United States Court of Appeals

For the Eighth Circuit

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No. 17-2957

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United States of America

Plaintiff - Appellee

v.

Alexander Castellano-Benitez

Defendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Lincoln

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Submitted: June 15, 2018

Filed: August 2, 2018

(Unpublished)

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Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.

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PER CURIAM.

Alexander Castellano-Benitez was convicted bya juryof possession with intent

to distribute 500 grams or more of a mixture or substance containing

methamphetamine. He was sentenced to a term of 170 months’ imprisonment and

five years of supervised release. He now appeals the denial of his motion for a new
trial on the grounds of: 1) an alleged Brady violation, and 2) purported “newly

discovered” evidence. We affirm.

I. Background

The evidence at trial suggested that Castellano-Benitez stole a large quantity

of drugs from a dealer in Texas and traveled to Florida in the company of an

accomplice, Yunior Florez-Veliz. He then drove with another accomplice, Yulio

Cervino-Hernandez, to Nebraska to sell some of the stolen drugs.

On September 22, 2015, Castellano-Benitez and Cervino-Hernandez were in

a hotel room in Nebraska when police, acting on a tip, raided the room. When

Castellano-Benitez was asked to produce his identification, he lifted a mattress on one

of the beds, revealing two small bags and another bag consistent with packaged

methamphetamine. Observing this, an officer asked Castellano-Benitez if there was

anything under the bed. Castellano-Benitez replied back, “a little bit.” During the

search, the police discovered a large truck battery and an electronic scale by the bed.

Castellano-Benitez’s fingerprint was found on the scale. Castellano-Benitez was

arrested.

From jail, Castellano-Benitez placed multiple calls to Florez-Veliz (who had

remained in Florida) to come to Nebraska to sell drugs. With the assistance of

cooperating witnesses and confidential informants, the police located and arrested

Florez-Veliz in Nebraska with four pounds of methamphetamine. 

While out on bond, Castellano-Benitez placed multiple phone calls to a

confidential informant, vaguely referencing something of value that could be found

in the truck. Armed with this information, the police reexamined the confiscated

truck battery, which had been placed in the lost and found property section in the

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Sheriff’s Office. The search revealed that the battery contained nearly five kilograms

of methamphetamine.

During pretrial preparations, Castellano-Benitez maintained his innocence and

his belief that the cooperating witnesses conspired to frame him. During discovery,

Castellano-Benitez’s attorney asked the government whether Florez-Veliz and

Cervino-Hernandez were ever detained together. The government’s representations

on this issue were, taken as a whole, misleading. The government first produced a

report covering the Saline County Jail’s records. It stated that the two “were never

housed together at any time in the Saline County Jail.” In a later email requesting

stipulations for trial, an AUSA asked if, “since he had gone through so much work

to get the records,” defense counsel would stipulate to the fact that Florez-Veliz and

Cervino-Hernandez “never crossed paths in their custody.”

Contrary to the government’s representations, Florez-Veliz and

Cervino-Hernandez had been housed together. A close examination of the Saline

County Jail report showed that Florez-Veliz and Cervino-Hernandez spent a period

of twenty-one days in a Dawson County, Nebraska, jail. The report did not provide

any further information about the period of confinement in Dawson County. The

email by the AUSA went so far as to represent that the two had never crossed paths

while in custody. In fact, they had been kept in the same large cell at the Dawson

facility for more than twenty days.

At trial, Castellano-Benitez pursued the theory that the coconspirators were

framing him. As part of that strategy, he elicited testimony that separated prisoners

may be able to communicate. That testimony discussed challenging or difficult ways

of communicating, such as by passing notes. Oral testimony from the cooperating

witnesses during trial downplayed their relationship and conspicuously omitted that

they had spent a significant length of time in jail together. Castellano-Benitez was

convicted and sentenced to 170 months in prison.

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Castellano-Benitez later discovered that Florez-Veliz and Cervino-Hernandez

had spent time in jail together. Upon this discovery, he filed a motion for a new trial

under Fed. R. Crim. P. 33, alleging a Brady violation. The district court denied the

1

motion. The court ruled: 1) the evidence was not suppressed because “reasonable

diligence” would have led defense counsel to request the Dawson facility’s records,

and 2) even if the evidence had been suppressed, the evidence was not material in

light of the other evidence in the record.

Castellano-Benitez also contended that he should receive a new trial on the

basis of “new evidence”—two letters obtained by the defense after trial. A letter from

Angel Merida Herrera indicated that Herrera had been housed with Florez-Veliz and

Cervino-Hernandez at the Dawson County facility. Herrera reported that he

overheard the pair discussing how to make sure an unassuming Castellano-Benitez

was convicted. A second letter, purportedly from Cervino-Hernandez, taunted

Castellano-Benitez and said he was only in jail because he had made the mistake of

lifting up the hotel mattress. The district court ruled that the Herrera letter would not

have altered the outcome of the trial, while the Cervino-Hernandez letter was

“completely devoid” of relevant information.

