United States District Court, Southern District of New York
December 30, 1991
UNITED STATES OF AMERICA
ALFREDO PERALTA MATOS, DEFENDANT.
The opinion of the court was delivered by: Sweet, District Judge.
Defendant Alfredo Peralta-Matos ("Matos") has moved pursuant to
Rule 33, Fed. R.Crim.P. for an order granting him a new trial.
For the following reasons, the motion is denied.
Procedural and Factual Background
Matos was convicted on May 24, 1989 following a jury trial in
which he was found guilty of (1) conspiring to distribute and to
possess with intent to distribute over 500 grams of cocaine in
violation of 21 U.S.C. § 846; (2) distributing and possessing
with intent to distribute, together with codefendants,
approximately 1,007 grams of cocaine in violation of 21 U.S.C. § 812,
841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2; and (3)
possessing with intent to distribute approximately 0.844 grams of
heroin in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C)
and 18 U.S.C. § 2.
The conviction arose from a narcotics transaction between Matos
and his codefendants and agents of the Drug Enforcement
Administration ("DEA"). On December 5, 1990, Matos's conviction
was affirmed by the Second Circuit. See United States v.
Benitez, 920 F.2d 1080 (2d Cir. 1990). The evidence at trial, as
discussed by the Second Circuit on appeal, established the facts
In December 1987, undercover DEA agent Thomas C. Slovenkay
("Slovenkay") had several telephone conversations with a Eugene
Jimenez ("Jimenez") that culminated in a transaction at 161st
Street and the Grand Concourse in the Bronx, New York, on
December 29, 1987 in which Slovenkay purchased from Jimenez
approximately 52.6 grams of 63% pure cocaine for $2,500 in
pre-recorded currency. Following the sale, Jimenez, followed by
undercover DEA agent James Kerrigan ("Kerrigan"), went to an
apartment building at 2230 University Avenue in the Bronx. At a
later date, Slovenkay received a telephone message from Jimenez
requesting that Slovenkay call him at a number listed to one
Harry Torres ("Torres") at Apartment 2A ("Apartment 2A") at 2230
On January 13, 1988, Slovenkay called the number and spoke to
both Jimenez and Torres, who agreed to sell Slovenkay a kilogram
of cocaine in exchange for $23,500, with the transaction to be
carried out in four equal installments. The next day, Slovenkay
and Jimenez talked on the telephone and agreed to consummate the
sale that evening.
According to DEA agent J. Michael Smith ("Smith"), at
approximately 8:00 p.m. in the evening of January 14, 1988, a
Spanish male, whom he later identified as Matos, drove up to the
entrance of 2230 University Avenue, parked, and entered the
building. Jimenez arrived and entered the building at
approximately 8:25 p.m. Matos departed at approximately 8:35 p.m.
Shortly thereafter, Jimenez, Torres, and William Gonzalez-Benitez
("Benitez") departed 2230 University Avenue, and took a taxi cab
to and entered an apartment building at 2845 University Avenue.
Later that evening, Jimenez and Slovenkay met at 161st Street
and the Grand Concourse where, pursuant to their prior agreement,
Slovenkay gave Jimenez the first installment of $5,900 in
pre-recorded currency. Jimenez thereupon returned to 2845
University Avenue to pick up the cocaine. At approximately 10:00
p.m., Matos was observed by surveillance officers exiting a car
and entering 2845 University Avenue.
Meanwhile, Slovenkay waited for Jimenez to return with the
cocaine. Shortly after 10:00 p.m., Slovenkay spoke on the
telephone with Jimenez's wife, who informed him that "some
unforeseen problem had developed from the people involved in this
thing," and that Slovenkay would "have to sit and wait."
Approximately five minutes later, she advised Slovenkay that
Jimenez "said he'll be there in ten minutes." About ten minutes
later, Jimenez did arrive, bearing a kilogram of cocaine wrapped
in a brown paper bag, a plastic container, and plastic wrapping.
