Full opinion text
ORDER DISMISSING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO VACATE, SET ASIDE OR CORRECT HIS SENTENCE RAFEEDIE, Senior District Judge. This case arises from the kidnapping, torture and murder of DEA Special Agent Enrique Camarena in Guadalajara, Jalisco, Mexico in February 1985. After being granted a new trial by the Court, a jury convicted defendant Ruben Zuno-Arce in a second trial on counts of conspiring to commit and committing violent crimes in aid of a racketeering enterprise, and conspiring to kidnap and kidnapping a federal agent. The Court of Appeals affirmed and the Supreme Court denied certiorari. Five years after Zuno-Arce’s conviction, Hector Cervantes-Santos, a witness who testified at the first trial, signed a declaration stating that he had perjured himself at the urging of the Government. Based in large part on that declaration, Zuno-Arce, represented by counsel, has filed a motion for a new trial, which the Court has construed as a motion to vacate, set aside or correct a sentence, brought pursuant to 28 U.S.C. § 2255, in which he raises claims of double jeopardy, knowing use of perjured testimony, failure to disclose exculpatory evidence, and ineffective assistance of counsel. The Court has read and considered the papers filed in connection with this matter, conducted an evidentiary hearing on July 31, August 3 & 10, 1998, and now HEREBY DISMISSES IN PART and DENIES IN PART the motion for the reasons set forth below. I A Zuno-Arce [is alleged to have been] part of an international narcotics enterprise based in Guadalajara, Jalisco, Mexico.... Enrique Camarena-Salazar, an agent of the United States Drug Enforcement Agency, was, according to the government’s evidence at trial, tremendously successful during 1984-85 in the performance of his duties. Billions of dollars worth of marijuana were seized in a single raid at “El Búfalo,” a ranch owned by another of the cartel’s members, Rafael Caro-Quintero. The cartel struck back violently. Agent Camarena was kidnapped in February 1985, taken to Caro-Quintero’s house at 881 Lope de Vega in Guadalajara, and interrogated and tortured for two days. The interrogation was directed at finding out what information Camarena had about the cartel. After getting the information, the criminals murdered Agent Camarena [and his pilot/informant Alfredo Zavala-Avelar] and buried [them]. United States v. Zuno-Arce, 44 F.3d 1420, 1422 (9th Cir.1995), cert. denied, 516 U.S. 945, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995); see also United States v. Zuno-Arce, 958 F.2d 380, 1992 WL 59017 (9th Cir.1992). Zuno-Arce was among those indicted for the crime. Zuno-Arce was tried twice. The first trial commenced on May 15, 1990 (Zuño I); the defendants tried in that ease were Zuno-Arce, Juan Ramon Matta-Ballesteros, Juan Jose Bernabe-Ramirez, and Javier Vasquez-Velasco. Hector Cervantes-Santos, a bodyguard to cartel member Javier Barba-Her-nandez, testified on behalf of the Government and implicated Zuno-Arce, among others, in the conspiracy to kidnap and murder Agent Camarena. All four defendants were convicted. The Court granted Zuno-Arce a new trial, however, because the prosecutor had made an inappropriate reference in closing argument to a matter on which the Court had earlier prevented Zuno-Arce from presenting evidence. The jury’s decision had been rendered without access to a defense exhibit that might have, in light of the prosecutor’s comments, been helpful to Zuno-Arce’s defense. The Court of Appeals affirmed the grant of a new trial in an unpublished disposition. See United States v. Zuno-Arce, 958 F.2d 380, 1992 WL 59017 (9th Cir.1992). Zuno-Arce was retried along with a new defendant, Humberto Alvarez-Machain, in a second trial on December 1, 1992 (Zuño II). Cervantes-Santos did not testify in Zuño II. Instead, the Government used two new witnesses not previously called in Zuno I to implicate Zuno-Arce — Jorge Godoy-Lopez and Rene Lopez-Romero. On December 21, 1992, after deliberating for only three and a half days, the jury found Zuno-Arce guilty of (1) conspiring to commit violent crimes in aid of a racketeering enterprise, 18 U.S.C. §§ 1959(a)(5), 2; (2) committing violent crimes in aid of a racketeering enterprise, 18 U.S.C. §§ 1959(a)(1), 2; (3) conspiring to kidnap a federal agent, 18 U.S.C. § 1201(c); and (4) kidnapping a federal agent, 18 U.S.C. §§ 1201(a)(5), 2. The Court sentenced Zuno-Arce on March 23, 1993 to life imprisonment on each of the kidnapping counts and ten years on each of the racketeering counts, all terms to run concurrently. B The timing of later federal proceedings is critical to the issues raised in this case. The defendant appealed several of the Court’s rulings. The Ninth Circuit Court of Appeals affirmed on January 11, 1995, see United States v. Zuno-Arce, 44 F.3d 1420, 1422 (9th Cir.1995), and issued its mandate of affirmance on April 7, 1995. See Docket for Appeal No. 93-50311. The mandate was neither stayed nor recalled by the Court of Appeals or the United States Supreme Court. The Supreme Court denied the petition for a writ of certiorari on October 30, 1995. See Zuno-Arce v. United States, 516 U.S. 945, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995). On July 1, 1997, five years after Zuno-Arce was convicted at the second trial, and seven years after Cervantes-Santos testified at the first trial, Cervantes-Santos signed a declaration in Los Angeles wherein he recanted his Zuño I testimony and stated that his perjury was guided and directed by the case agent, former DEA Special Agent Hector Berrellez, and one of the prosecutors, former Assistant United States Attorney Manuel Medrano. Aside from the fact that the Cervantes-Santos declaration was obtained under dubious circumstances, a subject which the Court addresses in due course, the matter is further complicated by the fact that Cervantes-Santos has since changed his story- — three times. On January 16, 1998, Cervantes-Santos repudiated his July 1, 1997 recantation. He disavowed the substance of his declaration in a videotape interview with DEA agents in Guadalajara, Jalisco, Mexico. According to Cervantes-Santos, the recantation was the product of coercion, both physical and psychological, at the hands of representatives of Zuno-Arce and Manuel Bartlett-Diaz, presently the Governor of the State of Puebla, Mexico. On March 8, 1998, Cervantes-Santos allegedly changed his story again. John Brown, a private investigator working on behalf on Bartlett-Diaz and now affiliated with the defense, claims that Cervantes-Santos told him that the DEA extracted the January 16, 1998 repudiation by threatening to send him to prison, promising to give him $162,000, and promising to place him in the witness protection program. And finally, on May 6, 1998, Cervantes-Santos again stepped forward, this time telling counsel for the Government in a videotape interview that he never said any such thing to John Brown. Based on the July 1, 1997 declaration and other “newly discovered” evidence, Zuno-Arce filed on October 29, 1997 a motion for a new trial, pursuant to Rule 33 of the Rules of Criminal Procedure. The motion raised two claims: (1) Mooney-Napue