United States v. Victor Calles

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 31, 2008
THOMAS K. KAHN
No. 07-10166
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-80064-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR CALLES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 31, 2008)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Victor Calles appeals his convictions for kidnapping, in violation of 18
U.S.C. § 1201(a)(1), and the interstate transportation of a stolen vehicle, in
violation of 18 U.S.C. § 2312. On appeal, Calles argues that: (1) the district court
erred by denying his motion to suppress post-arrest statements; (2) the evidence
was insufficient to support his convictions; and (3) the district court erred by
denying his motion for new trial under Federal Rule of Criminal Procedure 33. We
find that, because Calles’s post-arrest statements were intelligently, knowingly, and
voluntarily waived, the district court did not err in denying Calles’s motion to
suppress his post-arrest statement. We also find that the evidence was sufficient to
sustain his convictions, and that the district court did not abuse its discretion by
denying Calles’s motion for new trial because his brother’s recantation of his trial
testimony would probably not have produced a different result at a new trial. We
AFFIRM.
I. BACKGROUND
Calles, his brother, Jose Calles (“Jose”), their cousin, Javier Recino Santos,
and Joel Muratti-Hani were indicted for kidnapping, in violation of 18 U.S.C.
§ 1201(a)(1), and the interstate transportation of a stolen vehicle, in violation 18
U.S.C. § 2312. The charges resulted from a complaint filed by Christina
Esfandiari. At the time of the conduct at issue in the indictment, Esfandiari was
Calles’s girlfriend.
2
Before trial, Calles filed two motions to suppress post-arrest statements,
confessions, and admissions. In his first motion, Calles argued that his statements
were obtained in violation of his Fifth and Sixth Amendment rights because his
post-arrest statements were not freely and voluntarily given, and the execution of a
written waiver with respect to his rights under Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602 (1966) was not voluntary. He argued that any written waiver was
not knowingly and intelligently executed because he lacked familiarity with the
process and was unable to speak, read or write English and unable to read or write
Spanish. Calles also argued that the statements were obtained in violation of the
Fourth Amendment as a result of an unlawful arrest. In the second motion, Calles
reiterated the arguments made in his first motion, and contended that law
enforcement officials used threats and improper influence to obtain the statements.
He also argued that the statements should not be admitted under Federal Rule of
Evidence 403 and that their admission was not supported by “proof of the corpus
delicti of the crime.” R1-87 at 4.
In response, the government attached the Spanish waiver-of-rights form that
Calles signed and a Federal Bureau of Investigation (“FBI”) 302 report, providing
that Calles was advised of his rights. The FBI 302 report documented Calles’s
confession and indicated that he willfully participated in the offenses.
3
The district court held a hearing on the suppression motion. FBI Special
Agent Alan Santiago testified that he had been with the FBI for over 18 years and
spoke both Spanish and English fluently. After Calles’s arrest, Santiago
interviewed Calles in a West Palm Beach Police Department (“WPBPD”) holding
cell, and advised him of his rights using the FBI’s standard Spanish
advice-of-rights form. Santiago was accompanied by Agent Eric Rivera, who also
spoke Spanish. Speaking in Spanish, Santiago identified himself to Calles,
explained why he was there, and informed Calles that he had to advise him of his
rights before he could speak with him. Santiago held the form so that Calles could
see it, slowly read the form out loud in Spanish, and observed Calles to see
whether he was comprehending. The form also contained a waiver-of-rights
section which provided that a defendant could make statements without an attorney
if he read and understood his rights. Calles signed the waiver in the presence of
Santiago and Rivera. To ensure that Calles understood his rights, Santiago asked
him if he understood his rights, and Calles stated that he did. When Santiago asked
Calles about his education, Calles said that he had a third or fourth grade education
and could read. At Santiago’s request, Calles then read the form aloud and
Santiago helped Calles whenever he struggled with the pronunciation or meaning
of a word. This process took nearly ten minutes and, after Calles finished reading
4
the form, including the waiver section, he agreed to speak to Santiago and Rivera
without an attorney and told them that he wanted to tell them the truth. Calles
appeared sad and as if “he wanted to get something off of his chest . . . .” R3 at 13.
Santiago did not threaten Calles, did not scream or yell, did not make any
promises, and was not wearing his pistol.
Santiago documented the interrogation in the admitted FBI 302 report a few
days later. In the report, Santiago explained that Calles informed them that he had
willfully participated in the kidnapping and abduction of his fiancé Esfandiari.1
While making this statement, Calles was calm, remorseful, and sad. Santiago
considered the interview to be routine because Calles was willing to provide a
statement and never asked for an attorney. The government also called Rivera,
who testified consistently with Santiago, including the fact that Calles was
informed that he could stop the questioning at any time.
