
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________            No. 96-1773                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              FERNANDO MONTILLA-RIVERA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF PUERTO RICO                     [Hon. Daniel R. Dominguez, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________                 Peter Diaz-Santiago for appellant.                 ___________________                 Jos  A. Quiles-Espinosa, Senior Litigation Counsel, with                 _______________________            whom Guillermo  Gil, United  States Attorney, and  Antonio R.                 ______________                                __________            Baz n, Assistant  United States Attorney, were  on brief, for            _____            appellee.                                 ____________________                                    June 19, 1997                                 ____________________                 LYNCH,  Circuit Judge.  Three men have gone to prison as                 LYNCH,  Circuit Judge.                         _____________            a  result of  the distribution  of  two kilograms  of cocaine            within  one thousand  feet of  a school  in Carolina,  Puerto            Rico.  Two of the men are guilty, having pled so.  The third,            Fernando Montilla-Rivera  ("Montilla"),  asserts that  he  is            innocent.    He  trusted his  fate  to  a  jury,  and he  was            convicted  of aiding and abetting  the crime, in violation of            21  U.S.C.    841(a)(1)  and 860(a), and  18 U.S.C.    2.  On            appeal, Montilla argues that the government's evidence showed            no  more than that he  was present during  the sale, and that            this "mere presence" is  insufficient to support the verdict.            He also  argues that the  trial judge erred in  denying him a            new  trial  when,  a  year  after  his  conviction,  Montilla            presented affidavits  from the  other two men,  each swearing            that Montilla was innocent.                                          I.                 We  recite the facts  as the jury  could have reasonably            found  them.  United  States v. Andrade,  94 F.3d 9,  10 (1st                          ______________    _______            Cir.  1996).   On  March 22,  1995,  Eladio Valerio,  a  Drug            Enforcement Agency confidential informant,  made a phone call            in  search of  drugs.   He  called Miguel  Calder n-Salmiento            ("Calder n"), who  would later  become a codefendant  in this            case.   In  a  taped conversation,  which  was clearly  about            arranging a drug purchase, Calder n told the informant, "Come            on down here to . . . to go over to the mechanic at 12."  The                                         -2-                                          2            informant explained that he could not "come on down" that day            because the funds were  not ready.  There were  several other            taped  conversations  about the  deal.    At that  time,  the            mechanic  working at  the mechanic's  shop to  which Calder n            referred was Montilla.                   A  few days  later,  on March  24, 1995,  the informant,            wired and accompanied by  DEA Agent Domingo Carrasquillo, did            meet with Calder n.  The informant and Calder n initially met            at a service station, where Calder n invited the informant to            go "see the  mechanic."   The informant  understood that  "by            seeing the mechanic," Calder n meant they would go "where the            material  or the drug was."  Agent Carrasquillo went ahead to            a shopping  center where he expected the  drug transaction to            take place.                   Calder n  drove the  informant to  an auto  repair shop,            behind  the Metreza night club in San Ant n, which was within            one thousand  feet of a public school.  The shop was a wooden            structure  attached at one  end to the  club and open  at the            other.  There was  a small room inside  the shop; the  repair            work took place outside of this room.                   At the shop, the informant  saw Ram n Zorrilla, who also            later became a codefendant  in this case, and Montilla.   The            informant  shook  hands  with  them, but  did  not  speak  to            Montilla.   Montilla  wore  overalls and  had  grease on  his                                         -3-                                          3            clothes;  Zorrilla did not.  The  four men then went into the            small room.                 Once inside,  the dealing  began in earnest  between the            informant,    Calder n,   and   Zorrilla.      During   these            negotiations,  Montilla was  ten  to twelve  feet away,  just            inside the  entrance to  the room, "watching  [and] looking."            The  informant and the other  two negotiated and  agreed on a            price  of $12,100 per kilogram of cocaine.  As Montilla stood            at the entrance, still  watching, the three other men  agreed            that  if the quality of  the initial two  kilograms was high,            four more would be purchased.  At that point, Zorrilla made a            call from the room to have the cocaine delivered to the shop,            requesting "two shoes."   The informant called his "partner,"            in  reality  DEA  Agent  Carrasquillo,  to  arrange  for  the            exchange of the cocaine for cash.  