     Case: 12-50329       Document: 00512459093         Page: 1     Date Filed: 12/03/2013




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                            FILED
                                                                         December 3, 2013
                                       No. 12-50329
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

v.

LUIS ROEL CASTANEDA A/K/A “PAJARO,”

                                                  Defendant - Appellant.



                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:10-CR-361-2


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Following a jury trial, Luis Castaneda was convicted of conspiracy to
import cocaine and conspiracy to possess cocaine with intent to distribute.
Castaneda appealed, arguing that there was insufficient evidence to establish
his identity as Pajaro and that the district court abused its discretion in denying
the motion for new trial based on the changed testimony of a witness post-trial.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                 No. 12-50329

Because the record presents sufficient evidence to support the verdict and the
district court did not abuse its discretion in not granting the motion for a new
trial, we AFFIRM.
                                       I.
      On February 24, 2008, Aurelio Cortinas was driving a truck when he was
stopped by Texas Trooper Esteban Luna. That stop ultimately led to the
discovery of more than 320 pounds of cocaine and Cortinas was arrested.
Cortinas told agents that for the preceding ten months, he had worked for an
organization transporting cocaine from Mexico to the United States.          He
reported that his immediate boss went by the nickname “Pajaro.” With this
information, Santiago Gamez, a Drug Enforcement Administration (“DEA”)
intelligence analyst, generated a photo lineup using driver’s license photos of
subjects he believed could have been Pajaro. The lineup included a driver’s
license photo of Castaneda taken in 1988. Agents showed the photo lineup to
Cortinas, who first identified Castaneda’s brother, Eddie, as Pajaro, but then
changed his mind. Cortinas ultimately identified the photo of Castaneda as
Pajaro. He initialed Castaneda’s photo and wrote the phrase, “recibe la droga
y la distribute,” which translates to, “he receives the drug and distributes it.”
Eduardo Barrientos, another man involved in the cocaine operation in a
capacity similar to that of Cortinas, also identified Castaneda as Pajaro in the
photo lineup.
      On the day Cortinas was arrested, the agents discovered a phone in his
possession. Agent Gamez identified numbers of interest in the phone’s contacts,
one of which was associated with Pajaro.        Cortinas and Barrientos both
identified the number associated with Pajaro as Castaneda’s number. Agent

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Gamez subpoenaed telephone records, which revealed that between January 23
and February 24, 2008, seventeen contacts were made between the phone
number identified as that of Castaneda with the phone Cortinas was carrying.
Six of these contacts took place on the day of the cocaine seizure. The phone
carried by Aurelio Cortinas was subscribed to Emmanuel Cortinas and the
phone associated with Pajaro was subscribed to Jorge Lopez.           The record
showed that the phone registered to Jorge Lopez was a Boost prepaid phone.
Agent Gamez testified that, because it was a prepaid phone, it was possible that
the subscriber information was incorrect.        Both Cortinas and Barrientos
corroborated this statement by testifying that the organization routinely used
prepaid phones because the phone would not be registered under their names.
Both testified that these prepaid phones were changed or thrown away every
two to three weeks to avoid detection.
      At trial, both Barrientos and Cortinas were called as witnesses for the
government.    Though both testified that Pajaro was a part of the drug
organization, both declined to identify Castaneda as Pajaro at trial. Later in his
testimony, Cortinas admitted that he was afraid “because [he was] testifying
against someone, against an organization in Mexico.” Also at trial, the
government introduced a Joint Automated Booking System (“JABS”) photo of
Castaneda when he was arrested. The photo was taken on April 26, 2010.
Agent Gamez testified that the name, Luis Roel Castaneda, and date of birth,
August 24, 1972, were the same on both the JABS photo and the driver’s license
photo used in the pretrial photo lineup shown to Cortinas and Barrientos. In
the courtroom, Agent Gamez identified Castaneda as the person in the JABS
photo.

