Opinion
01-CR-416 (S-6) (ILG)
January 10, 2003
MEMORANDUM AND ORDER
The defendant moved this Court pursuant to Rules 29 and 33 Federal Rules of Criminal Procedure for a judgment of acquittal or, in the alternative, for an order that would grant him a new trial on the counts of the indictment for which he was convicted. His Rule 29 motions having been denied when made at the close of the government's case and again at the close of the entire case, they will not be re-visited.
His Rule 33 motion is bottomed upon two grounds, namely, the Court's preclusion of the proffered testimony of Robert Rochford and the Court's limiting the cross-examination of Brendan Clarke, the government's expert. Recognizing the broad discretion "vested in courts by Rule 611(a) and (b) of the Federal Rules of Evidence, and acknowledging the teaching of Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent, the defendant might wish"). The defendant relies upon United States v. Onumonu, 967 F.2d 782 (2d Cir. 1992) and United States v. Diallo, 40 F.3d 32 (2d Cir. 1994) in support of his claim that the Court abused its discretion.
Discussion
The only sentence of Rule 33 relevant for this motion reads: "On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require." Even the most cursory review of the portions of the record to which the defendant's motion relate compels the conclusion that the interests of justice require that his motion be denied.
A. Preclusion of the Testimony of Robert Rochford
The preliminary questions put to this witness were as follows:
Q. Mr. Rochford, how are you employed?
A. I'm an attorney employed at the law firm of Winne, Banta, Rizzi, Hetherington Basrallian.
Q. From where and when did you graduate law school?
A. I graduated from Rutgers Newark Law School in 1974.
Q. Can you briefly describe for the jury your professional career since then?
A. After graduating from law school I served for one year to a judge of the Interior Court of New Jersey, Appellate Division, and following that I became in September 1975 a Deputy Attorney General with the New Jersey Division of Criminal Justice, where I remained a Deputy Attorney General until January 1983 when I left I was the deputy chief in charge of litigation in the appellate section and in January '83 I joined Governor Byrne's firm in Newark as an associate and then subsequently in January 1986 I joined Justice Patchman's firm in Newark County where I became a partner.
When that firm broke up in 1995, the folks at Winne Banta are were kind enough to ask me to join them.
Q. Are you a member of any professional organizations or societies?
A. I am.
Q. Can you identify what they are?
A. I'm a member of the New Jersey Bar Association; I am a member of the New Jersey Narcotic Enforcement Officers Association; I'm an adjunct member since I left law enforcement, I'm also a member of the Bergen County Bar Association and I'm a member of a bowling league.
Those questions led the Court to believe that he was sought to be qualified as an expert on the law, and the following colloquy followed:
THE COURT: Excuse me, Mr. Wikstrom, would you please be good enough to come up.
(Sidebar)
THE COURT: Am I beginning to understand properly that you propose to have this person received as an expert in law?
MR. WIKSTROM: No, Your Honor.
THE COURT: Because, if you are, I won't permit it.
MR. WIKSTROM: I am not. Indeed, your Honor. I did not intend to qualify him as an expert nor ask him his opinion of anything.
THE COURT: I got the impression that that's what all this is about.
MR. WIKSTROM: In response to my next question I expect him to say that he's the deputy counsel for what used to be known as the Check Cashers Association, it's now called Financial Services Centers of America, that he represents check cashers, that he's conduced compliance audits, that he's familiar with the differences in regulations of check cashers between New York and New Jersey and the actual business activities of check cashers in New York and New Jersey.
Specifically, he will testify that it is common for New York companies to cash large checks at New Jersey check cashing facilities because of the differences in regulations.
THE COURT: We've already heard testimony about that. It's all cumulative. Mr. Udell testified all about that. Were you here when Mr. Udell was testifying?
MR. WIKSTROM: I was here for a portion.
* * *
THE COURT: Now, if that's all you've called this person here to testify to, it's cumulative.
* * *
MR. WIKSTROM: It is not, Your Honor. It is not all he's been called for.
THE COURT: Why is all of this introduction necessary if he's not being sought to be qualified as an expert?
MR. WIKSTROM: So that when he describes the practice he's familiar with the jury has a basis for assessing his credibility.
THE COURT: What practices?
MR. WIKSTROM: Well, what he will testify to is that the check cashing entities which are located at major access highways from New York City have far and away larger checks, or larger amounts per check cashed than the check cashers located in the unaccessible places.
THE COURT: . . . .
Now, if there's nothing else, Mr. Wikstrom, it's all cumulative. Okay.
Mr. Udell was as specific as can be as to the difference between New York and New Jersey in terms of check cashing practices. He was also quite clear that what the importance of the specific geographic location of this check cashing service is, located, as it is, at the intersection between Sip Avenue and Routes 1 and 9, huge truck traffic, lots of traffic going by, five minutes from the Holland Tunnel, 10 to 12 minutes from the Lincoln Tunnel, 25 minutes from the George Washington Bridge.
Are you going to go through all that here?
MR. WIKSTROM: No, not all of it. I did want the jury to hear it from a witness who is not heavily cross-examined by government counsel.
THE COURT: He hasn't been heavily cross-examined by government counsel, Mr. Wikstrom. You certainly don't have any real reason to bring all this out again.
* * *
MR. WIKSTROM: Finally, Your Honor — I just want to make a complete record — he would also testify that it makes no sense, as a business proposition, to cash a stolen check. We've heard that from both Mr. Santoro and Mr. Udell.
