Opinion
No. 99 Cr. 75 (SWK).
January 12, 2005
OPINION AND ORDER
Defendant Roberto Beras moves this Court for a new trial, pursuant to Rule 33 of the Federal Rules of Criminal Procedure. He was originally tried and convicted for his role in a conspiracy to launder money and avoid federal currency reporting requirements. Beras now claims that Rafael Liriano, Maria Mendoza, and Gustavo Felipe have made statements that bring his conviction into question. He also contends that Government witness Hendrix Tavarez committed perjury during his trial and that truthful testimony would have exonerated him. To explore the merit of these allegations, Beras requests a full evidentiary hearing. For the reasons set forth below, Defendant's motion is denied.
I. BACKGROUND
Defendant Dinero Express, Inc. transported funds from its offices in New York, New York to Puerto Rico and the Dominican Republic using false names and addresses to hide the source of the funds and to avoid currency transaction reporting requirements. Beras served as Vice President of the corporation and at times physically transported some of the funds from the United States to the Dominican Republic, Colombia, Aruba, and Curacao.
On December 4, 2000, Beras was convicted by a jury of one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h); one count of conspiracy to evade currency reporting requirements, in violation of 18 U.S.C. § 371; thirty-three counts of international money laundering, in violation of 18 U.S.C. § 2 and § 1956(a)(2)(B); seven counts of money laundering, in violation of 18 U.S.C. § 2 and § 1956(a)(3); thirty-three counts of evading currency reporting requirements by structuring financial transactions, in violation of 18 U.S.C. § 2 and 31 U.S.C. § 5324 (a) (3); and seven counts of evading currency reporting requirements by causing a domestic financial institution to fail to file a currency transaction report, in violation of 18 U.S.C. § 2 and 31 U.S.C. § 5324(a)(1).
On January 1, 2002, Beras was sentenced to a total of 292 months imprisonment, 3 years supervised release, $4,100.00 special assessment, and a $10 million forfeiture order. The Second Circuit affirmed Defendant's conviction on January 28, 2003 and Beras filed the instant motion on November 19, 2003.
II. DISCUSSION
Rule 33 of the Federal Rules of Criminal Procedure states "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33. However, a motion for a new trial is to be granted "only with great caution" and "in the most extraordinary circumstances." United States v. Di Paolo, 835 F.2d 46, 49 (2d Cir. 1987). The defendant bears the burden of demonstrating the "essential unfairness" of the trial, and this showing must "be sustained not as a matter of speculation but as a demonstrable reality." United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956). Thus, Rule 33 motions should only be granted if "it would be a manifest injustice to let the guilty verdict stand." United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992), cert. denied, 514 U.S. 1038 (1995).
Rule 33 motions may be grounded on newly discovered evidence. Such petitions, however, "must be filed within 3 years after the verdict or finding of guilty." Fed.R.Crim.P. 33(b)(1). To prevail, the defendant must demonstrate the material "is in fact `new,'" meaning that "it could not have been discovered, exercising due diligence, before or during trial." United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir. 1992). The new evidence presented must be "so material and non-cumulative that that it's admission `would probably lead to an acquittal.'" United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980).
A defendant may also base a Rule 33 motion for a new trial on an allegation of perjury. First, the movant must demonstrate that the witness in fact committed perjury. See United States v. DiPaolo, 835 F.2d 46, 49-51 (2d Cir. 1987). The Court will then measure the materiality of the perjury, focusing on importance of the testimony in proving the elements of the charge or evaluating the credibility of a witness. See United States v. Wallach, 935 F.2d 445, 456-57 (2d Cir. 1991). Next, the Court should consider whether the newly discovered evidence is merely cumulative of other evidence presented at trial. See United States v. White, 972 F.2d 16, 20-21 (2d Cir. 1992). Where the prosecution was unaware of the perjury, a new trial is warranted only if the court is left "with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." Wallach, 935 F.2d at 456. By contrast, if the Government is charged with knowledge of the perjury, the conviction must be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id.
A. Rafael Liriano
Defendant claims that the Government suppressed statements by Rafael Liriano concerning Beras's lack of involvement in the money laundering conspiracy, requiring a new trial. He specifically identifies statements made by Liriano to FBI agent Drew Houlihan during preliminary interviews on December 3, 1998 as evidence that would have led to an acquittal if it were presented to the jury. Def. Reply at 3.