While they waited  for the            delivery, and  with Montilla still at  the entrance, Calder n            loudly commented on the quality of the cocaine: "[H]ell, pure            cocaine." ("Diablo, coca na  pura.")                  The  drugs  were delivered  to  the shop.    As Montilla            watched, the informant tasted the cocaine and pronounced that            it was good  and that the "deal was on."   The informant went            off  with  Calder n  to  the  shopping  center  to  meet  the            informant's  partner,  who  had  the  money.    Montilla  and            Zorrilla stayed behind with the cocaine at the shop.                                           -4-                                          4                 At the shopping center,  the partner showed Calder n the            cash.    The men agreed  that Calder n would  return alone to            the repair  shop, and that  ten minutes later,  the informant            and his partner would bring the money for the exchange.  Back            at  the shop, the "partner"  agent told the  informant to get            out of the  car, go into the  mechanic's shop, and bring  out            the  people involved in the  transaction.  The informant went            into the  small room,  told Montilla, Zorrilla,  and Calder n            that "someone was waiting for them in the car, [and] for them            to  take the material and give them the money."  Zorrilla and            the informant  approached the  car and asked  the partner  to            come into the shop, where they would make the  exchange.  The            partner refused and said the delivery should be made outside.            Zorrilla  complied and  went back  into the  shop to  get the            drugs.   The three men -- Calder n, Zorrilla, and Montilla --            came  back  toward the  street,  with  Calder n carrying  the            drugs.  Montilla and  Zorrilla had moved to where  they could            watch  the transaction  from  the front  of  the shop,  about            thirty feet away from the partner's car.                   All  three  men  were  arrested where  they  stood  when            Calder n  made the delivery.   At the time  of arrest, others            were in the shop, including the shop owner and a visitor.  At            no time during the transaction did the informant see Montilla            working on a car.                                          -5-                                          5                 As the  government conceded,  its videotape of  the drug            delivery and  arrest did not show Montilla; nor do any of the            audiotapes   of  the   transactions  contain   recordings  of            Montilla's voice.  In fact, the government at trial described            Montilla as  a minor  participant, but a  knowing participant            nonetheless, who had acted as a lookout.                 Montilla's  defense was mistaken identity, that Zorrilla            was the  "mechanic" referred to in  the initial conversation.            Zorrilla was a mechanic and had worked at this shop some four            months earlier.  Calder n was not a mechanic.                   Montilla did not  testify at trial.  His  first witness,            the shop  owner, testified that  Montilla had worked  for him            there for  about a month, that Zorrilla,  not Montilla, lived            in the  room at  the shop,  and that  Montilla had  just been            doing his job, repairing a car  that was to be picked up that            day.  The owner also said that Zorrilla had worked for him at            the shop for over a year, but had not worked there during the            previous four months.   The owner explained that just  before            Montilla  went outside to the front of  the shop where he was            arrested, Montilla had  said that he was stepping  outside to            have a soft drink  and to smoke.  Montilla's  second witness,            who was visiting the shop during the incident, testified that            he  had seen  Montilla  working on  a  car until  he  stepped            outside to have  a cigarette  since the owner  did not  allow            smoking inside the shop.  The jury convicted Montilla, and he                                         -6-                                          6            was  sentenced to  five years  in prison  and eight  years of            supervised release.                 Montilla originally  planned to call  both Zorrilla  and            Calder n  as witnesses.  The two entered guilty pleas on June            27, 1995.   On June 29, 1995, Montilla filed a motion to have            the Marshal's  Service produce  his codefendants  to testify.            The  court  granted  the  motion, but  the  two  codefendants            informed the court, on advice  of and through their  counsel,            that  they would  not testify  for Montilla.     Montilla was            convicted  on July 1, 1995.   Calder n and  Zorrilla were not            sentenced until September 26, 1995.                   On  July 17,  1996, Montilla  filed a  motion for  a new            trial under  Fed. R. Crim. P. 33.  The motion attached nearly            identical affidavits from Zorrilla  and Calder n.  Zorrilla's            affidavit said in relevant part:                      I never knew Mr. Fernando Montilla as qa [sic] drug                 dealer nor that  he was  or has been  involved in  drugs                 [sic]  dealing but  as  a good  har  [sic] worker  as  a                 mechanic.                      I state that Mr.  