Cunningham v. United States - Opposition

Docket number: 
No. 98-724
Supreme Court Term: 
1998 Term
Court Level: 
Supreme Court

No. 98-724

In the Supreme Court of the United States






Solicitor General
Counsel of Record
Assistant Attorney General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

Whether the district court abused its discretion in denying petitioner's motion for a new trial, where petitioner wished to introduce as "newly discovered evidence" the testimony of a co-conspirator who had been a fugitive at the time of petitioner's trial.

In the Supreme Court of the United States

No. 98-724





The opinion of the court of appeals (Pet. App. 1-2) is unpublished, but the decision is noted at 141 F.3d 1189 (Table).
The court of appeals entered its judgment on April 8, 1998. A petition for rehearing was denied on August 3, 1998. Pet. App. 13-14. The petition for a writ of certiorari was filed on October 30, 1998. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
Following a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted of conspiracy to import cocaine and attempting to import cocaine, both in violation of 21 U.S.C. 963. He was sentenced to 300 months' imprisonment. The court of appeals affirmed. United States v. Vega-Fleites, 89 F.3d 853 (Table).1 Following the Eleventh Circuit's decision, petitioner filed a motion for a new trial claiming that he had obtained newly discovered, exculpatory evidence. The district court denied the motion. Pet. App. 3-10. The court of appeals affirmed. Id. at 1- 2.
1. Petitioner participated as a planner, manager, and supervisor in a large-scale conspiracy to import cocaine into the United States. See App., infra, 8a. Between January and September 1989, the conspiracy transported thousands of kilograms of cocaine on a freighter from Columbia to the Bahamas, where the cocaine was loaded onto smaller boats for importation into the United States. Id. at 2a-3a. Petitioner belonged to a subgroup of the conspiracy, headed by David Lemieux, that was responsible for offloading the cocaine from ships near the Bahamas and bringing it into the United States. No. 97-5242 Gov't C.A. Br. 7.
The evidence at trial showed that, in July 1989, petitioner, along with Lemieux and two other co-conspirators, examined a marina in Miami, Florida, to determine its suitability for use as a site for them to offload cocaine that had been brought into the United States. No. 93-4013 Gov't C.A. Br. 7-8. On July 27, 1989, petitioner, Lemieux, and others were aboard a boat in the Bahamas waiting to offload the freighter, but they aborted the scheme when they detected law enforcement surveillance. Id. at 8-9. Telephone records also showed that petitioner made calls to four other members of the conspiracy, including Lemieux and one of the principal organizers of the conspiracy, during the time frame of the importation scheme. Id. at 14.
At the time of petitioner's trial in May 1992, Lemieux, who had been indicted with petitioner, remained a fugitive. Pet. App. 3. Although petitioner resided with Lemieux's mother throughout the trial, petitioner did not assert at any time that Lemieux would testify on his behalf, nor did he make any apparent effort to locate Lemieux or to seek the court's assistance in obtaining his testimony. No. 97-5242 Gov't C.A. Br. 32 n.12, 35-36. At trial, petitioner testified in his own defense. He claimed that Lemieux was a life-long friend with whom he had gone to the Bahamas to fish, and that he knew nothing of Lemieux's plan to import cocaine during the trip. Id. at 8. He attempted to explain the records showing telephone calls to co-conspirators by stating that he had lent his calling card to Lemieux. Id. at 8-9.
The jury found petitioner guilty of conspiracy to import cocaine and the attempted importation of cocaine, both in violation of 21 U.S.C. 963. At sentencing, the district court enhanced petitioner's sentence because it found that petitioner was a manager in the conspiracy. App., infra, 3a.
2. The court of appeals affirmed, concluding that the jury reasonably could have disbelieved petitioner's innocent explanation for his presence during the July 1989 offload attempt. App., infra, 7a (noting that petitioner "was present at times when it would be 'highly unlikely that conspirators attempting a . . . smuggling operation would have tolerated the recurrent presence of [] mere bystander[s]'") (quoting United States v. Baptista-Rodriguez, 17 F.3d 1354, 1374 (11th Cir. 1994)). The court of appeals further noted that "[t]he evidence shows that [petitioner] coordinated the offloading of the cocaine, exercised decision-making authority, and played a part in planning and controlling others involved in the conspiracy." App., infra, 8a.