Beras's motion fails on procedural grounds because these statements do not constitute "new evidence" under the Federal Rules of Criminal Procedure. Sidebar transcripts reveal that Special Agent Houliahan was specifically questioned about Liriano's statements during the trial. Pl. Br., Ex. G. Furthermore, Defendant himself admits that the Government "produce[d] the 3500 material," leaving no doubt that the statements at issue do not constitute "new evidence." Def. Mot. at 6. Since the plain language of Rule 33(b)(2) states that a motion for a new trial not based on newly discovered evidence must be filed within seven days after the verdict, Defendant's motion falls outside this prescribed time period and the issue of Liriano's testimony cannot be revisited.
"Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period." Fed.R.Crim.P. 33(b)(2).
In addition, the evidence indicates that the Government provided Liriano's statements to defense counsel in accordance with its obligations under the Jenks Act. Beras's position that the Government suppressed this material is contradicted by declarations from the prosecutor and defense attorney involved in the case. Defendant's attorney, Charles Ross, acknowledged that he reviewed the 3500 material "in keeping with his standard trial practice." Pl. Br., Ex. B. Submissions made by AUSA Andrew Ceresny corroborate Ross's recollection and state that the Government indeed shared all 3500 material with Defendant prior to trial. Pl. Br., Ex. A. Therefore, the Court is convinced that the Government indeed shared Liriano's statements with defense counsel, further undermining Defendant's rationale for a new trial.
B. Maria Mendoza
Beras argues that the Government suppressed statements by Maria Mendoza made during a proffer session with federal authorities. Mendoza's statements, however, do not constitute "new evidence" under Rule 33(b)(1) and cannot support a motion for a new trial. Beras and Mendoza entered into a joint defense agreement, providing Defendant ample opportunity to introduce any exculpatory evidence on his behalf during trial. In addition, the Government provides conclusive documentation of its March 27, 2000 disclosure of Mendoza's statements to defense counsel. Pl. Br., Ex. D. Defendant has not offered a persuasive explanation why these statements have only recently become available considering the fact that they were held by his joint defendant during trial and were in the possession of his attorney. Id. Any effort now to introduce this evidence in a new trial would undermine the finality of the trial court proceedings and is prohibited by Rule 33(b)(2).
C. Gustavo Felipe
Defendant asserts that the Government suppressed statements made by Gustavo Felipe that "were clear and extensive about Roberto Beras not being involved in [the] money laundering conspiracy." Pl. Mot. at 7. The Government has been unable to respond to these charges, simply because Defendant has not adequately described the substance or source of these comments with any clarity or specificity. AUSA Ceresney has submitted that he is not aware of any exculpatory statements made by Felipe. Pl. Br., Ex. A. Furthermore, Defendant has not provided any indication why this evidence could not have been discovered before or during trial exercising due diligence, rendering the statements barred by the seven day procedural restrictions of Rule 33(b)(2).
D. Hendrix Tavarez
Defendant alleges that Hendrix Tavarez offered perjured testimony that wrongly connected Beras to the money laundering conspiracy at Dinero Express and now require a new trial. This claim, however, fails on both procedural and substantive grounds.
First, Defendant does not demonstrate that Tavarez's alleged perjury could not have been discovered earlier exercising due diligence. Beras insists that Tavarez's perjury is "new evidence" under Rule 33(b)(1), yet Henrix's plea allocution before Judge Duffy occurred on November 7, 1997, years before his testimony in the instant case against Beras. Because there is nothing "new" about the integrity of Tavarez's testimony, Defendant's motion for a new trial did not adhere to the filing requirements found in Rule 33(b)(2) and fails on procedural grounds.
Moreover, there is no sustainable evidence that Tavarez in fact perjured himself at trial. A witness commits perjury when he provides false testimony with "willful intent," as distinguished from "incorrect testimony resulting from confusion, mistake or faulty memory." United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001). While Beras strains to find oblique distinctions between Tavarez's plea allocution and his trial testimony, "[s]imple inaccuracies or inconsistencies in testimony, do not rise to the level of perjury." Monteleone, 257 F.3d at 219. The Court can find no compelling rationale in Beras's briefs to conclude that Tavarez's testimony was untruthful or was made with the willful intention to misrepresent the facts. Therefore, Defendant has not satisfied the burden of proving Tavarez in fact committed perjury, foreclosing the possibility of a new trial. See United States v. Torres, 128 F.3d 38, 49 (2d Cir. 1997).
III. CONCLUSION
For the reasons set forth above, Beras's motion for a new trial based on newly discovered evidence and perjured testimony is hereby denied. The various statements Defendant seeks to introduce are also barred by the procedural restrictions of Rule 33(b)(2). Therefore, no fact finding is necessary and Defendant's request for an evidentiary hearing is denied.
SO ORDERED.