Of the Southern District of New York, sitting by designation. *

United States Court of Appeals

For the First Circuit

Nos. 07-1471

07-1697

UNITED STATES OF AMERICA,

Appellee,

v.

ANGEL GARCÍA-ÁLVAREZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella, Circuit Judge,

and Keenan, District Judge. *

Joannie Plaza-Martínez, Assistant Federal Public Defender,

with whom Joseph C. Laws, Jr., Federal Public Defender, and

Héctor L. Ramos-Vega, Assistant Federal Public Defender, were on

brief for appellant.

Vernon B. Miles, Assistant United States Attorney, with whom

Rosa E. Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa,

Assistant United States Attorney, and Germán A. Rieckehoff,

Assistant United States Attorney, were on brief for appellee.

September 4, 2008
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TORRUELLA, Circuit Judge. Following a jury trial, Ángel

García-Álvarez ("García") was convicted of carjacking and firearms

offenses. Thereafter, the district court denied his motion for new

trial, finding that the evidence it was premised on was not newly

discovered. García now appeals his conviction on sufficiency and

evidentiary grounds, and challenges the denial of his motion for a

new trial. Following a careful review, we reject all of García's

claims and affirm the district court.

I. Background

A. Facts

As García challenges the sufficiency of the evidence

proffered against him, we recite the facts in the light most

favorable to the verdict. See United States v. Vázquez-Botet, 532

F.3d 37, 42-43 (1st Cir. 2008) (quoting United States v. ColónDíaz, 521 F.3d 29, 32 (1st Cir. 2008)). On April 12, 2006, around

9:00 a.m., William Ramírez-Resto, a building janitor, was assaulted

by at least three armed individuals in the basement of an apartment

building in Condado, Puerto Rico. Ramírez-Resto was questioned

about the building and its residents, and he was then bound and

gagged. At 10:38 a.m., building resident Federico López-Villafañe

("López") was also assaulted in the building's parking lot by four

individuals who struck him in the head with rocks and a pistol
 We pinpoint this based on a two-minute phone call López received 1

on his cell phone at 10:36 a.m. He was assaulted immediately after

hanging up.

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butt. Three of the assailants wore masks, but López testified 1

that these fell off during the ensuing struggle. López was

eventually subdued and forced into the basement where he heard one

of the assailants state in Spanish with a Dominican accent: "This

motherfucker broke my arm!" Like Ramírez-Resto, López was also

bound and gagged. The assailants then emptied his pockets and took

possession of his house and car keys. Three of the assailants then

left to gain access to López's penthouse apartment. The fourth

assailant remained behind in the basement holding a gun to López's

head.

In López's apartment, Clemencia Lewis, a maid, saw a man

she did not recognize enter the apartment and head towards the home

office; she testified that it was approximately 10:30 a.m. Lewis

was then confronted by a different man armed with a silver-colored

gun who, with the help of a third assailant, pushed her into the

laundry room, placed her on the floor, and bound her with an iron

cord; her face was covered with a towel. The assailants then

proceeded to rob the home. They remained in the apartment until

approximately 11:20 a.m., when the assailant in the basement became

anxious and stepped out to place a call to the men upstairs. López

took this opportunity to escape by running into the street. Once
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there he saw his car -- a Mercedes Benz -- being driven out of the

building's parking lot, apparently by the assailants.

B. Procedural History

Based on López's identification of him at a police

lineup, García was indicted on one count of carjacking resulting in

serious bodily injury under 18 U.S.C. § 2119(2), and one count of

possession of a firearm in relation to a crime of violence under 18

U.S.C. § 924(c)(1)(A)(ii). He was arraigned one week later, and

his trial date was set for August 14, 2006. Shortly before trial,

Lewis also identified García from a police photo spread. On

August 13, 2006, García moved to have both López's and Lewis's

identifications suppressed, but the district court denied this

motion during the course of the four-day trial.