violations: the Government knowingly presented false evidence in Zuño II, namely the perjured testimony of Godoy-Lopez and Lopez-Romero; and (2) Brady-Bagley violations: the Government failed to disclose exculpatory and impeachment evidence, including, among other things, that Cervantes-Santos lied during Zuño I, and that Godoy-Lopez and Lopez-Romero received additional pecuniary assistance from the Government. Noting that the motion for a new trial was probably untimely, the Court issued an order on February 25,1998, see CR docket # 2213, in which it invited both parties to address whether the Court should dismiss the motion, pursuant to United States v. Cook, 705 F.2d 350, 351 (9th Cir.1983), for lack of jurisdiction. Both parties timely responded, and the Court issued an order on March 30, 1998> dismissing the motion for lack of jurisdiction — the motion had been filed six months too late. See CR docket # 2226. In a gesture normally afforded to pro se litigants, the Court construed the motion for a new trial as a motion to vacate, set aside or correct a sentence, brought pursuant to 28 U.S.C. § 2255. The Court ordered the defendant to file and serve the § 2255 forms required by our local rules and noted that it would deem such forms and the § 2255 motion filed nunc pro tunc on the date of October 29,1997 (the date the motion for a new trial was filed). The Court also ordered that the papers filed in connection with the motion for a new trial, including the Government’s already-filed opposition, become part of the record to be considered in resolving Zuno-Arce’s § 2255 motion. Zuno-Arce filed the forms as required. See CR docket # 2231. But the forms that were submitted added two claims not previously set forth in the motion for a new trial— double jeopardy and ineffective assistance of counsel. Specifically, Zuno-Arce now also argues that (1) the Government’s knowing-use of Cervantes-Santos’s perjured testimony in Zuño I precluded Zuno-Aree’s retrial in Zuño II under the Double Jeopardy Clause and (2) counsel’s failure to timely file the motion for a new trial constituted ineffective assistance of counsel. The Government has objected to the inclusion of these new claims. II The Court first addresses Zuno-Arce’s claim that his attorneys rendered ineffective assistance by failing to timely file his motion for a new trial. According to Zuno-Arce, his attorneys were “aware of evidence and grounds sufficient to timely bring a meritorious new trial motion. If such a motion had been brought and considered by the court, a new trial would have been granted.” Form for Motion to Vacate, Set Aside or Correct Sentence 5 (CR docket # 2231). Ultimately, the claim may not go forward because Zuno-Arce impermissibly added the ineffective assistance claim to the § 2255 motion and Zuno-Arce had no right to the assistance of counsel on his motion for a new trial. A When the Court issued its order dismissing as untimely Zuno-Aree’s motion for a new trial, the Court construed the belated motion as a motion to vacate, set aside or correct a sentence, brought pursuant to 28 U.S.C. § 2255. Cf. United States v. Nguyen, 997 F.Supp. 1281, 1295 (C.D.Cal.1998) (construing a defendant’s motion liberally is usually reserved for those who appear pro se). To complete the liberal construction, the Court ordered the defendant to file and serve the § 2255 forms required by our local rules, see C.D.Cal.Rule 26 (stating that § 2255 motions must be filed on forms approved and supplied by the Court), which the Court would deem filed nunc pro tunc on the same date the motion for a new trial was filed. But as the Court noted supra, the forms submitted by Zuno-Arce added, without pri- or leave of the Court, and without consent of the Government, a claim of ineffective assistance of counsel. The rules pertaining to the amendment of § 2255 motions are set forth by the combination of the Rules Governing Section 2255 Proceedings and the Federal Rules of Civil Procedure. “[T]he district court may ... apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to [§ 2255] motions filed under these rules.” Rule 12 of the Rules Governing Section 2255 Proceedings. Federal Rule of Civil Procedure 15(a), which has been held applicable to § 2254 proceedings, see Calderon v. U.S. Dist. Court, 134 F.3d 981, 986 n. 6 (9th Cir.1998), states in pertinent part: A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party____ Fed.R.Civ.P. 15(a) (emphasis added). Application of Rule 15 to § 2255 proceedings, albeit with minor adjustments, is entirely possible and appropriate. The proper rule is that a movant may not amend a § 2255 motion without first seeking leave of the Court if the Government has already filed an opposition which “respond[s] to the allegations of the [original] motion.” Rule 5 of the Rules Governing Section 2255 Proceedings (describing content of answer); see also United States v. Cervantes, 132 F.3d 1106, 1111 (5th Cir.1998) (opposition testing allegations of § 2255 motion precludes unilateral amendment). Because the Government had already filed its opposition to Zuno-Arce’s § 2255 motion — more accurately the then-labeled “motion for a new trial” — -Zuno-Arce had no right to amend his § 2255 motion without leave of the Court. No motion or application to amend was filed with the Court. This is so even though Zuno-Arce had several opportunities to seek leave (some after the Government objected to the claim’s inclusion). See, e.g., Form for Motion to Vacate, Set Aside or Correct Sentence (CR docket #2231); Petitioner’s Response to Order to Show Cause (CR docket #2233); Reply to Government’s Opposition to Petitioner’s Response to Order to Show Cause (CR docket #2238); Comprehensive Reply to All Government Oppositions (CR docket # 2253). Zuno-Arce was represented by no less than three experienced attorneys at the time he impermissibly amended his § 2255 motion, and the Court will not liberally construe their actions as an implicit request for leave to amend. See Nguyen, 997 F.Supp. at 1295. A formal noticed motion was required. See C.D.Cal.Rule 7.4.2 (1998) (“Unless otherwise provided by rule or order of the Court, no oral motions will be recognized and every motion shall be presented by written notice of motion.”); C.D.Cal.Rule 7.4 (1993) (same). Thus, Zuno-Arce’s ineffective assistance of counsel claim is not properly before the Court. B The Government submits, in the alternative, that Zuno-Arce’s ineffective assistance of counsel claim fails as a matter of law because an accused is - not constitutionally entitled to counsel on a motion for a new trial that has been filed two years after the completion of direct appeal. This claim has merit. The right to effective assistance of counsel is dependent on the right to counsel itself. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982). As our circuit has recently stated: Of course, a defendant can only obtain reversal on Sixth Amendment grounds if the error complained of occurred at a critical stage in the adversary proceedings. This is true because the Sixth Amendment guarantees the right to counsel only at critical stages. It therefore follows that, if the stage is not critical, there can be no constitutional violation, no matter how deficient counsel’s performance. United States v. Benlian, 63 F.3d 824, 827 (9th Cir.1995) (citations omitted). The issue before the Court is whether a motion for a new trial which has been filed following a defendant’s exhaustion of his direct appeal constitutes a critical stage thus entitling the defendant to the assistance of counsel. Ultimately, the Court answers the question in the negative. Zuno-Arce refers the Court to Menefield v. Borg in support of his position. 881 F.2d 696 (9th Cir.1989). In Menefield, a panel of the Ninth Circuit Court of Appeals held that, in light of California law, a motion for a new trial brought immediately following a conviction is a critical stage of prosecution for purposes of the Sixth Amendment. See id. at 698-99. The decision, however, is materially distinguishable from the case presently before the Court. First, the Court of Appeals relied on the exacting nature of the “new trial” relief available in California Penal Code § 1181. See Menefield, 881 F.2d at 699. The court noted that § 1181 provides nine distinct grounds for relief which serve with one exception as the exclusive grounds for such a motion, and that the accused in the case had trouble understanding the “intricacies of the California statute governing new trials.” Menefield, 881 F.2d at 697, 699. Such a strict structure is not found, however, in the more flexible federal new trial rule. See Fed.R.Crim.P. 33; United States v. Phillips, 974 F.Supp. 491, 497 (D.Md.1997) (comparing Rule 33 motion with state new trial motions). The distinction is important because it lessens the need for skilled counsel to assist the accused to understand “the legal confrontation” inherent in a motion for a new trial. Menefield, 881 F.2d at 699. Second, the decision does not purport to pertain to motions filed after the termination of the appellate process, whether that termination comes by exhaustion or waiver. The Supreme Court has held that criminal defendants do not have a constitutional right to counsel when “mounting collateral attacks upon their convictions.” Pennsylvania v. Finley, 481 U.S. 551, 555 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). The Court stated: Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further.... We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process. 481 U.S. at 555, 107 S.Ct. at 1993. The case law clearly reflects a judgment that an accused’s right to counsel must end some time. See also Duckett v. Godinez, 67 F.3d 734, 750 n. 8 (9th Cir.1995) (“The right to counsel extends only through trial and the first appeal of right.”), cert. denied, 517 U.S. 1158, 116 S.Ct. 1549, 134 L.Ed.2d 651 (1996). The import of the decision in Finley and its progeny is that courts should construe a post-appeal motion for a new trial as a collateral proceeding where one is not entitled to counsel. Decisions in other circuits have echoed this principle. For instance, the First Circuit Court of Appeals held that after final conviction and the first appeal, the appointment of counsel on a motion for a new trial was not constitutionally guaranteed, but rather rested in the discretion of the court. See Dirring v. United States, 353 F.2d 519, 520 (1st Cir.1965) (cited with approval in United States v. Tajeddini, 945 F.2d 458, 469-70 (1st Cir.1991)). The District of Columbia and Second Circuits have followed this approach, albeit without expressly reaching the constitutional question. See, e.g., United States v. Lee, 513 F.2d 423, 424 (D.C.Cir.1975) (neither 18 U.S.C. § 3006A nor Fed.R.Crim.P. 44 require appointment of counsel on a motion for a new trial filed after first direct appeal); United States v. Birrell, 482 F.2d 890, 892 (2d Cir.1973) (same). Having found Menefield distinguishable and the reasoning of other decisions persuasive, the Court concludes that a defendant is not entitled to the assistance of counsel on a motion for a new trial that has been filed two years after termination of the direct-appellate process. Because Zuno-Arce has no constitutional right to counsel on a motion for a new trial following the exhaustion of the direct-appellate process, he cannot complain that counsel was constitutionally defective by failing to timely file the motion for a new trial. Zuno-Arce’s allegations, taken as true, do not entitle him to relief. Ill Zuno-Arce’s remaining claims more directly implicate the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA) and its one-year period of limitations. The Court recognized as much in its Order dated March 30, 1998, where it asked counsel for both parties to address whether the § 2255 motion, or parts thereof, should be dismissed as untimely. See CR docket # 2226. Under the AEDPA, a one-year period of limitations applies to § 2255 motions: A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of— (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to eases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255 (as amended). In this case, because the motion was submitted on a new factual predicate, the limitation period began to run on “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” Id. § 2255(4). Thus, for Zuno-Arce’s § 2255 motion, or portions thereof, to proceed he must demonstrate to the Court’s satisfaction that the facts supporting his claims could not have been discovered through the exercise of due diligence before October 30, 1996- — one year before the present motion was filed. It appears from the record that some of the evidence filed in support of the present motion was actually discovered, or could have been discovered through the exercise of due diligence, before October 30, 1996. Accordingly, application of the AEDPA would require that the Court dismiss those portions of the motion that are time-barred. Before further discussing the effect of the one-year statute of limitation in this case, however, the Court must first address two arguments raised by the defendant, either of which, he would have the Court hold, permits the Court to consider all of the claims and evidence submitted without regard to the AEDPA’s limitations period. Zuno-Arce first asks the Court to utilize his ineffective assistance of counsel claim (more specifically the prejudice inquiry of such a claim) as a vehicle for considering evidence that might otherwise be excluded. And second, Zuno-Arce seeks an extension and application of the Schlup v. Deb “miscarriage of justice” gateway to his case. 