                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2005

Govt of VI v. Ledesma
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4116




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"Govt of VI v. Ledesma" (2005). 2005 Decisions. Paper 35.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/35


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                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 04-4116
                                       ___________

                     GOVERNMENT OF THE VIRGIN ISLANDS

                                            v.

                                MICHAEL LEDESMA,

                                            Appellant
                                       ___________

        APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS
                              (D.C. No. 03-cr-00012)
                 Chief Judge: The Honorable Raymond L. Finch
                 District Judge: The Honorable Thomas K. Moore
                Territorial Judge: The Honorable Leon A. Kendall
                                   ___________

                            ARGUED DECEMBER 6, 2005

        BEFORE: SCIRICA, Chief Judge, McKee and Nygaard, Circuit Judges.

                               (Filed December 29, 2005)
                                      ___________

G. Luz A. James, Esq. (Argued)
P. O. Box 224469
Christiansted, St. Croix, USVI 00822
              Counsel for Appellant


Maureen Phelan, Esq. (Argued)
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Building, 2nd Floor
Charlotte Amalie, St. Thomas, USVI 00802
              Counsel for Appellee
                                      ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              Following a jury trial, Appellant Ledesma was convicted of first degree

murder and the unauthorized possession of a firearm during the commission of a crime of

violence. He was sentenced to life without parole on the murder conviction and five

years on the weapons conviction, each sentence to be served consecutively.

              Ledesma filed a motion for a new trial based on some “startling

information” regarding prisoner Kenneth Brown. The motion was summarily denied by

the trial judge because it did not specify the nature of the new information discovered and

therefore provided no basis for a new trial. The Appellate Division of the District Court

of the Virgin Islands affirmed Ledesma’s conviction and sentence on all counts. Ledesma

raises three issues on appeal. We too will affirm.

              First, Ledesma challenges the jury’s determination that Normalis

Ascensio’s testimony was credible. Credibility findings are reviewed for clear error and

will not be disturbed on appeal unless they are “inherently incredible.” Petillo v. New

Jersey, 562 F.2d 903, 907 (3d Cir. 1977). Ascensio did not come forward as a witness

for nineteen months. She admitted this, and it was brought out several times at trial by

Ledesma’s counsel. She testified that she feared reprisal because she lived with her


                                             2
young daughters in a violent neighborhood next to the home where Ledesma occasionally

socialized with his friends.

              Ledesma alleges that Ascensio’s testimony was motivated by a desire to

protect and get favorable treatment for Brown, her live-in boyfriend and father of her

children. However, there is no support in the record. The Government stated that there

was no promise of immunity or favorable treatment for Brown in his drug case in

exchange for Ascensio’s testimony. With full knowledge of the delay and her articulated

reasons for it, the jury chose to credit her testimony. We will defer to the jury.

              Second, Ledesma challenges the trial court’s jury instruction on the first

degree murder charge. We review jury instructions for plain error. United States v.

Olano, 507 U.S. 725, 732 (1993). Ledesma contests the given instruction by claiming

that the jury was told that an essential element of first degree murder was that the

defendant had “an intent to kill or to inflict serious bodily harm.” However, nowhere in

the instruction is the phrase “serious bodily harm” used.

              Third, Ledesma alleges that the trial judge abused his discretion by denying

his motion for a new trial. We review the denial of a motion for a new trial for abuse of

discretion. A new trial will be granted only (1) where evidence was discovered after trial;

(2) the failure to discover the evidence during trial was not due to the defendant’s lack of

diligence; (3) the evidence is material to the issues; (4) the evidence is not merely

cumulative or impeaching; and (5) a new trial with the newly discovered evidence would

likely result in a different verdict. United States v. Barbosa, 271 F.3d 438, 467 (3d Cir.

                                              3
2001). The defendant must prove all five factors. United States v. Jasin, 280 F.3d 355,

364 (3d Cir. 2002).

              Ledesma’s motion for a new trial simply contains conclusory assertions of

“startling information” which he alleges is material so that it would “probably” produce a

different verdict in a new trial. However, Ledesma could have requested a continuance

and uncovered all of the information relating to Brown given that his drug plea was

entered five months before Ledesma’s trial began. Second, the information was not

material, only impeaching. Ascensio was thoroughly cross-examined and substantial

physical evidence implicated Ledesma in Mills’ murder. The trial judge did not abuse his

discretion by denying Ledesma’s motion for a new trial.

              For the foregoing reasons, the order of the Appellate Division of the District

Court of the Virgin Islands will be affirmed.




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