3. In September 1992, three months after petitioner's trial, Lemieux was arrested by British authorities in England. Lemieux was subsequently convicted in England on other charges and sentenced to 16 years' imprisonment.2 Pet. App. 3. In January 1994, petitioner's counsel "was made aware that David Lemieux had been arrested in Great Britain." Mot. for New Trial 3. Three years later, following the court of appeals' affirmance of petitioner's conviction and sentence, petitioner filed a motion for a new trial on the ground that Lemieux's availability to provide exculpatory testimony constituted newly discovered evidence. Pet. App. 3. In support of the motion, petitioner submitted a three-page affidavit in which Lemieux stated that petitioner had no knowledge of the illegal activities. See Aff. of D. Lemieux, attached to Mot. for New Trial. While his new trial motion was pending, petitioner submitted a transcript of a sworn interview with Lemieux taken on March 13, 1997. Pet. App. 17-45. During that interview, Lemieux repeated that his relationship with petitioner was purely personal, that petitioner was unaware that the purpose of the July 1989 trip was drug smuggling, and that petitioner had no involvement in Lemieux's drug smuggling activities. Ibid.
The district court denied the motion for a new trial. Pet. App. 3-10. The court invoked the "general rule" that "the post-trial testimony of a co-conspirator who refused to testify at trial" does not constitute "newly discovered evidence." Id. at 4. The court further explained that, "if [petitioner] is actually innocent, then [petitioner] certainly knew, even before trial, that Lemieux could testify that he knew of no facts which would demonstrate that [petitioner] was involved in the conspiracy or drug offenses. * * * Lemieux's present willingness to provide an affidavit only provides a newly available means through which [petitioner] can present that evidence." Id. at 8. The court further concluded that petitioner's motion identified no particular circumstances that would otherwise justify characterizing Lemieux's testimony as newly discovered. Id. at 5-7.
4. The court of appeals again affirmed. Pet. App. 1-2. The court noted that the district court's ruling was "due special deference" (id. at 2), and concluded that the district court had not abused its discretion in denying petitioner's new trial motion.
Petitioner argues (Pet. 7-14) that the court of appeals' determination that Lemieux's testimony was not "newly discovered evidence" conflicts with the rulings of other circuits. Because this case presents no such conflict, the court of appeals' ruling is correct, and further review would not alter the outcome of petitioner's case, this Court's review is not warranted.
1. Under Federal Rule of Criminal Procedure 33, a motion for a new trial must be filed within seven days of judgment, except for new trial motions "based on the ground of newly discovered evidence," which "may be made only before or within two years after final judgment." Petitioner contends (Pet. 7-12) that review is warranted because the courts of appeals are in disagreement about whether evidence from witnesses who are known but "unavailable" at trial may constitute "newly discovered evidence" within the meaning of Rule 33. The decisions on which he relies do not assist him, however.
a. Under Rule 33, evidence of which the defendant knows, but cannot gain access to until after trial, is not "newly discovered." Consistent with that principle, a defendant who simply offers "the post-trial testimony of a co-conspirator who refused to testify at trial" does not meet the requirement of presenting newly discovered evidence. See, e.g., United States v. Dale, 991 F.2d 819, 838-839 (D.C. Cir.) (describing that position as the "unanimous view of circuits that have considered the question"), cert. denied, 510 U.S. 906 (1993); see also, e.g., United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996) ("When a defendant is aware of a co-defendant's proposed testimony prior to trial, it cannot be deemed newly discovered under Rule 33 even if the co-defendant was unavailable."); United States v. Glover, 21 F.3d 133, 138 (6th Cir.) ("While Morgan's testimony may have been newly available, it was not in fact 'newly discovered evidence' within the meaning of Rule 33."), cert. denied, 513 U.S. 948 (1994); United States v. Offutt, 736 F.2d 1199, 1202 (8th Cir. 1984) ("[W]hen a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a codefendant, the evidence is not 'newly discovered.'").