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). A Zuno-Arce first argues that the Court should consider all of the claims and evidence submitted in support of his motion to vacate without regard to the AEDPA’s statute of limitations because the Court will have to consider it in any event when considering Zuno-Arce’s claim for ineffective assistance counsel. This follows because the Court must, in reviewing counsel’s performance, determine whether there “is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” Bonin v. Calderon, 59 F.3d 815, 833 (9th Cir.1995) (citations omitted), cert. denied, 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996). To be more precise, to determine whether construing the motion for a new trial as a § 2255 motion prejudiced Zuno-Arce, the Court would have to consider the evidence properly submitted in support of the motion for a new trial, compare it to the evidence permitted on the § 2255 motion, and then determine whether it would have made a difference. The Court rejects this argument. Zuno-Arce’s ineffective assistance claim has already been both procedurally and substantively rejected. Therefore, that claim may not be used as a vehicle to consider otherwise-barred claims and evidence. B Zuno-Aree next seeks an extension of the miscarriage of justice gateway to permit him to overcome the AEDPA’s statute of limitations. The miscarriage of justice gateway, first identified by a plurality in Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (Powell, J.), and then delineated in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), is a limited exception to the rule that a court will not consider pre-AEDPA habeas petitions or motions that are abusive, successive, or procedurally defaulted. Under the gateway, a court may review otherwise-barred constitutional claims where the movant makes a colorable showing of actual innocence, i.e., “persuades the district court [that it is more likely than not] that, in light of ... new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. at 329, 115 S.Ct. at 868. Zuno-Aree correctly notes that the AEDPA’s one-year limitation period is not a jurisdictional bar and may be equitably tolled in extraordinary circumstances. See Calderon v. U.S. Dist. Court, 128 F.3d 1283, 1287-89 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998). In light of this fact, the Court first addresses whether an actual innocence claim under Schlup constitutes an “extraordinary circumstance” permitting the consideration of otherwise-barred claims and evidence. Federal courts have applied the doctrine of equitable tolling in two generally distinct kinds of situations. In the first, the [mov-ant is] prevented from asserting [his] claims by some kind of wrongful conduct on the part of the [government]. In the second, extraordinary circumstances beyond [a movant’s] control made it impossible to file the claims on time. Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.1996) (citation omitted) (emphasis added); see also Calderon, 128 F.3d at 1288-89 (“Equitable tolling will not be available in most cases, as extensions of time will only be granted if ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition [or motion] on time.” (emphasis added)). Our circuit has warned that district court judges should “take seriously Congress’s desire to accelerate the federal habeas process, and [should] only authorize extensions when this high hurdle is mounted.” Id. A claim of actual innocence would not constitute an “extraordinary circumstance,” as that term is understood in the context of equitable tolling. To receive the benefit of equitable tolling, a § 2255 movant must, at the very least, allege that circumstances beyond his control or government misconduct contributed to his inability to file his motion on time. No such allegations have been made, nor could they in this case, and thus Zuno-Aree is not entitled to equitable tolling. It remains to be decided, however, whether a colorable showing of factual innocence nevertheless permits consideration of claims despite a violation of the statute of limitations. Zuno-Aree argues that the Court should equate the one-year limitation period to other procedural bars to which the gateway has already been applied. The statute of limitations is similar in a sense to the procedural default doctrine, which bars habe-as review of constitutional claims that a mov-ant has failed to present at procedurally required opportunities, such as at trial, see Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977), sentencing, see Evenstad v. United States, 978 F.2d 1154, 1158 (9th Cir.1992), or on direct appeal, see United States v. Schlesinger, 49 F.3d 483, 484-84 (9th Cir.1994). And in a sense the limitations period is similar to the abuse-of-the-writ doctrine, which forecloses habeas claims that were available but not relied upon in a previous motion or petition. See Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6, 106 S.Ct. 2616, 2622 n. 6, 91 L.Ed.2d 364 (1986). However, those two doctrines are for the most part creations of the judicial branch, see Wainwright, 433 U.S. at 86-88, 97 S.Ct. at 2506-2507 (procedural default doctrine); McCleskey v. Zant, 499 U.S. 467, 479-89, 111 S.Ct. 1454, 1462-67, 113 L.Ed.2d 517 (recounting common-law groundwork of abuse-of-the-writ doctrine), and, thus, the notion of separation of powers is not as easily offended when the judiciary carves out an exception to these doctrines, see McCleskey, 499 U.S. at 490-91, 111 S.Ct. at 1468 (“A federal habeas court’s power to excuse these types of defaulted claims derives from the court’s equitable discretion.”). Moreover, unlike in the present case, neither doctrine comes coupled with a mandate from Congress that motions be filed within a specified period of time. Naturally, the Court is reluctant to disregard what appears to be the plain letter of the AEDPA. See Thomas v. Arn, 474 U.S. 140, 148, 106 S.Ct. 466, 471-72, 88 L.Ed.2d 435 (1985) (“Even a sensible and efficient use of the supervisory power ... is invalid if it conflicts with ... statutory provisions.”). At least on equal footing, and most likely paramount, however, is the fact that a court may not disregard constitutional provisions. See Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988); Thomas, 474 U.S. at 148, 106 S.Ct. at 471-72. Thus, in deciding whether to extend the gateway to overcome the procedural bar of a statute of limitations, the Court also bears in mind that to bar a constitutional claim, coupled with a claim of actual innocence, on an accused’s first motion to vacate implicates serious constitutional concerns. “Dismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty.” Lonchar v. Thomas, 517 U.S. 314, 324, 116 S.Ct. 1293, 1299, 134 L.Ed.2d 440 (1996). The Constitution may require when a claim of actual innocence is involved that habeas review remain open until the defendant has had at least one meaningful opportunity for review. To foreclose review in this sort of case might violate the Cruel and Unusual Punishments or Suspension Clauses. See U.S. Const. amend. VIII; id. art. II, § 9, cl. 2. In fact, every court which has had an opportunity to address how an actual innocence claim operates post-AEDPA has either avoided the matter altogether by ruling on an alternate ground, or has avoided the risk of constitutional implications by either permitting the § 2255 movant to raise his otherwise-barred claim under 28 U.S.C. § 2241 or by assuming that the miscarriage of justice gateway would permit the barred claim to go forward. The opinion in Triestman v. United States, 124 F.3d 361 (2d Cir.1997), is instructive in this regard. There the Second Circuit Court of Appeals held that where a successive § 2255 motion raises Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), as the basis for a claim of actual innocence, the threat of constitutional implications arising from proeedurally barring the