At trial, García maintained his innocence and presented

an alibi defense. The jury nonetheless found him guilty of the

firearms offense and the lesser included offense of simple

carjacking. See 18 U.S.C. § 2119(1). García moved for a judgment

of acquittal but was denied this on September 12, 2006. On

February 13, 2007, the day of his sentencing hearing, García filed

a motion for new trial based on newly discovered evidence. The

district court sentenced García to a total of 181 months'

imprisonment along with a period of supervised release. García

timely appealed arguing that the district court erred in admitting

López's and Lewis's out-of-court and in-court identifications, and
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in failing to grant judgment of acquittal based on the Government's

failure to sufficiently prove the carjacking charge.

On March 30, 2007, the district court also denied

García's motion for new trial because the evidence it was premised

on was not unknown or unavailable at the time of the trial and

could have been discovered with due diligence. García also appeals

this denial, and his three claims have been consolidated in this

appeal.

II. Discussion

A. Suppression Challenge

We review a district court's denial of a suppression

motion with deference; such denial will be upheld if any reasonable

view of the evidence supports it. See United States v. Brown, 510

F.3d 57, 64 (1st Cir. 2007) (quoting United States v. St. Pierre,

488 F.3d 76, 79 (1st Cir. 2007)). Where, as here, the district

court failed to make any specific findings regarding the motion to

suppress, we view the record in the light most favorable to the

district court's holding and draw all reasonably supported

inferences in its favor. United States v. McCarthy, 77 F.3d 522,

525 (1st Cir. 1996) (citations omitted).

An eyewitness identification, such as those of López and

Lewis, will be suppressed only upon a double showing: first, that

the identification was secured through impermissibly suggestive

means; and second, that under the totality of the circumstances the
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suggestiveness of the identification is such that the

identification itself is not reliable. United States v. de JesúsRíos, 990 F.2d 672, 677 (1st Cir. 1993). Suppression of an

identification is only appropriate if we are convinced that there

is a "very substantial likelihood of irreparable

misidentification." United States v. Pérez-González, 445 F.3d 39,

48 (1st Cir. 2006). García asserts that López's and Lewis's

identifications were secured through impermissibly suggestive means

and are unreliable to the extent of meeting the de Jesús-Ríos

standard.

Immediately following the robbery and carjacking, López

provided the police with a description of the four assailants'

clothing. He also noted that the assailants spoke Spanish with a

Dominican accent. Six weeks after the incident, García voluntarily

attended a police lineup where he appeared with five other men.

All six men were dressed in orange jumpsuits, and García was made

to remove his eyeglasses. When the men were first presented to

López, he identified García and stated that he was ninety percent

certain that García was one of the assailants who had assaulted and

robbed him. Upon request, the six men then repeated in Spanish the

statement made by one of the assailants during the robbery: "This

motherfucker broke my arm!" Upon hearing this phrase, López

identified García with complete certainty.
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García argues that López's lineup identification of him

was impermissibly suggestive for three reasons: first, because

García alleges that he only became a suspect due to his family

connection to two other men suspected in the crime; second, because

he was made to remove his eyeglasses even though -- as his

optometrist later certified -- he is legally blind without them;

and third, because he was made to repeat the assailant's statement

even though he was the only man on the panel who spoke Spanish with

a Dominican accent.

García's first claim is quickly dismissed. García's

initial identification as a suspect, even if it resulted from his

family connection to two other wanted men, is not an impermissibly

suggestive procedure affecting López's lineup identification.

López was unaware of the circumstances under which García became a

suspect. As López was not privy to this information, there is no

way such knowledge could have influenced or colored his

identification of García.

The removal of García's eyeglasses was similarly not

suggestive. García's second claim here is peculiar in that most

identification challenges we and our sister circuits encounter

involve the presence of a distinguishing characteristic that stands

out during the identification process. See, e.g., Monteiro v.

Pickard, 443 F.2d 311, 312 (1st Cir. 1971) (appellant challenged

the suggestiveness of his lineup identification where he was the
In as far as García's argument is that, due to his eye 2

condition, he always wears glasses and would thus have worn them

during the robbery and carjacking, the jury already considered and

rejected this argument. We see no need to upset the jury's

determination.