Esfandiari testified that Calles could neither read nor write in English or in
Spanish, including writing his own name or reading a restaurant menu, had a
second grade education at best, and was embarrassed about his illiteracy. She
explained that Calles had to quit a job with a Mexican restaurant because he could
not read the orders. Esfandiari, a high school graduate with advanced secretarial
1
Calles and Esfandiari became engaged to be married after his arrest.
5
training, worked as a secretary for accounting firms. Esfandiari said that, despite
communicating with Calles using half Spanish and half English, Calles did not
always understand what she said.
The government argued that the testimony of Santiago and Rivera
established that Calles voluntarily waived his rights, that Calles was able to
communicate with them in Spanish, and that his confession was corroborated by
other evidence. Calles argued that Esfandiari’s testimony established that his
illiteracy prevented him from fully understanding his rights, and that he did not,
therefore, make a knowing and voluntary waiver of his Miranda rights. The
district court denied the motion to suppress. The court found that
two experienced FBI agents read his rights to him in Spanish,
explained the rights to him, and that he voluntarily and knowingly
waived those rights. While he may have limited formal education, the
defendant has been able to function in society, apparently has been
able to hold several jobs, has had a relationship with an educated
woman, and so I don’t see any basis for a conclusion that he wasn’t
able to understand these rights.
These are pretty straightforward and uncomplicated rights, and
I see no – there has been no evidence of intimidation or coercion. In
fact, the defendant apparently wanted to cooperate. . . .
....
In any event, from what I guess I’ve heard both in the
Government’s argument today and in other proceedings, it appears to
me the Government has evidence apart from the statements of Mr.
Calles that certainly are sufficient to overcome any suppression issue.
I don’t see any basis to suppress the statements given the other
6
evidence in the case.
Id. at 50-51.
During the trial, witnesses testified that, on the morning of 17 January 2006,
while checking out of their hotel room at the Dollar Inn in West Palm Beach,
Florida, they observed a woman, later identified as Esfandiari, run across the hotel
parking lot, screaming “help me, help me, they’re holding me at knife point” and
“call 911.” R4 at 107. She ran to the hotel front office and banged on the door,
seeking to gain entrance. A few seconds later, two men emerged from the room
from which the woman had come and approached her. As the men surrounded her,
she wrapped her arms and legs around a railing and one of the men, who was
wearing a white shirt, began “yanking” on her neck trying to get her to let go. Id.
at 111, 121. She repeatedly yelled, “They’re holding me at knife point. Please call
the police.” Id. at 122. After one of the witnesses, Mark Christ, learned from the
hotel owner that he was not going to call the police, Christ asked the woman, still
holding onto the railing, what she wanted him to do, and she told him to call the
police. Christ then called 911 and a recording of that conversation was played for
the jury. Christ also observed that, in addition to the first two men who had
emerged from the room and approached the woman, two other men came out of the
same room and left the area.
7
The hotel owner testified that the incident was taped on the hotel’s security
camera. The video recording was played in court and Christ noted that the hotel
owner’s wife opened the office door while the woman was banging on it, but was
pulled out by the man in the white shirt who grabbed her shirt. At that point, the
woman hugged the railing, while one other man tried to pull her legs apart and the
man in the white shirt pulled on her neck. Christ’s testimony was corroborated by
his two co-workers, Michael DeRosiers and Marson Johnson, the hotel owner, and
the hotel owner’s wife.
WPBPD Officer Regina Bell testified that she was called to the Dollar Inn
on 17 January, after Officers Paul Creelman and James Sniffen had detained the
two men and Esfandiari. Bell found Esfandiari crying and holding on the railing,
and took her off to the side to speak with her. Esfandiari told Bell that her
boyfriend, Calles, Jose, and Santos had taken her from her home in Virginia, spent
her money, stolen her credit cards and jewelry, held her at knife point, and raped
her. Esfandiari’s statements regarding the credit cards and jewelry were confirmed
when the officers discovered that Calles, who was wearing a white shirt, had
Esfandiari’s credit cards in his wallet, and that Jose was wearing her jewelry.
Esfandiari did not indicate that Calles was a victim, but rather that Calles was
responsible for what happened to her.
8
WPBPD Detective Lori Colombino testified that she was at the police
station on 17 January when Calles and Jose were brought in after their arrest.
When their belongings were inventoried, a pocket knife and a bank card in
Esfandiari’s name were found in Calles’s possession, and numerous pieces of
jewelry were found on Jose. Colombino spoke with Esfandiari for hours after her
release from the hospital and Esfandiari never indicated that Calles was a victim or
had been threatened to participate. Rather, she confirmed that Calles was the one
who had forced her to withdraw money from an ATM machine and who had
prevented her from entering the hotel office. Detective David Lefont, who worked
with Colombino, testified that he also spoke to Esfandiari and that she never said
anything about Calles not being responsible for the incident.