claim requires that the movant be permitted to raise his claim via a petition for a writ of habeas corpus. See 28 U.S.C. § 2241. Well aware of the fact that the unavailability of § 2255 motion does not automatically entitle a defendant to move pursuant to § 2241, see In re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir.1997), Triestman tackled the issue of whether barring the Bailey claim altogether would offend the Constitution. The court persuasively concluded that the continued incarceration of an innocent person might constitute cruel and unusual punishment, see Triestman, 124 F.3d at 378-79 (citing Herrera v. Collins, 506 U.S. 390, 432 n. 2, 113 S.Ct. 853, 877 n. 2, 122 L.Ed.2d 203 (1993) (Blackmun, J., dissenting)), and that to “close off all avenues of redress in such cases” would likely constitute a violation of the Due Process Clause of the Fifth Amendment. Triestman, 124 F.3d at 378-79. Wishing to avoid the constitutional questions in its case and in all future similar cases, the Court of Appeals concluded that a second or successive § 2255 motion was truly “inadequate and ineffective to test the legality of [a prisoner’s] detention” where the basis for the challenge was Bailey v. United States. Accordingly, the court ruled that a § 2255 mov-ant who would be otherwise-barred by the limit on second or successive motions should raise a Bailey claim via a petition for a writ of habeas corpus. The Third Circuit Court of Appeals echoed the concerns of Triestman in a decision decided only days before, see In re Dorsainvil, 119 F.3d 245 (3d Cir.1997), where it too chose to avoid “thorny constitutional issue[s]” by permitting § 2255 movants to file otherwise proeedurally-barred Bailey claims under § 2241. Our own circuit has reached the same conclusion — albeit with little analysis. See United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir.1997). Although the Bailey claims raised in Triestman and Dorsainvil are more akin to a freestanding actual innocence claim, see Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the reasoning of those cases remains instructive. In a well-reasoned and thorough opinion, Judge Sotomayor has extended the reasoning of Triestman and Dorsainvil to conclude that failing to extend the miscarriage of justice gateway to overcome the procedural bar of the AEDPA’s statute of limitations would likely violate the Constitution. See Alexander v. Keane, 991 F.Supp. 329, 334-39 (S.D.N.Y.1998). Accordingly, Judge Sotoma-yor chose to avoid the possible constitutional implications by applying the miscarriage of justice gateway to the § 2254 petitioner in that case. The Court finds further support for application of the miscarriage of justice gateway to post-AEDPA cases in the Supreme Court’s recent decision Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Although the case involved setting the proper standard for recalling a mandate following a court of appeals’ denial of habeas relief, the Supreme Court stated in that context that the “miscarriage of justice standard is altogether consistent ... with [the] AEDPA’s central concern that the merits of concluded criminal proceedings not be revisited in the absence of a strong showing of actual innocence.” Id. 523 U.S. at -, 118 S.Ct. at 1502; see also id. (the “standard comports with the values and purposes underlying [the] AEDPA”). The reasoning of the cases noted above is persuasive, and the Court now holds that to foreclose a claim of constitutional violation where there has been a colorable showing of factual innocence would likely constitute a due process violation or an improper suspension of habeas corpus relief. In order to provide an avenue of review, the Court now extends the miscarriage of justice gateway as a means of considering evidence and constitutional claims otherwise procedurally barred by the AEDPA’s period of limitations. IV The Court next addresses whether Zuno-Arce has satisfied the miscarriage of justice gateway standard. An otherwise-barred constitutional claim, and the evidence to support it, may be considered if the mov-ant produces reliable new evidence not admitted at trial which demonstrates that it is more likely than not that no reasonable juror would have convicted him. See Schlup, 513 U.S. at 326-28, 115 S.Ct. at 867. A court is to “consider all relevant evidence: that presented at trial; that arguably wrongly excluded from trial; and that unavailable at trial.” Battle v. Delo, 64 F.3d 347, 352 (8th Cir.1995), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996). “To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence ... that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. at 865 (emphasis added). Thus, as important as it is to consider the new evidence of actual innocence, it is equally important to look to the source of that evidence. All things considered, the evidence must undermine the Court’s confidence in the outcome of the trial. See id. at 316, 115 S.Ct. at 861. The Court bears in mind that in order to pass through the gateway, a movant’s case must be “truly extraordinary,” id. at 327, 115 S.Ct. at 867, for a defendant having been convicted by a jury comes before the Court with a “strong — and in the vast majority of cases conclusive — presumption of guilt,” id. at 326 n. 42, 115 S.Ct. at 866 n. 42. A The Court first recounts the evidence presented against Zuno-Arce during Zuño II. The thrust of the Government’s case was that Zuno-Arce and others jointly operated a marijuana and cocaine trafficking enterprise centered in Guadalajara, Jalisco, Mexico. During 1984, the Drug Enforcement Administration (DEA) made several significant seizures of marijuana and cocaine which resulted in substantial losses, numbering in the billions of dollars, for the enterprise. By late 1984/early 1985, the cartel had identified the responsible DEA agent as Special Agent Enrique Camarena. On February 7,1985, Agent Camarena was kidnapped in front of the American Consulate in Guadalajara, and his pilot, Alfredo Zavala-Avelar, was kidnapped while returning home from the Guadalajara airport. On about March 5, 1985, their decomposed bodies were found in an open field in Zamora, Michoacan, approximately sixty miles south of Guadalajara. Forensic evidence showed that Camarena had previously been buried in Primavera Park, a large park outside of Guadalajara. The bodies of both men were bound, gagged and blindfolded. Both had been badly beaten. The Government’s theory of the case was that the cartel kidnapped, tortured, and murdered Camarena in furtherance of its drug enterprise. Zuno-Arce’s membership in the cartel was established through the testimony of Lawrence Harrison, an engineer working for cartel member Ernesto Fonseca-Carrillo, and Jorge Godoy-Lopez and Rene Lopez-Romero, both former state policemen and bodyguards to Fonseca-Carrillo. According to the testimony at trial, Zuno-Arce was a narcotics trafficker in his own right who worked in conjunction with other members of the cartel; he held a position of great responsibility in the cartel and participated with its highest leaders in making decisions of central importance. Harrison demonstrated a relationship between Zuno-Arce and known