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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14810
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20423-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANGEL BARROSO,
Defendant - Appellant.
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No. 16-14811
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20423-KMM-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
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RAFAEL UBIETA,
Defendant - Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
________________________
(January 9, 2018)
Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
After being found guilty by a jury of wire fraud and conspiracy to commit
wire fraud, Angel Barroso and Rafael Ubieta appealed their convictions and
sentences. We affirmed. See United States v. Ubieta, 630 F. App’x 964 (11th Cir.
2015). The defendants then filed a motion for a new trial in the district court
pursuant to Federal Rule of Criminal Procedure 33(b)(1), alleging that they had
uncovered new evidence pertaining to two of the government’s witnesses that
would likely have led to a different result if it had been produced to them before
trial. They also asserted that the government had committed Brady1 and Giglio2
violations which warranted a new trial, and sought an evidentiary hearing to
determine the effect of the information that had allegedly been withheld from
1
Brady v. Maryland,
373 U.S. 83 (1963).
2
Giglio v. United States,
405 U.S. 150 (1972).
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them. The district court, however, found the defendants’ arguments to be without
merit. We agree, and affirm.
I
The facts of the case are amply laid out in our opinion on direct appeal. See
Ubieta, 630 F. App’x at 968-81. We limit the present discussion of the facts to
those relevant to the present appeal.
In January of 2013, following a week-long trial, Mr. Barroso and Mr. Ubieta
were convicted of wire fraud and conspiracy to commit wire fraud, in violation of
18 U.S.C. §§ 1343 and 1349, and were sentenced to 210 and 240-month prison
terms, respectively. The fraudulent scheme involved the use of straw purchasers to
submit false mortgage loan applications to secure financing, take title to residential
properties, and improperly use and disburse mortgage loan proceeds for
unapproved purposes.
One of the witnesses for the government, Julio Diaz, had previously pled
guilty to fraud and had served a 14-month prison term for his involvement with
Mr. Barroso relating to the purchase of a different property in 2006. Mr. Diaz
testified at the trial of Mr. Barroso and Mr. Ubieta, however, that he did not
knowingly purchase any other properties under this type of scheme. The
government produced evidence that someone posing as Mr. Diaz purchased a
property at 185 SW 7th Street (the “7th Street” property), and the government
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portrayed Mr. Diaz as an unwitting victim of the defendants’ fraudulent scheme as
to this property, rather than as a knowing participant. This contrasted with the
superseding indictment, which alleged that Mr. Diaz acted as a straw buyer and
allowed his identity and credit to be used for the purchase of the property. The
government stated that its investigation revealed, post-indictment, that Mr. Diaz
was in fact not a knowing participant in the fraudulent scheme.
We addressed this issue in the direct appeal, concluding that there had been
no constructive amendment or variance to the indictment. We also noted that,
“[r]egardless of whether [Mr.] Diaz was a consenting straw buyer who agreed to
purchase the property at 185 SW 7th Street – as alleged in the indictment – or a
victim of identity theft – as he and the government argued at trial – the essential
elements of wire fraud and conspiracy were unchanged.”
Id. at 980.
The defendants maintain that they discovered new evidence showing that a
home equity line of credit (“HELOC”) was taken out in Mr. Diaz’s name on this
property in January 2008, and that this newly discovered evidence demonstrates
that Mr. Diaz’s testimony at trial – that he was an unwitting victim of the fraud – is
false. They argue that this new evidence was undoubtedly known to the
government, that the government withheld this information from them, and that
under Brady and Giglio, they are entitled to a new trial.
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A second government witness, William Hartnett, a co-conspirator who
cooperated with the government, testified that he was at the closing for the 7th
Street property and that Mr. Ubieta gave him instructions on how to handle the
loan proceeds. He also testified that he paid Jose Martinez, the son-in-law of the
seller of the 7th Street property, a $30,000 commission in connection with that
transaction. The defendants claim that newly discovered evidence shows that Mr.
Martinez attended the 7th Street property closing, that Mr. Ubieta may not have
attended the closing, and that Mr. Martinez stated in a pre-trial interview that the
$30,000 he received was a loan (not a commission). They assert that this evidence
also establishes Brady and Giglio violations and warrants a new trial.
II
We review the denial of a motion for a new trial based on newly discovered
evidence for an abuse of discretion. See United States v. Vallejo,
297 F.3d 1154,
1163 (11th Cir. 2002). We review alleged Brady or Giglio violations de novo, see
United States v. Stein,
846 F.3d 1135, 1145 (11th Cir. 2017), petition for cert. filed,
no. 17-250 (Aug. 14, 2017), but we review the denial of a motion for a new trial
based on these alleged Brady or Giglio violations for an abuse of discretion. See
id.
