Opinion
03 Civ. 6019 (LAK), (98 Crim. 0876 (LAK))
September 16, 2003
ORDER
Movant was convicted in 1999 of conspiracy, in violation of 18 U.S.C. § 371, to commit bank fraud and to possess a counterfeit security and of making false statements to a federal agent in violation of 18 U.S.C. § 1001, and sentenced principally to a term of imprisonment of one year followed by three years of supervised release. The conviction was affirmed. United States v. Conteh, 2 Fed. Appx. 202 (2d Cir. 2001).
Movant then moved for anew trial on the ground of newly discovered evidence. This Court denied the motion, and the Court of Appeals dismissed movant's appeal as untimely.
Movant next moved for relief pursuant to 28 U.S.C. § 2255 on a variety of grounds. This Court denied the motion. United States v. Conteh, 226 F. Supp.2d 514 (S.D.N.Y. 2002). The Court of Appeals recently dismissed the appeal from that order as well.
Now movant has filed a motion "for reconsideration due to misleading witness testimony . . . or in the alternative . . . for new trial based on new evidence." (Docket item 1) The motion is based principally on yet another claim that Special Agent James Rothe of the FBI perjured himself at the trial by falsely suggesting that he had investigated the case when in fact the investigation had been conducted by the Secret Service. ( Id. at 10-14) He endeavors to turn this claim into a Brady violation, viz. that the government failed to disclose unspecified evidence that would have revealed that it really had been the Secret Service rather than the FBI that had investigated the case, a fact that supposedly would have cast doubt on Agent Rothe's credibility. He claims a further Brady violation in the alleged failure to disclose the fact that Jean-Jacques "was dismissed in the Southern District of New York." ( Id. at 26)
The threshold question is the proper characterization of this application. The motion — which was filed without a docket number and thus without any indication whether it is in the criminal case (98 Crim. 0876), the prior Section 2255 proceeding (02 Civ. 1471), or intended as anew Section 2255 motion — was assigned a new docket number on the theory that it may be a new Section 2255 motion. In part, it seeks reconsideration, but it does not say whether it seeks reconsideration of the order in the criminal case that denied the new trial motion or the order denying the prior Section 2255 motion. In part, it seeks a new trial, but it does not say whether that application is filed under Fed.R.Crim.P. 33 or Section 2255.
The alternative new trial application is readily dealt with. A motion for a new trial in a criminal case on the basis of newly discovered evidence is untimely unless made "within 3 years after the verdict or finding of guilty." Fed.R.Crim.P. 33(b)(1). The jury verdict convicting Conteh was received on December 9, 1999. The declaration in support of this motion is dated July 7, 2003. Even with the benefit of the "mailbox rule" applicable to incarcerated litigants, the motion therefore cannot be deemed to have been filed within three years of the date of the verdict. Accordingly, if the alternative motion for a new trial were treated as a Rule 33 motion, it would be untimely.
There remains the possibility that the alternative motion for a new trial is made pursuant to Section 2255. Although our Court of Appeals on occasion has passed on newly discovered evidence claims under Section 2255, it is not clear that any availability of Section 2255 as a vehicle for such contentions survives Herrera v. Collins absent an independent constitutional violation. Ida v. United States, 207 F. Supp.2d 171, 180 (S.D.N.Y. 2002). In any case, however, Conteh already has litigated and lost a prior Section 2255 motion. Under the Antiterrorism and Effective Death Penalty Act, this Court therefore lacks jurisdiction to consider a second Section 2255 motion absent authorization by the Court of Appeals. Liriano v. United States, 95 F.3d 119 (2d Cir. 1996). Should Conteh's primary claim for relief be denied, his alternative prayer for a new trial would have to be transferred to the Court of Appeals for a determination whether it will authorize this Court to consider it.
E.g., Giacalone v. United States, 739 F.2d 40, 43 (2d Cir. 1984) (requiring newly discovered evidence before allowing re litigation on habeas of a claim that previously was decided on direct appeal).
506 U.S. 390, 400-04 (1993) (newly discovered evidence of actual innocence not basis for habeas relief in favor of state prisoner). See Guinan v. United States 6 F.3d 468, 470-71 (7th Cir. 1993) (not basis for relief under § 2255); United States v. DeCarlo, 848 F. Supp. 354, 356-57 (E.D.N.Y. 1994) (same).
This brings us back to the request for reconsideration.
The Court begins by assuming that Conteh seeks "reconsideration" of the order denying his previous Section 2255 motion. The Rules Governing Section 2255 Proceedings do not address the subject of collateral attacks on prior orders in such matters. Rule 12 thereof, however, provides in substance that a district court may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems appropriate, to motions filed under the Section 2255 Rules. Thus, there are at least two potentially applicable standards: Fed.R.Civ.P. 60(b)(2), which provides for relief from a prior order on the basis of newly discovered evidence, and Fed.R.Crim.P. 33, which governs applications for new trials in criminal cases and which therefore deals with an analogous subject.