Affixed to the paper bag was a Sears and Roebuck label addressed
to "William Beniter [sic],
2845 University Avenue, Apartment 4J, Bronx, New York."
Jiminez gave the cocaine to Slovenkay, and was thereupon
arrested by DEA agents. Agents then went to Apartment 4J at 2845
University Avenue ("Apartment 4J") and entered by breaking down
the steel door to the apartment with a sledge-hammer. The agents
found Torres and Benitez inside, and arrested them. Matos and
Hector B. Ramirez ("Ramirez"), who had also been inside, had
jumped through the back window of the apartment. Ramirez lay on
the ground below; Matos was found at the end of a trail of blood
leading to the building's basement utility room. The agents
arresting Matos found, on the ground in the utility room where
Matos was standing at the time of his arrest, a package
containing a sample of 0.333 grams of 86% pure heroin and
glassine envelopes containing 17% pure heroin. Matos later
admitted to the physician treating his wounds at Montefiore
Hospital that he had jumped out of a window upon the arrival of
Subsequently, pursuant to search warrants, the DEA agents
recovered from Apartment 4J: cocaine, heroin, marijuana, various
narcotics paraphernalia, cutting agents, weapons, ammunition,
holsters, drug records, address books, and a flight jacket that
Matos was wearing when he was observed entering the building. The
address books listed telephone numbers for "Alfredo" and "Fredo"
and a ledger card bore the heading "Alfred." From Apartment 2A,
the agents seized: heroin, cocaine, narcotics paraphernalia,
cutting agents, an address book, narcotics transaction records,
and $10,425 in United States currency that included prerecorded
currency from the December 29, 1987 and January 14, 1988
transactions between Jimenez and Slovenkay. The narcotics
transaction records included an index card headed "Alfred"
bearing a running tally of dollar amounts.
After being advised of and waiving his constitutional rights,
Benitez gave a signed postarrest statement in which he
acknowledged that at 9:00 p.m. on January 14, 1988, while with
Jimenez in Apartment 2A, he had agreed that his apartment,
Apartment 4J, could be used to "make some money fast," and that
he and Jimenez had then traveled by cab from 2230 University
Avenue to 2845 University Avenue. Benitez further stated that a
"black guy" with a beard had been at Apartment 2A, had departed
to "go get that" saying "he would see us later," and had
reappeared at Apartment 4J with a "small Spanish male" with a
package, "the evidence we have now." Benitez added that when the
DEA agents announced their presence at Apartment 4J, "the black
guy and the Spanish guy went to the bedroom and I heard breaking
glass." Benitez's statement was admitted in evidence at trial,
but was redacted to delete any reference to the "black guy," the
"small Spanish male," and the "Spanish guy."
After warrants were issued for his arrest, Matos surrendered to
the authorities on April 15, 1988.
On May 16, 1988, an eleven-count superseding indictment (the
"Indictment") was filed against Matos, Ramirez, Torres, Benitez
and Jimenez. Matos was charged only in Counts One, Three, and
On or about May 24, 1988, DEA agents arrested Ramirez on
charges underlying the Indictment. After being advised of and
waiving his constitutional rights, Ramirez gave an oral statement
in Spanish, which was translated and transcribed by DEA Special
Agent Anthony Petrino ("Petrino"). Ramirez stated that on January
14, 1988, he had driven Matos to 2845 University Avenue and
waited in the car while Matos went inside. After approximately
one hour, Ramirez became concerned for Matos's safety, entered
the building and was directed to Apartment 4J by a teenager who
"asked him if Ramirez was looking for Matos." When he went into
the apartment, Ramirez saw two unknown persons and Matos,
together with a machine gun on a table that Ramirez thought was a
toy. Shortly thereafter, there was a knock on the door; looking
through a peep-hole, Ramirez saw an Indian boy who said, "they
are not going to kill you." Ramirez, not
knowing the police were at the door, jumped through the glass and
out the bedroom window.
At trial, Ramirez's transcribed statement was not admitted into
evidence. Rather, DEA agent Anthony Petrino, who had translated
into English Ramirez's Spanish statement, testified as to the
interview with Ramirez, modifying it only to the extent that all
references to Matos by name were replaced by a reference to a
Jimenez and Torres entered guilty pleas to Count Three of the
Indictment prior to trial. Each was sentenced to five years'
incarceration followed by four years of supervised release.