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      At the conclusion of the trial, the jury returned a verdict of guilty on both
counts. Castaneda filed a motion for new trial, contending that subsequent to
his trial and conviction, the government advised him that Cortinas informed the
government that Castaneda was not Pajaro, but an older brother of Pajaro,
known as Casco. The district court held a hearing on the matter on January 31,
2012. At the hearing, Cortinas testified that Castaneda was involved in the
conspiracy, but his nickname was not Pajaro and that Castaneda was Pajaro’s
brother, Casco. Cortinas also testified that he did not tell agents, before or after
trial, that Pajaro was Castaneda. The district court denied the motion for new
trial, finding that Cortinas’s changed testimony after trial was not credible and
would not result in an acquittal if presented at a new trial. The district court
then sentenced Castaneda to a term of life on each of the two counts to be
served concurrently with credit for time served. Castaneda timely appealed.
                                        II.
      Castaneda makes two arguments on appeal. First, he raises a sufficiency
of the evidence claim. Second, he argues that the district court abused its
discretion in denying his motion for a new trial. We first address Castaneda’s
sufficiency of the evidence claim.
      Because Castaneda moved for judgment of acquittal at the close of the
case, he preserved his sufficiency claim for appellate review. United States v.
Ferguson, 211 F.3d 878, 882 (5th Cir. 2000). In such a case, appellate courts
review a denial of a motion for acquittal de novo. United States v. Olguin, 643
F.3d 384, 393 (5th Cir. 2011), cert. denied, 132 S. Ct. 432 (2011), and cert.
denied, 132 S. Ct. 439 (2011). On a challenge to the sufficiency of the evidence
to support a criminal conviction, “the relevant question is whether, after

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viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This court’s
review of the sufficiency of the evidence is “highly deferential to the verdict.”
United States v. Gulley, 526 F.3d 809, 816 (5th Cir. 2008). We must “accept
credibility choices that support the jury’s verdict, and we may not reweigh the
evidence.” United States v. Guerrero, 169 F.3d 933, 939 (5th Cir. 1999). Thus,
the inquiry is “limited to whether the jury’s verdict was reasonable, not whether
we believe it to be correct.” Gulley, 526 F.3d at 816.
       Castaneda makes several arguments in support of his sufficiency claim.
He first argues that the government did not provide an in-court identification
of Castaneda as Pajaro.1 However, an in-court identification is not necessary


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         Castaneda also argues that the pretrial identifications by Cortinas and Barrientos
cannot be considered sufficient evidence because “the pretrial identification may have been a
product of the unfavorable conditions and questionable methods employed by law enforcement
personnel.” Castaneda never filed a motion to suppress these pretrial identifications before
or during trial. This argument was not raised below, thus it is deemed waived pursuant to
Rule 12(b)(3) of the Federal Rules of Criminal Procedure. ” United States v. Scoggins, 599 F.3d
433, 448 (5th Cir. 2010) (“There is divided authority in the circuits as to ‘whether arguments
not raised in a motion to suppress are waived or are merely forfeited and subject to plain-error
review.’ . . . Our circuit follows the former view, holding that ‘a defendant who fails to make
a timely suppression motion cannot raise that claim for the first time on appeal.’”).
        “Nonetheless, our cases identifying waiver have often proceeded to evaluate the issues
under a plain error standard for good measure.” Scoggins, 599 F.3d at 448. The Supreme
Court has identified four requirements for reversing a trial court based upon plain error
review: (1) “there must be an error or defect—some sort of [d]eviation from a legal rule—that
has not been intentionally relinquished or abandoned”; (2) “the legal error must be clear or
obvious, rather than subject to reasonable dispute”; (3) “the error must have affected the
appellant's substantial rights”; and (4) “if the above three prongs are satisfied, the court of
appeals has the discretion to remedy the error—discretion which ought to be exercised only
if the error seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009). Castaneda has not asserted
that there was a particular defect with the pretrial identification, only that there “may have

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for conviction. United States v. Royals, 777 F.2d 1089, 1091 (5th Cir. 1985)
(“[Appellant] argues that no witness pointed him out in the courtroom.
Identity, however, may be proved by inference and circumstantial evidence.”).
Furthermore, even though no in-court identification is necessary for conviction,
Agent Gamez made an in-court identification of Castaneda. After comparing
the two photos described above, Agent Gamez identified Castaneda in the
courtroom as the person in the driver’s license and JABS photos.
       In-court identification is only one piece of all the evidence presented to the
jury. Other circumstantial evidence presented could have led a reasonable jury
to find Castaneda guilty of the charged crimes. Both Cortinas and Barrientos
testified that they were employed by an organization to transport cocaine. Both
testified that a person named Pajaro was the person to whom they delivered the
cocaine, who directed them in unloading locations in Houston, and who helped
unload the cocaine. Both witnesses confirmed on the stand that they identified
Castaneda’s photo as Pajaro in a pretrial photo lineup although they did not
identify him as Pajaro at trial.
       To the extent that Castaneda complains that his photo in the pretrial
photo lineup was “hard to see,” we must defer to the jury’s assessment of the
evidence. The government submitted to the jury the photo used in the pretrial
photo lineup, which came from a driver’s license bearing Castaneda’s name and
date of birth, and the JABS photos, which also listed Castaneda’s name and
date of birth. The jury weighed the evidence and could reasonably conclude



been unfavorable conditions.” Accordingly, we find that there is no plain error on the issue of
the pretrial identification.