That principle applies here. Petitioner has not made, and could not make, any claim that he was unaware of Lemieux's potential testimony at the time of trial. To the contrary, petitioner's assertion that he is innocent and had only a friendship with Lemieux presupposes that he believed at the time of trial that Lemieux would corroborate the nature of their friendship. The purported new evidence from Lemieux is, therefore, not "newly discovered."
There are sound reasons, moreover, to view such newly available evidence from a co-conspirator with considerable skepticism. While Lemieux has not yet been convicted, the 16 years that must elapse before he could face trial in the United States (while Lemieux completes his British prison term), the uncertainties that attend any international extradition effort, and the strength of the evidence already compiled against Lemieux, as displayed in petitioner's trial, leave Lemieux little to lose by attempting to help his co-conspirator. Freeman, 77 F.3d at 817 ("[I]t is not unusual for the obviously guilty defendant to try to assume the entire guilt," especially where he "had nothing to lose.").
b. Petitioner contends (Pet. 9) that the First and Sixth Circuits have ruled that a defendant's post-trial discovery of the location and availability of an exculpatory witness, including a co-defendant, is grounds for a new trial under Rule 33. The narrow holdings of the decisions on which petitioner relies afford no support for his claim that the district court in this case abused its discretion by denying his new trial motion.
In United States v. Montilla-Rivera, 115 F.3d 1060 (1997), the First Circuit held that the post-trial exculpatory testimony of the two co-defendants in that case might warrant a new trial. Id. at 1066-1067 (stating that, in contrast to other circuits, the First Circuit has no per se rule that formerly unavailable testimony cannot be "newly discovered evidence"). That decision, however, represented an extremely narrow view of when such relief might be justified and, as such, is of no help to petitioner. The First Circuit specifically reconfirmed that proffers of "new" evidence by co-conspirators must be viewed "with great skepticism" and stated that it "share[d] the general skepticism concerning those statements" expressed by other courts. Ibid. The First Circuit simply concluded, based on the "unusual combination of circumstances" presented (id. at 1067) in that case, that the co-conspirator statements warranted a hearing at which the district court could decide whether to grant a new trial (ibid.).
No analogous unusual circumstances obtain here. To the contrary, in contrast to the case against the defendant in Montilla-Rivera (see 115 F.3d at 1067), the evidence against petitioner was strong and emanated from a variety of sources. See App., infra, 6a-8a; No. 93-4013 Gov't C.A. Br. 4-15, 33-36; No. 97-5242 Gov't C.A. Br. 7-9. Further, counsel for petitioner undertook no "significant efforts to procure [Lemieux's] testimony before his own conviction." Montilla-Rivera, 115 F.3d at 1067-1068. Accordingly, it is unlikely that the First Circuit would decide the present case any differently than did the Eleventh Circuit. In any event, the record-specific determination of whether the particular facts presented in this case are sufficient to dispel the skepticism that normally attaches to co-conspirator testimony does not present any legal issue that would merit this Court's review.3
Nor is petitioner assisted (Pet. 10-12) by the Sixth Circuit's decision in United States v. Garland, 991 F.2d 328 (1993). In Garland, the defendant sought a new trial based on the judgment of a foreign court, which directly supported his claim of innocence. Id. at 330-332. That judgment, which provided "dramatic and probative" evidence supporting the defendant's claim, did not exist until after the defendant's trial "and thus could not have been 'discovered' earlier." Id. at 335. The court of appeals also held that the proposed testimony of a witness, who was not a co-defendant or co-conspirator, constituted newly discovered evidence because "it provide[d] a verifying link" between the defendant's defense and the intervening foreign judgment. Ibid. Garland thus gives no support to a claim that evidence may be newly discovered when it would come from a co-conspirator known to the defendant- as is confirmed by the Sixth Circuit's later decision rejecting such evidence in Glover, 21 F.3d at 138-139.4
2. Further review is also unwarranted because petitioner cannot satisfy the other criteria necessary to obtain a new trial under Rule 33. A ruling by this Court on whether Lemieux's testimony qualifies as newly discovered would, therefore, be unlikely to have any practical impact on petitioner's case.