Jimenez and Torres refused to testify with respect to Matos at
trial, each expressing fear of physical retribution by Matos
against them and their families. See Kerrigan Aff. ¶ 4(h);
Sobol Aff. ¶¶ 19-21. Jimenez had given a signed statement in
which he swore that it was the "Gods honest truth" that it was
his "personal feeling  that Alfredo [Matos] got the coke pass
it to Willie [Benitez] who passed it to Harry [Torres] and then
to my hands." See Kerrigan Aff. ¶ 3.
Prior to trial, this court denied the motion of Matos and his
co-defendants Torres and Benitez to suppress physical evidence
seized and the post-arrest statements by Benitez and Torres.
United States v. Matos-Peralta, 691 F. Supp. 780, 787-88
(S.D.N.Y. 1988).*fn1 At the same time, these defendants also
moved for severance pursuant to Rule 14, Fed.R.Crim.P.,
contending that the admission of postarrest statements by
codefendants Benitez and Jimenez would have an unduly prejudicial
effect upon their defenses. Id. at 790. The court denied the
severance motion but in view of the protections recognized in
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20
L.Ed.2d 476 (1968), directed that Jimenez's statement be redacted
prior to its introduction at trial to exclude those portions
independently implicating Matos, Benitez and Torres. Id. Upon
renewal of Matos's objection at trial to his co-defendant's
statements, the court admitted the statements of Benitez and
Ramirez in redacted form and gave a limiting instruction after
the admission of Benitez's statement and in the charge to the
After the joint trial of Matos, Ramirez and Benitez in
September of 1988, the jury found Matos and Benitez guilty on all
counts in which they were named and acquitted Ramirez on all
counts. After trial, Benitez and Matos moved for judgments of
acquittal n.o.v. or, in the alternative, for new trials pursuant
to Rule 33, Fed. R.Crim.P.
Matos contended that Petrino's testimony regarding Ramirez's
post-arrest statement was improperly admitted at trial and that
the evidence at trial was insufficient to support his conviction.
In an unpublished opinion dated April 7, 1989, this court denied
Matos's post-trial motions finding that there was sufficient
evidence from which to draw a proper inference of his guilt.
Namely, the court cited the fact (1) that Matos entered and
exited 2230 University Avenue at virtually the same times as
Jimenez, Benitez and Torres and (2) that he left 2230, as they
did, and entered 2845 University Avenue, where he went to
Apartment 4J at approximately 10:00 p.m., precisely when
Jimenez's wife told Slovenkay that the "unforeseen problem" had
been resolved. Moreover, the court found that:
Even without the unredacted post-arrest statement by
Benitez, that "[t]he black guy showed up with another
small Spanish male who also jumped out the window.
The black guy took a package out of a black nylon bag
and handed it to Jimmie," it was reasonable for the
jury to draw an inference that Matos was the source
of the kilogram of cocaine which Jimenez delivered to
Slovenkay. That inference was strengthened by Matos's
four-story leap to the ground admittedly in order to
avoid the police, by his attempt to hide, and by his
possession of heroin.
Matos was subsequently sentenced to seventy-two months'
imprisonment, to be followed by a four-year term of supervised
release. The Court of Appeals for the Second Circuit affirmed
Matos's conviction over challenge to this court's denial of the
severance motion, admission of the redacted statements of Benitez
and Ramirez and finding that the evidence was sufficient to
support the conviction. The Second Circuit found that "the
government introduced more than ample evidence from which a
reasonable jury could find knowing membership in the conspiracy,
and purposeful behavior to further it," and that "[l]ittle need
be added to [the district court's] analysis." Benitez, 920 F.2d
at 1089. Based on the evidence summarized by this court and,
additionally, (1) the listings for "Alfredo" and "Fredo" in
address books found in Apartment 4J and (2) the index card headed
"Alfred" with a running tally of dollar amounts included in
narcotics transactions records seized at Apartment 2A, the Second
Circuit agreed that the evidence was sufficient.