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only man wearing civilian clothing while the rest of the panel wore

prison garb); United States v. Traeger, 289 F.3d 461, 474 (7th

Cir. 2002) (appellant challenged the suggestiveness of his lineup

identification because -- at six and a half feet and weighing over

300 pounds -- he was the largest man on the panel); United States

v. Triplett, 104 F.3d 1074, 1080 n.2 (8th Cir. 1997) (appellant

challenged the suggestiveness of the lineup identification during

which he wore a brightly colored but "surprisingly tasteful,

Hawaiian-type shirt"). In these cases, appellants usually argue

that they have been wronged because the composition of their lineup

was in some way not uniform. García's claim, then, is the converse

in that, if he had been allowed to wear his eyeglasses when the

rest of his panel did not wear any, he would have stood out. The

removal of García's eyeglasses as well as the use of the orange

jumpsuits were intended to preserve the integrity of the police

lineup and advance the goal of uniformity. As such, the removal of

the eyeglasses was not an impermissibly suggestive procedure.2

García's third challenge, however, requires a closer

look. As a starting point, making the lineup panel repeat the

assailant's statement was not an impermissibly suggestive

identification procedure. See United States v. Panico, 435 F.3d
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47, 49 (1st Cir. 2006) ("Lay witness identification, based on the

witness' prior familiarity with a voice, is a commonplace way in

which voices are identified."); Fed. R. Evid. 901(b)(5); 5

Christopher B. Mueller & Laird C. Kirkpatrick Federal Evidence §

9:13 (3d ed. 2008). The allegation that García was the only man on

the panel who spoke Spanish with a Dominican accent, however, is

troubling because the Dominican accent then became a distinguishing

characteristic that detracted from panel uniformity. Furthermore,

since López's description of the assailants to the police

highlighted their Dominican accents, that García was the only panel

participant who possessed this salient characteristic turned the

entire identification proceeding unduly suggestive. Cf. Frazier v.

New York, 156 F. App'x 423, 425 (2d Cir. 2005) (finding suggestive

a lineup identification where appellant was the only person with

dreadlocks, where dreadlocks were the most distinctive feature of

the crime victim's description of her assailant).

A suggestive identification may nonetheless remain in

evidence if, given the totality of the evidence, it is reliable.

De Jesús-Ríos, 990 F.2d at 677. In determining whether there was

a substantial likelihood of irreparable misidentification we

evaluate some or all of five factors: (1) the witness's opportunity

to view the criminal at the time of the crime, (2) the witness's

degree of attention at that time, (3) the accuracy of the witness's

prior description of the criminal, (4) the level of certainty
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demonstrated by the victim at the time of the identification, and

(5) the length of time between the crime and the identification.

Id. (quoting United States v. Drougas, 748 F.2d 8, 27 (1st Cir.

1984)); accord Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

Of these five factors, two clearly support reliability in

this case. Given the traumatic nature of the robbery and

carjacking, we assume López's degree of attention during the

incident to have been high. See Levasseur v. Pepe, 70 F.3d 187,

195 (1st Cir. 1995). In addition, López himself stated that he was

ninety, and later, one hundred percent certain of his

identification of García at the time of the police lineup. The

remaining three factors, however, are either neutral or weigh

against reliability. López's opportunity to view his assailants

during the criminal incident, though ample due to the hours-long

duration of the crime, was hampered by the assailants' intermittent

use of masks and blindfolds. López's initial description of the

assailants did not include any identifying physical

characteristics, and six weeks elapsed between the robbery and

carjacking and the police lineup. See United States v. GuzmánRivera, 990 F.2d 681, 683 (1st Cir. 1993) (counting as factors

detracting from the reliability of an identification the fact that

the crime victim had not provided the authorities with a

description of the assailant and had made his final identification

one month after the crime); but see United States v. Mohammed, 27
 We see no evidence that the unduly suggestive procedure in any 3

way tainted the in-court identification or made it unreliable. See

United States v. Maguire, 918 F.2d 254, 264 (1st Cir. 1990)

(stating that an in-court identification is generally admissible

unless it is based on an out-of-court identification that was both

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F.3d 815, 822 (2d Cir. 1994) ("[T]he absence of a prior description

by the witness does not necessarily render his or her subsequent

identification suspect." (internal quotation marks omitted)).