When considering motions for new trials, courts generally require the defendant to show that the evidence (1) is newly discovered and was unknown at the time of trial; (2) is material, and is not merely cumulative or impeaching; (3) will probably produce an acquittal; and (4) could not have been uncovered earlier through the exercise of due diligence by the defendant. 3 Charles Alan Wright, Federal Practice & Procedure: Criminal § 557 (2d ed. 1982) (collecting cases); see also Pet. App. 4. Moreover, motions for new trials on the ground of newly discovered evidence are not favored and should be granted only with great caution. See United States v. Johnson, 327 U.S. 106, 111-112 (1946) (great deference accorded to district court's decision and review of affidavits proposing new evidence).5 In addition to being not newly discovered, petitioner's proposed testimony fails each of the other prongs of the test for granting a new trial.
First, petitioner did not exercise due diligence to uncover the testimony earlier. Petitioner made no effort, before or during his trial, to notify the district court of the existence of potentially exculpatory testimony. Although petitioner was living with Lemieux's mother throughout the trial, he does not claim that he made any effort to locate Lemieux or obtain his testimony for submission as evidence at the trial. He sought no continuance or subpoena from the court to assist him in locating or obtaining Lemieux's testimony in a timely fashion. Moreover, even when petitioner learned of Lemieux's presence in Great Britain, he delayed another three years-until after the court of appeals had rejected his direct appeal from the conviction- before notifying the court of Lemieux's availability and moving for a new trial. Petitioner thus has failed to show due diligence in pursuing Lemieux's testimony. See United States v. Frye, 548 F.2d 765, 769 n.6 (8th Cir. 1977).
Second, Lemieux's testimony would simply echo petitioner's own testimony before the jury. The cumulative protestations of innocence by co-conspirators do not constitute the type of evidence that should support the grant of a new trial.
Third, Lemieux's testimony would be unlikely to produce an acquittal. As noted, Lemieux's proposed testimony adds little substantively to petitioner's rendition of events, which the jury rejected. More importantly, Lemieux's statements contradict petitioner's testimony in important regards. Lemieux repeatedly refuses to adopt petitioner's contention (Pet. 4) that petitioner was brought along as an unwitting "decoy" to provide cover for the drug operation. See Pet. App. 29, 32, 33.
Lemieux also offers little support for petitioner's claim (Mot. for New Trial 18-19) that Lemieux, not petitioner, used petitioner's calling card and telephone to contact other members of the conspiracy. See Pet. App. 37-40 (Lemieux largely unable to recall using the card or phone for contacting drug-trafficking associates; claims it was primarily used "to call girls and stuff," id. at 37).
Petitioner and Lemieux provide differing explanations for petitioner's presence with Lemieux, in July 1989, at the marina that was being inspected as a site for offloading cocaine. Petitioner claims that Lemieux "wanted his opinion about a boat he had purchased, for [petitioner] was very knowledgeable about boats." Mot. for New Trial 16. Lemieux, on the other hand, declined to adopt that explanation when he was interviewed by petitioner's counsel (Pet. App. 23) and claimed instead that he and petitioner were on their way to a regularly scheduled breakfast, when Lemieux advised petitioner that he had to go look at a boat first. Ibid.6 The discrepancies between petitioner's and Lemieux's testimony make it unlikely that the additional testimony of a co-conspirator would cause the jury to resolve its credibility determination any differently in a new trial.
Finally, Lemieux's claim (Pet. App. 30, 32) that he brought petitioner aboard the boat in the Bahamas only because he knew that nothing more than a "dry run" of the offload was planned is flatly contradicted by the testimony of multiple witnesses at trial and the realities of drug trafficking (see No. 97-5242 Gov't C.A. Br. 39-40), and thus would be likely to undercut Lemieux's credibility rather than assist petitioner's defense.
Because petitioner's new trial motion must be denied regardless of whether Lemieux's testimony constitutes newly discovered evidence, and because the holding below that Lemieux's testimony would not constitute such evidence conflicts with no other appellate decision, this Court's review is not warranted.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
Solicitor General
Assistant Attorney General