Matos is presently at liberty on $100,000 bond. Subsequent to
his conviction, Benitez was killed in an unrelated incident
during the night of November 22-23, 1989.
On January 15, 1991, Matos filed the present motion to vacate
his conviction and order a new trial based upon "newly discovered
evidence" in the form of affidavits from Jimenez and Torres, both
sworn to December 22, 1990, which in substance claim that Matos
did not deliver the cocaine to 2845 University Avenue. Due to a
long series of adjournments at the request of the parties, the
motion was not heard and considered fully submitted until October
The "newly discovered evidence" on which Matos bases his motion
consists of two purportedly exculpating affidavits given and
sworn to on December 22, 1990 by Jimenez and Torres, both of whom
refused to testify at trial.
Jimenez's affidavit states in relevant part that:
5. However, since Alfredo Matos is not guilty of this
crime I must let the Court know that I would now be
willing to give evidence on his behalf.
6. The night that I was arrested Willie Benitez told
me to say that the drugs were Alfredo's. This was not
true to the best of my knowledge.
7. I have no idea how the drugs got to Willie's
apartment but they were in the apartment when we
8. Alfredo Matos never came to 2230 University Avenue
that evening. The only three people there were Willie
Benitez, Harry Torres and myself.
9. We went from that apartment to Willie's apartment
at 2845 University Avenue to get the drugs.
10. A minute before I left to deliver the drugs the
intercom buzzed. I heard Willie answer and Willie
buzzed to let him (Alfredo) into the building.
11. As I was leaving I passed Alfredo and another guy
in the hallway. I never met him before or after that
13. To the best of my knowledge Alfredo Matos was not
involved in this transaction at all.
See Matos Ex. A.
Torres's affidavit includes the following statements:
4. I am making this affidavit because it would be
wrong for Alfredo Matos to go to jail for something
he wasn't involved in.
6. However, rather than let an innocent man go to
jail I am now willing to testify that Alfredo Matos
was not involved in the cocaine deal that Jimenez,
Benitez and I were involved with.
7. Matos never came to the apartment located at 2230
University Avenue nor did he ever bring any cocaine
to 2845 University Avenue the evening that I was
8. The reason Jiminez, Benitez and I went to 2845
University Avenue was to get the cocaine for the
9. That's where it was stored.
10. Matos's arrival that night had nothing to do with
this deal and was an unfortunate coincidence for him.
See Matos Ex. B.
Motions for a new trial based on newly discovered evidence are
not favored and should be granted only with "great caution,"
United States v. DiPaolo, 835 F.2d 46, 49 (2d Cir. 1987);
United States v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975),
cert. denied, 429 U.S. 819, 97 S.Ct. 65, 66, 50 L.Ed.2d 80
(1976), and only in "`the most extraordinary circumstances.'"
United States v. Ochs, 548 F. Supp. 502, 512 (S.D.N.Y. 1982)
(quoting United States v. Fassoulis, 203 F. Supp. 114, 117
(S.D.N.Y. 1962)), aff'd, 742 F.2d 1444 (2d Cir. 1983), cert.
denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984). To
obtain a new trial based on newly discovered evidence, the
defendant must show (1) that the evidence is truly newly
discovered, i.e., discovered after trial; (2) that it could not,
with due diligence, have been discovered prior to or during
trial; (3) that the evidence is material and not cumulative or
impeaching; and (4) that the evidence would probably lead to
acquittal. United States v. Underwood, 932 F.2d 1049, 1052 (2d
Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 382, 116 L.Ed.2d
333 (1991); United States v. Diaz, 922 F.2d 998, 1006-07 (2d
Cir. 1990) ("new" evidence must create "a reasonable doubt that
did not otherwise exist"), cert. denied, ___ U.S. ___, 111
S.Ct. 2035, 114 L.Ed.2d 119 (1991); United States v. Tutino,
883 F.2d 1125, 1140 (2d Cir. 1989), cert. denied, 493 U.S. 1081
& 1082, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990); DiPaolo, 835
F.2d at 49; United States v. Gilbert, 668 F.2d 94, 96 (2d Cir.
