United States v. Manuel Rodriguez-Cornejo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10667
Plaintiff - Appellee, D.C. No. 4:12-cr-00341-CKJ-
DTF-1
v.
MANUEL RODRIGUEZ-CORNEJO, MEMORANDUM*
a.k.a. MANUEL CORNEJO-
RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted April 8, 2014**
San Francisco, California
Before: BENAVIDES,*** TALLMAN, and CLIFTON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
United States Court of Appeals for the Fifth Circuit, sitting by designation.
Manuel Rodriguez-Cornejo (“Rodriguez”) appeals his conviction after a jury
trial on one count of illegal reentry by an alien after deportation in violation of 8
U.S.C. § 1326(a). Rodriguez contends that the district court erred in failing to
grant a judgment of acquittal or a new trial because: (1) the government’s evidence
was insufficient to allow the jury to conclude that he was not a United States
citizen, and (2) newly discovered evidence established that he was born in the
United States. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In reviewing the denial of a Rule 29 motion for judgment of acquittal, we
consider de novo whether sufficient evidence exists to support a guilty verdict.
United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). Sufficient evidence
supports a defendant’s conviction if, “viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). The government presented evidence that Rodriguez
admitted to Border Patrol Agents Alvarez and Lynch on January 16, 2012, that he
was from Michoacán, Mexico, and that he did not have permission to enter the
United States. The government presented evidence that after his arrest, on January
16, 2012, Rodriguez waived his rights and made several admissions to Border
Patrol Agent Price. Rodriguez admitted that he was born in Mexico, he is a citizen
2
of Mexico, and he did not have legal permission to reenter the United States.
Rodriguez had previously been deported and given at least three prior sworn
statements in which he admitted that he was born in Mexico and that he did not
have legal permission to reenter the United States. While “an order of deportation
is insufficient as a matter of law to establish a defendant’s alien status,” United
States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir. 1997), the government’s evidence
was not limited to the prior deportation order, and included numerous admissions
from the defendant himself. See id. Because the government presented ample
evidence from which the jury could have concluded that Rodriguez was not born in
the United States, the district court did not err in denying Rodriguez’s Rule 29
motion for judgment of acquittal.
Rodriguez also contends that the district court erred in denying his motion
for a new trial pursuant to Federal Rule of Criminal Procedure 33(a) because the
evidence was insufficient to establish that Rodriguez was not born in the United
States and because newly discovered evidence established that he was born in the
United States. We review the district court’s denial of a motion for a new trial for
an abuse of discretion. See United States v. Hursh, 217 F.3d 761, 769 (9th Cir.
2000). A new trial is not warranted under Rule 33 unless a defendant can establish
five elements: “(1) the evidence is newly discovered; (2) the defendant was diligent
3
in seeking the evidence; (3) the evidence is material to the issues at trial; (4) the
evidence is not (a) cumulative or (b) merely impeaching; and (5) the evidence
indicates the defendant would probably be acquitted in a new trial.” United States
v. Berry, 624 F.3d 1031, 1042 (9th Cir. 2010) (citation and internal quotation
marks omitted).
Applying this test, the district court did not abuse its discretion in denying
Rodriguez’s Rule 33 motion. First, because the evidence was sufficient to sustain
a guilty verdict, the district court did not err in refusing to grant a new trial on this
basis. Second, even assuming the evidence from Mr. Flores is considered “newly
discovered,” the evidence was cumulative to other testimony provided at trial, and
Rodriguez has not met his burden to show that a new trial would probably result in
acquittal. See United States v. Kulczyk, 931 F.2d 542, 548–49 (9th Cir. 1991). The
jury heard and rejected Rodriguez’s defense that he was born in the United States.
Therefore, the district court did not abuse its discretion in denying the motion for a
new trial under Rule 33.
AFFIRMED.
4