WPBPD Officer Creelman testified that he spoke to Calles, Jose, and
Esfandiari when he arrived at the Dollar Inn on 17 January. One of the men told
him that Esfandiari was a drug user and was mentally ill, and that they were trying
to make sure she was alright. Esfandiari, however, told Creelman that she had
been kidnapped from Virginia, brought to Florida against her will, raped, and held
at knife point, and that the men had taken her debit card and were forcing her to
withdraw money from her account. Creelman searched Calles’s wallet and
confirmed that he had Esfandiari’s bank card. Esfandiari specifically told Officer
9
Creelman that Calles was involved.
Muratti-Hani had pled guilty and testified regarding his involvement in the
offense. He explained that Esfandiari had given Calles, Jose, Muratti-Hani, and
Santos a ride to a restaurant on 15 January 2006. After Esfandiari got mad and left
the restaurant, Calles, Jose, Muratti-Hani, and Santos, who were all drunk, got a
ride back to her apartment. Esfandiari arrived home later, got angry because
someone had opened an expensive bottle of wine, and went to sleep. Calles, Jose,
Muratti-Hani, and Santos all agreed to kidnap Esfandiari because they were mad at
her and needed to get to Florida, and Esfandiari was the only one with a car and
money. Calles and Santos then left the apartment to get some money, and, while
they were gone, Muratti-Hani raped Esfandiari. Jose was in the room while
Muratti-Hani raped her, and Jose handed him a condom and helped hold her down.
When Calles and Santos returned, Jose told Calles that Muratti-Hani raped
Esfandiari, and everybody, including Calles, laughed. Calles, Jose, Muratti-Hani,
and Santos then took Esfandiari and left town in her Acura for Florida. Muratti-
Hani took a butcher knife and Esfandiari’s laptop. At one point during the ride
down to Florida, Esfandiari asked Muratti-Hani, who was holding the knife to her,
whether he was going to let her live, and he told her to shut up. Esfandiari did not
attempt to run away on the trip from Virginia.
10
On the morning of 17 January 2006, while the everyone else was sleeping in
the West Palm Beach hotel, Esfandiari fled from the room. When they discovered
that she had fled, Muratti-Hani and Santos left to get the car, while Calles and Jose
stayed with Esfandiari “to calm her down.” R5 at 257. Neither Muratti-Hani nor
anyone else threatened Calles to participate, and Calles acted under his own free
will. Muratti-Hani identified Calles from the hotel video tape as the man in the
white shirt on the morning of 17 January. Muratti-Hani reported that Calles was
drinking the entire trip, and denied that Calles had helped Esfandiari during the
trip.
Santos, who had also pled guilty, testified consistently with Muratti-Hani.
He claimed that he and Calles decided to take Esfandiari’s car, money, and
jewelry. After the group decided to go to Florida, Calles agreed to take Esfandiari
with them; no one threatened Calles because they had all agreed on the idea
together. Calles suggested that they wear socks on their hands in Esfandiari’s
home so that they would not leave fingerprints, and initially retrieved the butcher
knife used to subdue Esfandiari. They took Calles’s clothes and Esfandiari’s
television and laptop, but none of Esfandiari’s clothes or medication, and, at
Calles’s suggestion, they left the building through the emergency exit. Calles
moved the car so that they could load it on the side of the building.
11
Christina Silkvillegas, a West Palm Beach radiologic technologist, testified
that while conducting a CAT scan on Esfandiari on 17 January, Esfandiari told her
that she had been kidnaped by her boyfriend and had been beaten and raped.
Mercedes Hall, Calles and Jose’s aunt, testified that they had stopped by Hall’s
West Palm Beach home in the middle of the night and stored some of their
belongings so that they would not get stolen at the hotel. The day after the incident
at the hotel, Esfandiari left a message on Hall’s cellular telephone, explaining that
Calles, Jose, Santos and another man had kidnaped, beaten, and raped her.
Esfandiari later told Hall that she wanted the defendants imprisoned for life and
that she was through with Calles. She never mentioned that Calles was a victim
but, a few months later, changed her story and told Hall that she was still in love
with Calles and thought that he was a victim.
Esfandiari testified that she was confronted in bed by the four defendants
who demanded money, credit cards, and pin numbers. She said that Muratti-Hani
held a knife to Calles’s back, and Calles told her to remain calm and supported her
statement that she didn’t have as much money as they were demanding, even
though Calles knew the statement was not true. Santos took her credit card and
demanded that Calles go with him to get money. When Calles and Santos
returned, she explained that, although Jose referred to some activity between
12
Muratti-Hani and Esfandiari, Calles did not understand that she had been raped.
