United States v. Anes Joseph

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15860
Non-Argument Calendar
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D.C. Docket No. 9:11-cr-80165-KLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANES JOSEPH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 7, 2014)
Before HULL, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Following his convictions on charges arising out of a conspiracy to smuggle
firearms to Haiti, Anes Joseph appeals the district court’s denial of his 2013
motion for a new trial under Federal Rule of Criminal Procedure 33. After review,
we affirm. 1
I. BACKGROUND FACTS
A. 2012 Trial and 2013 Direct Appeal
In February 2012, Joseph was convicted of conspiring to buy and illegally
transport firearms from the United States to Haiti, in violation of 18 U.S.C. § 371(Count 1); shipping a firearm without notice to the carrier, in violation of 18
U.S.C. §§ 922(e), 924(a)(1)(D), and 2 (Count 2); making a false written statement
in connection with the purchase of a firearm, in violation of §§ 922(a)(6) and
924(a)(2) (Count 4); and attempting to illegally export firearms to Haiti, in
violation of 18 U.S.C. §§ 554(a) and 2 (Count 5).
On September 23, 2013, on direct appeal, this Court affirmed Joseph’s
convictions on Counts 1, 2, 4, and 5. United States v. Joseph, 530 F. App’x 911
(11th Cir. 2013). 2
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We review the denial of a motion for a new trial for an abuse of discretion. United
States v. Dortch, 696 F.3d 1104, 1110 (11th Cir. 2012), cert. denied, 133 S. Ct. 993 (2013).
2
Defendant Joseph was also convicted of Count 3, which charged him with attempting to
transfer a firearm to an out-of-state resident, in violation of 18 U.S.C. §§ 922(a)(5), 924
(a)(1)(D). As to Count 3, we vacated his conviction because Count 3 failed to allege a
completed § 922(a)(5) offense, but instead alleged only an attempt, which was not prohibited
under the statute. Joseph, 530 F. App’x at 917-18. We remanded to amend the judgment and
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B. Motion for a New Trial
Subsequently, on November 25, 2013, Joseph filed his motion for a new trial
in the district court. Joseph’s motion argued that he had obtained “newly
discovered evidence” in the form of an affidavit from his brother Keslin. Keslin
did not testify at Joseph’s trial. We review the evidence at trial and then what
Keslin’s affidavit now says.
C. Trial Evidence
The trial evidence amply established Joseph’s guilt. In August 2011,
Department of Homeland Security (“DHS”) agents inspected a dump truck waiting
at the Port of Palm Beach to be shipped to Haiti and discovered twelve firearms
hidden in various barrels inside the truck. All the firearms were wrapped in the
same way, using paper towels and Saran wrap. The agents also found nine gun
cases, hidden separately.
Defendant Joseph was listed as both the shipper and the receiver on the
truck’s shipping documents, but none of the firearms were disclosed on the
contents list. The truck was titled in Defendant Joseph’s name, but actually
belonged to his brother Keslin, who had purchased it two months before. Nine of
the twelve firearms found inside the truck were purchased within the last two
delete Count 3, id. at 928-29, which the district court did on October 28, 2013. On November
12, 2013, Joseph appealed the amended judgment, and we affirmed on June 24, 2014. See
United States v. Joseph, ___ F. App’x ___, No. 13-15193, 2014 WL 2853750 (11th Cir. June 24,
2014).
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months. All nine firearms were Glocks. Defendant Joseph purchased three (Glock
17s), and his brother Keslin purchased the other six. The owner of a tire shop told
agents he saw Defendant Joseph, his brother Keslin, and their cousin Kempest
Lauricin loading the truck while it was parked at the shop.
Later, DHS agents arrested Defendant Joseph at the airport as he waited to
board a flight to Haiti. The shipping documents for the dump truck were found in
Defendant Joseph’s carry-on luggage.
After being advised of his Miranda rights, Defendant Joseph admitted
buying the three Glock 17s the day after he lost his job as a security guard,
wrapping the guns in paper towels and plastic wrap, placing guns’ cases in a
separate package, and instructing his brother Keslin to put the packages in the
dump truck. Defendant Joseph said he originally bought the three guns for
himself, but then decided to send them to his cousin in Haiti. Bank records
revealed that when Defendant Joseph lost his job, he had no other sources of
income. When asked why he needed three Glock 17s for his own use, Joseph
responded that he loved guns.
Additional trial testimony suggested that Defendant Joseph, Keslin, and
Lauricin may have previously shipped guns to Haiti. Specifically, in February and
March 2001, the three men all bought multiple firearms. Defendant Joseph bought
two Glock 17s. Although Defendant Joseph claimed that he had reported his two
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guns stolen, no police report could be located. In April 2011, Lauricin shipped a
Toyota Land Cruiser to Haiti out of the Port of Palm Beach.
Finally, a government expert explained that a Glock firearm would sell in
Haiti for three times its retail value in the United States, that the vast majority of
guns illegally smuggled out of the United States were Glocks, and that people
would rarely buy multiple Glocks of the same model for their own use.
In closing arguments, the defense contended that Defendant Joseph acted
separately from his brother and cousin in buying and wrapping the three Glock 17s
and then gave them to his brother to put on the truck. Based on the evidence
presented, the jury convicted Defendant Joseph on all charges.