II. Discussion

We review the denial of a motion for new trial based on a Brady violation for

an abuse of discretion. United States v. Reaves, 649 F.3d 862, 867 (8th Cir. 2011)

(citing United States v. Deavault, 190 F.3d 926, 929 (8th Cir. 1999)). We likewise

review a denial of a motion for a new trial based on new evidence for an abuse of

discretion. United States v. Haskell, 468 F.3d 1064, 1076 (8th Cir. 2006) (citing

United States v. Parker, 267 F.3d 839, 846 (8th Cir. 2001)). A district court may

The Honorable John M. Gerrard, United States District Judge for the District 1

of Nebraska.

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grant a motion for new trial if the “interest of justice so requires.” Fed. R. Crim. P.

33(a). The decision is within the discretion of the trial court, but “[u]nlessthe district

court ultimately determines that a miscarriage of justice will occur, the jury’s verdict

must be allowed to stand.” United States v. Campos, 306 F.3d 577, 579 (8th Cir.

2002). 

Brady requires prosecutors to disclose to the defense “all material evidence

favorable to the accused, including impeachment and exculpatory evidence.” United

States v. Robinson, 809 F.3d 991, 996 (8th Cir. 2016). That duty extends to material

evidence which prosecutors are themselves unaware of but which is known to others

acting on the government’s behalf in the case. Id. (citing Kyles v. Whitley, 514 U.S.

419, 432-34 (1995)). To establish a Brady violation, the defendant must show that

1) the prosecution suppressed evidence, 2)the evidence wasfavorable to the accused,

and 3) the evidence was material to the issue of guilt or punishment. United States

v. Sturdivant, 513 F.3d 795, 803 (8th Cir. 2008). When determining whether

evidence is material, “[t]he question is not whether the defendant would more likely

than not have received a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Robinson, 809 F.3d at 996 (citing Strickler v. Greene, 527 U.S. 263,

289-90 (1999)). The evidence must be viewed in the context of all other evidence put

before the jury in the case. See United States v. Wright, 866 F.3d 899, 908-11 (8th

Cir. 2017) (discussing other relevant evidence in the impeachment context).

We find that there was no Brady violation because the evidence was not

material. We recognize that the evidence may have affected the credibility of two 2

of the cooperating witnesses, but other evidence conclusively and overwhelmingly

established Castellano-Benitez’s guilt. See United States v. Pendleton, 832 F.3d 934,

Because we decide that the evidence was not material, we need not reach the

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question whether the evidence was actually suppressed.

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941 (8th Cir. 2016) (finding no Brady violation where “the testimony of these two

witnesses was not essential to proving [a defendant’s] guilt because the other

evidence of his guilt was overwhelming”). For example, the physical evidence

obtained in the motelroomand the contents ofCastellano-Benitez’s monitored phone

calls related to the truck battery are independent pieces of evidence sufficient to

establish guilt, such that we can be sure the trial resulted “in a verdict worthy of

confidence.” The district court did not abuse its discretion by concluding that

Brady did not compel a new trial.3

Similarly, the new evidence did not warrant a new trial. To obtain a new trial

on the basis of newly discovered evidence, a defendant must show: 1) the evidence

was unknown or unavailable to the defendant at the time of trial, 2) the defendant was

duly diligent in attempting to uncover the evidence, 3)the newly discovered evidence

is material, and 4) the newly discovered evidence is such that it will probably result

in an acquittal upon retrial. Haskell, 468 F.3d at 1076 (quoting Parker, 267 F.3d at

846). For essentially the same reasons as noted above, a retrial would be unlikely to

result in an acquittal even if the two letters were considered. Both lettersrelate to the

mindset of one or both coconspirators in offering testimony. The other evidence of

Castellano-Benitez’s guilt is conclusive even absent that testimony. Any implication

contained in the lettersthatCastellano-Benitez was unaware ofthe methamphetamine

is contradicted by his own actions and statements during and following the raid. The

district court properly exercised its discretion in denying a new trial.

We do not mean to minimize the AUSA’s conduct in this matter. The 3

representations made were in error, asserted with such confidence so as to be

misleading, and created the potential for a serious problem. Nonetheless, the

overwhelming evidence of Castellano-Benitez’s guilt leaves us free from doubt that

the verdict is worthy of confidence.

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III. Conclusion

We affirm.

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