1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2014, 72 L.Ed.2d
469 (1982); United States v. Alessi, 638 F.2d 466, 479 (2d Cir.
1980); United States v. Castano, 756 F. Supp. 820, 823 (S.D.N Y
The potential testimony of Jimenez and Torres is material, and,
to the extent that it would be offered for reasons other than to
impeach the already hotly-contested statement of Benitez, it is
not cumulative or impeaching. Nevertheless, this evidence fails
to satisfy the remaining criteria listed above.
First, the potential testimony is not "newly discovered." A
number of courts have held that the testimony of a co-defendant
who chose not to testify at the trial or who previously asserted
his right against self-incrimination is not newly discovered
evidence. United States v. Persinger, 587 F. Supp. 899, 901
(W.D.Pa. 1984); see, e.g., United States v. Jacobs,
475 F.2d 270, 286 (2d Cir.), cert. denied sub nom., Lavelle v. United
States, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 (1973);
Castano, 756 F. Supp. at 823 (citing cases).
At the time of trial, Matos knew that Jimenez and Torres were
alleged co-conspirators. Thus, assuming that the substance of
their potential testimony is true, Matos surely knew that they
"possessed relevant information which could exonerate him because
he must have known" that they could testify that he did not
deliver the cocaine taken by Jimenez to the DEA agent and that he
was not at the two apartments at the relevant times, and that
Torres "could have testified that [Matos] was merely present at
the scene of the crime and was not a member of the conspiracy."
See Castano, 756 F. Supp. at 823. Given the circumstances, the
testimony of Jimenez and Torres "can at best be characterized as
`newly available,' which is not `synonymous with newly discovered
evidence on a Rule 33 motion.'" Id. at 823-24 (quoting United
States v. DiBernardo, 880 F.2d 1216, 1225 (11th Cir. 1989)).
Concededly, both Jimenez and Torres refused to consent to
interviews by any codefendants, and hence Matos did not know
exactly what they would say on the stand. Nevertheless, as the
Court of Appeals for the Fifth Circuit has written:
The precise testimony of any potential witness
cannot be known until it is had. . . . The decision
not to interview [the witnesses], and not to call
either witness, whether wise or not, was a deliberate
and strategic one. The defendant is not entitled to a
new trial so that he may employ a different strategy.
Because the proffered testimony was readily
available at the time of trial, there is no newly
discovered evidence within the meaning of Rule 33.
United States v. Beasley, 582 F.2d 337
, 339 (5th Cir. 1978);
see also United States ex rel. Regina v. LaVallee,
504 F.2d 580
, 583 (2d Cir. 1974) (defendant may not obtain new trial on
basis of "new evidence" in form of testimony of witness available
but not called at trial), cert. denied, 420 U.S. 947
, 95 S.Ct.
1330, 43 L.Ed.2d 425 (1975). For these reasons, Jimenez's present
statement cannot be considered newly discovered evidence simply
because Matos chose not to call Jimenez because "Jiminez [sic]
had indicated through his post-arrest statement that if called to
testify he would inculpate, albeit falsely, rather than exculpate
Matos," Matos Memo. at 9, 12.
Moreover, Matos has failed to establish that he could not with
due diligence have discovered this evidence prior to trial.
Despite the claim of Matos's trial counsel that "[i]n the past
they [Jimenez and Torres] had been unwilling to speak to or
assist me," DiChiara Aff. ¶ 22, and that "[a]t that time these
attempts were unsuccessful and it was clear that both defendants
would invoke their 5th Amendment privilege if called to testify,"
he has produced no evidence of any attempts to subpoena either
co-defendant before or during trial, see United States v. Cruz,
602 F. Supp. 825, 833 (S.D.N.Y. 1985), or to request that the
Government grant them immunity. Castano, 756 F. Supp. at 824
(citing Cruz, 602 F. Supp. at 830); United States v. La Duca,
447 F. Supp. 779, 786-88 (D.N.J.), aff'd, 587 F.2d 144 (3d Cir.
1978), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d
Finally, contrary to his claim that the testimony "would
directly challenge the hypothesis of guilt that the Prosecution
proffered and the jury accepted to convict Matos," Matos Memo. at
11, Matos has not shown that the purportedly "newly discovered"
evidence would "probably lead to acquittal."
