United States v. Zayas

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UNITED STATES OF AMERICA, Plaintiff, v. SOPHIA MONIQUE ZAYAS, Defendant.

No. CR 12-0944 RB

United States District Court, D. New Mexico

March 6, 2024

MEMORANDUM OPINION AND ORDER

ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE.

On August 4, 2021, a jury found Defendant Sophia Zayas guilty of one count of Second-Degree Murder, one count of Intentional Child Abuse Resulting in Death, four counts of Intentional Child Abuse Resulting in Great Bodily Harm, and two counts of Intentional Child Abuse Not Resulting in Great Bodily Harm. Ms. Zayas's appeal of her sentence is currently pending before the Tenth Circuit.

Ms Zayas now moves for a new trial and seeks an order compelling the Government to produce discovery relevant to her motion. Having considered the arguments of the parties and the relevant law, the Court will grant in part the motion for discovery, deny in part the motion for new trial, and reserve ruling on the remainder of the motion for new trial.

I. Background

On October 22, 2007, Annalicia Zayas, the two-month-old infant daughter of Sophia and Peter Zayas, died. (Doc. 255 at 1.) “Annalicia's autopsy showed she suffered multiple skull fractures, hemorrhages, and scalp contusions two to three hours before she died.” (Id. (quoting Doc. 201 at 1; Doc. 236 (PSR) at 4-5).) “There were, in addition, multiple other injuries, all in various stages of healing, that Annalicia had sustained throughout her short life.” (Id. (citing Docs. 201 at 1-2; 223-5; 236 at 4-5).)

The Court conducted a jury trial in this matter from July 26 through August 4, 2021, on the following counts:

Count 1: Second-Degree Murder in violation of 18 U.S.C. §§ 2, 7, 1111, and 3559(f)(1).

Count 2: Intentional Child Abuse Resulting in Death in violation of 18 U.S.C. §§ 2, 7 and 13, and N.M Stat. Ann. §§ 30-6-1(D)(1)-(2) and (H), or as an alternative to Count 2,

Count 3: Reckless Child Abuse Resulting in Death in violation of 18 U.S.C. §§ 2, 7 and 13, and N.M. Stat. Ann. §§ 30-6-1(D)(1)-(2) and (F).

Counts 4, 6, 8, 10: Intentional Child Abuse Resulting in Great Bodily Harm in violation of 18 U.S.C. §§ 2, 7 and 13, and N.M. Stat. Ann. §§ 30-6-1(D)(1)-(2) and (E), or as an alternative to these counts,

Counts 5, 7, 9, 11: Reckless Child Abuse Resulting in Great Bodily Harm in violation of 18 U.S.C. §§ 2, 7 and 13, and N.M. Stat. Ann. §§ 30-6-1(D)(1)-(2) and (E).

Counts 12, 14: Intentional Child Abuse Not Resulting in Great Bodily Harm in violation of 18 U.S.C. §§ 2, 7 and 13, and N.M. Stat. Ann. §§ 30-6-1(D)(1)-(2) and (E), or as an alternative to these counts,

Counts 13, 15: Reckless Child Abuse Not Resulting in Great Bodily Harm in violation of 18 U.S.C. §§ 2, 7 and 13, and N.M. Stat. Ann. §§ 30-6-1(D)(1)-(2) and (E).

Count 16: Reckless Child Abuse of Jane Doe #2 in violation of 18 U.S.C. §§ 2, 7 and 13, and N.M. Stat. Ann. §§ 30-6-1(D)(1) and (E).

(See Docs. 335; 437.)

Following the presentation of the Government's case, Ms. Zayas moved for a judgment of acquittal. (Doc. 431.) The Court granted the motion as to Count 16 and denied it as to the remaining counts. (See Doc. 451.) The jury found Ms. Zayas guilty of Counts 1, 2, 4, 6, 8, 10, 12, and 14.

(Doc. 449.) Ms. Zayas moved for a judgment of acquittal pursuant to Rule 29 and asked for a new trial under Rule 33. (See Doc. 452.) The Court denied the motion. (Doc. 461.) The Court sentenced Ms. Zayas to 365 months' imprisonment. (Doc. 474.) Ms. Zayas appealed the Judgment (Doc. 476), and her appeal is currently pending before the Tenth Circuit. See United States v. Zayas, No. 22-2054 (10th Cir. May 3, 2022).

During the pendency of Ms. Zayas's appeal, her husband, Peter Zayas, was indicted for and pleaded guilty to the following crimes in the Southern District of Florida: Count 1: enticement of a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b); Counts 2, 4: production of material containing the visual depiction of sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a), (e); Counts 3, 5: distribution of material containing visual depictions of sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2), (b)(1); and Count 6: possession of matter containing visual depictions of sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B). See United States v. Zayas, No. 23-cr-80142, Acknowledgment of Offense Elements and Stipulation as to Factual Basis for Guilty Plea, at *4 (S.D. Fla. Oct. 31, 2023).