Finally, we also review the district court’s denial of an evidentiary hearing for an
abuse of discretion. See United States v. Sweat,
555 F.3d 1364, 1368 (11th Cir.
2008). An evidentiary hearing is not required where the record contains all the
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evidence needed to dispose of each of the grounds asserted as a basis for a new
trial. See United States v. Scrushy,
721 F.3d 1288, 1305 n.30 (11th Cir. 2013).
Motions for a new trial based on newly discovered evidence are highly
disfavored and should be granted only with great caution. See United States v.
Campa,
459 F.3d 1121, 1151 (11th Cir. 2006). The defendants bear the burden of
justifying a new trial. See
id.
In order to succeed on a motion for a new trial based on newly discovered
evidence, the defendants must show that (1) the evidence was in fact discovered
only after trial; (2) their failure to discover the evidence was not due to a lack of
due diligence; (3) the evidence is not merely cumulative or impeaching; (4) the
evidence is material to issues before the court; and (5) the evidence is such that a
new trial would probably produce a different result. See United States v. Barsoum,
763 F.3d 1321, 1341 (11th Cir. 2014). Failure to show any one of these elements is
fatal to a motion for a new trial. See United States v. Starrett,
55 F.3d 1525, 1554
(11th Cir. 1995).
These elements are identical to those required to succeed on a motion for a
new trial based on newly discovered evidence in a civil trial under Federal Rule of
Civil Procedure 60(b)(2). See Scutieri v. Paige,
808 F.2d 785, 793 (11th Cir.
1987). In that context, we have held that evidence contained in public records at
the time of trial cannot be considered newly discovered evidence. See
id. at 794.
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Similarly, the former Fifth Circuit has previously determined in a criminal case
that evidence contained in the public records at the time of trial could be
discovered by due diligence, and thus did not warrant a new trial. See Green,
Moore & Co. v. United States,
19 F.2d 130, 131 (5th Cir. 1927). 3
Under Brady, the suppression by the prosecution of evidence favorable to
the defense violates the defendant’s due process rights where the evidence is
material either to guilt or punishment, irrespective of the good or bad faith of the
prosecution. See Brady,
373 U.S. at 87. Evidence is favorable to the accused for
Brady purposes if it is exculpatory or impeaching. See United States v. Naranjo,
634 F.3d 1198, 1212 (11th Cir. 2011). Brady evidence is material “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” United States v. Bagley,
473
U.S. 667, 682 (1985). The burden to establish a Brady violation lies with the
defendant. See United States v. Esquenazi,
752 F.3d 912, 933 (11th Cir. 2014).
And the government is not obliged to provide a defendant with information he
already has or could obtain with any reasonable diligence. See Stein, 846 F.3d at
1146.
To establish a violation under Brady, a defendant must show that (1) the
government possessed evidence favorable to him; (2) he did not possess the
3
Decisions of the former Fifth Circuit prior to October 1, 1981 are binding precedent in this
Circuit. See Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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evidence and could not obtain the evidence with any reasonable diligence; (3) the
prosecution suppressed the favorable evidence; and (4) had the evidence been
disclosed to him, there is a reasonably probability the outcome would have been
different. See Vallejo,
297 F.3d at 1164.
Giglio defines a specific subset of Brady violations. See Ford v. Hall,
546
F.3d 1326, 1331 (11th Cir. 2008). Giglio error occurs when the undisclosed
evidence demonstrates that the prosecution used perjured testimony in its case, and
that the prosecution either knew or should have known of the perjury. See
id. To
succeed on a Giglio claim, the defendant must demonstrate that the prosecutor
knowingly used perjured testimony, or failed to correct what he subsequently
learned was false testimony, and that the falsehood was material. See Vallejo,
297
F.3d at 1163-64. The materiality element is satisfied “if the false testimony could
in any reasonably likelihood have affected the judgment of the jury.” Giglio,
405
U.S. at 154. See also Ford,
546 F.3d at 1332.
III
The district court found no merit in any of the defendants’ arguments. Nor
do we. Neither the evidence relating to Mr. Diaz nor the evidence relating to Mr.
Hartnett establish a Brady or a Giglio violation or warrant a new trial.
First, none of the evidence can be considered newly discovered. The
HELOC taken out in Mr. Diaz’s name was available on the public website for the
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Miami-Dade Clerk of Courts, and the defendants “discovered” the evidence during
a post-trial public records search. As illustrated by Green, Moore & Co. and
Scutieri, we do not consider evidence available in the public records to be newly
discovered. See Green, Moore & Co., 19 F.2d at 131; Scutieri,
808 F.2d at 793.
The defendants assert that they had no need to conduct such a search because they
believed Mr. Diaz would be presented as a willing participant in the fraud. But that
is not accurate. Ten days prior to the start of the trial, the government provided to
the defendants a report of an interview with Mr. Diaz detailing his claim that he
had no knowledge of the purchase of any property in his name. That report
provided evidentiary support for Mr. Diaz’s contention that he was the victim of
identity theft. Additionally, five days before trial, Mr. Barroso filed a motion in
limine that expressly acknowledged Mr. Diaz’s claims. And the government’s
opposition to that motion in limine set forth its position and the evidentiary support
underlying it. Thus, the defendants knew well ahead of time that Mr. Diaz would
not be presented by the government as a willing participant in the fraud.