The potential testimony of Jimenez and Torres does not
compromise the evidence adduced at trial: that DEA agents
observed Matos entering and departing 2230 University Avenue at
approximately the same times as his co-defendants were going in
and out; that DEA agents observed him entering 2845 University
Avenue at approximately the time Jimenez's wife informed
Slovenkay that the "unforeseen problem" had been resolved; that
Matos was present in Apartment 4J when police arrived, admittedly
jumped out of the fourth-story window to escape and was found in
possession of heroin; that address books found in Apartment 4J
contained listings for "Alfredo" and "Fredo"; and that the
narcotics transaction records seized from Apartment 2A included
an index card bearing the heading "Alfred" and a running tally of
dollar amounts. This evidence was found, not only by this court
but also by the Second Circuit, to be sufficient to support
Matos maintains, nevertheless, that the potential testimony
directly undermines the jury's crucial inference from the tandem
of movement between 2230 University Avenue and 2845 University
Avenue by Matos and the other co-conspirators that Matos played a
role in the conspiracy. However, even assuming that such an
inference was the basis for the jury's verdict, Matos still has
not shown that the potential testimony would "probably" lead to
acquittal. The credibility of Jimenez and Torres, both of whom
have been convicted and are serving sentences for their
involvement in this transaction, is questionable. See United
States v. MacDonald, 640 F. Supp. 286, 324 (E.D.N.C. 1985) ("It
is within the province of the court when ruling on a motion for
new trial based upon newly discovered evidence to examine the
credibility of those individuals who give statements in support
of the motion." (citing United States v. Johnson, 327 U.S. 106,
112, 66 S.Ct. 464, 466, 90 L.Ed. 562 (1946)). As sentenced
co-defendants, neither has anything to lose by exonerating Matos
and their testimony is therefore "inherently suspect." Castano,
756 F. Supp. at 824 (quoting La Duca, 447 F. Supp. at 782-83).
Furthermore, according to the affidavit of DEA agent Kerrigan,
Jimenez was fearful
of testifying because of threats against him and his wife, which
he believed were made by Matos. Kerrigan Aff. ¶¶ 4(h), 5.
Likewise, Torres's trial counsel informed the Assistant United
States Attorney that Torres would plead guilty "because he wanted
to receive his sentence from the Court, not his co-defendant," or
words to that effect. Sobol Aff. ¶ 19. If indeed Jimenez and
Torres feared Matos, that would only give them reason to come
forward on his behalf at trial, and calls into question their
eleventh-hour exculpatory statements.
Jimenez's credibility is made all the more dubious by (1) his
inconsistent post-arrest statement, in which he stated as "the
Gods honest truth" that his "personal feeling" was that Matos had
supplied the cocaine for the transaction and (2) his statements
to Kerrigan on June 21, 1988, just before he pleaded guilty, to
the effect that he had met Matos on several other occasions at
Torres's house, that Torres had called "Alfredo" in his presence
on January 13, 1988, and that "Alfredo brought the kilo over" to
Apartment 4J in his "brown shoulder bag with a strap." Kerrigan
Aff. ¶ 4. The direct contradiction between these statements and
his present affidavit clearly demonstrates that he was either
lying then or that he is lying now. Nevertheless, Matos has
offered no reason for believing that the prior statements were
false and that the present statement is true.*fn2
Finally, it would not be "in the interest of justice,"
Fed.R.Crim.P. 33, to grant a new trial at this date. Deprived by
the killing of Benitez of an important favorable potential
witness, the "in the interest of justice" qualification of Rule
33 would be undermined by burdening the Government and the court
with "the very burdens that the sixth amendment seeks to avoid
being placed on defendants." Cf. Garcia Montalvo v. United
States, 862 F.2d 425, 426 (2d Cir. 1988) (per curiam).
For the foregoing reasons, Matos's motion for a new trial is
It is so ordered.