cartel leaders Rafael Caro-Quintero and Fonseca-Carrillo. Harrison testified to having seen Zuno-Arce at a birthday party given for Caro-Quintero in late 1983, at a house owned by Fonseca-Carrillo. Caro-Quintero was “dancing” some horses when he was approached by Zuno-Arce; Caro-Quintero dismounted and embraced Zuno-Arce. Harrison also testified to seeing Zuno-Arce meet with Fonseca-Carrillo at another house owned by Fonseca-Carrillo sometime thereafter in 1983. Zuno-Arce was led into Fonseca-Carrillo’s private office, where they met for approximately 45 minutes. Godoy-Lopez also established a relationship between Zuno-Arce and other cartel members. He testified about a party at Ran-cho de la Rosa in August of 1984 held to celebrate Fonseca-Carrillo’s marriage. The party was attended by most of the major traffickers, including Caro-Quintero, Fonse-ca-Carrillo, and Javier Barba-Hernandez. Godoy-Lopez saw Zuno-Arce greeting, talking and otherwise socializing with persons at the party. Godoy-Lopez also testified to being at a January 1985 meeting at the La Langosta restaurant attended by Zuno-Arce, Caro-Quintero, Fonseca-Carrillo, and Bar-ba-Hernandez. The Government also presented evidence linking Zuno-Arce to drug trafficking. Zuno-Arce was living in Mascota, Jalisco after early 1982. Harrison testified that in December 1983 he escorted, on Fonseca-Carrillo’s orders, a stake bed truck loaded heavily and covered with a tarp, from Mas-cota to Guadalajara. Harrison escorted similar convoys on other occasions and saw later that the trucks were laden with marijuana. Lopez-Romero testified that when he was assigned as a state policeman to the Mascota area in April 1984, he stopped on one occasion a stake bed truck containing approximately 1000 kilograms of marijuana. According to Lopez-Romero, Zuno-Arce arrived in a pickup truck, spoke with the police officer in charge, Eleazar Flores-Torres, and then departed with the marijuana-laden truck without incident. Testimony from Godoy-Lopez further bolstered the link between Zuno-Arce and drug trafficking. Godoy-Lopez testified about traveling to the Mascota area in late August 1984, in the company of ringleader Barba-Hernan-dez. At a meeting lasting approximately thirty minutes, Barba-Hernandez and others reviewed maps that had been distributed to cartel leaders to coordinate which marijuana fields were to be destroyed, and which would left standing for harvest. Bar-ba-Hernandez and his entourage met with Zuno-Arce in a marijuana field, where the map was given to Zuno-Arce. Zuno-Arce explained that he would check the fields himself and would report back to Fonseca-Carrillo. The Government further established Zuno-Arce’s involvement with the cartel by presenting testimony that he participated in a series of meetings during the fall of 1984 and early 1985, the subject of which was what should be done with the DEA’s destruction of the cartel’s marijuana fields. One such meeting took place sometime in October 1984 at the Las Americas Hotel in Guadalajara, a hotel owned by cartel member Miguel Angel Felix-Gallardo. Godoy-Lopez was present during some of the discussions, and Lopez-Romero stood guard outside the hotel. Participating in the meeting were most of the major drug traffickers in Guadalajara, in-eluding Caro-Quintero, Fonseca-Carrillo, and Felix-Gallardo. Zuno-Arce also attended and arrived with Miguel Aldana-Ibarra, the head of the Mexican branch of Interpol. Also present were the then-Minister of Gob-ernación, Manuel Bartlett-Diaz, the Governor of Jalisco, Enrique Alvarez del Castillo, and the Minister of Defense, Juan Arevalo-Gardoqui. Godoy-Lopez testified that at the Las Americas meeting, Caro-Quintero and Fonseca-Carrillo asked Aldana-Ibarra “what was going on with the DEA agent, [and] why ... were [they] losing so many [marijuana] fields.” Aldana-Ibarra stated that he had spoken with a DEA agent, but that the agent did not want to strike a deal with the cartel. According to Godoy-Lopez, Zuno-Arce then said “that if the DEA agent didn’t want to take anything or didn’t want any deal then it was time to drop him.” Godoy-Lopez testified that “to drop him” was a euphemism for kidnapping and killing him. Bartlett>-Diaz and Alvarez del Castillo each said that a quick solution was necessary to prevent political repercussions should their support of the traffickers be revealed. Godoy-Lopez also overheard Arevalo-Gardoqui add that he would have to continue destroying marijuana fields because of pressure from the United States and the DEA. Several weeks later, another meeting was held at a residence of Fonseca-Carrillo in Mar-Mara, Guadalajara. Both Godoy-Lopez and Lopez-Romero were present in the house during this meeting. Godoy-Lopez testified that the meeting was attended by Zuno-Arce, Alvarez del Castillo, Caro-Quintero, Fonseca-Carrillo, Barba-Hernan-dez, and others. During the meeting, Caro-Quintero inquired of Alvarez del Castillo whether the cartel had obtained all of the necessary information regarding the DEA agent. Alvarez del Castillo responded that he was working on it. Lopez-Romero further testified: LOPEZ-ROMERO: ... Ruben Zuno told Caro-Quintero, “There is no problem. Everything is going to come out all right. All the information [sic], we are doing it correctly.” H* :|s * * ❖ * LOPEZ-ROMERO: Rafael Caro-Quinte-ro told Enrique Alvarez del Castillo and to Ruben Zuno, “You had your time with that job. You should have already located the DEA person.” Ruben Zuno told Caro-Quintero, “There is no problem. Everything is coming out just fine. Everything is going to be all right.” Sometime later in the fall of 1984, most likely November, a meeting was held at a residence of Barba-Hernandez at 114 Tonala, outside of Guadalajara. Both Godoy-Lopez and Lopez-Romero were present. Godoy-Lopez placed Zuno-Arce, Caro-Quintero, Al-dana-Ibarra, Alvarez del Castillo, and Fonse-ea-Carrillo, among others, at the meeting. GODOY-LOPEZ: At that time I heard Rafael Caro-Quintero [say to Aldana-Ibar-ra], “What is happening with that dick of the DEA?”____I hear Ruben Zuno say, “That fucking Gringo. What is he doing here in Mexico? It’s not his fucking country. We have to pick him up.” Alvarez del Castillo argued for a prompt solution. According to Godoy-Lopez, everyone agreed that the DEA agent should be identified and kidnapped. Some time later, in early December 1984, another meeting was held at another residence of Barba-Hernandez. Godoy-Lopez testified that present at the meeting were Zuno-Arce, Caro-Quintero, Fonseca-Carril-lo, Barba-Hernandez, Aldana-Ibarra, and Alvarez del Castillo. Alvarez del Castillo arrived with a sense of urgency and asked Zuno-Arce and others whether they could “handle the fucking Gringo,” and that if not, he (Alvarez del Castillo) would have to handle everything. Caro-Quintero responded that they were working on it, and that they had already shot at a DEA car. Zuno-Arce next asked Aldana-Ibarra why he had failed to properly identify and locate the DEA agent at issue; Aldana-Ibarra responded that he was working on it. In early February 1985, Zuno-Arce attended yet another meeting at a residence of Fonseca-Carrillo on Calle Hidalgo in Guadalajara. Although