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United States of America v. Domingo Mercado

June 15, 2012


The opinion of the court was delivered by: DuBOIS, J.



Domingo Mercado is serving a five-year sentence in federal custody for his conviction of possession of heroin with intent to distribute. On May 1, 2012, the Court granted Mercado's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody based on the conclusion that his trial attorney provided him with ineffective assistance of counsel. See United States v. Mercado, No. 08-541, 2012 WL 1536970 (E.D. Pa. May 1, 2012). Presently before the Court is the United States of America's Motion to Reconsider the Court's Order Granting Defendant's 2255 Petition.

For the reasons set forth below, the government's motion is granted in part and denied in part. The motion is granted only to the extent that the Court considers the merits of the government's argument. The motion is denied in all other respects.


The background of this case is set forth in detail in United States v. Mercado, 610 F.3d 841 (3d Cir. 2010), and Mercado, 2012 WL 1536970, and will be repeated in this Memorandum only as necessary to explain the Court's ruling on the motion for reconsideration.

A federal grand jury returned an Indictment on September 10, 2008, charging Mercado and his co-defendants, Hiram Coira-Soto and Dinoel Rodriguez-Nunez, with possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); possession of heroin within 1,000 feet of a school with intent to distribute, in violation of 21 U.S.C. § 860(a); and aiding and abetting both offenses, in violation of 18 U.S.C. § 2. Rodriguez-Nunez pled guilty and testified against Mercado pursuant to a plea agreement with the government. Mercado was convicted at trial and sentenced to five years' imprisonment, the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B).

The primary evidence against Mercado was testimony that he was present during three meetings at which Rodriguez-Nunez and Coira-Soto discussed and partially executed the heroin transaction. The government's first witness, Drug Enforcement Administration Special Agent David Pedrini, recounted several statements that Rodriguez-Nunez made shortly after his arrest regarding Mercado's presence at the meetings. Mercado's trial counsel did not object to that testimony. Later in the trial, Rodriguez-Nunez also testified to Mercado's presence at the meetings.

Mercado filed a timely motion under § 2255, in which he set forth three claims of ineffective assistance of trial counsel. On May 1, 2012, the Court granted the motion with respect to one of those claims: a claim premised on trial counsel's failure to object to Agent Pedrini's testimony on hearsay grounds.*fn1 Mercado, 2012 WL 1536970, at *5. The Court concluded that the testimony was inadmissible hearsay and that there was no valid strategic explanation for trial counsel's failure to object. Id. at *7-9. Moreover, the failure to object caused substantial prejudice to Mercado's defense. Id. at *9. The testimony that Rodriguez-Nunez saw Mercado with Coira-Soto four times on the day of their arrest was the key evidence in a very close case. Id. at *9-10. Absent Agent Pedrini's hearsay testimony, defense counsel "could have made powerful use of Rodriguez-Nunez's status [as] a convicted felon cooperating with the government pursuant to a plea agreement" to minimize the impact of Rodriguez-Nunez's testimony. Id. at *10. "Instead, however, [defense counsel] permitted Agent Pedrini's prior testimony to bolster Rodriguez-Nunez's credibility regarding Mercado's presence at one of the pre-transaction meetings and the meeting at which the heroin was transferred." Id. The Court thus concluded that there was a reasonable probability that trial counsel's failure to object altered the outcome of Mercado's trial. Id.


The government contends that the Court must reverse its May 1, 2012, ruling because Agent Pedrini's testimony was admissible under Federal Rule of Evidence 801(d)(1)(C). Rule 801(d)(1)(C) provides that prior statements of identification are non-hearsay under certain circumstances. The government raised this argument for the first time in the instant motion; it was not mentioned earlier in the proceedings. Mercado argues that the government may not assert a new legal theory in a motion for reconsideration and that, in any event, the government is incorrect on the merits. For the reasons set forth below, the Court considers the government's new argument but does not alter its May 1, 2012, ruling.

A. Legal Standard

The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). A prior decision may be altered or amended only if the party seeking reconsideration establishes at least one of the following grounds: (1) an intervening change in controlling law, (2) the availability of new evidence that was not available when the court issued its order, or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Id. "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Cont'l Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995); see also Rottmund v. Cont'l Assurance Co., 813 F. Supp. 1104, 1107 (E.D. Pa. 1992).

A motion for reconsideration is not properly grounded on a request that a court rethink a decision already made. Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993); see also United States v. Jasin, 292 F. Supp. 2d 670, 676 (E.D. Pa. 2003) ("Parties are not free to relitigate issues that the court has already decided."). "It is improper on a motion for reconsideration to ask the Court ...

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