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UNITED STATES v. DECARLO

March 30, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
NUNZIO DECARLO, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 On November 22, 1993 the defendant moved this court for an order which would grant him a new trial or modify his sentence based upon an amended presentence report. His motion is bottomed upon 28 U.S.C. § 2255 and upon his assertion that Eric Leon, a principal witness against the defendant and his co-defendants perjured himself at their trial as to the events surrounding the murder of Albert Nocha and the extortion and assault of Leon.

 By way of brief background, Eric Leon testified to the facts as he knew them surrounding the murder of Albert Nocha. He testified, among other things, that DeCarlo told him soon after the event that he (DeCarlo) shot Nocha. That was the only testimony directly connecting DeCarlo to that murder. Based upon that testimony, the jury found the predicate act of murdering Nocha to have been proven in convicting DeCarlo of that count of the indictment charging him with a violation of 18 U.S.C. § 1962 (c) (the RICO count).

 Many years later William Meli, one of DeCarlo's co-defendants communicated his desire to cooperate with the government to the United States Attorney. That offer was accepted and during the course of his cooperation Meli told the government that Gregory Scarpa Jr. hold him that he, Scarpa, and not DeCarlo fired the gun that killed Nocha. Meli also said that Scarpa told him too that DeCarlo was present as a member of the "hit team" when Nocha was murdered. Meli's account, like Leon's was not based upon personal observation but upon what he was told by someone else. The information furnished by Meli was revealed to DeCarlo's lawyer by the government. It was that revelation which prompted this motion which is based upon the assumption that either Meli or Leon lied.

 Discussion

 If this motion were based on "newly discovered evidence" pursuant to Rule 33, Fed. R. Crim. P., it would be time-barred.

 Rule 33, Fed. R. Crim. P., provides, in relevant part as follows:

 
The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. . . . A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, . . . . A motion for a new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty. . . .

 Surely recognizing the jurisdictional barrier thus imposed, DeCarlo styles his motion as one brought pursuant to 28 U.S.C. § 2255 which contains no time limitation. The question thus raised is whether the time limitations of Rule 33 may be circumvented by designating a motion induced by "newly discovered evidence" as one brought pursuant to 28 U.S.C. § 2255. In United States v. Madonna, 556 F. Supp. 260 (S.D.N.Y.), aff'd, 697 F.2d 293 (2d Cir. 1982), cert. denied, 459 U.S. 1108, 74 L. Ed. 2d 957, 103 S. Ct. 734 (1983), following the affirmance of his conviction the defendant moved more than three years later pursuant to § 2255 to vacate and set aside his conviction and sentence. His motion was based, among other grounds, upon his assertion that the government allowed a witness to testify falsely. The court agreed with the government's characterization of the defendant's motion as being actually one for a new trial based upon newly discovered evidence and that such a motion was time barred under Rule 33 and then said at page 266: "By merely designating this a § 2255 motion, the time constraints applicable to a motion based on newly discovered evidence cannot be so readily circumvented. Brach v. United States, 542 F.2d 4, 8 (2d Cir. 1976). The delay of over three years in making this motion after the material became available is much too long, and the motion could be denied on that ground alone." (Emphasis added). The court went on to deny the motion on the ground that even if it were accepted as timely, the evidence the defendant relied upon was not such as would probably lead to an acquittal. The reference to Brach was to allude to the uncertainty expressed by the Circuit Court as to "whether § 2255 can be invoked where the issue raised is neither jurisdictional nor constitutional nor one specifically involving interpretation of 'the laws of the United States[,]'" 542 F.2d at 8, an uncertainty the Court said it was not required to resolve. Research has not disclosed a case in which the Court of Appeals for this circuit has, since Brach, decided the issue. The answer, however, is clearly no longer in doubt as subsequent judicial history reveals.

 The historical evolution of the answer will begin for purposes of this discussion with Bean v. United States, 679 F.2d 683 (7th Cir. 1982). In that case a motion under § 2255, predicated on facts closely approximating the facts here, was denied by the district court and in affirming the denial, the court wrote as follows:

 
Rule 33 of the Federal Rules of Criminal Procedure provides that a motion for a new trial on the ground of newly discovered evidence is untimely unless filed within two years of the final judgment. Bean's motion was untimely if treated as a Rule 33 motion, and there is a question whether he can circumvent this limitation by using section ...

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