly responded to the Court’s
inquiries. See Hawkins, 796 F.3d at 864.3
The premises considered, it is hereby
ORDERED that the motion of Isa Noel for a new trial
docketed at ECF Number 182 is DENIED.
S\________________
Curtis V. Gómez
District Judge
2 To the extent Noel did recognize Juror No. 11, his motion for a new trial
is not premised on new evidence and is untimely. See, e.g., States v. Gootee,
34 F.3d 475, 479 (7th Cir. 1994) (explaining that, when determining whether
evidence is newly discovered, the relevant inquiry is into the defendant’s
“knowledge of the facts, not legal conclusions”).
3 Moreover, the Court is not persuaded that an evidentiary hearing is
warranted as Noel has failed “to present ‘clear, strong, substantial and
incontrovertible evidence that a specific, nonspeculative impropriety has
occurred which could have prejudiced the trial.’” See James, 513 F. App'x at
233 (quoting Stewart, 433 F.3d at 302-03).
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