IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

UNITED STATES OF AMERICA, 

Case No. 2:13-CR-145(4) 

Plaintiff, 

JUDGE MARBLEY 

v. 

DANNY BUCIO CABRALES, 

Defendant. 

ORDER 

I. INTRODUCTION 

This matter comes before the Court on Defendant Danny Bucio Cabrales' Motion for 

New Trial Based on Newly Discovered Evidence. (Doc. 142). For the reasons set forth herein, 

Defendant's Motion for New Trial is DENIED. 

II. BACKGROUND 

On June 13, 2013, Bucio Cabrales was indicted on two counts. Count One was for 

knowingly, intentionally, and unlawfully combining, conspiring, or confederating and agreeing 

with others to possess, with the intent to distribute, 1000 kilograms or more of a mixture or 

substance containing a detectable amount of marijuana, in violation of21 U.S.C. § 841(a)(1), 21 

U.S.C. § 841(b)(1)(A)(vii), and 21 U.S.C. § 846. Count Two was for knowingly, intentionally, 

and unlawfully combining, conspiring, confederating and agreeing with others to possess, with 

intent to distribute, a mixture or substance containing a detectable amount of cocaine, in 

violation of21 U.S.C. § 841(a)(l), 21 U.S.C. § 841(b)(1)(C), and 21 U.S.C. § 846. Defendant 

pleaded not guilty to both charges, and subsequently proceeded to trial on December 2, 2013. 

On December 4, 2013, the jury returned a unanimous verdict finding Defendant guilty on both 

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counts. 

Defendant filed this Motion for New Trial on April11, 2014, in which he argues that, 

based on newly discovered evidence, he has sufficiently established the need for a new trial. The 

evidence that is the basis for the motion are three different letters, each received after 

Defendant's trial. First, Defendant received a letter from Juan Moya Vargas, dated January 24, 

2014, regarding Misael Cortez-Torres, a key witness at Defendant's trial. (Doc. 142-1 at 3-5). 

According to the letter, Moya Vargas was incarcerated with Cortez-Torres. During their 

incarceration, Cortez-Torres allegedly told Moya Vargas that he took over the drug business 

while Defendant lived with him, but did not discuss how Defendant was personally involved in 

the business. Defendant claims that Moya Vargas confirmed the details ofhis letter during a 

March 14, 2014 meeting, at which Moya Vargas, his counsel, and an interpreter were present. 

Defendant next points to a notarized letter from Jesus Santos, received on March 21, 

2014. (Doc. 142-1 at 6-7). The letter states that Cortez-Torres has been an active drug trafficker 

since 2010, and attempted, on more than one occasion, to recruit Santos and Defendant to sell 

drugs for him. 

The third letter, written by Reinaldo Oliviera, was obtained by counsel on April2, 2014. 

(Doc. 142-1 at 8-1 0). Oliviera claims to have shared a prison cell with Cortez-Torres. During 

their time together, Cortez-Torres allegedly told Oliviera that Defendant did not sell drugs, and 

when the boss was out oftown, Cortez-Torres was the sole drug seller. 

III. STANDARD OF REVIEW 

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 ifthe interest of justice so requires." 

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Whether to grant a Rule 33 motion is left to the sound discretion of the district court. United 

States v. Wheaton, 505 F.3d 578, 592 (6th Cir. 2008). The defendant bears the burden of proving 

that a new trial is warranted. United States v. Davis, 15 F.3d 526, 531 (6th Cir. 1994). 

When a defendant brings a Rule 33 motion on the basis of new evidence, he must 

establish each of the following four elements: "(1) the new evidence was discovered after the 

trial; (2) the evidence could not have been discovered earlier with due diligence; (3) the evidence 

is material and not merely cumulative or impeaching; and ( 4) the evidence would likely produce 

an acquittal." United States v. O'Dell, 805 F.2d 637, 640 (6th Cir. 1986), cert. denied, 484 U.S. 

859 (1987). In applying this four-part test, courts recognize that motions for a new trial based on 

newly discovered evidence are disfavored and should be granted with caution. United States v. 

Seago, 930 F.2d 482, 488 (6th Cir. 1991). 

IV. LAW AND ANALYSIS 

The United States does not address, and therefore concedes, the first two parts of the 

Rule 33 analysis: that the new evidence was discovered after the trial; and that the evidence 

could not have been discovered earlier with due diligence. Thus, the Court need only address the 

remaining two prongs. 

A. The Evidence is Material and not Merely Cumulative or Impeaching 

Defendant notes that Cortez-Torres was the only witness to testify that Bucio Cabrales 

had a supervisory role in the offense. As such, evidence that Cortez-Torres was in charge of the 

operation at certain times is material. Defendant states that the Santos letter and the Oliviera 

letter both demonstrate Cortez-Torres' supervisory role in the drug sales, thereby negating 

evidence presented at trial indicating that Bucio Cabrales took on a supervisory role from time to 

time. Defendant then lists the various ways that he could have used the letters, and the evidence 

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presented therein, at trial. Defendant insists that he could have used the letters to impeach 

Cortez-Torres with prior inconsistent statements, pursuant to Fed. R. Evid. 613(a). Moreover, 

Defendant asserts that, if Cortez-Torres denied those statements, Defendant could have 

subpoenaed the letter writers to testify, under Fed. R. Evid. 613(b). 

According to Defendant, the "newly discovered evidence strongly demonstrates that 

critical testimony given by Cortez-Torres ... very likely was false." (Def 's Mot., Doc. 142 at 5). 

Defendant claims that Cortez-Torres's alleged misstatements regarding Defendant's role in the 

offense raise serious doubts regarding his inculpatory testimony at trial. Hence, the evidence 

demonstrates that Cortez-Torres was untruthful at trial about key facts. Defendant concludes, 

therefore, that the information contained in each letter is material and not merely cumulative or 

impeaching. 

