Government of the Virgin Islands v. Ledesma ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-29-2005
Govt of VI v. Ledesma
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4116
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 04-4116
___________
GOVERNMENT OF THE VIRGIN ISLANDS
v.
MICHAEL LEDESMA,
Appellant
___________
APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS
(D.C. No. 03-cr-00012)
Chief Judge: The Honorable Raymond L. Finch
District Judge: The Honorable Thomas K. Moore
Territorial Judge: The Honorable Leon A. Kendall
___________
ARGUED DECEMBER 6, 2005
BEFORE: SCIRICA, Chief Judge, McKee and Nygaard, Circuit Judges.
(Filed December 29, 2005)
___________
G. Luz A. James, Esq. (Argued)
P. O. Box 224469
Christiansted, St. Croix, USVI 00822
Counsel for Appellant
Maureen Phelan, Esq. (Argued)
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Building, 2nd Floor
Charlotte Amalie, St. Thomas, USVI 00802
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Following a jury trial, Appellant Ledesma was convicted of first degree
murder and the unauthorized possession of a firearm during the commission of a crime of
violence. He was sentenced to life without parole on the murder conviction and five
years on the weapons conviction, each sentence to be served consecutively.
Ledesma filed a motion for a new trial based on some “startling
information” regarding prisoner Kenneth Brown. The motion was summarily denied by
the trial judge because it did not specify the nature of the new information discovered and
therefore provided no basis for a new trial. The Appellate Division of the District Court
of the Virgin Islands affirmed Ledesma’s conviction and sentence on all counts. Ledesma
raises three issues on appeal. We too will affirm.
First, Ledesma challenges the jury’s determination that Normalis
Ascensio’s testimony was credible. Credibility findings are reviewed for clear error and
will not be disturbed on appeal unless they are “inherently incredible.” Petillo v. New
Jersey, 562 F.2d 903, 907 (3d Cir. 1977). Ascensio did not come forward as a witness
for nineteen months. She admitted this, and it was brought out several times at trial by
Ledesma’s counsel. She testified that she feared reprisal because she lived with her
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young daughters in a violent neighborhood next to the home where Ledesma occasionally
socialized with his friends.
Ledesma alleges that Ascensio’s testimony was motivated by a desire to
protect and get favorable treatment for Brown, her live-in boyfriend and father of her
children. However, there is no support in the record. The Government stated that there
was no promise of immunity or favorable treatment for Brown in his drug case in
exchange for Ascensio’s testimony. With full knowledge of the delay and her articulated
reasons for it, the jury chose to credit her testimony. We will defer to the jury.
Second, Ledesma challenges the trial court’s jury instruction on the first
degree murder charge. We review jury instructions for plain error. United States v.
Olano, 507 U.S. 725, 732 (1993). Ledesma contests the given instruction by claiming
that the jury was told that an essential element of first degree murder was that the
defendant had “an intent to kill or to inflict serious bodily harm.” However, nowhere in
the instruction is the phrase “serious bodily harm” used.
Third, Ledesma alleges that the trial judge abused his discretion by denying
his motion for a new trial. We review the denial of a motion for a new trial for abuse of
discretion. A new trial will be granted only (1) where evidence was discovered after trial;
(2) the failure to discover the evidence during trial was not due to the defendant’s lack of
diligence; (3) the evidence is material to the issues; (4) the evidence is not merely
cumulative or impeaching; and (5) a new trial with the newly discovered evidence would
likely result in a different verdict. United States v. Barbosa, 271 F.3d 438, 467 (3d Cir.
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2001). The defendant must prove all five factors. United States v. Jasin, 280 F.3d 355,
364 (3d Cir. 2002).
Ledesma’s motion for a new trial simply contains conclusory assertions of
“startling information” which he alleges is material so that it would “probably” produce a
different verdict in a new trial. However, Ledesma could have requested a continuance
and uncovered all of the information relating to Brown given that his drug plea was
entered five months before Ledesma’s trial began. Second, the information was not
material, only impeaching. Ascensio was thoroughly cross-examined and substantial
physical evidence implicated Ledesma in Mills’ murder. The trial judge did not abuse his
discretion by denying Ledesma’s motion for a new trial.
For the foregoing reasons, the order of the Appellate Division of the District
Court of the Virgin Islands will be affirmed.
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