Calles hid some of her jewelry to prevent the others from stealing it. Jose held a
knife to her and told her that she would never see her children again and wouldn’t
be needing her medication anymore. During the trip, Calles handed her a tube of
her lipstick which she later used it to write a “help note” on a bathroom wall at a
McDonald’s in Georgia when the group stopped. R5 at 403. Esfandiari disagreed
with Hall’s testimony, and said that she had told Hall that Calles did everything he
could to save her life. She explained after she had left the hotel room on 17
January, Calles comforted her and stood up to the others because they were finally
safe. She admitted that, as she ran from the hotel room, she shouted for someone
to call 911 and that she had been held at knife point, but that Calles ran after her
and grabbed her neck in order to calm her. She denied that Calles had tried to pull
her away from the railing and claimed that she was never afraid of him.
She claimed that Silkvillegas’s testimony was not accurate, but explained
that, although she did not tell Bell or Colombino that Calles was a victim, she was
never given the opportunity to do so. She reported that she told Virginia Beach
Police Department Detective Rhonda Bider that Calles was a victim who was
forced to go along with the others. Esfandiari explained that she had no need to lie
for Calles but that she was engaged to him and loved him more than ever because
13
he saved her life. Esfandiari noted that she had submitted an affidavit one month
after the incident to the State Attorney’s office which stated that Calles was
innocent and that she did not wish to press charges against him because he was not
one of the people who kidnaped her.
Bider testified that, after she was informed by Colombino that Esfandiari
had been the victim of a kidnapping and rape by Calles, Jose, Muratti-Hani, and
Santos, she met with Esfandiari for four hours on 19 January 2006, and at no point
did Esfandiari tell her that Calles was innocent or that Calles had a knife to his
back forcing him to participate. Esfandiari specifically told her at that time that
Calles, along with Jose, Muratti-Hani, and Santos, committed the crimes against
her. Over a month later, however, Esfandiari told Bider that she did not want to
press charges against Calles.
Jose, who had also pled guilty, testified that neither Muratti-Hani nor Santos
held a knife to Calles’s back, that Calles voluntarily participated in the kidnapping
of his own free will, and that all four men decided to kidnap Esfandiari and take
her car to Florida. On cross-examination, Jose admitted aiding Muratti-Hani when
he raped Esfandiari.
Santiago also testified at trial. He said that, during his two hour interview
with Esfandiari, she told him that all four defendants walked into her bedroom
14
laughing with socks on their hands, and all four, including Calles, pinned her down
and demanded her money and credit cards. She told Santiago that Jose helped
Muratti-Hani rape her, that Jose held a knife to her back and told her to waive
goodbye to her children, and that she wrote a help note on a McDonald’s bathroom
wall. Santiago then interviewed Calles, and he stated that he was a willful
participant and that he knew what he was doing was wrong. R6 at 588-94, 606.
The first time that Santiago heard that Muratti-Hani held a knife to Calles’s back
was during Esfandiari’s testimony the previous day.
Calles did not put on a defense or testify, but moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29 based on insufficient
evidence. He argued that his codefendants testimony was unreliable, that
Esfandiari’s testimony should be given great weight, and that her statements made
to law enforcement immediately following the incident were unreliable in light of
her physical and mental state at that time. The court denied the motion, stating:
[T]here’s abundant evidence from which a reasonable jury can find
the defendant guilty of the crimes charged in the indictment. They
include the physical evidence, the statements of the defendant, the
circumstances of the case, defendant’s own words to the agent, as well
as the testimony of the victim. I think that the jury could well believe
that her earlier statements are the truth. Unfortunately, we all have the
tendency to perhaps reconcile or rationalize the actions of those we
care about, and I think the jury can readily conclude that’s what
happened here. So I’m going to deny your motion.
15
Id. at 612. Following closing arguments, the jury returned a guilty verdict on both
counts in the indictment.
The district court sentenced Calles to 228 months in prison on Count One
and 120 months in prison on Count Two, to be served concurrently. Calles timely
appealed the verdict, convictions, sentences, and pre-trial and trial motions.
The day after Calles filed his notice of appeal, he filed a motion for new trial
based on newly discovered evidence, namely, the recantation of Jose’s trial
testimony. The motion explained that defense counsel received a letter from Jose,
dated 22 December 2006, that stated that Jose had been forced by the government
to testify against Calles. In the letter, which was attached to the motion, Jose stated
that Muratti-Hani and Santos threatened both Calles and Jose with a knife to force
them to participate in the kidnapping and to take drugs, and that neither Calles or
Jose had anything to do with the crimes. The court denied the motion for a new
trial without discussion. R2-167. Calles neither amended his previous notice of
appeal nor filed another notice of appeal seeking review of that order.