THE COURT: We've already heard that from Mr. Udell in spades . . . .
B. The Cross-Examination of Brendan Clarke
The segment of the cross-examination of Brendan Clarke, an IRS Agent that was limited, related to a document sought to be offered in evidence which was identified as an IRS application form for an employer identification number. The government objected to the offer on the grounds of relevance and the following colloquy ensued:
THE COURT: Mr. Wikstrom, would you please come up.
MR. WIKSTROM: Yes, Your Honor.
(Sidebar)
THE COURT: Would you be kind enough to enlighten me as to where you are going with this and the relevance of it?
MR. WIKSTROM: Yes, Your Honor.
The application for an EIN requires the applicant to provide his name, address. social security number, nature of business, and so on. The application recites that the information will be shared — can be shared with Social Security, department of Justice, and the like.
The CTR forms — we will elicit testimony that the 24 or so CTR forms filed of the Schwamborn-related companies were never received on the grounds that the EIN number was in any way invalid. I want to go after this witness's testimony that the I.R.S. is unable to penetrate the EIN to determine who's behind the transaction. One of the ways to do that is showing on the I.R.S. form itself it requires that information to be provided.
THE COURT: What is the relevance of that?
MR. WIKSTROM: It rebuts the witness's testimony that he's unable to obtain the relevant information from its own database.
THE COURT: What is the relevance of that in this case with respect to the CTRs that are in issue in this case?
MR. WIKSTROM: Because the government opened on the theory that these transaction reports relating to these transactions were designed in a way to make the money vanish into thin air, disappear off the face of the earth, so that there's no records, contrary to the fact that there are ample records and paper trails with respect to this, much of which is available to this witness, if he bothered to look.
THE COURT: Mr. Wikstrom, I think that what the government has established is that New York Energy Savers is a front for Frank Schwamborn, and the money that ostensibly was cashed on behalf of New York Energy Savers went to Frank Schwamborn, and that wouldn't appear anywhere, right. He was cashing these checks. And the evidence which you are seeking to elicit, Mr. Wikstrom, I must tell you, is designed to confuse and not to either prove or disapprove a fact in issue in this case.
MR. WIKSTROM: Respectfully, Your Honor, there are exhibits coming in which you probably haven't seen, which reflect two dozen or so transactions reported by City Check to the Schwamborn companies which report Frank Schwamborn.
THE COURT: Yes.
MR. WIKSTROM: And we are offering those, as well as this line of cross, to rebut what the government opened up on, which is that City Check designed its transactions to conceal the man's identity and make it as if he has nothing to do with it. You are right, Your Honor, two of these exhibits or three are in Zimbler's name.
* * *
THE COURT: But, Mr. Wikstrom, there are corporate resolutions on file with City Check which very clearly reflects that New York Energy Savers has as its president James Zimbler, and has as its secretary Frank Schwamborn. There was no attempt to hide that fact. You have those in evidence, those corporation resolutions.
MR. RUSSO: Yes, we do.
THE COURT: So what's the point?
MR. WIKSTROM: I don't think, Your Honor, we should be limited to simply the cross-examination of Agent Campi where he acknowledges that these documents were provided by subpoena.
THE COURT: Well, you know, it is very interesting that Mr. Russo made much of the fact that New York Energy Savers is not at all reflected in the grand jury subpoena, and yet all of the documents which were produced were New York Energy Saver documents. The name that was on the grand jury subpoena was Frank Schwamborn.
The objection was implicitly sustained, the Court stating at page 700 lines 24-25: "I really don't see the relevance of where it is you are going."
Neither Onumonu not Diallo are even remotely apposite.
Onumonu was an alimentary-canal drug smuggler who swallowed condoms filed with heroin. He was arrested and convicted following a trial at which his defense was that he believed the condoms contained diamonds and not heroin and thus was not guilty of knowingly and intentionally importing drugs. He offered the testimony of an expert regarding the prevalence and feasability of smuggling diamonds into this country. The Court excluded that testimony which the Court held on appeal was reversible error.
Diallo is essentially the same. The defendant was an alimentary-canal smuggler who swallowed condoms filled with heroin. At trial he testified that he believed he was smuggling gold dust and not heroin. He sought to buttress his story by calling an expert who would have testified that smuggling gold from Benin (from which Diallo's trip to this country originated) was more profitable than exporting it legally from that country. The Court excluded that testimony and Diallo was found guilty. On appeal. the Court held that exclusion was reversible error.
In each case, the Court held that the exclusion of the expert testimony deprived the defendant of a fair opportunity to present his case and would have had a "substantial effect on the jury's verdict." United States v. Onumonu, 967 F.2d at 789.
Given the overwhelming evidence of Santoro's guilt, the excluded testimony of Rochford and Clarke was neither critical to Santoro's defense nor would it have had a "substantial effect on the jury's verdict."
To burden this opinion with an array of citations to cases which teach that Rule 33 motions are generally disfavored; that they are granted in only the most extreme circumstances; that the motion would be granted only if denying it would give rise to a manifest injustice; and that it is the defendant's burden to prove that such an extraordinary remedy is warranted would be an affectation of research. Suffice it to say, the defendant has not carried his burden of establishing that the extraordinary remedy he seeks is warranted, or that the circumstance prompting his motion is most extreme, or that denying it would give rise to a manifest injustice.
The motion is denied.
SO ORDERED.