Opinion
No. 96 Cr. 967 (RPP).
May 25, 2000.
Mary Jo White, United States Attorney for the Southern District of New York, By: Justin Weddle, A.U.S.A., Lynn Neils, Special A.U.S.A., One St. Andrew's Plaza, New York, N.Y. 10007, Tel: 914-993-1909, Fax: 914-993-1980.
Counsel for Defendant: Law Office of Ivan Fisher, 575 Madison Avenue, 10th Floor, New York, N.Y. 10022, By: Ivan Fisher, Esq., Suzanne McDermott, Esq., Tel: 212-517-5000 Fax: 212-486-7701.
OPINION AND ORDER
By motion dated February 28, 2000, Defendant Haim Yuzary moves for a new trial based on newly-discovered evidence pursuant to Rule 33 of the Federal Rules of Criminal Procedure and requests an evidentiary hearing on the issues raised in his motion papers.
Mr. Yuzary was convicted by a jury on June 13, 1997 on both counts of a two-count indictment charging him (1) with conspiring in 1990 and 1991 to violate the money laundering laws of the United States in violation of 18 U.S.C. § 371 and (2) with attempting to transport funds out of the United States while "knowing that such transportation was designed in whole and in part . . . to conceal and disguise the nature, the location, the source, the ownership, and the control of the proceeds of specified unlawful activity" in violation of 18 U.S.C. § 1956 (a)(2)(B).
In 1993, in a case arising out of the same arrest, Yuzary was convicted by a jury in the Eastern District of New York for (1) failing to file an accurate report with United States Customs authorities when knowingly transporting and being about to transport more than $10,000 at one time from a place in the United States to a place outside the United States in violation of 31 U.S.C. § 5316 (a), 5316(b), 5322(a) and 18 U.S.C. § 3551et seq. and (2) knowingly and wilfully making a false, fictitious and fraudulent statement to the United States Customs authorities in violation of 18 U.S.C. § 1001, 3551 et seq., (United States v. Yuzary, 1997 WL 76523, *1 (S.D.N.Y. Feb. 24, 1997)).
The evidence at trial established that Mr. Yuzary was recruited in late 1990 by Isaac Mordoch, a money launderer based in Panama, to participate in a scheme to launder narcotics proceeds in the United States through Panama for Columbian drug traffickers (Trial Transcript ("Tr.") at 96-102). Mordoch was arrested in Panama and deported to the United States in 1995 and, thereafter, he entered into a cooperation agreement with the U.S. Attorney's Office and pled guilty to a money laundering charge (id. at 82-83). At trial, Mordoch testified that in 1990 he recruited Yuzary, whom he had known when he had previously resided in the United States, to participate in laundering narcotics proceeds, (id. at 90), and that from March to October 1991, Yuzary delivered cash from New York to Mordoch in Panama approximately three times a month except when Mordoch was not in Panama during part of July and part of August, (id. at 110-11, 113).
That Yuzary did carry large amounts of cash to Panama in 1991 was corroborated by Panamanian customs authorities who were conducting routine customs inspections (Tr. at 353-374 [testimony of Mendizabel regarding four occasions when Yuzary carried cash];id. at 401 [testimony of Robinson regarding one occasion]; id. at 435-440 [testimony of Rodriguez regarding two occasions]). The law in Panama did not require a passenger to declare if he was carrying more than $10,000 into Panama in 1991, (id. at 354), so Panamanian customs officials did not arrest Yuzary or otherwise interfere with his delivery of drug proceeds.
On November 7, 1991, however, during a routine random check by United States customs inspectors of passengers embarking on a flight to Panama, Yuzary was discovered to be carrying $480,000. (Tr. at 610-12.) Prior to the discovery, one of the customs inspectors had notified Yuzary that the law required him to fill out a customs declaration form if he was taking more than $10,000 out of the United States. (Id. at 592-94.) After a discussion during which Yuzary stated he was carrying $20,000 to $30,000 in cash, he signed a customs declaration form stating he was carrying $30,000 in cash. (Id. at 602-03.) After Mr. Yuzary nodded affirmatively in response to being asked whether he was carrying the money in his bag, the inspector noticed Yuzary's bulky appearance and upon patting him discovered he was wearing a specially-designed vest containing $180,000 in cash. (Id. at 606-08, 610.) The rest of the $480,000 was found in Yuzary's bag. (Id. at 611-12, 716.)