Ms. Zayas now moves for a new trial on the basis of newly discovered evidence and moves to compel discovery related to Peter Zayas's recent convictions. (See Docs. 517; 522.)

II. The Court denies the motion for new trial as it relates to any post-trial misconduct or convictions.

Ms. Zayas argues that a new trial is warranted on the basis of Peter Zayas's recent illegal conduct and convictions. As explained below, the Court finds that Ms. Zayas fails to show that the proffered evidence is “newly discovered” for purposes of Rule 33. Further, even if the Court considered Peter Zayas's conduct or convictions as newly discovered evidence, Ms. Zayas fails to satisfy the relevant standard.

A. Legal Standard

Federal Rule of Criminal Procedure 33 allows the Court to vacate a judgment and grant a motion for a new trial “if the interest of justice so requires.” Fed. R. Crim. P. 33(a). The Tenth Circuit has opined that “[a] motion for a new trial is not regarded with favor and should only be granted with great caution.” United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997) (citation omitted). When a defendant moves for a new trial based on newly discovered evidence, she ordinarily must establish:

(1) the evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by [her] own lack of diligence; (3) the new evidence is not merely impeaching; (4) the new evidence is material to the principal issues involved; and (5) the new evidence is of such a nature that in a new trial it would probably produce an acquittal.

Id. (quoting United States v. Stevens, 978 F.2d 565, 570 (10th Cir. 1992)).

The Court may not grant a motion for a new trial if an appeal is pending “until the appellate court remands the case.” Fed. R. Crim. P. 33(b)(1). Because Ms. Zayas moves the Court for relief while this matter is still on appeal, the Court may, pursuant to Federal Rule of Criminal Procedure 37, “(1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.” Fed. R. Crim. P. 37(a).

B. Peter Zayas's post-trial conduct and convictions are not “newly discovered evidence” for purposes of Rule 33.

The Government first argues that Peter Zayas's misconduct and convictions do not qualify as “newly discovered evidence” for purposes of Rule 33, because they occurred after Ms. Zayas's trial. (See Doc. 520 at 4-5.) The Tenth Circuit has opined that “[a]s a general rule, ‘newly discovered evidence' must have been in existence at the time of trial.”^[1]United States v. Abello-Silva, 107 F.3d 22, at *2 (10th Cir. Feb. 20, 1997) (citing United States v. Lafayette, 983 F.2d 1102, 1105 (D.C. Cir. 1993)); see also United States v. Johnson, 12 F.3d 1540, 1548 (10th Cir. 1993) (noting “that where the facts relevant to ineffective assistance are not known to the defendant until after trial, they may be raised on a ‘newly discovered evidence' motion under Rule 33”). Other courts agree.

In United States v. Hall, the United States Court of Appeals for the District of Columbia Circuit examined the question at issue here: “whether ‘evidence' that does not exist until after trial can be ‘newly discovered evidence' under [Rule] 33(b)(1).” United States v. Hall, 324 F.3d 720, 723 (D.C. Cir. 2003). The Court answered in the negative. Consequently, because the defendant in Hall moved for a new trial on the basis of “evidence”^[2]that occurred after his trial, the appellate court found that the district court erred in granting a motion for new trial pursuant to Rule 33(b)(1). See id. at 723-24; see also United States v. Welch, 160 F.Supp.2d 830, 833 (N.D. Ohio 2001) (“Newly discovered evidence must pertain to facts which existed at the time of trial, not later events.”) (citing Davis v. Jellico Cmty. Hosp. Inc., 912 F.2d 129, 135 (6th Cir. 1990); Moore's Federal Practice 3D Vol. 12 ¶ 60.81[4]) (subsequent citation omitted)).

Similarly, in United States v. Lafayette, three defendants were tried and convicted of drug trafficking offenses. 983 F.2d at 1103. Over a year after their trial, the defendants moved for discovery and sought to inspect the personnel files of several officers associated with their case. See id. “The alleged ‘newly discovered evidence' involved separate misconduct by the individual officers ....” Id. at 1104. The district court denied the motions for new trials, finding that the alleged misconduct occurred after defendants' trial, was not relevant to their trial, and would not have been admissible at their trial. See id. at 1104-05. The United States Court of Appeals for the District of Columbia Circuit, applying factors almost identical to the Sinclair factors, agreed. See id. at 1105. The Lafayette court first found that the alleged officer misconduct was “not newly discovered evidence” as it was not “in existence at the time of the trial.” Id. “Even any events occurring before trial would be of doubtful admissibility[,]” the court surmised, as Federal Rule of Evidence 608(b) “does not require or imply that every bit of evidence existing concerning a witness may be dragged into a case no matter how remote or minor the alleged misconduct.” See id.

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