D. Brother Keslin’s Affidavit Dated September 23, 2013
In the affidavit filed almost two years after trial, Keslin averred that: (1)
Keslin planned to ship the dump truck to Haiti with firearms in it; (2) he carefully
concealed the firearms in the truck, including the three firearms purchased by
Defendant Joseph; (3) Defendant Joseph knew only of his own three firearms, and
had no knowledge of the other firearms hidden in the truck; and (4) Defendant
Joseph “was not involved in this crime and knew nothing of [Keslin’s] criminal
intentions and actions.”
The district court denied Joseph’s motion for a new trial and subsequent
motion for reconsideration.
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II. DISCUSSION
A. Rule 33
Under Rule 33, a defendant may file a motion for a new trial based on newly
discovered evidence within three years after the verdict, and the district court may
grant a new trial in the interest of justice. Fed. R. Crim. P. 33(a), (b)(1). To
succeed on such a motion, the defendant must show that: “(1) the evidence was
discovered after trial, (2) the failure of the defendant 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.”
United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quotation marks
omitted).
The failure to satisfy any one of these elements will defeat a motion for a
new trial. United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995). “Motions
for a new trial based on newly discovered evidence are highly disfavored” and
“should be granted only with great caution.” United States v. Campa, 459 F.3d
1121, 1151 (11th Cir. 2006) (en banc) (quotation marks omitted). “Indeed, the
defendant bears the burden of justifying a new trial.” Id. (quotation marks
omitted).
B. Defendant Joseph’s Motion
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Here, the district court did not abuse its discretion in denying Defendant
Joseph’s motion for a new trial. We need not decide if the first two prongs of the
test set forth above are satisfied, which are that brother Keslin’s testimony in the
affidavit (1) was only discovered after trial and (2) could not have been discovered
earlier with diligence. Instead, we can readily say that Defendant Joseph has not
satisfied the remaining three elements. The district court correctly found that the
evidence was cumulative, immaterial, and, if presented in a new trial, would be
unlikely to produce a different result.
For example, Keslin’s affidavit was cumulative of Joseph’s defense—as
evidenced by Joseph’s post-arrest statement and argued by defense counsel in
closing—that Joseph acted independently of his brother and cousin. Keslin’s
affidavit supported Joseph’s defense that he knew only that his own three firearms
were on the truck.
More importantly and alternatively, Keslin’s affidavit would be unlikely to
produce a different result. Specifically, as to the conspiracy charge in Count 1, the
affidavit does not contradict Joseph’s own admission that he purchased three Glock
17s, wrapped them in paper towels and plastic wrap, placed their gun cases in a
separate bag, and instructed Keslin to put the guns and gun cases on the truck
bound for Haiti. Keslin’s affidavit also does not contradict Joseph’s admission that
he was sending the three Glock 17s to his cousins in Haiti. Thus, Defendant
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Joseph admitted to the elements of a conspiracy under 18 U.S.C. § 371, namely
voluntarily entering into an agreement with Keslin to place three Glock 17s on a
truck bound for Haiti, and, in furtherance of that agreement, committing the overt
act of wrapping the guns in paper towels and plastic wrap. See United States v.
Broughton, 689 F.3d 1260, 1277 (11th Cir. 2012).
The fact that Joseph may not have known about Keslin’s other nine guns on
the truck is immaterial given that a defendant need not know all the details of, or
participated in all aspects of, the scheme and, in fact, his participation can even be
slight by comparison to other conspirators. See United States v. Vernon, 723 F.3d
1234, 1273 (11th Cir. 2013).
Likewise, as to the charges in Count 2 that Joseph unlawfully shipped
firearms and in Count 5 that he attempted to illegally export the firearms to Haiti,
Joseph admitted knowingly causing his three Glock 17s to be placed on the truck
that he was shipping to his cousins in Haiti and that his cousins were not licensed
importers, manufacturers, dealers, or collectors. See 18 U.S.C. §§ 554(a), 922(e).
And, Joseph’s name was listed on the shipping documents, which did not provide
written notice that the Glock 17s were being shipped on the truck. See id.§ 922(e). Keslin’s affidavit does not contradict this evidence.
As to the charge in Count 4 that Joseph made a false statement in relation to
a firearms purchase, Keslin’s affidavit says nothing about Joseph’s intent on July
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23, 2011, when he filled out federal Form 4473, indicating he intended to buy the
three Glock 17s only for himself. See 18 U.S.C. § 922(a)(6).
As the government points out, overwhelming evidence was presented at trial
that Defendant Joseph was a knowing participant with both Keslin and Lauricin in
a conspiracy to smuggle all twelve guns into Haiti, including: (1) the other nine
guns were wrapped in the same manner as Joseph’s three guns; (2) Joseph bought
his three, identical guns for about $1,600 in cash the day after he was fired from
his job, even though he had very little money in the bank; (3) when he bought the
three guns, Joseph indicated, that they were for his personal use even though three
weeks later they were found on a truck bound for Haiti; (4) Joseph had bought two
more identical guns about four months earlier, in March 2011, which he also
claimed were for his personal use, but then conveniently claimed were stolen,
although no police report could be found; (5) Joseph admitted to, and was seen,
loading the truck with Keslin and Lauricin; and (6) according to an expert, the
Glocks were commonly smuggled guns that were worth much more in Haiti than in
the United States. But, the evidence at trial against Joseph was such that, even
accepting as true the affidavit’s assertion that Joseph knew only about his own
guns on the truck, and was unaware of the other nine guns placed there by Keslin
and Lauricin, the jury still would have found Joseph guilty of all four counts.
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Accordingly, Defendant Joseph failed to establish all the elements necessary to
succeed on a Rule 33 motion for a new trial.
AFFIRMED.
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