This motion comes almost three years after the jury found Yuzary guilty of the charges in the indictment. The delay was occasioned by Yuzary retaining new counsel in August 1997, one month prior to the date set for sentencing, September 15, 1997. Defendants requests for adjournments of the sentencing date to October 27, 1997 and then to December 10, 1997 were granted, and on December 4, 1997, an adjournment was granted to permit Defendant's counsel to continue an investigation in Panama concerning Mr. Mordoch on the understanding that Defendant's counsel had been advised that "the information I seek, or at least much of it, will be available to the extent it exists within the next few weeks." (Letter of Defendant's Counsel dated December 4, 1997 at 1.)
A year later, after many adjournments to complete his investigation, Defendant's counsel requested the Court to direct the government to provide him with copies of all DEA-6 reports naming Mr. Yuzary, particularly reports by Luis Gonzales, a DEA agent functioning in Panama City, Panama in 1990-91, all reports by the United States Customs Service ("Customs"), and reports authored by CIA agent Guillermo Ramaires naming Mr. Yuzary and to perform a name check for Mr. Yuzary on the DEA's Narcotics and Dangerous Drugs Information System ("NADDIS") to support his assertion that Mr. Yuzary's prosecution had been based on illegal wiretapping and that the arresting agents were untruthful at trial in claiming the arrest arose out of a random stop. (Conference before the Court on December 28, 1998.)
The Court declined to issue the order requested without a briefing from the parties as to whether, on the application presented, a court order of such broad scope was appropriate, but the government undertook to check its files for the requested information. (Conference before the Court on December 28, 1998 at 14-17.)
At a conference on January 25, 1999, the government reported that Customs had received a subpoena from Defendant's counsel requiring the production of documents relating to Rene de la Cova, Yvette Torres-Hildreth, and Dave Hanson, that it had not had an opportunity to respond to the subpoena, and also that the Assistant United States Attorney had requested a nationwide file review by Customs, the DEA and the CIA to see whether, at the time of his arrest, there was any pending investigation of Yuzary and whether any information from that investigation was conveyed to Customs even though the prosecutor's case file contained no such information. (Conference before the Court on January 25, 1999.)
Over the course of the next year, the government reported on the progress of the nationwide file review and produced the resulting documents to Defendant.
On January 14, 2000, the Court ordered Defendant to file its motion for a new trial by February 14, 2000. On February 28, 2000, the instant motion was filed with four affidavits or affirmations and a memorandum of law:
In a letter dated March 16, 2000, Assistant United States Attorney Justin Weddle requested a revised briefing schedule on behalf of both parties and noted that the government had consented to Defendant's filing of his motion papers after the date ordered by the Court, but incorrectly stated that Defendant's papers were filed on February 24, 2000. (Letter from Justin Weddle to the Court, dated March 16, 2000.)
1. an affidavit by Mr. Yuzary's son, dated February 23, 2000, stating that he had accompanied Mr. Yuzary to the airport and to the departure gate and had watched Mr. Yuzary until he boarded the jet way and that he had noticed a man in what might have been an airport security uniform watching them closely and speaking in a walkie talkie and that he had mentioned his concern to his father at the time;
2. an affidavit by Mr. Yuzary, dated February 23, 2000, confirming that at the airport his son had mentioned that a man was watching them and recounting his questioning by customs agents after he entered the jet way;
3. an affidavit by Edna Ramos Chue, a lawyer in Panama, dated February 22, 2000, stating that electronic surveillance of private conversations was illegal in Panama in 1991 and that no wiretapping was permitted prior to July 1994;
4. an affirmation by Ivan S. Fisher, Esq., dated February 28, 2000, stating the results of his investigation and his assessment of five documents produced by the government as a result of its search; and
5. a memorandum of law with copies of five documents provided as a result of the government's file search.
(a) a Drug Enforcement Administration Form 6, dated July 11, 1991, by Rene de la Cova, containing information from a DEA informant of "Haim Yuzari's" possession of $300,000 in U.S. currency during a routine customs inspection by Panamanian Customs officials after a flight from New York to Panama on July 6, 1991 and his possession of $1,000,000 in U.S. currency on an earlier occasion several weeks prior to July 6, 1991 and stating that the DEA informant would continue to provide information on the "migratory movements of Yuzari" (Memorandum in Support of Haim Yuzary's Motion for a New Trial Pursuant to F.R.Cr.P. 33 ("Def. Mem."), Ex. A);
(b) a NADDIS report, dated October 17, 1991, (id., Ex. B), pertaining to Mr. Yuzary's transportation of U.S. currency in June 1991 and July 6, 1991, which Mr. Yuzary's attorney claims "makes clear that the CIA and the DEA were closely monitoring Mr. Yuzary's movements between New York and Panama before his arrest in November 1991." (Id. at 20.)