The United States' argues that a wealth of evidence was presented at trial independent of 

the testimony from Cortez-Torres. That evidence included the testimony of Detective Annie 

Durbin and DEA Special Agent Nick Eichenlaub, both of whom spoke about the weeks of 

surveillance conducted on Defendant and other members ofthe conspiracy. Through their 

individual testimonies, Durbin and Eichenlaub presented information ranging from surveillance 

showing Defendant's controlled sales of marijuana to a confidential informant, to Defendant 

residing at the "stash-house" located at 4020 Migration Lane, where investigators found 

marijuana, cash, and drug ledgers detailing the sales of thousands of pounds of marijuana, as 

well as Defendant's driver's license, bills, and mail matter. Government's Response, Doc. 151 at 

2-3. 

The United States' insists that the information presented by other witnesses was 

corroborated by the testimony of Cortez-Torres, who stated that he had worked with Bucio4 

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Cabrales to traffic marijuana and cocaine. Moreover, Cortez-Torres stated that drug ledgers with 

records of the marijuana deals were stored in Defendant's bedroom, and identified Defendant's 

bedroom as the same room in which investigators found Defendant's personal items. The 

seizure of additional evidence during the execution of the search warrant also corroborated 

Cortez-Torres' testimony. According to the United States, barring the testimony of CortezTorres, there would still have been ample evidence to convict Defendant of marijuana and 

cocaine trafficking conspiracies. The Government claims that, even if Cortez-Torres made the 

out of court statements to other parties that could have been used at trial for impeachment 

purposes, such statements would not override or contradict the surveillance and physical 

evidence which corroborated his trial testimony. 

The Court finds that the letters presented by Defendant are simply offered as 

impeachment evidence, and are not material. Though Defendant urges this Court to consider the 

various ways in which the letters he received could have been used at trial to contradict or 

disprove Cortez-Torres' testimony, he fails to show how such evidence rises to a material level 

given the nature of the other witnesses' testimony. Even if the evidence was not impeachment 

evidence, the testimony of other witnesses would still bear enough weight for a jury to find 

Defendant guilty. 

B. The Evidence Would Likely Produce an Acquittal 

Defendant next argues that Cortez-Torres was the only witness to testify as to 

Defendant's role as an organizer, leader, manager, or supervisor in the marijuana and cocaine 

trafficking conspiracy. Defendant insists that, "[i]f a reasonable person were presented with 

evidence that Cortez-Torres lied about [Defendant's] role in the offense that reasonable person 

could rightly conclude that Cortez-Torres is not worth ofbelief." (Doc. 142 at 6). Without the 

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testimony of Cortez-Torres, jurors would have to rely on the testimony of other witnesses to 

convict Defendant. If that were to happen, Defendant notes that none of the government 

surveillance included an observation of Bucio-Cabrales personally dealing drugs. 

Defendant also points to the testimony of two other witnesses: Pedro Pace and Jimi 

Ward. Defendant claims that Pace's testimony failed to inculpate Defendant because he never 

stated that he saw Defendant in possession of drugs, or with drug money. Pace did, however, 

testify that he saw Defendant with Cortez-Torres and Vato1

• Jimi Ward testified that he saw 

Defendant with Cortez-Torres and Pablo, and that Pablo was his drug contact with whom he set 

up the drug deals. Ward did, however, state that he saw Defendant in possession of drugs and 

drug money. 

The United States contends that the testimony of Pace and Ward, considered both 

independently and in conjunction with the testimony of other witnesses, connected Defendant to 

the drug trafficking conspiracy of which he was found guilty. Pace testified that Defendant was 

present during drug money transactions. Those statements were then corroborated by the 

testimony of Cortez-Torres, who described similar meetings between himself, Pace, and Bucio 

Cabrales. The Government then turns to the testimony ofWard, who stated that Defendant, 

along with Cortez-Torres and Pablo, delivered narcotics to Ward's residence. Ward went on to 

state that he received up to 600 pounds of marijuana and 10 kilograms of cocaine, eventually 

paying approximately $800,000 for the drugs. The Government argues that Ward's testimony 

was corroborated by Durbin and Eichenlaub, as well as Cortez-Torres. 

The United States asserts that, even ifthis Court accepted Defendant's contention that 

Cortez-Torres made inconsistent statements outside of court, such impeachment evidence simply 

1 Vato and Pablo are different names for the so-called "boss" of the drug conspiracy in which Defendant was 

involved. 

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would not outweigh the myriad other evidence derived from surveillance, physical evidence, and 

co-conspirator evidence admitted at trial. The Government insists that Defendant's evidence 

does not rise beyond the level of impeachment evidence, and, given the other evidence presented 

throughout the case, would not result in an acquittal. 

The Court finds that Defendant has not demonstrated that the newly discovered evidence, 

if admitted, would result in an acquittal. Defendant takes aim at the credibility of Cortez-Torres, 

Pace, and Ward, seemingly forgetting that the jury previously determined that, based on the 

evidence as a whole, Bucio Cabrales was guilty of marijuana and cocaine trafficking conspiracy 

beyond a reasonable doubt. Though the Government conceded the first two prongs of the Rule 

33 standard, Defendant has failed to show that the admission of the newly discovered evidence 

meets the final two prongs; that the evidence is material and not cumulative or impeaching; and 

that its admission would result in Defendant's acquittal. 

V. CONCLUSION 

Based on the foregoing, Defendant's Motion for New Trial Based on Newly Discovered 

Evidence is DENIED. 

IT IS SO ORDERED. 

s/ Algenon L. Marbley 

ALGENONL.MARBLEY 

UNITED STATES DISTRICT JUDGE 

DATED: August 12, 2014 

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