The opinion of the court was delivered by: DAVID N. EDELSTEIN
EDELSTEIN, District Judge:
Defendant Daniel Pagan was convicted on April 1, 1991, after a four-day trial, of possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). He has moved for a new trial pursuant to Federal Rule of Criminal Procedure ("Rule") 33, which provides that "the court on motion of a defendant may order a new trial to that defendant if required in the interest of justice." Mr. Pagan contends that he did not receive effective assistance from his trial attorney, Mr. Peter K. Wilson, who supposedly failed to present an adequate defense based upon misidentification.
Mr. Pagan's motion is untimely. Rule 33 provides that motions for a new trial, other than those based upon newly discovered evidence, "shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period." Fed. R. Crim. P. 33. The Second Circuit has stated that Rule 33's seven-day limitation is "jurisdictional. If a motion is not timely filed, the district court lacks power to a consider it." United States v. Dukes, 727 F.2d 34, 38 (2d Cir. 1984). Mr. Pagan does not allege, nor does this Court find, that his motion involves newly discovered evidence.
The exclusive basis of Mr. Pagan's motion is "tactical decisions by [defendant's] lawyer as to how to handle the evidence already in his possession at trial." Id. Thus, pursuant to Rule 33, Mr. Pagan had to file the motion, or request an extension to file the motion, no later than seven days after the jury's guilty verdict in April 1991. See Dukes, 727 F.2d at 38; see also United States v. Brown, 742 F.2d 363, 368 (7th Cir. 1984); United States v. Jones, 88 Cr. 824, 1989 U.S. Dist. LEXIS 6671 *7 (S.D.N.Y. Jun. 14, 1989). Because he did not file this motion until July 1993, more two years after the jury rendered its verdict, Mr. Pagan's motion is untimely and thus barred on jurisdictional grounds.
Even assuming jurisdiction, Mr. Pagan has failed to establish ineffective assistance of counsel. To demonstrate that an attorney provided ineffective assistance, a petitioner must show both that counsel's performance was deficient and that this deficient Performance prejudiced defendant. See Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990); United States v. Reiter, 897 F.2d 639, 645 (2d Cir.), cert. denied, 498 U.S. 817, 111 S. Ct. 59, 112 L. Ed. 2d 34 (1990); United States v. Nersesian, 824 F.2d 1294, 1320-21 (2d Cir.), cert. denied, 484 U.S. 957 (1987). Failure to prove both elements of this test -- deficient performance and prejudice -- results in denial of a motion for a new trial based upon ineffective assistance of counsel. See Strickland, 466 U.S. at 697; Nersesian, 824 F.2d at 1321.
Performance is deficient if, viewed at the time of the conduct and in light of surrounding circumstances, counsel's performance falls below an objective standard of reasonableness. See Strickland, 466 U.S. at 688, 690. Due, however, to the difficulties inherent in an analysis that requires adopting counsel's perspective and then rendering an after-the-fact assessment of performance, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see Aguirre, 912 F.2d at 560. Prejudice exists where "but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Mr. Pagan has failed to show that Mr. Wilson's performance fell below an objective standard of reasonableness. As previously noted, Mr. Pagan bases his ineffectiveness claim on trial counsel's failure to address effectively whether the confidential informant ("CI")
incorrectly identified Mr. Pagan as the seller of cocaine. Mr. Pagan accuses Mr. Wilson of the following shortcomings: (1) Although Special Agent William McMahon of the Bureau of Alcohol, Tobacco and Firearms ("ATF") testified that the CI identified defendant when Special Agent McMahon and the CI drove past him, Mr. Wilson never delved into the circumstances of this "drive-by;" (2) Mr. Wilson knew of the CI's prior emotional problems and dishonorable discharge, yet there is no record he attempted to subpoena those records; and (3) Mr. Wilson neither requested nor submitted a standard jury instruction on identification, and he failed to file pretrial motions addressing the identification issue. Memorandum of Law in Further Support of Defendant's Motion for a New Trial and other Relief ("Defendant's Memo"), at 3-4, 9.
Setting aside for a moment these alleged shortcomings, an analysis of Mr. Wilson's efforts to address the misidentification issue at trial reveals the reasonableness of his advocacy on this point. Indeed, perhaps in an attempt to highlight the puissance of the identification issue, Mr. Wilson's efforts in this area are catalogued in defendant's motion papers. Mr. Pagan notes that: (1) despite having known the CI "for a long period of time," the CI did not identify Mr. Pagan to law enforcement officials prior to his arrest; (2) the physical description provided by the CI did not match that of the defendant; and (3) another individual, "Boom Vazquez," rather than "Boom Pagan," was the target of the investigation. Defendant's Memo, at 9. Because Mr. Wilson addressed these points during trial, Mr. Pagan has inadvertently illuminated the many ways that Mr. Wilson explored the possibility of a misidentification. As to the CI's physical description, the following colloquy occurred between Mr. Wilson and Special Agent McMahon:
Question ("Q"): How did the informant describe the person he had made the buy off of on December 18th?
