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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 93-1679 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                       VICTOR LEVY-CORDERO, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>       [Hon. Raymond L. Acosta, Senior U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>              Coffin and Cyr, Senior Circuit Judges. <br> <br>                      _____________________ <br> <br>    Jeffrey S. Weiner, Linda L. Houghtaling and Jeffrey S. Weiner, <br>P.A. on brief, for appellant. <br>    James K. Robinson, Assistant Attorney General, Criminal <br>Division, U.S. Department of Justice, Theresa M.B. Van Vliet, <br>Chief, Narcotic and Dangerous Drug Section, Criminal Division, U.S. <br>Department of Justice, and Grace Chung Becker, Trial Attorney, <br>Narcotic and Dangerous Drug Section, Criminal Division, U.S. <br>Department of Justice, on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                       September 17, 1998 <br>                       ____________________

          TORRUELLA, Chief Judge.  In United States v. Levy- <br>Cordero, 67 F.3d 1002 (1st Cir. 1995) (Levy I), this court heard <br>the appeals of three co-defendants convicted, inter alia, of taking <br>part in a conspiracy to possess with intent to distribute over <br>1,000 kilograms of marijuana.  We rejected the appeals of two of <br>the defendants, but found that an error had been made in the trial <br>of the third, Vctor Levy-Cordero.  The trial court had erred as a <br>matter of law when it excluded proffered evidence that Levy was in <br>Florida during the same time that he was allegedly taking part in <br>a large transfer of marijuana.  See id. at 1015.  The district <br>judge excluded this evidence as a sanction for defense counsel's <br>alleged willful violation of a discovery order requiring pre-trial <br>notice of intent to offer an alibi defense.  See United States v. <br>Levy-Cordero, 833 F. Supp. 938 (D.P.R. 1993).  However, it was <br>later discovered that while similar discovery orders had issued to <br>other defendants in the case, no such order had issued to Levy.  <br>See Levy I, 67 F.3d at 1014.  We therefore ordered the district <br>court to conduct a hearing to determine the reliability of the <br>evidence that Levy was in Florida between March 19, 1987, and <br>March 28 or 29, 1987.  See id. at 1015.  Now, based upon the <br>evidence adduced at that hearing coupled with further analysis of <br>the trial transcript from the underlying trial, we affirm Levy's <br>conviction. <br>                            BACKGROUND <br>          The following facts were uncontradicted at trial, or were <br>necessarily found by the jury to support the convictions of Levy's <br>co-conspirators, William Romero-Lewis and Jos Samuel Forty- <br>Estremera.  On or about March 7, 1987, a group of co-conspirators <br>rented a house near Naguabo, Puerto Rico, in order to stash large <br>amounts of marijuana which would be arriving by ship from Colombia.  <br>Over the course of one weekend in March 1987, spanning from Friday <br>to Sunday nights, the co-conspirators moved 5,000 pounds of <br>marijuana from the Colombian ship near the Puerto Rican coast into <br>a smaller boat, then onto the beach and into the stash house.  They <br>were later paid in cash and drugs.  Levy was alleged to have taken <br>part in this off-loading. <br>          Throughout this case, the specific dates of the off- <br>loading of the marijuana have been at issue.  However, by a process <br>of elimination, we can determine that the jury found the exact <br>dates of the off-loading to be March 27, 28 and 29, 1987.  As <br>stated above, there was uncontradicted evidence at trial that the <br>off-loading took place over three nights on a Friday, Saturday, and <br>Sunday in March 1987.  The jury was instructed by the judge and by <br>both parties in closing arguments that defendants must be acquitted <br>for any actions occurring on the weekend of March 13-15 (or before) <br>because they were beyond the statute of limitations.  Because Levy- <br>Cordero was convicted, the jury must have concluded, consistent <br>with the evidence adduced at trial, that the off-loading occurred <br>on one of the two remaining weekends, either March 20-22 or <br>March 27-29. <br>     However, this does not exhaust our knowledge about the <br>dates at issue.  At trial, both parties agreed that a co- <br>conspirator by the name of Csar Castro-Gmez was present during <br>the off-loading.  The jury was also presented with stipulated <br>evidence proving that Castro was in Florida during the March 20-22 <br>weekend.  Thus, the jury must have concluded that the drugs were <br>off-loaded on March 27-29, 1987. <br>     While his trial was in progress, Levy claims to have <br>remembered where he was from March 19, 1987, through March 28-29, <br>1987.  