Lopez-Romero offered no testimony of what was said at the meeting, he did testify that the meeting lasted one and a half to two hours and that it was also attended by Arevalo-Gardoqui, Aldana-Ibar-ra, Alvarez del Castillo, Caro-Quintero, Felix-Gallardo, Barba-Hernandez, and others. On February 7, 1985, Camarena was kidnapped and taken to 881 Lope de Vega for interrogation. Lopez-Romero testified that while Camarena was being tortured in another room, an individual named “La Changa” approached Samuel Ramirez-Razo (Fonseca-Carrillo’s right-hand man) and told him that Zuno-Arce and other important people wanted to know if Camarena would soon be killed; if so, they wanted to interrogate him beforehand. Ramirez-Razo did not have an answer, and he told La Changa to ask Caro-Quintero. According to Lopez-Romero, he and Fonseca-Carrillo left Lope de Vega in the late afternoon and returned later that evening. Upon their return, Fonseca-Carrillo and others — including Zuno-Arce, Bartlett-Diaz, Arevalo-Gardo-qui, Alvarez del Castillo, Caro-Quintero, Felix-Gallardo, and Barba-Hernandez — met in the living room of the Lope de Vega residence. Lopez-Romero overheard Zuno-Arce say: “The way that we had told you guys that the DEA was going to get rid of the drug trafficker in Jalisco, we wanted you to hear it from his [the DEA agent’s] mouth.” Arevalo-Gardoqui later said that he wanted the bodies to be properly buried, hidden where they could not be found. Lopez-Romero also testified that Bartlett-Diaz remarked to Caro-Quintero: “Just the same way that this problem was resolved, we’re going to resolve all the others and there’s not going to be any problems.” Caro-Quintero replied that Bartlett-Diaz should not worry, “you’re going to go as far as we want you to. We need you up there. Just tell us what you need and we’ll give it to you.” The Court admitted two tape recordings of the interrogation of Camarena, in which Caro-Quinte-ro’s voice was identified as one of the interrogators. The Government also presented evidence connecting Zuno-Arce to the property where Camarena was held and tortured. According to Zuno-Arce’s own testimony, he had owned the house at 881 Lope de Vega for years. A couple of weeks before the February 7, 1985 kidnapping, Zuno-Arce sold the house to someone else, Ruben Sanchez-Barba. Documentary evidence was presented suggesting that the sale was a sham to distance Zuno-Arce from cartel activities. In fact, the sale actually did not become final until June 1985, months after the kidnapping and murder of Camarena and his pilot. Ultimately, the property fell into the hands of Caro-Quinte-ro. Harrison bolstered the connection between Zuno-Arce and Caro-Quintero by testifying that in early 1984, before Zuno-Arce purportedly sold the residence, Caro-Quinte-ro had also taken up residence at 881 Lope de Vega. Because much of the Government’s case was based on the testimony of Godoy-Lopez and Lopez-Romero, it is important to review at this time the lengths Zuno-Arce’s trial counsel went to impeach the credibility of these witnesses. The jury heard the following: Both witnesses were inexplicably silent for seven years and absent during Zuño I, they had only now appeared to testify at Zuño II. Despite multiple meetings with the DEA in August, September and October, 1991, Godoy-Lopez did not mention Zuno-Arce or the kidnapping meetings until eight months later in mid-April 1992. Lopez-Romero first met with the DEA in March 1992, but also did not disclose any information of the conspiracy meetings until mid-April 1992. Counsel made special note that both witnesses came forward with the new information almost simultaneously. With regard to Godoy-Lopez in particular, the jury heard the following: He was a bodyguard and bagman to drug lord Fonseca-Carrillo. He was dismissed from his state police officer position in July 1984. He was arrested in Mexico along with Fonseca-Car-rillo in April 1985 and charged with carrying guns, associating with criminal activity, and importing prohibited weapons. He was arrested again in Mexico in July 1991 for robbing a bank and spent some time in jail. He assisted Fonseca-Carrillo in bribing public officials. He had a back injury when some of the kidnapping meetings allegedly occurred and thus he could not have attended them as he claims he did. In a confession to Mexican officials following the crime, he failed to mention any knowledge of the kidnapping meetings or make reference to Zuno-Arce. And finally, he received immunity, a $3,000 tax-free monthly stipend from the Government for an indeterminate period (more money than he had ever made), relocation to the United States, and an Immigration and Naturalization Service (INS) work permit. With regard to Lopez-Romero in particular, the jury heard the following: He was a bodyguard for cartel leader Fonseca-Carrillo and admitted that he would kill another person if ordered to do so by Fonseca-Carrillo. He admitted and described his participation in the actual kidnapping of Camarena from near the United States Consulate in Guadalajara. He participated in the kidnapping, torture, and murder of four Jehovah Witnesses and an American couple, a matter which was the subject of another trial; he further admitted to suggesting that some of the victims should be shot so that they would not suffer. While serving as a Jalisco police officer, he took a bribe from someone whose weapon he had confiscated. He was discharged from the state police force in 1984 following a shooting incident involving his partner; he was also charged with obstruction of justice in that case. And finally, he received immunity, a $3,000 tax-free monthly stipend for an indeterminate period, relocation to the United States, and an INS work permit. B Zuno-Arce offers additional facts which, he argues, would more likely than not persuade every juror sitting on a panel of twelve to vote to acquit him of any involvement in the crimes for which he was indicted. The new impeachment evidence with regard to Godoy-Lopez is as follows: Godoy-Lopez had covered up his involvement in a series of 1991 robberies in Mexico by committing and suborning perjury. He had a reputation in his home town for being dishonest and untrustworthy. His testimony at Zuño II was inconsistent with statements he gave under oath in a Mexican court; specifically, he had asserted in the 1986 Mexican case that he was not in any way involved with drug traffickers and that until taken into custody he had not known Caro-Quintero or Fonseca-Carrillo. His testimony that he accompanied Fonseca-Carrillo by plane to a military landing strip at the “number one military camp” in the “southern area of Mexico City” to deliver money from the cartel to the Minister of Defense Arevalo-Gardoqui is contradicted by the fact the landing strip he described could not have accommodated the plane he claims to have arrived in. His testimony that he went to a Mexican bank to withdraw thousands of dollars in American currency on behalf of Fonseca-Carrillo is contradicted by the fact that no Mexican bank could have satisfied such a withdrawal. And finally, his testimony that Bartletb-Diaz was present at 881 Lope de Vega on the evening of