No. 93-4013
Non-Argument Calendar
D. C. Docket No. 90-007-CR-NESBITT





[Filed June 19, 1996]

Circuit Judges.


Andres Vega-Fleites, John Clifton Anderson, Charles Cunningham, James Cavanagh, Juan DeArmas, and Orlando Rojas-Santana (Appellants) appeal following their convictions and sentences for various offenses arising out of their involvement in a large cocaine importation conspiracy. After a jury trial, all the Appellants were convicted for conspiracy to import cocaine in violation of 21 U.S.C. § 963. In addition: all Appellants except for Anderson were convicted for attempting to import cocaine in violation of 21 U.S.C. § 963; Cavanagh and Anderson were convicted for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841; and, Cavanagh was convicted for importation of cocaine in violation of 21 U.S.C. § 952. Anderson had pled guilty prior to trial to the offense of failure to comply with bond conditions in violation of 18 U.S.C. § 401(3) and failure to appear for trial in violation of 18 U.S.C. § 3146(a)(1).1

The alleged conspiracy's goal was the importation into South Florida of a large quantity of cocaine brought by the Danish freighter M/V NERMA from Colombia to the Bahamas. Alex Decubas, working with several other conspirators, organized several "subgroups" responsible for receiving the cocaine from the M/V NERMA and offloading it when it arrived in South Florida. Decubas allegedly was an agent of the cocaine's owner, and he coordinated the delivery and distribution of the cocaine, both in the Bahamas and once it arrived in South Florida. On several occasions from January to September 1989,2 the following basic routine occurred: the M/V NERMA arrived at a predetermined point in the Bahamas, where its crew transferred watertight bales of cocaine to a smaller lobster or shrimping boat. That vessel then dispersed the bales to several smaller, faster boats for transport to Florida. Once these boats arrived, several conspirators offloaded the cocaine and delivered it to locations in Miami or Palm Beach.

At sentencing, the trial court found that Cunningham and Cavanagh were managers in the conspiracy's hierarchy, and it concluded that Vega-Fleites, DeArmas, and Rojas-Santana were offloaders who were also involved in preparing and piloting the boats used in the importation scheme. Anderson was apparently involved with distribution in Miami; he was caught in a car packed with cocaine just unloaded from a boat used in the September importation.

On appeal, the Appellants contend that the trial court erred by denying their motions for acquittal based on their assertion that the government failed to prove the existence of one conspiracy rather than several independent conspiracies. Vega-Fleites and DeArmas also contend that the court should have granted their motions for severance or for a mistrial because of the prejudicial effect of the evidence introduced regarding conspiracies unrelated to them. In addition, Vega-Fleites, Cunningham, Rojas-Santana, DeArmas and Anderson contend that, assuming that there was a single conspiracy, the trial court erred by denying their motions for acquittal because the evidence was insufficient to prove that they knowingly agreed to join and participate in it. Finally, Vega-Fleites and Cunningham challenge the trial court's determination at sentencing of their roles in the conspiracy.3

A. Existence of a single conspiracy

The Appellants' main argument is that the evidence does not support the existence of a single, overarching conspiracy, as the indictment alleges. They assert that even though similar procedures were used each time the M/V NERMA offloaded cocaine, they were carried out pursuant to several independent importation conspiracies coordinated by Alex Decubas. The Appellants argue that this variance between the conspiracy charged in the indictment and the evidence offered at trial prejudiced their substantial rights. The government contends that the evidence was sufficient for a reasonable jury to conclude that the Appellants were involved in a single conspiracy, so that the court did not err in denying Appellants' motions for acquittal or severance.

"We may reverse a jury's finding that a single conspiracy existed only if the evidence, viewed in the light most favorable to the government, could not permit reasonable jurors to have found, beyond a reasonable doubt, that there was a single conspiracy." United States v. Brito, 721 F.2d 743, 747 (11th Cir. 1983). We consider three criteria in discerning whether the government has proven a single conspiracy or multiple, independent ones: (1) the existence of a common goal; (2) the nature of the scheme; and (3) the overlap of the participants in the dealings of the conspiracy. United States v. Taylor, 17 F.3d 333, 337 (11th Cir. 1994) (citations omitted). In the present case, the evidence introduced at trial fairly supports the jury's finding of a single conspiracy. There was a common goal: to import cocaine into the United States. See United States v. Coy, 19 F.3d 629, 633 (11th Cir. 1994) ("common goal" criterion assessed at high level of generality). The "basic means of implementing the importation objectives were consistent throughout," United States v. Champion, 813 F.2d 1154, 1166 (11th Cir. 1987), and the groups of importers and offloaders were coordinated by the same "key men" who directed the illegal activities, see id. at 1167; see also Taylor, 17 F.3d at 337 (no requirement that each conspirator participated in every transaction, knew all other conspirators, or knew details of each venture).