Fernando Montilla was not involve                 [sic]  in the  drugs [sic]  transaction occurred  on the                 date of my arrest and for which I pled guilty.            Calder n's affidavit stated in part:                      At  no  time,  I  have [sic]  been  aware  that Mr.                 Fernando  Montilla  has  been  involved in  any  illegal                 activity  like  the  one  for which  he  was  convicted,                 possession with intent to  distribute cocaine.  In other                 words, Mr.  Fernando Montilla  was not involve  [sic] in                 the offense for which I pled guilty.                      At all time [sic] I knew Mr. Fernando Montilla as a                 hard mechanic worker and anything [sic] else.                                         -7-                                          7            Citing United States v. Tibolt, 72 F.3d 965 (1st Cir.), cert.                   _____________    ______                          _____            denied, 116 S. Ct. 2554 (1995), the district court denied the            ______            new trial motion on the grounds that the witnesses were known            and available at  the time of  trial.  Thus,  in the  court's            view, Montilla did not meet the requirements of Fed. R. Crim.            P. 33.                                         II.            Sufficiency of the Evidence            ___________________________                 In our sufficiency of  the evidence review, we determine            whether,   drawing   all   reasonable   inferences   in   the            government's favor, a rational jury could find guilt beyond a            reasonable doubt.  Andrade, 94 F.3d at 12.                               _______                 Montilla argues that the jury was faced with two equally            likely scenarios, one of which was  that he was innocent.  He            asserts  that under United States v. Andujar, 49 F.3d 16 (1st                                _____________    _______            Cir.  1995), this  is insufficient  to meet  the government's            burden  of   proof  of  guilt  beyond   a  reasonable  doubt.            Montilla's  statement of  the  law is  correct.   Id.  at  22                                                              ___            ("When  a  jury is  confronted . . . with  equally persuasive            theories of  guilt and  innocence, it cannot  rationally find            guilt  beyond  a  reasonable  doubt.").    However,  Montilla            understates the case against him.                 The guilt  of Zorrilla and  Calder n is admitted.   When            Calder n and Zorrilla were negotiating the deal at  the shop,            Montilla  was constantly  present.  Criminal  conspirators do                                         -8-                                          8            not often "welcome  innocent nonparticipants as witnesses  to            their crimes."   United  States v. Batista-Polanco,  927 F.2d                             ______________    _______________            14, 18 (1st  Cir. 1991);  see also United  States v.  Cuevas-                                      ___ ____ ______________     _______            Esquivel, 905  F.2d 510, 515 (1st Cir.  1990).  No effort was            ________            made  to keep the illicit deal from Montilla's ears.  Indeed,            Zorrilla loudly  bragged about the  purity of the  cocaine in            front of Montilla.                  Still,  mere  association  with  a   principal  or  mere            presence while  criminal activity is  going on around  one is            not  enough  to  establish  aiding and  abetting,  even  when            combined  with knowledge that a crime will be committed.  See                                                                      ___            United States  v. Luciano-Mosquera,  63 F.3d 1142,  1150 (1st            _____________     ________________            Cir.  1995),  cert.  denied, 116  S.  Ct.  1879  (1996).   As                          _____  ______            Montilla points out, this was a crime-ridden neighborhood and            knowledge by  Montilla that those around  him were committing            crimes  does  not necessarily  mean  that he  was  aiding and            abetting those crimes.                   While knowledge is certainly  an element of the offense,            id.,  (and  the  facts   here  abundantly  show   knowledge),            ___            something  more, some action to assist the crimes, is needed.            See  id.   To convict  Montilla of  aiding and  abetting, the            ___  ___            government had  to prove that his  codefendants committed the            crime,  and  that  Montilla  associated  himself   with,  and            participated in  the drug transaction as  something he wished                                         -9-                                          9            to bring about, and sought by his actions to make it succeed.            United States v. Ruiz, 105 F.3d 1492, 1499 (1st Cir. 1997).            _____________    ____                 The  government says  that  the something  more is  that            Montilla  acted as  a lookout.   Several inferences  from the            evidence  support the  government's position.   The  first is            that Montilla was at the entrance to  the small room where he            could  act as a lookout while the drug deal negotiations were            being conducted and was  not in the shop repairing cars.  