II. DISCUSSION 2
2
Calles does not argue on appeal that his statements should have been suppressed based
on Fed. R. Evid. 403, or that the government failed to introduce evidence of the corpus delicti of
the crime. He also fails to explain how his arrest was unlawful, and how the use of his
post-arrest statements violated the Fourth Amendment. These issues are thus abandoned on
appeal. Mathews v. Crosby, 480 F.3d 1265, 1268 n.3 (11th Cir. 2007) (holding that the failure to
set forth any argument in the brief as to how the district court erred renders an issue abandoned).
16
A. Denial of Calles’s Motion to Suppress His Post-arrest Statements
Calles argues that the district court erred by denying his motion to suppress
his statements, confessions, and admissions because the statements were obtained
in violation of his Fifth and Sixth Amendment rights. He contends that, despite his
execution of a formal waiver, his lack of familiarity with the process, inability to
speak or read English and Spanish, and low-level of education prevented him from
knowingly and voluntarily waiving his Miranda rights. He maintains that the
statements were critical to the jury’s deliberations, and constituted the fruit of an
unlawful arrest in violation of the Fourth Amendment.
The government concedes that Calles was subject to custodial interrogation,
but argues that Calles knowingly and voluntarily waived his Miranda rights. The
government points out that the officers spoke in Calles’s native Spanish language,
slowly explained all of Calles’s rights before he signed the notification of rights
form, reiterated that Calles could stop the interview at any time, and ensured that
Calles was in fact comprehending the rights. The government adds that Calles was
forthcoming with the officers and offered to make a statement.
We will uphold a district court’s fact finding that a defendant waived his
Miranda rights unless it is “clearly erroneous, but [review] the application of law to
that finding . . . de novo.” United States v. Farris, 77 F.3d 391, 396 (11th Cir.
17
1996). “All facts are construed in the light most favorable to the prevailing party
below.” United States v. Perez, 443 F.3d 772, 774 (11th Cir. 2006). It is the fact-
finder’s province to make credibility determinations. United States v. Brown, 441
F.3d 1330, 1346-47 (11th Cir. 2006), cert. denied, U.S. , 127 S. Ct. 1149
(2007).
“Under Miranda, a police officer must read certain warnings–including the
right to remain silent–to a suspect before subjecting him to ‘custodial
interrogation.’” United States v. Glover, 431 F.3d 744, 747-48 (11th Cir. 2005)
(per curiam). “Evidence obtained in violation of Miranda is inadmissible at trial.”
Id. at 748. The government must “prove by a preponderance of the evidence that
the defendant” made a knowing, voluntary and intelligent waiver of his Miranda
rights. Id. The Supreme Court has established the following two-part inquiry for
determining whether a defendant has knowingly and voluntarily waived his rights
under Miranda:
First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, the waiver must have
been made with a full awareness of both of the nature of the right
being abandoned and the consequences of the decision to abandon it.
Only if the “totality of the circumstances surrounding the
interrogation” reveal both an uncoerced choice and the requisite level
of comprehension may a court properly conclude that the Miranda
rights have been waived.
18
Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141 (1986). A district
court may find a knowing and intelligent waiver where the defendant has a
low-level education and an inability to speak English, United States v. Beale, 921
F.2d 1412, 1435 (11th Cir. 1991), and where the defendant with a low IQ
voluntarily and knowingly waived his Miranda rights where he “interacted
normally and intelligently with the arresting agents and . . . was familiar with the
criminal justice system.” Glover, 431 F.3d at 748. Similarly, although “[m]ental
illness is a factor to be considered by the trial court, mental retardation does not by
itself prevent a defendant from voluntarily [and intelligently] waiving his
[Miranda] rights.” Dunkins v. Thigpen, 854 F.2d 394, 399 (11th Cir. 1998)
(addressing habeas corpus petition).
It is undisputed that Calles was subject to custodial interrogation
necessitating Miranda warnings. The officers provided the requisite Miranda
warnings, and Calles knowingly and voluntarily waived these rights. First, there
was no evidence that the waiver was the involuntary product of any coercion,
deception, or intimidation by Santiago or Rivera. Santiago testified that he did not
bring his pistol into the interview, raise his voice, or make any threats or promises,
and that Calles was eager to tell the truth and never requested an attorney. There is
no evidence that Calles’s decision to cooperate was not the product of a free and
19
unconstrained choice.
