Opinion
No. 04 Cr. 649(RPP).
February 3, 2006
Michael J. Garcia, United States Attorney Southern District of New York Attn: Jacob W. Buchdahl, A.U.S.A. New York, NY.
The Legal Aid Society, Federal Defender Division, New York, NY, Richard F. Boulware, Attorney for Defendant.
OPINION AND ORDER
Defendant Lance Owen ("Owen") has moved pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial based upon newly discovered evidence. For the following reasons, Defendant's motion is granted.
BACKGROUND
The underlying facts in this case leading up to Defendant's arrest are detailed in this Court's Opinion and Order dated December 7, 2004. United States v. Owen and Samuels, 2004 U.S. Dist. LEXIS 24677, *1-*5 (S.D.N.Y. 2004). On February 25, 2005, a jury convicted Mr. Owen and his co-defendants of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(b)(1)(B).
In August and September 2005, this Court held separate Fatico hearings in this case for defendants Owen and Paul Samuels ("Samuels") regarding each defendant's satisfaction of the elements of 18 U.S.C. § 3553(f). It also held a joint Fatico hearing on November 21, 2005 to explore discrepancies between the testimony of the defendants at the separate Fatico hearings. The defendants' applications for non-mandatory sentences were denied and the defendants were sentenced to terms of imprisonment at or over the otherwise applicable five-year mandatory minimum. After Owen was sentenced but before the Court imposed Sameuls' sentence, Samuels made an unsolicited statement to the Court as to Owen's lack of criminal intent.
On December 29, 2005, Owen moved for a new trial under the Federal Rules of Criminal Procedure Rule 33 ("Motion for New Trial") based on evidence that arose during these hearings. On January 19, 2006, the Government responded ("Gov't Response"). On January 30, 2006, Defendant submitted a letter brief in reply to the Government's opposition ("Defendant's Reply").
DISCUSSION
Under Rule 33 of the Federal Rules of Criminal Procedure, a district court may grant a defendant's motion for a new trial "if the interest of justice so requires." Fed.R.Crim.P. 33(a). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (citation omitted). A court must exercise its authority to grant a new trial where there is "real concern that an innocent person may have been convicted." United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992).
Here, the Government's case against Owen hinged on his alleged knowledge that the truck he drove away from a warehouse in the Bronx contained packages of 400 pounds of marijuana, among a load of household furniture and clothing items, which were discovered during a consent search. The new evidence supporting Defendant's Motion is based principally on the unsolicited statement of his co-defendant Samuels after Owen's sentencing on November 21, 2005. After this Court imposed a mandatory five-year sentence of incarceration on Owen, Samuels made a statement exonerating Owen. (Sentencing Transcript "Tr.", November 21, 2005.) In his statement to the Court, Samuels stated the following:
DEFENDANT SAMUELS: Your Honor, with respect to the prosecutor and you and my family, your Honor, I know Mr. Owen for 19 years, maybe more than that.
THE COURT: Speak up, please.
DEFENDANT SAMUELS: I know Mr. Owen for a long time. Your Honor, I hired him for a job, and that's about it. He didn't know anything about drugs. Mr. Owen has been a good friend and good brother to me, your Honor. Maybe I was wrong not to take the stand — maybe he was wrong not to take the stand, but he didn't have anything to do with it, your Honor. I told the prosecutor that when I went in. I told him Mr. Owen was innocent when I first went in, when I did my proffer agreement. I told him Mr. Owen didn't have anything to do with it. I also told him that —
THE COURT: Mr. Samuels, you said you didn't have anything to do with it either, right?
DEFENDANT SAMUELS: Yes, I did, your Honor.
THE COURT: It is a little hard for them to believe you about him if you were taking the position that you didn't know either. Obviously, Mr. Baroody had to get in touch with someone to arrange this.
DEFENDANT SAMUELS: Yes, your Honor. Based on that, your Honor, I do apologize to Mr. Owen. I can't help him right now, but I apologize to him. I apologize to his family for what I have put him through. I apologize to my family. I apologize to the Court and the prosecutor for putting him through whatever he is going through right now. I can't be sorry for myself, because I put myself in this predicament. I won't ask you to be lenient, your Honor, because maybe I did something wrong. I can't ask for that. Only God can give me what I desire or what I need. I'm sorry for what I did. I don't think it will happen to me again. Thank you, Your Honor. I can't say anything more. I'm very sorry.
(Tr. at 86-88).
In addition, defense counsel has now submitted a signed Affirmation ("Affirm.") by Paul Samuels dated December 19, 2005. In his Affirmation, Samuels states the following:
6. Mr. Owen arrived at the Warehouse in a Budget Rental truck several hours after the Sealed Boxes brought by Baroody had been unwrapped. The Boxes were still sealed.