Civil Rule 60(b)(2) permits relief from a prior order, on application made no more than one year after the order was entered, on the basis of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Were it considered under Rule 60(b)(2), this motion would be timely. But relief under Rule 60(b)(2) requires far more. As Rule 60(b) "allows extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances." Nemaizerv. Baker, 793 F.2d 58, 61 (2d Cir. 1986). In order to gain relief under Rule 60(b)(2), even assuming timeliness and due diligence, the "movant must demonstrate that . . . the evidence [is] admissible and of such importance that it probably would have changed the outcome." United States v. Int'l Brotherhood of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001) (quoting Frankel v. ICD Holdings S.A., 939 F. Supp. 1124, 1127 (S.D.N.Y. 1996)).
Similarly, Criminal Rule 33 permits an award of a new trial on the basis of newly discovered evidence, even assuming timeliness and recent discovery notwithstanding due diligence, only if the new evidence "is material to the issue of guilt, . . . not cumulative, . . . and probably would result in acquittal upon retrial." Ida, 207 F. Supp.2d at 180 (collecting cases).
In view of these standards, it is unnecessary to choose between them. Both allow relief from a prior judgment on the basis of newly discovered evidence, assuming other prerequisites are met, only where the newly discovered evidence probably would have led to a different result. By no stretch of the imagination does the evidence that Conteh claims newly to have discovered reach that level.
As accurately as one can discern from Conteh's papers, he claims that FBI Agent Rothe lied when he testified at trial that he was the case agent, that he was primarily responsible for the investigation, that he obtained the Allard Lumber Company check (the significance of which is dealt with in the prior opinion denying Conteh's previous Section 2255 motion), and that he kept it in his case file. (Docket Item 3, ¶¶ 1-2) The apparent basis for this claim is documents received by Conteh from the Secret Service pursuant to a FOIA demand which, in Conteh's view, show that the Secret Service led the investigation and that it was the Secret Service rather than Agent Rothe that obtained the check. ( Id. ¶¶ 3-7)
Assuming the authenticity of the documents attached to Conteh's papers and that they come from the Secret Service, they tend to show that the investigation that led to prosecution of Conteh was carried out by the "NYFO/WATF" — the New York Field Office/West African Task Force — presumably a reference to the Secret Service's New York Field Office. The documents, however, state that "[a]ll evidence in this case is being controlled and maintained by the Federal Bureau of Investigation, New York, NY, in accordance with agency guidelines." A March 27, 1998 "mail message" describes the NYFO/WATF as "a coordinated effort by federal and local law enforcement agencies to combat financial institution fraud and other crimes committed by West African organized criminal groups in the New York City metropolitan area." Thus, the fact that the investigation was conducted by the NYFO/WATF certainly does not demonstrate that FBI Agent Rothe perjured himself when he testified that he was the case agent. Moreover, that document goes on to relate conversations between "members of the NYFO/WATF" and Conteh in which Rothe testified at trial he participated and a December 22, 1998 document refers specifically to Agent Rothe and describes him parenthetically as "FBI/NYFO/WATF." The documents upon which Conteh relies therefore confirm that Agent Rothe was involved in the investigation rather than demonstrating that he perjured himself when he said he was the case agent. And one need not even go that far. The simple fact of the matter is that Agent Rothe testified at trial to several face-to-face interactions between himself and Conteh — if Conteh really had thought that Agent Rothe had not been involved in the investigation and that he was making the whole thing up, he certainly had the means of raising that issue at trial. Similarly, Agent Rothe testified that he sent the check in question to the Secret Service laboratory for fingerprint analysis. Tr. 57.
Conteh complains also that he learned from the FOIA documents that Jean Jacques, a witness for the government at trial, "was dismissed in the Southern District of New York" and that this should have been disclosed under Brady. In fact, however, Jean Jacques testified at trial that he had been arrested for his involvement in the case, that he entered into an agreement with the government, and that the government would not prosecute him if he testified truthfully. Tr. 218-19. Thus, the substance of what Conteh claims was concealed in fact was known to him at trial, even putting aside the fact that this contention is unavailable to Conteh because it is not newly discovered. The facts of Jean Jacques arrest and the subsequent dismissal of the complaint against him have been matters of public record in this Court since 1997, long before Conteh's trial. United States v. Jean-Jacques, No. 97-M-764 (S.D.N.Y.) (docket sheet).
In view of the foregoing, the Court is persuaded that there is no possibility whatever that anything in the documents upon which Conteh relies would have been material to the outcome of either the Section 2255 application or the trial, much less suggests perjury by Agent Rothe or any Brady violation. The Court has considered also Conteh's other arguments and concluded that they are without merit.
Accordingly, the present application is denied in all respects save insofar as it seeks a new trial pursuant to 28 U.S.C. § 2255. The motion is transferred to the Court of Appeals pursuant to 28 U.S.C. § 1631 for a determination whether this Court should consider the motion under 28 U.S.C. § 2255 as well as on the bases dealt with above. The Clerk is directed to docket this order in 98 Crim. 0876 and in 02 Civ. 1471 as well as in this case.
SO ORDERED.