Second, the evidence established that Calles’s waiver was knowing and
intelligent. See Moran, 475 U.S. at 421, 106 S. Ct. at 1141. Santiago testified that
he spoke to Calles in Spanish, identified himself and explained the purpose of the
interview, slowly read and explained to Calles his rights, ensured that Calles
understood these rights, and reported that Calles was eager to speak without the
presence of an attorney. Santiago and Rivera also informed Calles that he could
stop the questioning at any time. Contrary to Calles’s argument on appeal, his
inability to speak English and his low-level education did not, by themselves,
prevent him from waiving his rights, and there is no indication that Calles
misunderstood these basic rights after they were explained to him. See Beale, 921
F.2d at 1434; Dunkins, 854 F.2d at 399. Indeed, Santiago took additional
measures to ensure that Calles did in fact understand his rights by having Calles
read the rights aloud, explaining any confusion that arose, and watching Calles
during this process to ensure that he understood his rights. The court’s finding that
Calles was intelligent enough to understand his rights, as measured by his ability to
function in society–holding several jobs and participating in a relationship with an
educated woman–was not clearly erroneous in light of Esfandiari’s testimony to
that effect. See Glover, 431 F.3d at 748. The district court did not err in finding
20
that the government proved by a preponderance of the evidence that Calles
knowingly and voluntarily waived his Miranda rights.
B. Sufficiency of the Evidence to Sustain Calles’s Convictions
Calles argues that the evidence at trial was insufficient to sustain his
convictions for kidnapping and interstate transportation of a stolen vehicle. Calles
relies exclusively on Esfandiari’s trial testimony that Calles was not a willing
participant, that he had a knife to his back forcing him to participate, that he was as
much of a victim as she was, and that he ultimately saved her life.
The government responds that, drawing all reasonable inferences in the
government’s favor, no rational jury could arrive at any conclusion other than that
Calles was a willing participant in the kidnapping and automobile theft. The
government argues that this result is compelled by the testimony of Calles’s three
codefendants, Esfandiari’s initial statements to numerous individuals, eye witness
accounts outside the hotel, and video surveillance of the incident at the hotel.
We review a district court’s denial of judgment of acquittal on sufficiency of
evidence grounds de novo . United States v. Browne, 505 F.3d 1229, 1253 (11th
Cir. 2007). “In reviewing a sufficiency of the evidence challenge, we consider the
evidence in the light most favorable to the [g]overnment, drawing all reasonable
inferences and credibility choices in the [g]overnment’s favor.” Id. “If a
21
reasonable jury could conclude that the evidence establishes guilt beyond a
reasonable doubt, we will affirm the verdict.” Id. “It is well established that
credibility determinations are the exclusive province of the jury.” United States v.
Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (citation, quotation, and alteration
omitted).
“To sustain a conviction for a violation of 18 U.S.C.[] § 1201(a)(1) the
government must establish beyond a reasonable doubt a transportation in interstate
commerce of an unconsenting person being held for ransom or reward or
otherwise, and such acts must be knowingly and willfully done.” United States v.
Chancey, 715 F.2d 543, 546 (11th Cir. 1983) (citations omitted). “The act of
holding a kidnapped person for a proscribed reason necessarily implies an unlawful
physical or mental restraint for an appreciable period against the person’s will and
with a willful intent so to confine the victim.” Chatwin v. United States, 326 U.S.
455, 460, 66 S. Ct. 233, 235 (1946).
To obtain a conviction for the interstate transportation of a stolen vehicle
under 18 U.S.C. § 2312, “the government has the burden of proving (1) that the car
was stolen, (2) that defendant transported it in interstate commerce and (3) that
defendant had the requisite guilty knowledge concerning the theft of the car.”
Fitzpatrick v. United States, 410 F.2d 513, 514-15 (5th Cir. 1969).
22
“To establish that he executed an illegal act under duress, [a defendant] must
show that he acted under an immediate threat of death or serious bodily injury, that
he had a well-grounded fear that the threat would be carried out, and that he had no
reasonable opportunity to escape or inform police.” United States v. Jones, 32
F.3d 1512, 1515 (11th Cir. 1994) (per curiam) (citation and quotation omitted). In
Jones, we held that the evidence was sufficient to negate the defendant’s assertion
that the codefendants kept a gun on him and forced him to participate in an armed
bank robbery where, inter alia, “none of [the witnesses] saw any of the robbers
holding a gun directed at any of the other robbers.” Id. at 1516.
Calles does not argue that the codefendants’ actions failed to satisfy the
elements of kidnapping or the interstate transportation of a stolen automobile.