The            second is that, when the  informant told the men it was  time            to deliver the drugs to his partner, all three men, including            Montilla, left  the small room to go out toward the car.  The            third is that Montilla,  who did not have the  drugs, stopped            just outside the shop, and from that vantage watched.  He was            well-situated to  act as  a lookout,  and an  arresting agent            thought that was exactly what Montilla was doing.                 The evidence is thin,  but not so thin as  to invalidate            the jury's reasonable assessment that Montilla is guilty.            New Trial Motion            ________________                 The  district  court's denial  of the  motion for  a new            trial  is reviewable only for a manifest abuse of discretion.            Andrade, 94 F.3d at 14.   A district court's power to order a            _______            new trial  is greater than  its power  to grant a  motion for            acquittal.  Ruiz, 105 F.3d at 1500.                        ____                 Rule  33  of the  Federal  Rules  of Criminal  Procedure            authorizes a district court to grant a new trial "if required                                         -10-                                          10            in the interest of justice."1  Where, as here,  the motion is            based   on  new  or   previously  unavailable  evidence,  the            defendant  has  to  establish  that "the  evidence  was:  (i)            unknown or unavailable at the time of trial, (ii) despite due            diligence, (iii)  material, and (iv)  likely to result  in an            acquittal upon retrial."  Tibolt, 72 F.3d at 971.                                       ______                 Although the new statements by the two principals of the            drug transaction that Montilla is innocent appear facially to            satisfy the third and fourth elements of the test,2 our focus            is  on the  first element  of the test.   The  district court            denied  the motion on the  ground that the  evidence was both            known and available.   Similarly, the government,  apparently            conceding  the third  and  fourth elements,  argues that  the                                            ____________________            1.  Fed. R. Crim. P. 33 states in relevant part:                 The  court on a motion  of a defendant  may grant a                 new  trial to  that  defendant if  required in  the                 interest  of justice. . . .    A motion  for a  new                 trial  based  on  the  ground  of  newly discovered                 evidence  may be  made  only before  or within  two                 years  after final  judgment, but  if an  appeal is                 pending  the court  may  grant the  motion only  on                 remand of the case.            2.  The  statements are material and appear to give rise to a            "reasonable" probability  of acquittal upon retrial.   United                                                                   ______            States v.  Sepulveda, 15 F.3d 1216, 1229 (1st Cir. 1993).  In            ______     _________            saying  this, we  are  taking account  of  the ambiguity  and            thinness  of  the inculpatory  evidence  and  are taking  the            exculpatory  statements at  face value.   Whether  the latter            would  retain  their  force  after  close  examination  is  a            different  question; as we note below, a hearing might cast a            different light on these statements.                                         -11-                                          11            testimony  was neither  unknown,  nor unavailable.   It  also            asserts that Montilla did not exercise due diligence.                   In  this  lies  the  problem.    Both  the  government's            arguments   and  the  district  court's  ruling  assume  that            Zorrilla  and  Calder n  were   "available"  to  testify   at            Montilla's trial.   But  Montilla, who, it  facially appears,            had diligently attempted to  secure their testimony,3 did not            have the  power to  compel them  to testify  at his trial  in            light of  their Fifth Amendment privileges  once they changed            their minds about testifying.                 Montilla's  trial commenced on  June 27, 1995.   On that            same day, Calder n  and Zorrilla entered pleas  of guilty and            the  court  accepted  their  pleas.    Their  sentencing  was            deferred until  September, 1995.   Calder n's  and Zorrilla's            counsel  each advised his client not  to testify for Montilla            because the  testimony might incriminate them  with regard to            other transactions  and  because the  men still  had to  face            sentencing proceedings.   Exercising their  privilege against            self-incrimination,  Calder n and Zorrilla informed the court            that they would not testify, and they were excused.                                               ____________________            3.  According  to  Montilla's   trial  attorney's   affidavit            submitted in support of the motion for a new trial, he  tried            on two separate occasions to interview Zorrilla and Calder n,            but they refused to  give him any information.  (The dates of            these  attempts  are  unclear).    Despite  not  knowing  the            contents of their testimony, the trial attorney moved to have            Zorrilla  and Calder n  subpoenaed  to testify.   