(c) undated, handwritten notes, (id., Ex. B). which Mr. Yuzary's attorney claims were written by a CIA agent, (id. at 19), and which correspond to the NADDIS report and pertain to Mr. Yuzary's transportation of U.S. currency on July 6, 1991 and on a date several weeks prior to July 6, 1991, both of which were prior to his arrest in November of 1991;
(d) a portion of a cable located in the files of the DEA which states that a DEA informant provided information in July 1991 to the DEA "that a person named Haim Yuzari was laundering narco-dollars," (id., Ex. C); and
(e) a U.S. Department of State memorandum, dated December 21 1991, which pertains to a meeting of U.S. and Panama Ambassadors at which Panama was urged to require the recording of currency importation and states that "New York officials took up their own investigation of Yuzary and stopped him in New York as he attempted to make a third trip to Panama." (Id., Ex. D.)
In response to the government's motion papers, Ivan Fisher submitted an additional affirmation, dated April 10, 2000, relating information provided to him during a telephone conversation with Mr. de la Cova that presumably occurred after the government filed its opposition papers. The affirmation, inter alia, states that "Mr. de la Cova initiated the investigation of Haim Yuzary when he completed and disseminated the DEA-6 dated July 11, 1991" and that "[t]he reason he did so was to ensure that DEA agents in the United States, specifically at JFK airport in New York, would be aware of Mr. Yuzary's activities, investigate him and stop him." (Affirmation of Ivan S. Fisher, dated April 10, 2000, ¶ 1(f).)
Referring to the declaration of Eric Schrepel, dated March 24, 2000, the government notes that although this NADDIS report was created on October 17, 1991, it was not accessed until November 8, 1991, the day after Mr. Yuzary was arrested. (Government's Memorandum of Law in Opposition to Defendant's Motion for a New Trial ("Gov. Mem.") at 21-22.)
Describing the note as a "note paraphrasing information in the DEA's NADDIS database," the government argues that "the more logical interpretation" is that the note "is a notation of an Agent's check of the NADDIS database after Yuzary's arrest" and that "the defendant misreads the note as stating `per CIA,' when the logical reading is `per C/A' — indicating that the information in the NADDIS record came from the Panamanian Country Attache, not the CIA." (Gov. Mem. at 21-22.) The government points out that "there is nothing to indicate that the note was created before Yuzary's arrest." (Id. at 21.)
Defendant argues that the Department of State memorandum "establishes that the U.S. government was aware of the currency transportation activities of Mr. Yuzary before his arrest and was monitoring him closely." (Def. Mem. at 19.) The government points out that the "offhand remark that `the New York officials took up their own investigation' contains no indication that any `investigation' pre-dated the seizure of Yuzary's cash on November 7, 1991." (Gov. Mem. at 21.)
The government has responded with a number of affirmations and declarations:
1. an affirmation by Lynn A. Neils, dated April 25, 2000, specifying the steps the government took in response to defense counsel's request for a search of the files of the DEA, CIA, and Customs;
2. an affirmation by Francis R. Short, dated March 22, 2000, explaining the manner in which he conducted the review of the DEA files for information concerning Mr. Yuzary and Mr. Mordoch among others;
3. a supplemental affirmation by Francis R. Short, dated April 25, 2000, stating that the cable located in the DEA files that states that a DEA informant provided information in July 1991 to the DEA "that a person named Haim Yuzari was laundering narco-dollars" appears to have been sent on November 21, 1991 and December 12, 1991, both of which are dates subsequent to Mr. Yuzary's arrest;
4. a declaration of Eric R. Schrepel, dated March 24, 2000, stating that he searched the DEA's NADDIS database for all inquiries regarding Mr. Yuzary and found only one record, which was listed under the name "Haim Yuzari," was created on October 17, 1991, and was not accessed at any time from its creation until November 8, 1991;
5. a declaration of James M. Modico, dated March 23, 2000, regarding a telephone conversation that he and others had with Mr. de la Cova on March 15, 2000, during which Mr. de la Cova stated that (i) "[a]ll of the narrative information in the DEA-6 was conveyed to him orally by Carl Heron," an informant who was employed by Panamanian Customs at the time Mr. Heron provided the information concerning Mr. Yuzary, (¶ 2(b)); (ii) "[t]he DEA-6 is for informational purposes only and does not indicate that an investigation was undertaken of Yuzary" (id. ¶ 2(c)); and (iii) prior to the meeting when Mr. Heron provided information to him concerning Mr. Yuzary, Mr. de la Cova had never heard of Haim Yuzary and since that meeting on July 11, 1991, he has not learned any other information regarding Mr. Yuzary from Mr. Heron or anyone else, other than information provided to him since 1997 by lawyers representing Mr. Yuzary, and that neither he, nor to his knowledge, any other U.S. agents pursued the information as to Mr. Yuzary (id. ¶ 2(d)); and
6. declarations of Jerry Cordova, dated April 24, 2000, Dwight Powers, dated April 24, 2000, and Frank Sabella, dated May 1, 2000, who were the customs inspectors who were involved in the arrest of Mr. Yuzary, stating that, prior to Mr. Yuzary's arrest on November 7, 1991, they had never heard of Mr. Yuzary, seen any reports or documents regarding Mr. Yuzary, or talked to any person about Mr. Yuzary.