There is no question that the defendants collectively kidnapped Esfandiari and
transported her across state lines and knowingly stole her car and drove it across
state lines. Instead, Calles argues that, based exclusively on Esfandiari’s trial
testimony, he was a victim rather than a participant, and, therefore, the evidence
was insufficient to support his convictions for these offenses. Contrary to Calles’s
argument, however, there was ample evidence presented at trial for a jury to reject
Calles’s duress defense and conclude that he willfully and knowingly participated
in these factually related offenses. See Jones, 32 F.3d 1515-16. All three
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codefendants testified that Calles was a knowing and voluntary participant in the
planning and execution of the offenses. Santiago testified that Calles admitted to
knowingly participating in the offenses. Christ testified that the man in the white
shirt, later identified as Calles, physically prevented Esfandiari from entering the
hotel office and yanked on her in an attempt to dislodge her from the railing. Law
enforcement officers testified that Calles had a pocket knife and Esfandiari’s credit
cards at the time of the arrest. There was testimony that it was Calles’s idea for the
codefendants to wear socks in Esfandiari’s home to avoid leaving fingerprints and
that it was Calles who initially retrieved the knife used to subdue Esfandiari. In
addition, the jury was free to disregard Esfandiari’s trial testimony that Calles was
a victim or acting under duress because, immediately following the incident,
Esfandiari indicated to Silkvillegas, Hall, Bell, Creelman, Colombino, Lefont, and
Bider that Calles was responsible for what had happened to her. A reasonable jury
could have concluded that Esfandiari later changed her story, and it was within the
jury’s province to disbelieve her trial testimony and believe her initial statements
to the police. See Calderon, 127 F.3d at 1325. Further, the jury could have found
Esfandiari’s trial testimony incredible for the additional reason that it was likely a
product of her emotional and romantic attachment to Calles. There was abundant
testimony at trial that would permit a jury to conclude that Calles was a knowing
24
and voluntary participant in the offenses. Therefore, despite Esfandiari’s
testimony to the contrary, and drawing all reasonable inferences and credibility
choices in the government’s favor, the evidence was sufficient for a jury to find
Calles guilty of kidnapping and the interstate transportation of a stolen vehicle.
C. Calles’s Motion for a New Trial
Calles argues that the district court erred by not granting him a new trial
based on the post-judgment recantation of Jose’s trial testimony.3 Calles relies on
3
We review sua sponte our jurisdiction over the appeal from the denial of the motion for
new trial. United States v. Petrie, 302 F.3d 1280, 1283 (11th Cir. 2002). A defendant’s notice of
appeal (“NOA”) must be filed within 10 days of the judgment of conviction. Fed. R. App. P.
4(b)(1)(A). If a motion for a new trial is filed within 10 days of the criminal judgment, the time
for filing the NOA is tolled and the defendant instead must file his NOA within 10 days of the
order disposing of such a motion. Fed. R. App. P. 4(b)(3)(A)(ii). “A valid [NOA] is effective--
without amendment--to appeal from an order disposing of [a tolling motion for a new trial].”
Fed. R. App. P. 4(b)(3)(C). The NOA must designate the judgment or order from which an
appeal is taken. Fed. R. App. P. 3(c)(1)(B). Calles timely filed his NOA within 10 days of the
underlying criminal judgment, as required by Rule 4(b)(1)(A). The next day, however, he filed a
timely tolling motion for a new trial. The district court subsequently denied that motion, and
Calles did not thereafter file an amended notice of appeal.
Rule 4(b)(3)(C) provides that a valid NOA is effective without amendment to appeal
from an order disposing of a tolling motion for a new trial. Under its plain language, there is
nothing in Rule 4(b)(3)(C) that explicitly requires the tolling motion to already be pending on the
date that the NOA is filed. Moreover, our reasoning in United States v. Wilson, 894 F.2d 1245
(11th Cir. 1990), appears to support the exercise of jurisdiction under the facts of this case. In
Wilson, we considered whether a second NOA was required to appeal the district court’s denial
of a motion for a new trial. Id. at 1251. We recognized that it was “clearly the better practice to
perfect a separate appeal from the denial of a motion for a new trial on the ground of newly
discovered evidence.” Id. We noted that an appellant’s brief could serve as a substitute for a
separate NOA and that, “without a showing of prejudice against the government, it would be
unreasonable and unfair to refuse to consider an issue which was thoroughly briefed and clearly
recognized as an issue by both parties. Id. at 1252 (quotation and alteration omitted). In this
case, both parties thoroughly briefed the issue regarding the district court’s denial of Calles’s
motion for a new trial. As such, the government assumed that the district court’s denial of the
motion for a new trial was properly before us on appeal, and the government would not suffer
any prejudice if we reviewed the propriety of the district court’s ruling on the merits. Based on
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Jose’s letter, which stated that he and Calles were threatened by the other
codefendants to participate, that neither of them had anything to do with the
offenses, and that he was forced to take a plea and testify against his brother based
on the potential life sentence he might receive. Calles argues that a new trial
should be granted based on this recantation because the jury heavily relied on
Jose’s testimony because he was Calles’s brother, the recantation was consistent
with Esfandiari’s testimony, and the recantation casts doubt on the testimony of
Muratti-Hani and Santos.