Nonetheless, given the totality of the circumstances, we

cannot say that the fact that García was the only one in the lineup

who spoke with a Dominican accent produced a "very substantial

likelihood of irreparable misidentification." Pérez-González, 445

F.3d at 48. We are not required to accord each factor equal weight

or even to consider all five factors. See, e.g., United States v.

Gatewood, 230 F.3d 186, 193 (6th Cir. 2000) (considering only two

factors); United States v. Johnson, 56 F.3d 947, 954 (8th Cir.

1995) (considering only three factors); United States v. Butler,

970 F.2d 1017, 1021 (2d Cir. 1992) (considering only four factors).

In this case, the fact that López was able to identify García with

a very high degree of certainty before García was even asked to

speak at the lineup weighs heavily in favor of reliability. Cf.

United States v. Wilkerson, 84 F.3d 692, 695-96 (4th Cir. 1996)

(placing particular emphasis on the certainty with which multiple

witnesses identified the defendant). As such, the district court

did not err in admitting López's out-of-court identification into

evidence.3
suggestive and unreliable).

 As the out-of-court photo spread identification was proper, 4

Lewis's in-court identification was proper as well. See id.

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García's challenge to Lewis's out-of-court and in-court

identifications is far less developed. One week before García's

trial was to begin, an FBI agent visited Lewis at her place of work

and showed her a photo spread containing six pictures, one of which

was of García. Lewis initially picked a different man from the

photo spread, but indicated that she was uncertain. Lewis then

stated that the man who had assaulted her was tall and had a dark

complexion and a very pointy chin. She subsequently picked

García's photograph. García does not flag any of the procedures

utilized during this identification as impermissibly suggestive;

and therefore his claim fails. See de Jesús-Ríos, 990 F.2d at

677. The district court properly denied García's motion to 4

suppress.

B. Sufficiency Challenge

We review a sufficiency of the evidence claim de novo,

"evaluating whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt." United States v. Meléndez-Torres, 420 F.3d 45, 48-49 (1st

Cir. 2005) (quoting United States v. Grace, 367 F.3d 29, 34 (1st

Cir 2004)). We also review de novo a district court's denial of a
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motion for acquittal, "examining the evidence . . . in the light

most favorable to the government to determine whether a reasonable

jury could find guilt beyond a reasonable doubt." United States v.

Rodríguez-Durán, 507 F.3d 749, 758 (1st Cir. 2007).

It is the Government's duty to prove all the elements of

a charged crime. For carjacking under 18 U.S.C. § 2119(1) those

elements are: (1) taking or attempted taking from the person or

presence of another; (2) a motor vehicle that has been transported,

shipped, or received in interstate or foreign commerce; (3) through

the use of force, violence, or intimidation; (4) with the intent to

cause death or serious bodily harm. See 18 U.S.C. § 2119(1).

García argues that the Government has not met its burden of

establishing the intent element beyond a reasonable doubt because

López's assailants did not intend to take his car but only to rob

his home. The car was only an improvised getaway vehicle.

García's argument is unavailing. In carjacking offenses,

the element of intent must be established at the time the defendant

takes control of the motor vehicle. United States v. Evans-García,

322 F.3d 110, 114 (1st Cir. 2003) (quoting Holloway v. United

States, 526 U.S. 1, 8 (1999)). At the time of such taking, the

victim need not be in close proximity to the motor vehicle. See

United States v. Vega Molina, 407 F.3d 511, 528 (1st Cir. 2005).

In García's case, the "taking" of the motor vehicle occurred in the

apartment building's basement, when López was forced to turn over
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his car keys. It was at that point that the assailants gained

constructive control over López's car. See id.; accord United

States v. Savarese, 385 F.3d 15, 20 (1st Cir. 2004).