B. Vega-Fleites's and DeArmas's motions for severance or for a mistrial

Because there was sufficient evidence for a reasonable jury to find that there was a single conspiracy, the trial court did not abuse its discretion by denying Vega-Fleites's and DeArmas's motions for severance or, in the alternative, for a mistrial. Even if the evidence showed that multiple conspiracies existed, we may not reverse Vega-Fleites's and DeArmas's convictions "absent a showing that the variance between the indictment and the evidence adversely affected [their] substantial rights." United States v. Cole, 755 F.2d 748, 765 (11th Cir. 1985). In essence, the Appellants argue that the joint trial of so many defendants likely confused the jury into transferring culpability from some defendants to others. But two of the Appellants' codefendants were acquitted, suggesting that the jury was not confused by the number of defendants at trial. Vega-Fleites and DeArmas have not shown any prejudicial variance between the indictment and the evidence. Id.

C. Sufficiency of evidence inculpating Vega-Fleites, Cunningham, Rojas-Santana, DeArmas and Anderson

Appellants Vega-Fleites, Cunningham, Rojas-Santana, DeArmas, and Anderson contend that the evidence introduced at trial was insufficient to prove beyond a reasonable doubt that they knowingly agreed to join and participate in the conspiracy alleged in the indictment. At trial, they asserted various explanations for their presence near the M/V NERMA, on the vessels involved in the importation scheme, and at the offload sites in South Florida. The government contends that the jury was entitled to disbelieve these proffered versions of events and infer, based on other evidence introduced at trial, that the Appellants knowingly participated in the criminal activities at issue.

To assess whether there was sufficient evidence to convict the Appellants, we must determine, viewing the evidence in the light most favorable to the government, whether "a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt." United States v. Battle, 892 F.2d 992, 998 (11th Cir. 1990) (internal quotation marks omitted). We think in this case that a reasonable jury could find guilt beyond a reasonable doubt as to each of the Appellants. The government introduced inculpatory evidence during their trial, and each of them was present at times when it would be "highly unlikely that conspirators attempting . . . smuggling operation would have tolerated the recurrent presence of [] mere bystander[s]." United States v. Baptista-Rodriguez, 17 F.2d 1354, 1374 (11th Cir. 1994). The jury was entitled to weigh the credibility of Cunningham, Rojas-Santana, and Anderson when they testified at trial, and it was free to disbelieve their accounts and rely on the other evidence to convict. The trial court did not err by denying Appellants' motions for acquittal.

D. The Appellants' roles in the conspiracy

Cunningham and Vega-Fleites argue that the trial court erred in computing their sentences. Cunningham attacks as clearly erroneous the court's finding pursuant to U.S.S.G. § 3B1.1(b) that he was a manager or supervisor in the conspiracy hierarchy. Vega-Fleites asserts that the court clearly erred by finding that he was not a minor or minimal participant in the conspiracy, entitling him to a downward departure under U.S.S.G. § 3B1.2. The government contends that the court did not clearly err in determining the Appellants' roles in the conspiracy and that the court correctly applied the guidelines to compute their sentences.

We review for clear error a trial court's determination of a defendant's role in a conspiracy. United States v. Griffin, 945 F.2d 378, 385 (11th Cir. 1991). Here, the evidence introduced at trial fairly supports the trial court's findings with respect to the roles of Cunningham and Vega-Fleites in the importation scheme. The evidence shows that Cunningham coordinated the offloading of the cocaine, exercised decision-making authority, and played a part in planning and controlling others involved in the conspiracy. See United States v. Jones, 933 F.2d 1541, 1547 (11th Cir. 1991); U.S.S.G. § 3B1.1(b) comment. (n.3) (1993). Similarly, the evidence fairly suggests that Vega-Fleites had an important, rather than a minor or minimal, role in the conspiracy; he has not shown that he was plainly among the least culpable of those involved in the conspiracy. See United States v. Zaccardi, 924 F.2d 201, 202 (11th Cir. 1991).