His  client            Montilla  insisted that  the  testimony would  exculpate  him            rather than hurt him.                                         -12-                                          12                 We have recognized that an unsentenced defendant who has            pled guilty retains a legitimate protectable  Fifth Amendment            interest  as  to  matters  that could  affect  his  sentence.            United States v.  De La Cruz,  996 F.2d 1307, 1312  (1st Cir.            _____________     __________            1993); see United  States v. Zirpolo, 704  F.2d 23, 25  & n.2                   ___ ______________    _______            (1st Cir. 1983);  see also  Estelle v. Smith,  451 U.S.  454,                              ___ ____  _______    _____            461-63 (1981)  (state's efforts to compel  criminal defendant            to  testify  at  sentencing  phase  of  capital  trial  would            contravene   Fifth  Amendment).     Further,   the  potential            importance of  the presentence phase  of criminal proceedings            to a defendant is highlighted by Fed. R. Crim. P. 32(e) which            expressly  permits  a defendant  to  withdraw  a guilty  plea            before  a sentence is imposed  by showing "any  fair and just            reason."   It was an error  of law for the  district court to            hold that the testimony of these witnesses was  available per            se.                   This  then  poses  a  legal  question,  not   explicitly            addressed  by the  government.   Rule  33  permits new  trial            motions to be filed  within two years only if the evidence is            "newly  discovered."     If   the  evidence  is   not  "newly            discovered," and  the  motion was not filed within  the seven            days  otherwise  required,  then  the  district  court  lacks            jurisdiction to hear  the motion.  United  States v. DiSanto,                                               ______________    _______            86 F.3d 1238, 1250 n.12 (1st Cir. 1996), cert. denied, 117 S.                                                     _____ ______            Ct. 1109 (1997).                                         -13-                                          13                 The  legal  question is  whether  exculpatory affidavits            from codefendants who  did not testify at trial  because they            exercised their  Fifth Amendment privileges  may ever qualify            as "newly discovered" evidence within the meaning of Rule 33.            Most other circuits have  expressed hostility to this notion,            usually on the  ground that  the defendant was  aware of  the            potential  testimony at  trial,  even if  that testimony  was            unavailable  due to  assertions of  privilege.   These courts            have  held that such testimony is not newly discovered.  See,                                                                     ___            e.g., United States v.  Theodosopoulos, 48 F.3d 1438, 1448-50            ____  _____________     ______________            (7th Cir. 1995), United States v. Muldrow, 19 F.3d 1332, 1339                             _____________    _______            (10th Cir. 1994); United States v. Dale, 991 F.2d 819, 838-39                              _____________    ____            (D.C. Cir. 1993); United States v. DiBernardo, 880 F.2d 1216,                              _____________    __________            1224-25 (11th  Cir. 1989);  United States  v. Metz,  652 F.2d                                        _____________     ____            478, 480-81 (5th Cir. 1981), United States v. Diggs, 649 F.2d                                         _____________    _____            731, 739-40 (9th Cir. 1981).                 We believe the question is resolved affirmatively by our            precedent.  This circuit  has, for almost twenty years,  held            that the  "newly discovered" language of  Rule 33 encompasses            evidence  that  was "unavailable."    See  Vega Pelegrina  v.                                                  ___  ______________            United States, 601 F.2d 18, 21 (1st Cir. 1979).  In this, our            _____________            test has differed from  that of other circuits, as  the cases            cited  above demonstrate.    Indeed, in  Vega Pelegrina,  the                                                     ______________            newly discovered evidence was  the testimony of a codefendant            who  had refused  to testify  for defendant  at trial,  or to                                         -14-                                          14            recant  a prior  inculpatory statement  until the  statute of            limitations had run.  Id.                                  ___                 This court has adhered to the four part test outlined in            United States v. Wright,  625 F.2d 1017 (1st Cir.  1980), for            _____________    ______            almost two decades, saying that the first question is whether            the evidence "was unknown or unavailable to the  defendant at                                      __ ___________            time of trial."   Id.  at 1019 (emphasis  added); see,  e.g.,                              ___                             ___   ____            United  States  v. Ortiz,  23 F.3d  21,  27 (1st  Cir. 1994);            ______________     _____            United States v. Benavente Gomez, 921 F.2d 378, 382 (1st Cir.            _____________    _______________            1990); United States v. Glantz, 884 F.2d 1483, 1486 (1st Cir.                   _____________    ______            1989); United States v.  Martin, 815 F.2d 818, 824  (1st Cir.                   _____________     ______            1987).  This panel is not  free, on its own, to alter circuit            precedent absent  some intervening  reason such as  a Supreme            Court decision or new legislation.                   Furthermore, given the  "[i]n the interests of  justice"            standard  of  Fed.   R.  Crim.  P.  33,  there  seems  little            distinction  between evidence  which  a defendant  could  not            present because he  did not know of it  and evidence which he            could not present because the witness was unavailable despite            exercising due diligence.   At least in the context  of newly            available evidence from  one not a codefendant,  at least two            circuits  appear to agree.  See United States v. Garland, 991                                        ___ _____________    _______            F.2d  328, 335  (6th  Cir. 1993)  (ordering  new trial  where            "although the  defense knew of  [witness's] existence  before            and during  the trial,  [the witness]  was not located  until                                         -15-                                          15            after the trial."); United  States v. Ouimette, 798  F.2d 47,                                ______________    ________            51-52 (2d  Cir. 1986)  (ordering hearing on  new trial  where            witness,  while  known of  at  trial,  was unavailable  after            police allegedly pressured him not to testify).                 We  believe  the better  rule  is  not to  categorically            exclude the testimony of a codefendant who asserted his Fifth            Amendment privilege  at trial  under the  first prong but  to            consider it, albeit with great skepticism, in  the context of            all prongs of our four part test.  It is true that there is a            greater need for caution in considering Rule 33 motions where            the   new  evidence   comes  from   a  codefendant   who  was            "unavailable"  at  trial because  he  chose  to exercise  his            privilege.   See DiBernardo, 880 F.2d at  1224; United States                         ___ __________                     _____________            v. Jacobs, 475 F.2d 270, 286 n.33 (2d Cir. 1973).   It is not               ______            unusual for the obviously guilty codefendant to try to assume            the  entire guilt.  United States v. Alejandro, 527 F.2d 423,                                _____________    _________            428 (5th Cir. 1976).  A convicted,  sentenced codefendant has            little  to  lose  (and perhaps  something  to  gain)  by such            testimony.  United States  v. Freeman, 77 F.3d 812,  817 (5th                        _____________     _______            Cir.  1996).   "Such  testimony  [by sentenced  codefendants]            would be untrustworthy and should not be encouraged."  United                                                                   ______            States  v.  Reyes-Alvarado, 963  F.2d  1184,  1188 (9th  Cir.            ______      ______________            1992).                 Nonetheless, there  is, here, at least  a facial showing            of  compliance with  the other  prongs sufficient  to warrant                                         -16-                                          16            further inquiry.  On its face, the proffered testimony in the            affidavits is material, and the testimony, if believed, could            lead  to a  different  outcome, especially  in  light of  the            government's  sufficient,  but  underwhelming,  case  against            Montilla.  See  Benavente Gomez, 921 F.2d at 383 ("It is true                       ___  _______________            that  where  the  trial  evidence was  noticeably  thin,  new            exculpatory evidence may be  of increased importance.").  The            new  testimony, while it may  not be true,  is not inherently            implausible.    And we  note  that  Montilla has  steadfastly            maintained his  innocence, even through  sentencing, at  some            cost.    Because  he  refused  to  acknowledge  that  he  had            committed  a crime,  Montilla  was  ineligible  for  sentence            reductions for  acceptance of  responsibility under  the U.S.            Sentencing Guidelines.                 The term  "on its face"  is used  deliberately here  and            with no  suggestion  that the  codefendants' newly  available            testimony  is true.  That  the codefendants waited  a year to            come  forward   hardly  supports   the   strength  of   their            assertions.  But there is enough to commit the matter back to            the  district   court,  which  is  itself,   under  the  law,            responsible for weighing the factors under Rule 33:                 Motions  for  new   trial  are   directed  to   the                 discretion of the trial court.  In considering such                 a motion,  the court has  broad power to  weigh the                 evidence  and assess  the credibility  of both  the                 witnesses who  testified at trial  and those  whose                 testimony constitutes "new" evidence.                                         -17-                                          17            Wright, 625 F.2d at 1019.  The judge may, of  course, use the            ______            knowledge he gained from  presiding at the trial, as  well as            the showing made in  the motion.  