The intent required at the time of the vehicle taking,

however, need not be set in stone. It will suffice that a

defendant had a conditional intent to cause death or serious bodily

harm; that is, a willingness to cause such injury if necessary to

take the vehicle. Evans-García, 322 F.3d at 114 (citing Holloway,

526 U.S. at 11-12). Such conditional intent is more than amply

established in this case by the fact that the assailants did, from

their initial contact with López, use force and inflict serious

physical harm upon him. Such force involved the use of guns, and

it was only upon being threatened with further violence and even

death that López surrendered his car keys. As the assailants'

violent assault left López bleeding and requiring medical care and

even surgery, it is beyond question that the assailants possessed

the requisite intent to cause death or serious bodily harm.

Finally, and in direct response to García's "getaway

vehicle" argument, we have previously said that "nothing in the

statute requires that the taking [of a motor vehicle] be an

ultimate motive of the crime." United States v. Rivera-Figueroa,

149 F.3d 1, 4 (1st Cir. 1998). "It is enough that the defendant be

aware that the action in which he is engaged . . . involves the

taking of a motor vehicle." Id. In this case, the Government
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presented evidence that García was both present and active in

López's assault, and that he later rode away from the robbery scene

in López's Mercedes, which was started with the car keys López was

forced to surrender. Based on this evidence, García could not but

be aware that he was involved in the taking of a motor vehicle, and

the intent requirement of the carjacking offense is resoundingly

met. The Government has thus satisfied its burden of proving each

element of the carjacking offense beyond a reasonable doubt. The

district court correctly denied García's motion for judgment of

acquittal.

C. Motion for New Trial

The remedy of a new trial is to be granted sparingly and

only to avoid a miscarriage of justice. United States v. Conley,

249 F.3d 38, 45 (1st Cir. 2001). We recognize that trial judges

are in the best position to determine whether a new trial based on

newly discovered evidence is warranted, and we thus review any such

determination only for abuse of discretion. See United States v.

Montilla-Rivera, 171 F.3d 37, 40 (1st Cir. 1999) (quoting United

States v. Tibolt, 72 F.3d 965, 972 (1st Cir. 1995)). Nevertheless,

the district court's analysis and our review are also guided by the

principle that a new trial should be granted "if the interest of

justice so requires." Fed. R. Crim. P. 33(a); see also United

States v. Rodríguez-Marrero, 390 F.3d 1, 13-14 (1st Cir. 2004).
 The district court took judicial notice of the fact that the 5

municipalities of San Juan -- where Condado is located -- and

Carolina border each other, and are geographically close.

 At trial, García argued that at the time of the charged crimes 6

he was working on his side business delivering furniture in the

municipality of Carolina. In this endeavor he was accompanied by

his employee Juan Espaillat, who submitted an unsworn statement in

García's favor. According to both men, on the morning in question

they met at about 9:00 a.m. at the American Furniture store in

Carolina. García advised Espaillat that he needed to go pay his

cell phone bill before making the delivery, and Espaillat loaded

the furniture into a white box truck by himself. When he was done,

Espaillat spoke to García on his cell phone and set out to make the

furniture delivery at about 10:30 a.m. According to Espaillat,

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In order to reverse a district court's denial of a

motion for new trial based on newly discovered evidence, the

defendant carries the heavy burden of showing that the new evidence

submitted was: (1) unknown or unavailable at the time of trial; (2)

despite due diligence; (3) material; (4) and likely to result in an

acquittal upon retrial. United States v. Falú-González, 205 F.3d

436, 442 (1st Cir. 2000) (quoting United States v. Montilla-Rivera,

115 F.3d 1060, 1064-65 (1st Cir. 1997)). García asserts that the

evidence grounding his motion for new trial meets this high

standard. Such evidence consists of a report and hearing testimony

from Centennial cell phone company engineers stating that all cell

phone calls made from García's phone on the morning of the crime

were placed from the municipality of Carolina and not from the

crime scene in Condado ("cell site evidence"). García submits 5

this evidence as probative of the alibi defense he presented at

trial.6
after conversing with García a few more times to get directions, he

arrived at the delivery residence at approximately 11:00 a.m.

