have been illicit activities occurring therein. (R.Tr. 7).
In response, Mr. Bunch contends that the measures he took
constitute all he could have reasonably been expected to do
under the circumstances in the bar and arcade. He maintains
that the magnetic lock system in the bar was a nuisance both to
him and the police when they wanted to enter. 744 F. Supp. at
516. He further argues that his attempts to keep drug activity
away from the property were negated by police instructing
undesirables to enter. (Ex. A; Tr. 252). Regarding the arcade,
he argues that the constant presence of the police in front of
the arcade caused him to believe they would "do their job."
Upon consideration of Mr. Bunch's actions, and in light of
the standard set forth in 141st Street Corp., we find that,
given the strengths and limitations of Mr. Bunch, he did all
that he could have reasonably been expected to do to keep the
illegal drug activity from his property once he learned of it.
Consequently, our August 13 Opinion and the August 17 Judgment
shall remain unaltered.
The taking of property by the government is a serious action,
subject to stringent constitutional scrutiny. United States v.
Premises and Real Property at 4492 South Livonia Road, Livonia,
N Y, 889 F.2d 1258, 1264 (2d Cir. 1989), reh. denied,
897 F.2d 659 (2d Cir. 1990); United States v. Riverbend Farms, Inc.,
847 F.2d 553 (9th Cir. 1988). Consequently, a property owner is not
required to take heroic or vigilante measures to rid his or her
property of narcotics activity. United States v. Certain Real
Property and Premises Known As 171-02 Liberty Ave., Queens,
N Y, 710 F. Supp. 46, 51 (E.D.N.Y. 1989). Indeed, encouraging
such a standard would result in the dangerous precedent of
making property owners in drug-infested neighborhoods into
substitute police forces. Rather, a property owner need only
take all reasonable steps to accomplish that result. 141st
Street Corp., 911 F.2d at 879. In accordance with the spirit of
the law, we interpret this requirement as a subjective
standard; the question is not what an objective judge looking
in from the outside would consider to constitute all reasonable
measures, since such a reading could result in the imposition
of what many would consider heroic measures.
Pursuant to our interpretation, we are precluded from
concluding that Mr. Bunch did not take all reasonable measures
to rid the property of drug activity. Viewed from the
perspective of one with the strengths and limitations of Mr.
Bunch, who was trying to eke out an income from a business
located in a drug-infested area that posed great risks to the
safety of him and his family, we find that the actions he took,
reflective of his fears, concerns and limited familiarity with
crime prevention, fulfilled his legal obligation. The fact that
he was unsuccessful in resolving the drug problem (as were the
well-trained police who patrolled the area) should not be
interpreted as his consent to that activity. 744 F. Supp. at
523; United States v. Parcel of Real Property Known as 6109
Grubb Road, Millcreek Tp., Erie County, Pa., 886 F.2d 618, 626
(3d Cir. 1989).
Moreover, the facts of the instant case are clearly
distinguishable from those presented in 141st Street Corp.
There, the property owner engaged in reprehensible activity
that promoted the use of the property for narcotics
trafficking. He not only avoided taking measures to rid the
property of the drugs, but his actions, and inaction, led
police to suspect that he actually participated in the
continuation of the narcotics enterprise. Quite to the
contrary, no such allegation has been launched at Mr. Bunch.
Under the circumstances, we are compelled to deny the
government's motion to vacate our August 13 Opinion.
Motion for New Trial — Fed.R.Civ.P. 59(b)
In its motion for a new trial, the government seeks to
introduce as newly discovered evidence a letter from the City
of Peekskill to Mr. Bunch, dated January 16, 1987 ("the
letter"), advising Mr. Bunch that his use of the third floor
apartments violated several sections of the City Code, and
ordering Mr. Bunch to "CEASE AND DESIST"
such unlawful use. Declaration of Timothy MacFall, 1-2. The
government contends that the letter directly contradicts the
testimony by Mr. Bunch at trial that he closed the third floor
apartments voluntarily; therefore, the government argues, it
renders his testimony "patently false and misleading."
Memorandum of Law In Support of the Government's Motions To
Reargue, for a New Trial and to Stay Enforcement of the
Judgment ("Government Memo"), at 13. The government claims that
the introduction of the letter presents sufficient grounds for
us to reopen the trial and take additional testimony regarding
the closing of the third floor apartments. (Id. at 11-15).