E. Conclusion

We find no reversible error in this case, and affirm the Appellants' convictions and sentences.

1 The court of appeals' decision is reproduced in the appendix to this brief.
2 The United States sought Lemieux's deportation from England, but those efforts were unsuccessful, and Lemieux apparently will serve his sentence in England before there is a possibility of his being returned to the United States to stand trial. Pet. App. 3.
3 As petitioner notes (Pet. 10), the First Circuit in Montilla- Rivera cited United States v. Ouimette, 798 F.2d 47 (2d Cir. 1986), cert. denied, 488 U.S. 863 (1988), as support for its general analysis, "[a]t least in the context of newly available evidence from one not a codefendant." 115 F.3d at 1066. Ouimette offers no help to petitioner. Ouimette involved an effort to introduce the previously unknown efforts of the police department to coerce an eyewitness not to testify. 798 F.2d at 51. While the court of appeals agreed that the testimony of the eyewitness alone was not newly discovered, ibid., the court ruled that the witness's testimony "concerning the pressure put on him by the Providence police to dissuade him from testifying for the defense is certainly new in the sense that it was discovered after trial." Ibid. The nature of Ouimette's claim, as well as the government's affirmative interference with the evidentiary process, thus sharply distinguish the Second Circuit's ruling from the decision at hand.
4 Petitioner also suggests (Pet. 12) that the court of appeals' decision conflicts with the Fourth Circuit's unpublished decision in United States v. Purnell, No. 97-4057, 1998 WL 405942 (June 9, 1998). Purnell, however, involved the potentially exculpatory testimony of a witness, not a co-defendant. Id. at *3. Further, the court of appeals found that the defendant learned of the evidence only after trial and after diligently trying to uncover it in a timely fashion. Id. at *1, *3. In any event, the Fourth Circuit's decision in Purnell would not create a genuine inter-circuit conflict because the unpublished ruling has no precedential force. See 4th Cir. R. 36(a)-(c).
5 See also Glover, 21 F.3d at 138; United States v. Kamel, 965 F.2d 484, 490 (7th Cir. 1992); United States v. Kelley, 929 F.2d 582, 586 (10th Cir.), cert. denied, 502 U.S. 926 (1991).
6 Moreover, Lemieux's story itself is not consistent. His original affidavit made no mention of the breakfast meeting and, instead, concurred with petitioner that the purpose of the visit was to look at a boat. Similarly, his affidavit admitted to using petitioner's calling card to support his smuggling operation, while his lengthier statements during the interview with counsel evade such an acknowledgment. See Aff. 3, attached to Mot. for New Trial.
1 In addition to the six appellants, two other alleged conspirators, Rolando Garcia and Lynn Gillen, were tried. The jury acquitted Garcia on all counts, and it acquitted Gillen on a count of attempting to import cocaine. The jury reached no verdict on the conspiracy charge against Gillen.
2 The indictment alleges five different episodes which occurred pursuant to the overarching conspiracy: successfully completed importations in January, March, and June 1989; an attempted importation in July 1989 that was interrupted by U.S. law enforcement officers; and the September 1989 importation that led to the appellants' arrest.
3 DeArmas and Cavanagh also challenge their sentences. DeArmas argues that the trial court should have departed downward under U.S.S.G. § 3B1.2 because he was a minimal or minor participant in the conspiracy. But we do not address this issue because DeArmas failed to raise any such objection to his sentence in the trial court. Similarly, we do not address Cavanagh's argument that the trial court erred by enhancing his sentence under § 3B1.1 for his role as a manager or supervisor. Cavanagh has failed to provide a transcript of his sentencing hearing, see Fed. R. App. P. 10(b)(2), so he has forfeited this claim. See, e.g., United States v. Fuentes, 877 F.2d 895, 899 (11th Cir. 1989).
DeArmas separately contends that the trial court abused its discretion by admitting evidence under Fed. R. Evid. 404(b) of a prior drug conviction, and Cavanagh contends (and DeArmas adopts the argument) that two instances of prosecutorial misconduct during the trial violated the defendants' due process rights. These contentions are without merit and do not warrant further discussion. 11th Cir. R. 36-1.

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