Opinion
2:09-cr-00933-CAS-l
02-01-2024
United States v. Boyajian
THE HONORABLE CHRISTINA A. SNYDER
CRIMINAL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) - DEFENDANT'S MOTION FOR EXTENSION OF TIME TO FILE RULE 33 MOTION (Dkt. 1660, filed on February 26, 2019)
DEFENDANT'S MOTION FOR EXTENSION OF TIME TO FILE RULE 33 MOTION (Dkt. 1662, filed on March 6, 2019)
DEFENDANT'S MOTION FOR NEW TRIAL PURSUANT TO RULE 33(B)(1) BASED ON NEWLY DISCOVERED EVIDENCE AND IN THE INTEREST OF JUSTICE (Dkt. 1664, filed February 26, 2019)
DEFENDANT'S FOUR MOTIONS FOR NEW TRIAL PURSUANT TO RULE 33(B)(1) BASED ON NEWLY DISCOVERED EVIDENCE AND IN THE INTEREST OF JUSTICE (Dkt. 1666, 1667, 1669, 1670, filed March 7, 2019)
DEFENDANT'S MOTION FOR VACATEUR OF JUDGMENT PURSUANT TO RULE 33(B)(1) (Dkt. 1668, filed on March 7, 2019)
I. INTRODUCTION
Presently before the Court are defendant Ronald Gerard Boyajian's six motions for a new trial based upon newly discovered evidence.
While his appeal was pending, defendant filed two motions for extension of time to file his Rule 33 motions. Dkts. 1660, 1662. He specifically requested an extension until “30 days after the Court of Appeals remands the case.” Dkt. 1660 at 4. In light of the Ninth Circuit's ruling, it appears there is no basis to file a Rule 33 motion. Accordingly, the Court DENIES defendant's two motions for extension of time to file.
The facts and history of this case are well known to the parties. In March 2016, a jury convicted defendant of multiple sex offenses. Dkt. 1332. In February and March of 2019, he filed six motions for a new trial based on allegedly newly discovered evidence. Dkts. 1664, 1666, 1667, 1668, 1669, 1670. The Ninth Circuit affirmed defendant's conviction and issued its mandate on October 20, 2023. Dkt. 1744. On January 23, 2024, the government filed a consolidated opposition to defendant's six motions for a new trial. Dkt. 1747 (“Opp.”).
Having carefully considered the parties' arguments and submissions, the Court finds and concludes as follows.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 33 provides that, “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). To prevail on a Rule 33 motion for a new trial based on newly discovered evidence, a defendant must satisfy a five-part test: “(1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant's part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result in acquittal.” United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005).
“A district court's power to grant a motion for a new trial is much broader than its power to grant a motion for judgment of acquittal.” United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 1206, 1211 (9th Cir. 1992). “The court is not obliged to view the evidence in the light most favorable to the verdict, and it is free to weigh the evidence and evaluate for itself the credibility of the witnesses.” United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000) (citing United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992)). A motion for a new trial is “directed to the discretion of the district judge” and “should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict.” United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981).
III. DISCUSSION
Defendant argues for a new trial based on allegedly new evidence that: (1) government witness S.L. was a “coerced witness” (dkt. 1664); (2) government expert, Bruce Pixley, “illicitly accessed and tampered seized digital evidence” (dkt. 1666); (3) DNA samples taken from S.L. did not match defendant (dkt. 1667); (4) Menlo Park Police Department believed defendant had moved to Cambodia based on an active arrest warrant (dkt. 1668); (5) the Cambodian Supreme Court issued a new decision addressing the “Cambodian law applicable to this case” (dkt. 1669 at 3); and (6) there is an ongoing corruption investigation into Keo Thea, a Cambodian police officer and government witness (dkt. 1670).
As a threshold matter, it appears that defendant's request for a new trial was denied by the Ninth Circuit. To the extent defendant purports to raise new arguments that were not addressed by the Ninth Circuit, he has failed to show that any evidence warrants a new trial under the Harrington factors.
Defendant's first motion regarding alleged coercion of S.L. appears to be based on her statement at allocution that “I could not move forward to what I wanted to do, and I have to wait until this is over in order to see my family again.” Dkt. 1664. However, this statement alone does not appear to show coercion. Moreover, even under defendant's interpretation, this statement is merely impeaching of S.L.'s testimony. See United States v. Kulczyk, 931 F.2d 542, 549 (9th Cir. 1991) (“[E]vidence that would merely impeach a witness cannot support a motion for a new trial.”).
Defendant's second motion, regarding “new” digital evidence, is similarly unpersuasive. Defendant cites evidence that was available before the end of trial and, moreover, has not shown that he would probably be acquitted in a new trial given the ample evidence of his guilt beyond the digital evidence (e.g., testimony of four victims, defendant's own recorded statements, testimony of an informant, etc.).
Defendant's third motion, arguing for a new trial based on DNA analysis, relies upon a claim that was already rejected by the Court during trial. See dkt. 1667 (showing that defendant's third motion merely contests the Court's decision “not [to] permit” defendant's affirmative DNA defense “based on source”). The Court previously rejected defendant's DNA evidence because he “failed to establish a proper chain of custody for the DNA swabs allegedly obtained from S.L. in Cambodia.” Opp. at 5. Moreover, defendant has not established that he would probably be acquitted in a new trial given the ample evidence of his guilt notwithstanding his purported DNA evidence.
Defendant's fourth motion, citing “newly discovered evidence pertaining to [his] residency,” does not justify vacating the judgment. See dkt. 1668 at 1. Defendant relies on an “arrest warrant issued . . . for defendant by Menlo Park Police Department in 2009” allegedly showing that “defendant had moved.” Id. at 1, 3 (internal quotations omitted). Defendant has not established why he was unable to previously discover this evidence as it has apparently been available since 2009. In any event, he has still not established that this evidence would result in acquittal at a new trial.
Defendant's fifth motion argues for a new trial based on a new decision by the Cambodian Supreme Court. However, this decision does not constitute “newly discovered evidence” because the legal question of whether defendant was extradited from Cambodia does not concern whether he is “innocent or guilty of the crimes charged.” United States v. Hanoum, 33 F.3d 1128, 1131 (9th Cir. 1994). Additionally, the Ninth Circuit has already held that “Boyajian's argument that his convictions violate the doctrines of dual criminality and speciality also fails [because] [t]hese doctrines apply to transfers occurring through extradition treaties.” Dkt. 1738 at 3. The Ninth Circuit recognized that “the Cambodian Supreme Court expressly determined that Boyajian's transfer to this country was not an extradition.” Id. (emphasis added).
Defendants last motion argues for a new trial based on evidence of a corruption investigation into Keo Thea, a Cambodian police officer. Dkt. 1670 at 3. However, this constitutes mere impeachment evidence that does not support a motion for a new trial. See Kulcyzk, 931 F.2d at 549. Additionally, defendant has not established he would probably be acquitted in a new trial given the ample evidence of his guilt notwithstanding Keo Thea's testimony.
Accordingly, the Court DENIES each of defendant's six motions for a new trial.
IV. CONCLUSION
In accordance with the foregoing, the Court DENIES each of defendant's six motions for a new trial. The Court also DENIES defendant's two motions for extension of time.
IT IS SO ORDERED.