The opinion of the court was delivered by: Sprizzo, District Judge:
MEMORANDUM OPINION AND ORDER
On October 5, 1989, following a jury trial, defendant Nelson
Castano was convicted of conspiracy to distribute cocaine and
possession of approximately one kilogram of cocaine with the
intent to distribute. Castano moves for a new trial pursuant
to Fed.R.Cr.P. 33. For the reasons that follow, the motion is
Nelson Castano and four co-defendants, Raul Morales, Ramon
Padilla, Basilio Vasquez, and Rodrigo Vasquez, were indicted
in a two count indictment, which charged them with conspiracy
to distribute cocaine and possession of one kilogram of
cocaine with the intent to distribute. Padilla, Morales and
Basilio Vasquez pled guilty prior to trial. The remaining two
defendants, Castano and Rodrigo Vasquez, proceeded to trial
and were convicted by a jury on both counts.
The evidence at trial established the following facts.
On May 26, 1989, Luis Hernandez, a confidential informant
working for the United States Drug Enforcement Agency ("DEA"),
met Ramon Padilla at 138th Street and Saint Ann's Avenue in
the Bronx, New York. See Trial Transcript ("Tr.") at 75.
Hernandez discussed the purchase of two kilograms of cocaine
with Padilla and gave Padilla his telephone number so that
Padilla could call him when he found a supplier. See id. at
75-76. Hernandez then returned to his apartment and telephoned
Special Agent Leonard Johnson, the DEA agent who worked with
him, and told him about what had transpired. See id. at 77.
While Hernandez was on the phone with Johnson, Padilla
called Hernandez on the telephone*fn1 and told him to meet
Padilla and another individual, later identified only as
"Ralphie", on a corner a few blocks away. See id. at 77.
Hernandez followed these instructions. See id. at 78. After a
short conversation, the trio walked to a grocery store at 241
St. Ann's Avenue. See id. at 79. There, Hernandez was
introduced to Basilio Vasquez and Rodrigo Vasquez. See id. at
Hernandez went with Padilla, "Ralphie," and Basilio Vasquez
to the rear of the store, where they agreed to sell Hernandez
and Elvin Laboy, an undercover DEA agent, two kilograms of
cocaine for $32,000 each. See id. at 81-83. Basilio Vasquez
then told Hernandez that he would have to wait a few hours to
obtain the cocaine. See id. at 83. Hernandez returned to his
apartment where he telephoned the agents. They told him they
would wait no longer than 6:00 PM for the transaction. See id.
A short time later, Hernandez returned to the store on Saint
Ann's Avenue, but the package was still not there. See id. at
84. Hernandez told the others that the deal was taking too long
and that his friend would not wait any longer than 6:00 PM. See
id. A flurry of phone calls regarding the speed of the delivery
followed, see id. at 84-87, and, at one point, Raul Morales
called Hernandez and told him he would be there soon. See id.
at 88, 93.
Subsequently, Nelson Castano and Morales arrived, with
Castano carrying two kilograms of cocaine in a shopping bag.
See id. at 89-93, 163; see also 95. Each kilogram was
individually wrapped in brown paper secured by tape. See id. at
92. After showing Hernandez one of the packages, Morales told
Hernandez that he would sell only one package at that time and
would sell the rest to him later. See id.
Subsequently, Hernandez, Morales, and Castano left, taking
one kilogram of cocaine with them, to meet with Agent LaBoy in
Manhattan. Castano drove the others to 97th Street and
Riverside Drive in his car. See id. at 95-97. Basilio Vasquez,
Rodrigo Vasquez, Padilla and "Ralphie" remained at the store
with the other kilogram of cocaine.
When they arrived at 97th Street and Riverside Drive,
Hernandez got out of the car and spoke with Agent Johnson.
See id. at 49-50; 98. Thereafter, the Agents arrested Castano
and Morales and seized one kilogram of cocaine from behind the
passenger seat of the car. See Tr. at 37-38; 48; 52. Shortly
after that, the agents and Hernandez returned to the store on
St. Ann's Avenue and arrested all of the remaining
conspirators, except "Ralphie." See id. at 99-100; 200-01.
However, the kilogram left at the store was not recovered. See
id. at 223.
The basis for Castano's motion for a new trial consists of
proposed excuplatory testimony of Morales and additional
evidence bearing upon Hernandez's credibility. The first
ground arises out of Castano's attempts to interview and call
as a trial witness defendant Raul Morales, who had pled guilty
on October 2, 1989, but had not been sentenced as of the time
that Castano's trial commenced. See Tr. at 182; 185-87. In that
connection, Morales' counsel stated that Morales would not
consent to an interview and if called as a witness at trial
would assert his Fifth Amendment privilege against
self-incrimination. See id. at 219-21. Castano now asserts, in
affidavits from himself and his counsel, that Morales told him
approximately one and one-half weeks prior to sentencing that
he would be willing to testify at a new trial and exonerate
him. See Affidavit of Nelson Castano at ¶ 7 ("Castano Aff.");
Affidavit of Stewart Leigh Orden at ¶¶ 11-12 ("Orden Aff.").
Castano also maintains that Morales has reaffirmed his
willingness to testify on several occasions since that time.
See Castano Aff. at ¶ 7. However, although Castano's counsel's
affidavit makes reference to possible testimony by Morales that
a person named Hector was involved in the transaction, see
Orden Aff. at ¶ 11, conspicuously absent from Castano's papers
is an affidavit from Morales himself setting for the substance
of his proposed testimony or, indeed, the fact that he would
even be willing to testify.