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                                  No. 12-50329

that Castaneda was the man in those photographs.
        Second, Castaneda argues that the government did not provide sufficient
evidence of his identity through the records from Cortinas’s phone.           The
government presented testimony that could have led the jury to reasonably find
that the phone associated with Castaneda belonged to him even though it was
registered under a different name. Both Cortinas and Barrientos testified to
the jury that the organization they worked for routinely used prepaid phones
for the very purpose that they would not need to be registered under their
names. Both testified that these prepaid phones were changed or thrown away
every two to three weeks to avoid detection. The jury was given the opportunity
to weigh the evidence and our inquiry is “limited to whether the jury’s verdict
was reasonable, not whether we believe it to be correct.” Gulley, 526 F.3d at
816.
        Finally, Castaneda argues that Cortinas’s and Barrientos’s inconsistent
testimonies indicates that they were lying about his identity as Pajaro and that
they were generally not credible witnesses. However, “[i]t is not the appellate
function to judge the credibility of witnesses.” United States v. Murray, 527
F.2d 401, 410 (5th Cir. 1976). Instead, the jury is free to weigh the credibility
of conflicting testimonies and determine what to believe. Id. It is not the
court’s role to question that judgment. United States v. Loe, 262 F.3d 427, 432
(5th Cir. 2001) (“[The jury] retains the sole authority to weigh any conflicting
evidence and to evaluate the credibility of the witnesses.”); United States v.
Green, 180 F.3d 216, 220 (5th Cir. 1999) (“It is the sole province of the jury, and
not within the power of this Court, to weigh conflicting evidence and evaluate



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                                   No. 12-50329

the credibility of witnesses.”).
      For these reasons, Castaneda’s sufficiency challenge fails.
                                       III.
      Next we turn to Castaneda’s claim that the district court wrongfully
denied his motion for a new trial. We review a denial of a motion for a new trial
for abuse of discretion. United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir.
1997). Federal Rule of Criminal Procedure 33 provides that a motion for a new
trial must demonstrate that: (1) there is newly discovered evidence and it was
unknown to Castaneda at the time of trial; (2) the failure to detect the evidence
was not due to a lack of diligence by Castaneda; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material; and (5) the evidence
introduced at a new trial would probably produce an acquittal. United States
v. Franklin, 561 F.3d 398, 405 (5th Cir. 2009). All elements need to be proved
in order to receive a new trial based on newly discovered evidence. United
States v. Wall, 389 F.3d 457, 467 (5th Cir. 2004). Motions for new trial are
generally “not favored, and are granted only with great caution.” O’Keefe, 128
F.3d at 898.
      Castaneda argues that Cortinas’s post-trial testimony that Castaneda was
not Pajaro but was Casco, is newly discovered evidence that, were the district
court to grant a new trial, would acquit Castaneda. However, the district court
did not abuse its discretion in denying the motion for a new trial when it found
that Cortinas’s post-trial testimony was not newly discovered and was merely
cumulative and impeaching. See Mesarosh v. United States, 352 U.S. 1, 9
(1956); United States v. Villarreal, 324 F.3d 319, 326 (5th Cir. 2003) (upholding



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district court’s denial of motion for new trial when it found that testimony
“could have served no evidentiary purpose other than to impeach the testimony”
of a government witness); United States v. Reedy, 304 F.3d 358, 372 (5th Cir.
2002) (upholding district court’s denial of motion for new trial based on newly
discovered impeachment evidence); United States v. Pena, 949 F.2d 751, 758
(“Evidence which merely discredits or impeaches a witness’ testimony does not
justify a new trial.”) (5th Cir. 1991). See also United States v. Riley, 544 F.2d
237, 240 (5th Cir. 1976) (holding that cumulative evidence is an insufficient
basis for a new trial). Moreover, Cortinas’s post-trial testimony does not
exonerate Castaneda.     Cortinas continued to testify that Castaneda was
involved in the drug conspiracy.
      Because the evidence was sufficient to sustain the jury’s verdict and the
district court did not abuse its discretion in denying Castaneda’s motion for new
trial, we AFFIRM.




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