At Defendant's request, on or about January 20, 1999, Special Assistant United States Attorney Lynn Neils instructed the DEA, the CIA, and Customs to search their respective files for information related to whether Defendant "had been the subject of an investigation by the [CIA or DEA] or had been intercepted on any electronic eavesdropping device installed at the instance of either [the CIA or DEA] prior to his arrest on November 7, 1991," and "if such an investigation had taken place, whether [Customs] had been notified of such an investigation prior to the defendant's arrest on November 7, 1991." (Affirmation of Lynn A. Neils, dated April 25, 2000, ¶¶ 1, 2.) In March 1999, she addressed a similar letter to the United States Department of State. (Id. ¶ 2.) Ms. Neils states that representatives of the DEA, the CIA, and Customs informed her that they had performed the requested search of their files, and that she, or Mariclaire Rourke, an attorney in the Internal Security Section of the Department of Justice, reviewed the documents that were produced, and in turn produced to the defense copies of any documents that she or Ms. Rourke determined were germane. (Id. ¶ 4.) The CIA informed the United States Attorney's Office "that the question of whether a person has been or has not been the target of CIA surveillance is classified information." (Gov. Mem. at 20-21 n. 4.) Defendant requests that the Court order the government to submit a declaration from the CIA to the Court pursuant to the Classified Information Procedures Act. (Letter to the Court from Ivan S. Fisher, dated April 26, 2000, at 3-4.) Given that there are no indicia that the customs inspectors who stopped and arrested Mr. Yuzary or that the members of the team that prosecuted Mr. Yuzary had any knowledge of CIA surveillance of Mr. Yuzary or received any information about Mr. Yuzary prior to November 7, 1991, Defendant's request is denied. Defendant also suggests that the scope of the request for information from the DEA, CIA, and Customs was unduly narrow and requests that the Court order the government to produce a copy of the request letters sent to the agencies. (Id. at 4-5.) This request is denied because production of the letter is unnecessary in light of Ms. Neils' affirmation. Furthermore, the declaration of Eric R. Schrepel, dated March 24, 2000, and the corrected affirmation and supplemental affirmation of Francis R. Short, both dated April 25, 2000, detail the steps taken by the DEA in response to the request for information from the United States Attorney's Office.
This affirmation misspelled Mr. Mordoch's name and incorrectly placed the correct spelling of Mr. Yuzary's name in quotation marks to indicate that it had been misspelled in a DEA-6. At the request of the Court, Francis Short submitted a Corrected Affirmation, dated April 25, 2000.
DISCUSSION
A motion for a new trial based on new evidence is to be granted only with great caution . . . in the most extraordinary circumstances where it is required in the interest of justice. Such relief should be granted only if the evidence is material to the verdict, could not with due diligence have been discovered before or during trial, and is not cumulative. Where the allegation is that there is new evidence of perjury, a threshold inquiry is whether the evidence demonstrates that the witness in fact committed perjury.
* * *
It is the defendant who bears the burden of showing that a new trial is called for.United States v. Sasso, 59 F.3d 341, 350 (2nd Cir. 1995) (internal quotation and citation marks omitted).