February 7, 1985 is contradicted by the fact that Bartlett-Diaz was in Mexico City at that time. The Court assumes this all to be true for purposes of this portion of the motion. The new impeachment evidence with regard to Lopez-Romero is as follows: He covered up his involvement in a 1984 murder in Mexico by committing and suborning perjury. On November 23, 1992, one week before Zuño II started, Lopez-Romero was arrested in Moreno Valley, California for spousal abuse. The Government interceded with local authorities on his behalf, sought and obtained a dismissal of the charges. He lied to local authorities when arrested on the abuse charge; specifically, he told officers that his wife “hits herself,” that there were no cases, warrants, or holds pending against him, and that he had never been arrested before. And finally, his testimony that Bartlett-Diaz was present at 881 Lope de Vega in the evening on February 7, 1985 is contradicted by the fact that Bartlett-Diaz was in Mexico City at that time. The Court assumes this all to be true for purposes of this portion of the motion. Zuno-Arce also argues that evidence from a previously-redacted September 17, 1992 DEA-6 report re: Ramon Lira (an informant and former bodyguard to Fonseca-Carrillo) establishes that both Godoy-Lopez and Lopez-Romero lied when they testified that the subject matter at meetings in late 1984 concerned identifying what DEA agent was responsible for the cartel’s substantial losses. The redacted portions of the report recount Ramon Lira’s description of a meeting held at a house owned by Fonseca-Car-rillo. See Exhibit 0 in Appendix of Exhibits Filed in Support of Government’s Opposition to Defendant’s Motion for New Trial (CR docket # 2195). Lira accompanied Fonseca-Carrillo to the house sometime in November 1984, and waited while Fonseca-Carrillo spent about an hour in one of the offices. Thinking that Fonseca-Carrillo might have left, Lira looked into the room and saw seated around the table Fonseca-Carrillo, Miguel de la Madrid (then-President of Mexico), Jose Lopez-Portillo (a past president of Mexico), and Alvarez del Castillo. In front of Alvarez del Castillo was a stack of United States currency. Lira heard the words “bu-falo” and “Camarena” while looking into the room, which he did for only fifteen to twenty seconds. Zuno-Arce argues that the redacted portions of the report demonstrate that Fonseca-Carrillo and others knew already in November 1984 that Camarena was responsible for the cartel’s losses. The implication here is that if Godoy-Lopez and Lopez-Romero were mistaken about what was said at these meetings, then they also probably testified untruthfully about the other meetings. Because the DEA-6 report’s reference to “Camarena” and “búfalo” are without any context this evidence is of little probative value. Lira’s statement provides little more than evidence that Fonseca-Carrillo and others may have already known in November 1984 that Camarena was responsible for the raid at “El Búfalo.” The information does not, however, refute testimony regarding meetings occurring prior to November 1984. When coupled with all the other impeachment evidence presented during Zuño II, this information becomes inconsequential. Zuno-Arce’s counsel had already argued at the trial that the conspirators already knew Camarena’s identity before some of the meetings described by Godoy-Lopez, and that Godoy-Lopez’s testimony must have thus been false. The jury rejected that position. Moreover, had Zuno-Arce called Lira to the stand during Zuño II to further explicate what was heard in November 1984, the Government would have likely elicited testimony from Lira which further implicated Zuno-Arce. Lira’s other DEA-6 reports reflect that Lira had seen Zuno-Arce meeting with cartel members Caro-Quintero, Fonse-ca-Carrillo, Barba-Hernandez, Matta-Bal-lesteros, and Felix-Gallardo, among others, in January and February 1985, see Exhibit U in Appendix of Exhibits Filed in Support of Opposition to Motion for New Trial, that Lira had seen Zuno-Arce on February 6 & 7, 1985 at 881 Lope de Vega, see Exhibit V in Appendix of Exhibits Filed in Support of Opposition to Motion for New Trial, and that Lira had seen Zuno-Aree and others later discuss what should be done with the bodies of Camarena and his pilot, see id. Thus, presenting Lira to the jury would have done more harm than good to Zuno-Arce’s cause. Zuno-Arce also argues that Cervantes-Santos’s declaration that he lied at Zuño I demonstrates that Godoy-Lopez and Lopez-Romero lied during Zuño II. Paragraph 21 of Cervantes-Santos’s declaration, according to Zuno-Arce, “speaks volumes and cannot be understated.” Motion for New Trial 24. It would be more accurate to say that the declaration speaks for itself: [While] waiting at the courthouse for my turn to testify [in Zuño II ], Medrano and Berrellez ... introduced [me to] Jorge Godoy Lopez and Rene Lopez Romero [two men I had never seen before], Ber-rellez told me that both Godoy as well as Lopez had known me in La Quinta. I answered (in the presence of Godoy and Lopez) that I had never known either one of the two. Medrano told me that I should try hard to remember, because I had seen them on several occasions and they knew me. Then I understood that the prosecutor Medrano was asking that I testify falsely that I had seen Godoy and Lopez at meetings at La Quinta on different occasions although I had never seen them. Cervantes-Santos Declaration ¶21, Exhibit B in Appendix of Exhibits Filed in Support of Opposition to Motion for New Trial. Ultimately, Cervantes-Santos was never called to testify in Zuño II. No where does the declaration suggest that Godoy-Lopez and Lopez-Romero were going to lie or did lie at the second trial. Nevertheless, Zuno-Arce has extrapolated from this paragraph that Medrano and Berrellez directed Cervantes-Santos to coordinate the testimony of Godoy-Lopez and Lopez-Romero with his own. To be sure, it would appear that Cervantes-Santos was to lie at trial, but nothing in that paragraph indicates that Godoy-Lopez and Lopez-Romero were to change their testimony. There are no declarations from Godoy-Lopez or Lopez-Romero in which they recant. On a somewhat related note, Zuno-Arce argues that Cervantes-Santos’s declaration provides evidence regarding the kidnapping meetings that is inconsistent with the evidence presented by Godoy-Lopez and Lopez-Romero, making the latter two liars. See Motion for New Trial 22-24. The theory supporting the argument is somewhat complicated and bears recounting in detail. At both Zuño I and Zuño II the Government’s evidence established that Zuno-Arce attended and spoke at several meetings during which the cartel planned the kidnapping and murder of Camarena. Cervantes-Santos provided the testimony in the first trial, while Godoy-Lopez and Lopez-Romero provided the testimony in the second. The basic premise of Zuno-Arce’s argument is that Cervantes-Santos, Godoy-Lopez, and Lopez-Romero’s testimony regarding the time and place of the meetings were all consistent. And because Cervantes-Santos has now recanted his testimony and has stated that some of these meetings never took place, Zuno-Arce argues that Godoy-Lopez a