Mr. Bunch opposes the motion on three grounds: first, that
the government has not shown that the evidence could not have
been discovered earlier with due diligence; second, that the
evidence merely serves to impeach his trial testimony; and,
third, that the evidence is not such that would probably
produce a different result upon a retrial. Memorandum of Law
Upon Behalf of Claimant, Jesse James Bunch, In Opposition to
the Plaintiff's Motions to Reargue, for a New Trial, and for a
Stay of Enforcement Pending Appeal ("Claimant's Memo"), 5-7.
The government relies on three cases to support its position
that the due diligence requirement may be overlooked if the
newly discovered evidence shows untruthfulness of a material
portion of the testimony of a witness at trial. Government
Memo, 13-15.*fn4 Those cases, however, discuss the standard
for motions made pursuant to Rule 60(b)(3), which is a specific
application for a new trial based on fraud or perjury. The
government does not so specifically move, nor does it cite any
other cases from within our own Circuit that address the
appropriateness of overlooking the due diligence
"The same standard applies to motions on the ground of newly
discovered evidence whether they are made under Rule 59 or
60(b)(2), and decisions construing Rule 59 in this context are
authoritative in construing Rule 60(b)(2)." 11 C. Wright & A.
Miller, Federal Practice and Procedure, § 2859 at 182 (1973 &
1990 Supp.). See also Strobl v. New York Mercantile Exchange,
590 F. Supp. 875, 878 n. 1 (S.D.N.Y. 1984), aff'd, 768 F.2d 22
(2d Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 527, 88
L.Ed.2d 459 (1985); Peacock v. Board of School Comm'rs of City
of Indianapolis, 721 F.2d 210 (7th Cir. 1983). Accordingly,
"[i]n order to reopen the trial upon the ground of
newly discovered evidence, the Court must be
satisfied that the [evidence] (1) is in fact newly
discovered, i.e., discovered since the trial; (2)
could not with due diligence have been discovered
earlier; (3) is not merely cumulative or
impeaching; (4) is material to the issues; and (5)
is such that upon a retrial it would probably
produce a different result.
Gemveto Jewelry Co., Inc. v. Jeff Cooper, Inc., 613 F. Supp. 1052,
1058 (S.D.N.Y. 1985) (Weinfeld, J.) (citations omitted),
vacated on other grounds, 800 F.2d 256 (Fed. Cir. 1986). The
motion for a new trial on the grounds of newly discovered
evidence is an extraordinary motion and requirements of the
rule must be strictly met. In re Tuchrello, 43 B.R. 93, 98
(Bkrtcy.W.D.N.Y. 1984) (citing Ag Pro, Inc. v. Sakraida,
512 F.2d 141, 143 (5th Cir. 1975), rev'd on other grounds,
425 U.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976)).
"In order to succeed on a motion pursuant to Rule 60(b)(2),
[and, therefore, under Rule 59,] the movant must present
that is `truly newly discovered or . . . could not have been
found by due diligence.'" United States v. Potamkin Cadillac
Corp., 697 F.2d 491, 493 (2d Cir. 1983) (quoting Westerly
Electronics Corp. v. Walter Kidde & Co., 367 F.2d 269, 270 (2d
The government fails to show why it could not have found the
letter had it exercised due diligence. Indeed, the government
fails to describe what attempts, if any, were made to secure
the letter at an earlier date. The case was filed in October,
1988 — more than two years ago. The letter was written in
February, 1987, nearly four years ago. It has been in the
possession of the City of Peeks-kill, and, as a public
document, it should not be considered newly discovered
evidence. See Scutieri v. Paige, 808 F.2d 785 (11th Cir. 1987).
Additionally, the government deposed Mr. Bunch eight months
before trial; it had ample time to investigate the responses of
Mr. Bunch had it exercised due diligence.
A narrow exception to [the] rule [prohibiting
newly discovered evidence that would have been
found with due diligence] has been recognized: a
new trial may be ordered to prevent a grave
miscarriage of justice even though the `newly
discovered evidence' supporting that order would
have been available to the moving party at trial
had that party exercised proper diligence.
Ferrel[l] v. Trailmobile, Inc., 223 F.2d 697, 698
(5th Cir. 1955). See also Samuels v. Health and
Hospitals Corp., 591 F.2d 195, 199 (2d Cir. 1979).
This exception, however, has been restricted to
cases in which the evidence is practically
conclusive. Niedland v. United States,
338 F.2d 254, 260 (3d Cir. 1964).
Ope Shipping, Ltd. v. Underwriters at Lloyds, 100 F.R.D. 428,
432 (S.D.N.Y. 1983). See also Music Research, Inc. v. Vanguard
Recording Soc., Inc.,