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United States v. Hernandez-Calvillo

United States District Court, D. Kansas

March 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE FELIPE HERNANDEZ-CALVILLO AND MAURO PAPALOTZI, Defendants.

          MEMORANDUM & ORDER

          CARLOS MURGUIA United States District Judge.

         Defendants move for a new trial pursuant to Federal Rule of Criminal Procedure 33 (Docs. 167 & 169). Because their arguments are the same, the court addresses their motions in a single order.

         I. Background

         In August 2017, defendants were tried by a jury and convicted on Count 1: conspiracy, for commercial advantage or private financial gain, to induce and encourage aliens to reside in the United States, knowing and in reckless disregard of the fact that such residence is in violation of the law, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) and (v)(I). Defendants were charged in an indictment with being members of a conspiracy that used undocumented alien labor to reduce the cost of drywall construction projects to increase profits for the conspirators. The indictment alleged that through the conspiracy, defendants gained employment without having to purchase and provide workers' compensation, unemployment, and liability insurance to contractors, pay market wages, health insurance, taxes, or social security withholdings.

         Defendants allegedly led crews that hung drywall and worked primarily, if not exclusively for the same contractor, Keith Countess. Countess paid crews by writing checks to Jose R. Torres Drywall. Jose R. Torres Drywall was not a drywall subcontractor. It was a scheme that enabled Countess and his crew leaders to pay the drywall crews and that allowed Jose Torres a percentage of the money. Jose Torres deposited the checks, and then cashed them, withholding a percentage for himself and providing the rest to various drywall crews, including defendants'.

         Defendants were acquitted on Counts 2, 7, and 8 in the indictment, which alleged that defendants encouraged or induced three specific unlawful aliens to reside in the United States. The three unlawful aliens listed in counts 2, 7, and 8 were: Jorge Rodriquez Martinez; Jose Esquivel-Torres; and Vicente Guerrero-Guerrero.

         During deliberations, the jury asked three questions. The one relevant to these motions read: “Is it possible to get a different/further definition or clarification of ‘intentionally induced or encouraged' as written in counts 2, 7, 8?” The court responded: “You should use your collective judgment and experience to decide the issues in this case.” Defendants argue: (1) that the court improperly instructed the jury, by failing to identify the unlawful aliens subject to Count I's conspiracy charge; (2) by declining to define the terms “induced” and “encouraged” when asked by the jury for further definitions of those terms; and (3) by allowing two cooperators, Jose Torres-Garcia and Marcos Stubbs, to give opinion testimony over defendants' objection that defendants were unlawful aliens because they used Jose Torres-Garcia's check cashing service and insurance certificates.

         II. Legal Standard

         Federal Rule of Criminal Procedure 33 provides that “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33. “A motion for new trial is not regarded with favor and is only issued with great caution.” United States v. Herrera, 481 F.3d 1266, 1269-70 (citing United States v. Trujillo, 136 F.3d 1388, 1394 (10th Cir. 1998)). Whether to grant a new trial is usually left to the trial court's discretion and is reviewed for abuse of discretion. Id. at 1270 (noting that a decision is found to be an “abuse of discretion only if it is arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (quoting United States v. Combs, 267 F.3d 1167, 1176 (10th Cir. 2001))).

         III. Discussion

         A. Whether the court improperly instructed the jury, by failing to identify the unlawful aliens subject to Count I's conspiracy charge

         Defendants first argue that the court erred by deciding not to list in Count I the specific undocumented aliens that were allegedly induced or encouraged to remain in the United States unlawfully. At the pre-charge conference, the court decided not to include the names of the three undocumented aliens: Jorge Rodriquez Martinez; Jose Esquivel-Torres; and Vicente Guerrero-Guerrero in Count I, the conspiracy count. Defendants argue that leaving the three named individuals out of the conspiracy instruction confused the jury members and allowed them to “engage in a fishing expedition” or “roaming commission” to find defendants “guilty of conspiring to encourage or induce any illegal aliens, including [their] own crew members, to reside in the United States.” (Docs. 167 & 169, at 2.)

         When the court's jury instructions are challenged on a motion for new trial, the court reviews the instructions as a whole, to determine whether the jury was likely misled. United States v. Smith, 13 F.3d 1421, 1424 (10th Cir. 1994). The court will only overturn a jury verdict if there is “substantial doubt that the jury was fairly guided” by the instructions given. Id. (quoting United States v. Mullins, 4 F.3d 898, 900 (10th Cir. 1993)).

         Throughout trial, the jury heard evidence that unlawful aliens were induced or encouraged to remain in the United States unlawfully. During closing arguments, the government explained to the jury that Jorge Rodriquez Martinez; Jose Esquivel-Torres; and Vicente Guerrero-Guerrero were the only unlawful aliens subject to Count I, the conspiracy charge. The jury did not need to determine that defendants were guilty of the substantive counts, which alleged that defendants intentionally induced or encouraged each individual alien to reside in the United States for defendants' commercial advantage or private financial gain, knowing or in reckless disregard of the fact that doing so violated the law, to find that defendants were guilty of Count I, the conspiracy charge. Evidently, that is what the jury determined. The court finds that read in their ...


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