García arrived in his gray Toyota Tundra pickup truck five minutes

later. With both men's efforts, the delivery of the furniture was

finished around noon.

 Indeed, to ascertain the rate of call referrals within the 7

Condado area, the engineers carried out an experiment where they

placed one hundred cell phone calls during the span of one hour

while situated at the scene of the robbery. All one hundred of

those calls were handled by the same cell site in Condado, and none

was handled by a cell site in Carolina. Thus, according to the

engineers, the rate of call referral in Condado is extremely low.

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According to the Centennial engineers, the cell site

evidence demonstrates that, on the morning of the robbery and

carjacking, all calls made by García's cell phone were handled by

cell sites within the municipality of Carolina and along the

purported delivery route. Based on this finding, the engineers

assert that it is almost certain that García's calls were placed

from Carolina. This is because cell phone calls are usually

handled by the cell site closest to where the cell phone is

located; only rarely are phone calls referred to a cell site that

is farther away.7

On appeal, the Government does not dispute the engineers'

testimony, but argues that the cell site evidence does not entitle

García to a new trial because it is not newly discovered as

required by Federal Rule of Criminal Procedure 33. Moreover, even

if the evidence is accepted as true, it only shows that García's

cell phone was in Carolina, not that García himself was there.

With these arguments in mind, we proceed to our analysis.
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Falú-González asks whether the new evidence "could have

been discovered with due diligence and was thus not 'new'" at the

time of trial. Id. at 443. It is undisputed that defense counsel

was in possession of García's cell phone records before the start

of trial. On those records, each phone call has a billing code

(e.g., "9E," "VP," "P2") listed to its right and a legend at the

bottom of the page that matched each code to a general geographic

area (e.g., "9E - San Fernando," "VP - Villa Palmeras," "P2 -

Puerto Nuevo"). The call records did not indicate the significance

of these billing codes nor did they suggest that Centennial had the

capability to further delineate the geographical provenance of each

call to almost street level. Both parties accept that defense

counsel did not learn of the possibility of such specific call

triangulation until after the jury's verdict, and that Centennial

only generated the cell site evidence upon the defense's postjudgement request.

Nonetheless, the trial judge did not abuse his discretion

in finding that this evidence could have been discovered with due

diligence and was thus not new. We understand due diligence to be

"a context-specific concept" generally akin to the degree of

diligence a reasonably prudent person would exercise in tending to

important affairs. United States v. Maldonado-Rivera, 489 F.3d 60,

69 (1st Cir. 2007). As stated above, García's counsel did not know

-- and did not endeavor to learn prior to trial -- that through
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cell site location Centennial would be able to pinpoint the

provenance of the calls made from García's and Espaillat's cell

phones to nearly street level. Defense counsel also admit that

they were so certain of García's innocence that they made the

tactical decision to rely solely on the strength of their other

alibi evidence.

García's counsel made a conscious decision to go to trial

using the evidence they had available. Counsel's work log further

indicates that counsel did not inquire about the billing codes on

García's call records until more than two months after the jury had

entered its guilty verdict. That being the case, even if it is

true that the development and production of the cell site evidence

was so complex and time-consuming that it took two and a half

months to complete -- and hence could not have been achieved in the

three weeks between the district court's initial status conference

and the beginning of García's trial -- García cannot now establish

his counsel's due diligence. Defense counsel did not do anything

before or during trial to secure the post-judgment evidence upon

which García's motion for new trial is premised. Rule 33 does not

give counsel a second opportunity to rectify a faulty trial

strategy. As such, García's motion for new trial was properly

denied.

García may choose to raise by collateral attack under 28

U.S.C. § 2255 the issue of whether his counsel's performance
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amounted to ineffective assistance of counsel. See Strickland v.

Washington, 466 U.S. 668 (1984). If so, it is likely that evidence

will have to be taken on a number of points, which are beyond the

scope of this opinion.

III. Conclusion

For the foregoing reasons, we affirm the district court's

judgment and denial of new trial.

Affirmed.