Likewise, the interview in which Mr. Hartnett claimed that the $30,000 was
a loan, not a commission, was provided to the defense during discovery. And
although the defendants present Mr. Martinez’s presence at the 7th Street closing
as newly discovered evidence, it is exactly what Mr. Hartnett testified to during
trial. The defendants’ assertions to the contrary simply are not valid. And though
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the defendants claim that post-trial discoveries show that Mr. Ubieta may not have
attended the closing, they provide no such “newly discovered evidence” showing
that he did not in fact attend the closing. The district court did not abuse its
discretion in denying a new trial based on this unsubstantiated claim.
Second, and related to the first prong, all of the evidence the defendants
claim is newly discovered could have, and should have, been discovered through
due diligence. For example, even a cursory review of the public records would
have revealed the existence of Mr. Diaz’s HELOC.
Third, even if the evidence were new, and undiscoverable with due
diligence, none of it actually refutes any of the evidence of guilt produced at trial.
Even if it is true that Mr. Diaz took out the HELOC on the 7th Street property, it
does not contradict his testimony that he was unaware that his identity was
unlawfully used to purchase the property. And even if the defendants could show
that the HELOC directly related to the purchase and closing, the only effect would
be to impeach Mr. Diaz’s testimony that he was an unwitting victim. But as we
said in the direct appeal, “the essential elements of wire fraud and conspiracy
[remain] unchanged.” Ubieta, 630 F. App’x at 980. Thus, none of the “newly
discovered evidence” undermines the jury’s findings of guilt, and it cannot survive
the third prong’s requirement that the evidence be more than simply cumulative or
impeaching. As for Mr. Hartnett’s testimony, the defendants have failed to even
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provide any newly discovered evidence, much less show that it is not just
cumulative or impeaching.
Fourth, none of the evidence goes to issues material to the defendants’ guilt
or innocence. Whether or not Mr. Martinez or Mr. Ubieta attended the 7th Street
property closing, whether or not Mr. Diaz took out a HELOC on the property, and
whether or not the $30,000 that Mr. Hartnett gave to Mr. Martinez was a loan or a
commission, the fraudulent nature of the entire scheme was attested to by
numerous witnesses, involved numerous purchases of property, and was proven by
a substantial volume of evidence. This “newly discovered evidence” does not
affect that evidence of guilt.
Finally, given the overwhelming evidence of the defendants’ guilt regarding
the entire scheme, as described in detail in the direct appeal, there is no probability
that a new trial would produce a different result. As the district court stated, the
“[d]efendants’ argument that the Government’s case would crumble without Diaz’s
testimony is rendered impuissant by the overwhelming evidence of Defendants’
guilt.” United States v. Ubieta,
2016 WL 8715673, at *2 (S.D. Fla. June 17, 2016).
IV
The defendants’ claims of Brady and Giglio violations do not fare any better.
In addition to the HELOC being publicly available and discoverable with any due
diligence, which by itself dooms the Brady claim, there is no evidence the
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government possessed that information prior to trial, much less suppressed it. The
defendants argue that it is inconceivable that the government was not aware of it
before trial, but they claim they were unaware of it too. We note that the charged
conspiracy occurred between February and October 2007, and the HELOC was not
executed until January 2008, so it is not implausible that the government lacked
knowledge. The defendants have provided no evidence that the government in fact
had knowledge of the HELOC, and, as the district court recognized, it would strain
credulity to conclude that the government would withhold and suppress
information that was placed in a public records website which the defendants could
easily access.
Additionally, the defendants provide no evidence that any of Mr. Diaz’s or
Mr. Hartnett’s testimony is actually false. They provide evidence which, at best,
may call into question or impeach the credibility of each witness. But there is
nothing which approaches clear evidence of false testimony provided by a
government witness which could lead us to conclude that the government
knowingly presented, or failed to correct, perjured testimony. The defendants’
claims of Giglio violations fail.
V
The district court did not abuse its discretion in denying the defendants’
motion for a new trial based on newly discovered evidence, or on Brady or Giglio
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violations. It also did not abuse its discretion in denying the defendants an
evidentiary hearing. We therefore affirm.
AFFIRMED.
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