He allegedly traveled to Gainesville, Florida, to attend the <br>National Hot Rod Association Gator Nationals drag races, occurring <br>during the March 20-22 weekend.  He then supposedly stayed in <br>Florida until March 28 or 29.  Levy's lawyer researched the alibi, <br>and eventually concluded that the Florida alibi was "airtight," and <br>that he could "account for [his] client's presence from the 19th to <br>the 28th or 29th, that accounts for every possible date the <br>witnesses claim the load occurred."  His lawyer brought this <br>information to the court's attention, and, after a contentious <br>hearing on the admissibility of the evidence, the district court <br>excluded it, concluding that the defense had willfully withheld the <br>evidence from the prosecution and the court in violation of Fed. R. <br>Crim. P. 12.1. <br>     On appeal, we determined that, given the ambiguous text <br>of the district court's Omnibus Order relating to alibi evidence, <br>and the absence of an explicit Rule 12.1(a) demand from the <br>prosecution that Levy serve written notice of intent to offer an <br>alibi, the district court's exclusion of Levy's potentially <br>exculpatory alibi evidence was legal error.  We ordered the <br>district court to evaluate the content and reliability of the alibi <br>evidence.  <br>     At his hearing on remand, Levy's "airtight" Florida alibi <br>changed significantly from the story that he had told to the <br>district court and this court the first time around.  Despite <br>promises that his Florida whereabouts from March 19 to March 28-29, <br>1987 would be documented with extensive records, photographs, and <br>witness testimony, Levy was unable to turn up any documentary <br>evidence that he was in Florida after March 24, 1987.  Instead, <br>Levy's alibi witnesses surprisingly testified unanimously at the <br>hearing on remand that Levy was in Puerto Rico with them on Friday, <br>Saturday and Sunday nights from March 27 to March 29, 1987.  <br>Whether or not the witnesses' testimony is true, it is now <br>undisputed that Levy's story has changed, and that he was not in <br>Florida on that weekend.

                             ANALYSIS <br>I.  The Old Story <br>     The purpose of the remand in this case was to determine <br>whether the district court's error in excluding Levy's Florida <br>alibi was harmful to Levy, i.e., whether it influenced the jury's <br>verdict and thus affected Levy's substantial rights at trial.  SeeLevy I, 67 F.3d at 1015 n.15; see also, 28 U.S.C.  2111 (trial <br>error is harmless if it does not affect substantial rights);  <br>Lataille v. Ponte, 754 F.2d 33, 37 (1st Cir. 1985) (same); Fed. R. <br>Crim. P. 52 (defining "harmless error" as "any error, defect, <br>irregularity or variance which does not affect substantial <br>rights").  If the evidence presented on remand was sufficiently <br>reliable to allow a jury to find that Levy was in Florida at the <br>time he was convicted of having off-loaded 5,000 pounds of <br>marijuana, his substantial rights at trial would have been affected <br>by the improper exclusion of that evidence.  See United States v. <br>Mulinelli-Navas, 111 F.3d 983, 992 (1st Cir. 1997) (improper <br>exclusion of reliable alibi evidence violates Sixth Amendment right <br>to confrontation).  A new trial must be ordered whenever <br>substantial rights are affected by an error at a criminal trial and <br>the government cannot prove harmlessness "beyond a reasonable <br>doubt."  Chapman v. California, 386 U.S. 18, 24 (1967); United <br>States v. Brennan, 994 F.2d 918, 927 (1st Cir. 1993) (where <br>violation of Sixth Amendment right to confrontation is discovered <br>on appeal,  Chapman's harmless error standard is applied). <br>     However, it is obvious that exclusion of a false or <br>utterly unreliable alibi does not affect substantial rights.  The <br>story that Levy presented to this court prior to remand, i.e., that <br>he was in Florida for most of the March 27-29, 1987 weekend, was <br>recanted on remand.  Levy himself presented numerous witnesses who <br>testified that Levy was in Puerto Rico at that time.  We can, <br>therefore, state with certainty that the district court's failure <br>to place before the jury any evidence that Levy was in Floridaduring the relevant weekend was "harmless beyond a reasonable <br>doubt."   <br>II.  The New Story <br>     As explained above, a curious and surprising development <br>occurred on remand when Levy abandoned his claims of having been in <br>Florida until March 28 or 29, 1987, and presented an entirely new <br>alibi for the weekend of March 27-29, 1987.  He now claims to have <br>spent that time in Puerto Rico with three close friends, washing <br>their cars and installing new tires.  This evidence was never <br>proffered at trial, and was thus outside of the scope of the remand <br>which was ordered to determine the reliability of the proffered and <br>excluded alibi evidence. <br>     Nonetheless, in an ambiguous half-page ruling issued <br>after the hearing on remand, the district court took no explicit <br>notice of the fact that Levy's alibi had been changed.  