3 Wright,  Federal Practice                                                         ________________            and Procedure   557, at 337 (2d ed. 1982).            _____________                 We follow our precedent  in United States v. Abou-Saada,                                             _____________    __________            785 F.2d 1 (1st Cir. 1986), and  remand to the district court            to  reconsider the  motion  for  a  new  trial  and  to  hear            evidence.   There  is no  suggestion that  such hearings  are            required  in  the usual  course; they  are  not.   Cf. United                                                               ___ ______            States v. Kearney, 682  F.2d 214, 218 (D.C. Cir.  1982).  Had            ______    _______            the district  court itself  ruled otherwise on  the issue  of            unavailability, it might have  chosen to have a hearing.   We            think  it wiser  here for the  district court to  hold such a            hearing given the unusual  combination of circumstances here.            Montilla's conviction rests almost entirely  on the testimony            of  the  DEA  informant.    Neither  the  videotape  nor  the            audiotape directly  incriminate Montilla.   The reference  on            the  audiotape   to  the  mechanic  could   equally  well  be            understood  to refer to the location of  the deal, and not to            the role of the mechanic.   Only the informant places him  in            the  small  room;  Montilla's  other  witnesses  say  he  was            repairing  a car.    A hearing  will  be helpful4  where  the                                            ____________________            4.  In   different  contexts,   such  as   reported  improper            communications   with  jurors,  hearings  have  been  thought            necessary before there  is a  ruling on a  new trial  motion.            Remmer  v.  United  States,  347  U.S.  227,  229-30  (1954).            ______      ______________            Although  different institutional interests are admittedly at                                         -18-                                          18            matters  presented  by  the  proffer  are  not  "conclusively            refuted as to the alleged  facts by the files and  records of            the case."   United States  v. Carbone, 880  F.2d 1500,  1502                         _____________     _______            (1st  Cir.  1989)  (internal  quotation  marks  and  citation            omitted).   The  credibility of  the witnesses  is important.            Neither Calder n nor Zorrilla testified before -- this is not            a recantation of  testimony situation where the court has had            an opportunity to assess credibility.5                 We believe  the district court should,  after a hearing,            reconsider whether,  as Rule  33 provides, "the  interests of            justice require a new trial."  See Ouimette, 753 F.2d at 192-                                           ___ ________            93  (remanding to the district court for hearing on new trial            motion where affidavit presented new testimony going to issue            of defendant's guilt); Lyles v.  United States, 272 F.2d 910,                                   _____     _____________            913  (5th Cir.  1959)  (on new  trial motion,  district court            "will  be in  a better  position to  exercise  its functions"            after holding hearing).                                            ____________________            stake,  we  have required  a hearing  be  held on  motions to            withdraw guilty  pleas,  where affidavits  raise  substantial            issues  of whether the defendant is guilty.  United States v.                                                         _____________            Crooker,  729 F.2d 889, 890 (1st Cir. 1984); United States v.            _______                                      _____________            Fournier, 594 F.2d 276, 279 (1st Cir. 1979).            ________            5.  Some courts have  concluded that  affidavits from  others            recanting their  earlier testimony  may be deemed  inherently            not credible.   See, e.g.,  United States  v. Leibowitz,  919                            ___  ____   _____________     _________            F.2d 482, 483 (7th Cir. 1990) (only partial hearing conducted            on new trial motion).                                           -19-                                          19                 As  already  observed, we  disagree  with  the decisions            treating the  belated  statements of  codefendants  aimed  at            exculpating the moving defendant as per se insufficient under            Rule 33.   But  we  share the  general skepticism  concerning            those statements, and the present opinion by no means confers            any automatic right in such a case to  a new trial or even to            a hearing.   Our judgment here turns on unusual circumstances            including the  weakness of the government's  case against the            defendant, significant  efforts to procure  the codefendants'            testimony  before  his  own  conviction,  and  the  plausible            explanation as to why the evidence was not available earlier.                 The  case is  remanded for  proceedings  consistent with                               ________            this opinion.                                         -20-                                          20
