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United States v. Calderón

United States Court of Appeals, First Circuit

July 15, 2016

UNITED STATES OF AMERICA, Appellee,
v.
MANUEL CALDERÓN, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District Judge]

          George J. Vila for appellant.

          John-Alex Romano, Criminal Division, Appellate Section, U.S. Department of Justice, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Chief, Appellate Division, United States Attorney's Office, Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, and Robert A. Parker, Criminal Division, Appellate Section, U.S. Department of Justice, were on brief, for appellee.

          Before Lynch, Selya, and Lipez, Circuit Judges.

          LIPEZ, Circuit Judge.

         Appellant Manuel Calderón, convicted for making a false statement to a federal grand jury investigating a money laundering scheme, argues that the district court abused its discretion in refusing to grant him a new trial based on the government's now-acknowledged improper withholding of impeachment evidence and its failure to disclose other information that Calderón claims tainted his indictment and prosecution. He also challenges the court's refusal to order release of a grand jury transcript. Finding his claims unavailing, we affirm.

         I.

         A. Factual Background

         The facts underlying this appeal, as the jury could have found them, are as follows. Appellant Calderón was a sales representative and manager of two related businesses in Florida that law enforcement authorities targeted in an investigation into money laundering. The businesses, GSM City and GSM City Supercenter ("Supercenter"), were wholesalers of cellular phones and cellphone accessories. GSM City was established first, and its employees, including Calderón, transferred to Supercenter when it subsequently was opened by the same owners in a nearby location. In effect, the business that previously had been known as GSM City became Supercenter.[1]

         In 2010, undercover officers working for the United States Drug Enforcement Administration ("DEA") went to GSM City on multiple occasions and gave large amounts of cash to Calderón. Each time, Calderón would take the cash and count it, and the officers would then leave without receiving any merchandise. Two DEA officers, Steve Díaz and Peter Guevara, participated in a combined total of five such transactions between March and November 2010.

         The DEA also engaged an employee of GSM City, Angel Delguercio, as a confidential informant. Delguercio testified that it was "common practice" for GSM City customers to come into the store with $5, 000 to $80, 000 in cash, which Calderón would count with a machine or by hand. Delguercio testified that those transactions occurred weekly. He also reported that it was similarly common for employees at Supercenter to receive cash payments from customers. During his direct examination, Delguercio testified that he saw Calderón counting cash at Supercenter weekly. However, he changed his account during questioning in cross-examination and on redirect, stating that he had not seen -- or did not remember seeing -- Calderón himself receive or count the cash payments received at that store, although "it was a big chance, a possibility."

         In 2012, Calderón appeared before a federal grand jury in Puerto Rico investigating the money laundering scheme. During his testimony, in which he initially explained how GSM City operated, Calderón answered the questions posed to him as follows:[2]

Q. [A]nd that is how GSM City worked?
A. [Y]es.
Q. [W]hen you were working there?
A. [Y]es.
Q. [S]o a customer would call in and say, I want to buy a hundred phones.
A. [Y]es.
Q. [A]nd you would give them 30 days to pay?
A. 30 days to pay or if the customer in less than 30 days they would need more merchandise and let's say they already have their limit already filled up, then they had to pay what they owe in order to take the new order.
Q. [O]kay. So you would receive wires only from customers that had gone through that process?
A. [Y]es, or they were registered with the company already.
Q. [O]kay, and what would happen if the company received payment from another source that is not registered, is it accepted or what would happen?
A. [N]o, it would not be accepted.
Q. [N]o?
A. [N]o, we always dealt with the customer that wire us when we were working with them. Who ever wanted to buy from us they had to register as a company.
Q. [A]s far as you understand that is how GSM City operated?
A. [S]upposedly, ...

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