In fact, no <br>specific factual findings were issued whatsoever.  The ruling <br>merely found that "the evidence presented in support of an alibi <br>defense during the course of this hearing was reliable."  According <br>to Levy, this ruling should be construed as a finding of fact that <br>all of his alibi evidence, including his new Puerto Rico alibi, is <br>reliable evidence.  In light of the fact that most of the testimony <br>adduced at the hearing pertained to this new alibi, we agree that <br>Levy's proposed construction of the ruling is sensible.  We must, <br>therefore, determine what effect, if any, this finding has. <br>     Despite the fact that Levy's whereabouts for the <br>March 27-29 weekend had been very much at issue for years, the <br>evidence that Levy was in Puerto Rico with friends working on cars <br>had never been proffered.  Nonetheless, it was this evidence which <br>was placed into the record on remand.  Although we could not have <br>foreseen that Levy would be allowed to proceed as he did on remand, <br>see United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993) (an <br>appellate disposition of an appeal must be read by the district <br>court "against the backdrop of prior proceedings in the case"); <br>United States v. Cornelius, 968 F.2d 703, 706 (8th Cir. 1992) (a <br>limited remand does not automatically rejuvenate other issues in a <br>case), we recognize that in some situations, the trial court may <br>possess limited discretion to examine or re-examine issues or <br>evidence outside of the four corners of the remand.  See Bell, 988 <br>F.2d 250-51 ("even where, as here, an appellate court's mandate <br>does not contemplate resurrecting an issue on remand, the trial <br>court may still possess some limited discretion to reopen the issue <br>in very special situations.").  Thus, rather than ignoring this new <br>alibi evidence and any findings thereupon as being outside the <br>scope of the remand, we will assume that the trial court exercised <br>its limited discretion to hear this portion of his current alibi as <br>"newly discovered evidence."  See id. at 251 (exercise of limited <br>discretion to reopen issues on remand may be appropriate to hear <br>significant new evidence not earlier obtainable in the exercise of <br>due diligence); see generally, 3 Charles Alan Wright, Federal <br>Practice and Procedure; Criminal 2d,  557 (2d ed. 1982) <br>(potentially exculpatory evidence not proffered at trial can be <br>considered as newly discovered evidence under Fed. R. Crim. P. 33). <br>     A district court may only hear newly discovered evidence <br>after the close of a criminal trial in order to determine whether <br>the evidence is sufficient to warrant a new trial.  See Fed. R. <br>Crim P. 33.  The standard for granting a new trial based upon newly <br>discovered evidence is "that the evidence must be newly discovered, <br>that it must be material to the issues, that it must be such as to <br>have some effect on the outcome . . . and that the failure to <br>obtain the evidence not be due to a lack of diligence on the part <br>of the defendant."  Vega Pelegrina v. United States, 601 F.2d 18, <br>20-21 (1st Cir. 1979). <br>     Unfortunately for Levy, the new alibi evidence does not <br>even approach this standard.  Almost nine years after Levy was <br>alleged to have off-loaded 5,000 pounds of marijuana, he presented <br>evidence, in the form of the testimony of a few of his close <br>friends, that he was working on cars all during the weekend in <br>question.  Despite the fact that the friends' memories were <br>remarkably clear about many of the details of the weekend, this <br>story never surfaced during the entire three-year period between <br>his indictment, in March 1992, and the oral argument before this <br>court in Levy I.  Levy did not argue, and could never hope to argue <br>persuasively, that this alibi could not have been obtained through <br>the exercise of due diligence on his part, because the new evidence <br>involved his own whereabouts during the weekend in question.  A <br>convicted criminal cannot successfully lay claim to a new trial <br>when, years after his conviction, his friends suddenly provide a <br>new alibi unsupported by anything other than their collective word.  <br>Thus, as a matter of law, Levy's new alibi evidence is insufficient <br>to warrant a new trial and must be disregarded.  The district <br>court's finding that this new evidence is credible is insufficient, <br>under these circumstances, to satisfy the rigorous requirements <br>justifying a new trial. <br>                            CONCLUSION <br>     For the reasons discussed herein, the district court's <br>original judgment is affirmed.  We have also considered and <br>rejected Levy's allegations of prosecutorial misconduct.</pre>

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