Neither a new trial nor an evidentiary hearing is warranted in this case based on the affidavits and attorney affirmations submitted in support of the motion. The affidavits of Defendant and his son do not contain newly-discovered evidence. Everything in those affidavits was known to Defendant and his son at the time of the trial in June 1997, as well as at the trial in the Eastern District in 1993, and at the hearing in that District concerning the validity of his arrest on November 7, 1991. The claim about the uniformed security guard does not bear close examination. There is no showing that any law enforcement agent knew or had reason to know what Yuzary looked like or that his name was Yuzary at the time Mr. Yuzary's son made his observations at the airport.
The affidavit by Ms. Chue stating that electronic surveillance of private conversations was illegal in Panama in 1991 and that no wiretapping was permitted prior to July 1994 is irrelevant because Defendant has made no evidentiary showing that there was any wiretapping involving Mr. Yuzary.
The affirmations of Mr. Fisher are not based on personal knowledge and, thus, are not adequate support for the Court to grant the motion or the request for an evidentiary hearing. See United States v. Gillette, 383 F.2d 843, 848-49 (2d. Cir. 1967);United States v. Caruso, 684 F. Supp. 84, 87 (S.D.N.Y. 1988);United States v. Gregory, 611 F. Supp. 1033, 1044 (S.D.N.Y. 1985, Weinfeld, J.). Defendant has had more than ample time to obtain affidavits from the witnesses whom Mr. Fisher interviewed about the alleged investigation and wiretapping of Mr. Yuzary and has not provided a single supporting affidavit.
Even assuming that the facts Mr. Fisher set forth are sufficient to substantiate that there was an ongoing CIA investigation of Mr. Yuzary and that wiretaps were used as a part of that investigation, Defendant has not produced anything which leads to the conclusion that the customs inspectors who stopped and arrested Mr. Yuzary were aware of any ongoing investigation of Mr. Yuzary or that any member of the prosecution team had knowledge of an ongoing investigation or the use of wiretaps or obtained the benefit of any investigation or wiretap information either directly or indirectly. See United States v. Locascio, 6 F.3d 924, 949 (2nd Cir. 1993) (where, after trial, prosecutor discovered reports prepared by government agents not involved in the case concerning allegations of crimes committed by a government witness, court affirmed denial of a motion for a new trial finding that there was "no evidence that the prosecution team . . . was aware of the reports" at the time of the trial);United States v. Sacco, 563 F.2d 552, 558 (2nd Cir. 1977) (finding that defendant did not meet his initial burden of producing specific evidence that a substantial portion of the government's case was tainted by the use of illegal wiretaps where the government conceded, for the purposes of the motion, that an illegal wiretap had been used, but there was no evidence that information from the wiretap had been used in the prosecution of defendant). Indeed, all the arresting officers have submitted declarations stating that, prior to Mr. Yuzary's arrest on November 7, 1991, they had never heard of Mr. Yuzary, seen any reports or documents regarding Mr. Yuzary, or talked to any person about Mr. Yuzary. (Declaration of Frank Sabella, dated May 1, 2000, ¶ 2; Declaration of Jerry Cordova, dated April 24, 2000, ¶ 2; Declaration of Dwight Powers, dated April 24, 2000, ¶ 2.) Furthermore, the government's extensive file search has failed to provide anything indicating that wiretaps or electronic eavesdropping ever occurred. See Sacco, 563 F.2d at 558 (where defendant claimed that government agency received wiretap information, motion denied in absence of any wiretap information in government agency's files).
There is no indication in the documents provided as a result of the search that anything other than Yuzary's July 6, 1991 entry to Panama and the earlier entry to Panama are being referred to or that this is not the same information that was provided by a Panamanian Customs Inspector, as stated by Mr. de la Cova.
Since Defendant's motion papers do not demonstrate any newly discovered evidence and since Defendant's allegations regarding wiretapping and an ongoing investigation of Mr. Yuzary, even if true, fail to demonstrate any use of that material by the arresting agents or the prosecution team, they are insufficient to warrant a new trial, and thus his motion for a new trial and request for an evidentiary hearing are denied. See United States v. Culotta, 413 F.2d 1343, 1345 (2nd Cir. 1969) (evidentiary hearing not required where "moving papers did not state sufficient facts which, if proven, would have required the granting of the relief requested").
Accordingly, Defendant's motion is denied. Sentencing will be held on May 31, 2000 at 4 p.m.
IT IS SO ORDERED.
Dated: New York, New York May 25, 2000