Answer ("A"): He described him as a male Hispanic, 5-foot-11, approximately 180 pounds, in his early 20's, wearing a black jacket and blue jeans.
[Tr. at 90]. As to the allegation that an individual named Vasquez was the target of the investigation, Mr. Wilson addressed this issue both during his cross-examination of Special Agent McMahon and in summation. [Tr. at 88-92, 366]. In doing so, Mr. Wilson also canvassed the issue of the timing of the CI's identification: Special Agent McMahon testified that on or around December 18, 1990, the CI reported that he bought cocaine from "Boom," apparently a reference to Mr. Pagan. Although Special Agent McMahon's buy report lists the seller of the cocaine as "Boom Vazquez," Special Agent McMahon testified that he mistakenly added the name Vasquez because a jeep involved in the transaction was registered to an Edwin Vazquez. [Tr. at 176]. Accordingly, it is apparent that the CI did identify Mr. Pagan prior to his arrest, but that in reporting this fact, Special Agent McMahon mistakenly added the name Vazquez to the CI's identification of "Boom."
As to the identification issues that counsel did not raise, the Supreme Court has held that failure to raise every colorable argument does not constitute ineffective assistance of counsel: "A brief that raises every colorable issue runs the risk of burying good arguments -- those that, in the words of the great advocate John W. Davis, 'go for the jugular' -- in a verbal mound made up of strong and weak contentions." Jones v. Barnes, 463 U.S. 745, 753, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983) (quoting John W. Davis, The Argument of an Appeal, 26 A.B.A.J. 895, 897 (1940)). An analysis of the arguments not raised by Mr. Wilson concerning the issue of identification reveals that in all likelihood Mr. Wilson served his client's interests by not raising them. At the very least, his decision not to raise the arguments in question does not constitute ineffective assistance of counsel.
As to Mr. Wilson's alleged failure to delve into the drive-by identification, it is apparent that this is not a basis for finding Mr. Wilson's performance deficient. While the due process clause protects a defendant from identification procedures that create "'a very substantial likelihood of irreparable misidentification,'" the absence of any police identification procedure whatsoever necessarily dooms any attempt to exclude a subsequent in-court identification allegedly derived from that procedure. See United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992) (quoting Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968)), petition for cert. filed, (June 23, 1993). In this case, the CI did not identify the defendant during a police identification procedure such as a lineup, showup, or photographic array. The absence of any identification procedure precludes the possibility that an unduly suggestive procedure tainted the CI's in-court identification. Even if the drive-by identification is considered an unduly suggestive identification procedure, the CI's in-court identification of Mr. Pagan is admissible. A witness' in-court identification of a defendant is admissible, even if an identification procedure must be suppressed, if the witness has an independent origin for the in-court identification, untainted by the improper identification procedure. See United States v. Wade, 388 U.S. 218, 239-41, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); United States v. Archibald, 734 F.2d 938, 941 (2d Cir. 1984); Meadows v. Kuhlmann, 812 F.2d 72, 76 (2d Cir.), cert. denied, 482 U.S. 915, 96 L. Ed. 2d 676, 107 S. Ct. 3188 (1987). Mr. Pagan, in an affidavit and in papers presented by his counsel to this Court, admits that he has known the CI since childhood. Moreover, the CI testified that he had spoken to or seen the defendant 40 or 50 times prior to the December 18, 1990 purchase of cocaine. Given this independent basis for the identification, any attack on the drive-by identification does not affect the reliability of the in-court identification. The aim of providing effective representation did not dictate that Mr. Wilson raise this meritless issue either in a pretrial motion or during trial.
Defendant also asserts that Mr. Wilson's performance was deficient due in part to his failure to subpoena records concerning the CI's dishonorable discharge and prior emotional problems. Presumably, this argument is not directly related to the reliability of the identification, but to the general credibility of the CI. This information is at most cumulative impeachment material that, if it had been presented to the jury, was not reasonably likely to alter the verdict. "Impeachment material, if cumulative of other such evidence in a case, is rarely sufficient to justify a new trial." United States v. Pagan, 1992 U.S. Dist. LEXIS 671, *5 (S.D.N.Y. Jan. 23, 1992) (citing United States v. Myers, 534 F. Supp. 753, 756 (E.D.N.Y. 1982)). Evidence that would be offered solely to further impeach a witness whose character was shown at trial to be questionable is merely cumulative and is not "material." See United States v. Tutino, 883 F.2d 1125, 1140 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1044, 110 S. Ct. 1139 (1990). It is beyond reasonable dispute that "new evidence which is 'merely cumulative or impeaching' is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial." Mesarosh v. United States, 352 U.S. 1, 9, 1 L. Ed. 2d 1, 77 S. Ct. 1 (1956) (citations omitted). Where evidence adduced to support a Rule 33 motion is "only an additional part of a cumulative attack on a witness's credibility, the motion for a new trial [is] properly denied." United States v. ...