7. After Mr. Owen arrived, I assisted with the loading of various items, including the Sealed boxes, into the truck driven by Mr. Owen. While I was loading the Sealed Boxes into the truck I did not detect the odor of marijuana.
8. After all the items to be moved were loaded into Mr. Owen's rented truck, Mr. Owen drove away from the Warehouse. As Mr. Owen drove away, I was standing near the entrance to the Warehouse. I did not smell marijuana as Mr. Owen drove the truck away from the Warehouse.
9. During the entire time that Mr. Owen was at the Warehouse, I never told him that I had earlier smelled marijuana in the Warehouse.
10. During the entire time that Mr. Owen was at the Warehouse, I did not smell marijuana coming from the Sealed Boxes.
(Affirm., ¶ 6-10.)
The Government argues that the motion is not timely and that evidence upon which Owen's motion is based "cannot be considered `newly discovered.'" (Gov't Response, 5.) "Relevant factors to a successful motion [for a new trial] are whether (1) counsel could not have discovered the evidence with due diligence before or during trial; (2) the evidence demonstrates that a witness in fact committed perjury; (3) the new evidence is material; and (4) the new evidence is not cumulative." United States v. Middlemiss, 217 F.3d 112, 122 (2d Cir. 2000).
The Government asserts that "[t]here is nothing `newly discovered' about Paul Samuels, and it would not require any diligence whatsoever to locate him." (Id.) The Government claims that the substance of Samuels' potential testimony was not newly discovered because Owen had known Samuels previously and had sat next to Samuels at pre-trial and trial proceedings and could have asked for a severance or called Samuels as a witness. (Id.) The Government contends that Owen "was as aware of his interactions with Samuels as Samuels was" and knew what testimony, if any, Samuels would give about this case. (Id.) However, there is no evidence that Owen knew the entire contents of Samuels' statement before Samuels made it at the sentencing hearing, and the Government's argument misses the point that at all times Samuels was maintaining his innocence and had a right to exercise his Fifth Amendment privilege to remain silent at trial. There is no evidence that Owen had knowledge that Samuels was willing to relinquish that right at any time. Owen could not have forced Samuels to provide that testimony at or prior to trial. Therefore, defense counsel could not have discovered the evidence that Samuels would provide with due diligence before or during trial.
Second, the Government challenges the materiality of the new evidence, arguing that even if Samuels' testimony were newly discovered, "it was not ultimately exculpatory of Owen" because Samuels "is not competent to testify as to the defendant's knowledge or intent, the only matters in dispute at trial." (Gov't Response, 1, 5.) While Samuels cannot testify as to what Owen knew, statements by Owen's alleged co-conspirator that he did not advise Owen that marijuana was being shipped and that he could not smell marijuana while Owen was at the warehouse are indeed relevant and could result in a jury acquittal of Owen. Samuels' statements corroborate Owen's testimony at the Fatico hearing that he did not know that marijuana had been loaded in the truck, he was never shown the marijuana that was on the truck, and he had not smelled it when he was loading the truck or at any time thereafter. (See Sentencing Transcript, September 20, 2005, at 35.) Samuels' statements therefore go to the heart of the circumstantial evidence against Owen and therefore may be characterized as new evidence that is "material" and non-cumulative. See Middlemiss, 217 F. 3d at 122. Therefore, Samuels' statement is "newly discovered" evidence under theMiddlemiss test and Owen's motion is timely under Fed.R.Crim.P. 33(b) ("[a]ny motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty").
There is no contention that the new evidence is cumulative or that a witness in fact committed perjury, so this Court does not address the other two elements of Middlemiss.
The Government lastly argues that Samuels is not a credible witness and therefore his testimony would have had no impact on the jury. (Gov't Response, 6). In considering a motion for a new trial pursuant to Rule 33, the Court is entitled to evaluate for itself the credibility of the witnesses. Sanchez, 969 F.2d at 1413. Here, Samuels' statements at the November 21, 2005 sentencing hearing were voluntary and unsolicited. His statements about Mr. Owen were made before the Court had finally determined Samuels' sentence and thus were not made at a time when he had nothing to lose. These statements were sufficiently credible as newly discovered evidence to warrant a new trial for Owen.
CONCLUSION
For the foregoing reasons, the Court has "a real concern that an innocent person may have been convicted." United States v. Canova, 412 F.3d 331, 349 (2d Cir. 1005) (quoting Ferguson, 246 F.3d at 133). Defendant's motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure is granted. A conference will be held on Wednesday, February 8 at 9:30 a.m. to set a new trial date.
IT IS SO ORDERED.