The government responds that the district court acted within its discretion by
denying Calles’s motion for a new trial. The government points out that Jose’s
letter is contradicted by all of the evidence at trial, including the testimony of
Esfandiari, who never asserted that Jose was not a full participant. The
government concedes that Jose’s recantation may be material, but argues that the
evidence does not satisfy any of the other four factors required to obtain a new
trial. The government notes that Jose’s trial testimony was not necessary to obtain
Calles’s conviction in light of the other evidence in the case, and Calles’s cross-
examination of Jose established only that Jose held Esfandiari down while she was
raped. The government emphasizes that the district court observed the multiple
this reasoning, we find that we have jurisdiction over Calles’s appeal from the denial of the
motion for new trial.
26
witnesses at trial and weighed that evidence against the unsworn and incredible
recantation of Jose.
We review the denial of a motion for a new trial for abuse of discretion.
United States v. Thompson, 422 F.3d 1285, 1294-95 (11th Cir. 2005). “A district
court abuses its discretion if it fails to apply the proper legal standard or to follow
proper procedures in making the determination, or makes findings of fact that are
clearly erroneous.” United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir.
2006) (per curiam) (citation and quotation omitted).
A defendant may move the district court for a new trial based on newly
discovered evidence. Fed. R. Crim. P. 33(b)(1). A new trial based on newly
discovered evidence “is warranted only if: (1) the evidence was in fact discovered
after trial; (2) the defendant exercised due care to discover the evidence; (3) the
evidence was not merely cumulative or impeaching; (4) the evidence was material;
and (5) the evidence was of such a nature that a new trial would probably produce
a different result.” Thompson, 422 F.3d at 1294 (citation and quotations omitted).
A motion for new trial will fail if “any one of these elements” is unsatisfied. Id.
(citation and quotation omitted). “Motions for a new trial based on newly
discovered evidence are highly disfavored in the Eleventh Circuit and should be
granted only with great caution. Indeed, the defendant bears the burden of
27
justifying a new trial.” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir.
2006) (en banc) (quotation omitted).
We will affirm a district court’s denial of a motion for a new trial when the
newly discovered evidence would probably not produce a different result at a new
trial. In United States v. Lee, we held that new testimony would probably not
produce a new result where the government was likely to impeach the new
testimony with the witness’s own inconsistent trial testimony. 68 F.3d 1267, 1274
(11th Cir. 1995). In Thompson, we held that the new testimony would probably
not produce a different result where it would not impeach the testimony of a
witness who underwent extensive cross-examination and where the new testimony
was implausible. 422 F.3d at 1295. In United States v. Schlei, we held that new
testimony that was cumulative and corroborative to the detriment of the defendant
would probably not produce a new result at trial. 122 F.3d 944, 993-94 (11th Cir.
1997).
We need not address the first four prongs of the new trial analysis in this
case because Jose’s proposed, new testimony–that he and Calles were forced to
participate in the kidnapping–would probably not produce a different result at a
new trial. First, the substance of Jose’s letter is implausible. See Thompson, 422
F.3d at 1295. There was no evidence presented at trial, including the testimony of
28
Esfandiari, suggesting that Jose was anything but a willful participant in the
offenses. Indeed, Esfandiari testified that Jose held the knife to her and told her to
waive goodbye to pictures of her children because she would never see them again.
Furthermore, Calles used his cross-examination of Jose to confirm Jose’s
participation in Esfandiari’s rape. Second, the government would be able to
impeach Jose’s new testimony. See Lee, 68 F.3d at 1274. Jose was Calles’s
brother and therefore had a motive to lie in order to help Calles. The government
also could impeach Jose’s credibility based on the inconsistency between his letter
and his trial testimony, where he testified that Calles was a willful participant in
the offenses. For these reasons, Jose’s proposed new testimony would also be
unlikely to impeach or cast doubt on the significant number of witnesses, including
several law enforcement officers, the other two codefendants, and the disinterested
eye witnesses, who were subject to cross-examination and consistently testified as
to Calles’s willful participation in the offense. See Thompson, 422 F.3d at 1295.
Finally, Calles’s argument that the jury heavily relied on Jose’s testimony is belied
by the fact that his testimony was brief, lacked detail, and was cumulative.
Therefore, the district court did not abuse its discretion by denying Calles’s motion
for a new trial because Jose’s proposed testimony would probably not produce a
different result at trial.
29
III. CONCLUSION
Upon review of the record and the parties’ briefs, we discern no reversible
error. Because Calles voluntarily, knowingly, and intelligently executed the
Miranda waiver, the district court did not err in denying his motion to suppress.
The evidence was sufficient for a jury reasonably to find Calles guilty of
kidnapping and the interstate transport of a stolen vehicle. The district court did
not abuse its discretion in denying Calles’s motion for a new trial because the new
evidence would probably not produce a different result at a new trial.
AFFIRMED.
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