prior to and at the time of trial. Thus, new counsel cannot satisfy even the first criteria of the "newly discovered evidence" test: that the evidence was discovered after trial and could not have been discovered sooner.
Rather, trial counsel were aware of the evidence and chose not to use it. The Court will not revisit the innumerable legitimate reasons why that may be. As the Government's memorandum in opposition makes plain, the "new" evidence new counsel posit would not lead to an acquittal. The evidence is not newly discovered, and this surely is not one of those "most extraordinary circumstances" justifying a new trial based upon new evidence. DiPaolo, 835 F.2d at 49.
Premised as it therefore must be on "any other grounds," Fed. R. Crim. P. 33, new counsel's motion is untimely because it was not filed within the seven day period prescribed by Rule 33. The Court considers that period to have been tolled pending determination of new counsel's prior motion. However, new counsel filed the instant motion on 31 March 1997, eighteen days after the Court denied their prior motion on 13 March 1997. Because it was not timely filed as prescribed by Rule 33, the instant motion is barred and the Court lacks jurisdiction to consider it. Dukes, 727 F.2d 34.
In addition to the fact that new counsel have failed to establish ineffective assistance of prior counsel on a motion that is jurisdictionally barred, defendants have waived their right to present the evidentiary matters they now seek to present to the Court.
Courts have long recognized the right of defendants to waive various of the protections the Constitution affords them. Such protections, designed for the benefit of the accused, may "be waived by the party sought to be benefited." Patton v. United States, 281 U.S. 276, 296, 74 L. Ed. 854, 50 S. Ct. 253 (1930). A defendant shall not be heard to complain on a matter to which he knew he had a right yet "silently acquiesced in." Id. at 294-95.
In the context of the right to a trial by jury, a defendant's power to waive is well established. Indeed, denial of the ability to waive that right in some cases may be "to imprison a man for his privileges and call it the Constitution." Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S. Ct. 236, 87 L. Ed. 268 (1942) (Frankfurter, J.). A court must not accept a waiver unless made both intelligently and competently by the accused. Johnson v. Zerbst, 304 U.S. 458, 465, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). Exercising its "serious and weighty" responsibility, Zerbst, 304 U.S. at 465, a court may accept a waiver in its sound discretion. Patton, 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253. The foregoing also is true as to the right to be present at trial, waiver of which leaves the court free to proceed with trial "as if [the defendant] were present." Diaz v. United Satates, 223 U.S. 442, 455, 56 L. Ed. 500, 32 S. Ct. 250 (1912).
A defendant may waive rights by both act and failure to act. Tompsett v. Ohio, 146 F.2d 95, (6th Cir. 1944), cert. denied, 324 U.S. 869, 65 S. Ct. 916, 89 L. Ed. 1424 (1945). This rule is applied routinely by the circuit courts in refusing to address issues a party or his attorney failed to raise or object to in a district court. See Carter v. Johnson, 110 F.3d 1098, *10, 1997 WL 169401, at *12 (5th Cir. 9 April 1997). Though bounded as it must be by the requirement that any waiver be both knowing and intelligent, this rule logically must apply with the same force where a defendant seeks a rehearing or new trial based upon actions by an attorney the defendant was fully cognizant of yet failed to raise or object to. "A defendant cannot seemingly acquiesce in his attorney's defense and after the trial has resulted adversely to him obtain a new trial because of the incompetency of his attorney." Gambill v. United States 276 F.2d 180, 181 (6th Cir. 1960). Waiver must apply doubly where the defendant failed to object not just once, when the allegedly objectionable actions occurred at trial, but again in a first motion for a new trial.
Roz and Luiz Ben Zvi have been particularly active participants in the their legal proceedings from their inception. The defendants obviously are intelligent and had an intimate familiarity with the inner workings of Josi Jeweler. They shared their knowledge thoroughly with trial counsel, working closely and consulting often with trial counsel at each step of the trial and at pre-trial proceedings. Trial counsel appeared to consider and be responsive to whatever comments the Ben Zvi's made, often raising objections or steering the course of an examination in apparent response thereto. Indeed, the papers submitted in support of both new trial motions are replete with information known peculiarly to the Ben Zvis as well as instances of defendants' combined efforts with trial and new counsel to marshall the facts in their favor.
Despite the frequency and care with which the facts underlying the instant motion have been parsed, never before have new counsel or the defendants presented the particular "spin" or those facts now urged upon the Court. It was not presented at trial, where defendants sat over the course of a month as trial counsel and the Government both attempted to construe in their own favor facts known best to the defendants. It was not presented in the first motion for a new trial, where defendants first endeavored to create a different reality based upon facts adduced at trial.
In his letter "addendum" dated 3 April 1997, Roz Ben Zvi again endeavors to create a new reality by essentially "testifying" as to his beliefs about which facts adduced at trial were "true" and which were "untrue." Indeed, Ben Zvi admits as much: though he does not "know the legal implications of the evidence," he does "know the facts, which were relayed by me to trial counsel." (Ben Zvi Letter of 4/3/97, at 5 (emphasis added).) Presumably, Ben Zvi knew which facts were "true" two years ago at the time he "relayed" them to trial counsel. Certainly, he knew which facts were "true" at the close of trial, having observed every single fact put into evidence by both sides over a four week period. During that period Ben Zvi never once objected nor attempted to counter as he watched fact after now-allegedly-untrue fact go into evidence. The time to prove that "the inventory figures used by the government were not correct" (Ben Zvi Letter of 4/3/97, at 1) and to dispel alleged "contradictions between [Ben Zvi's] deposition and the financial figures" (Id. at 3) was at trial, not in post trial memoranda and letters to the Court.
Defendants' acquiescence in this regard is troubling indeed. Nonetheless, though this may be a strong case for it, perhaps such acquiescence should not constitute waiver of the right to reassemble the facts post-trial and attempt to recharacterize them as true or not. Though ultimately responsible for facts disclosed to his attorney, a defendant may rely to an extent on his attorney to present those facts in court in a capable manner.
The same may not be said concerning acquiescence in a post-trial reassembly of those facts. The Ben Zvis participated in new counsel's preparation of a twenty-eight page memorandum and twelve page supplemental memorandum in support of their first motion for a new trial, the former filed nearly nine months and the latter nearly twelve months after the conclusion of trial. They did so with full knowledge of the purpose of that undertaking. Their acquiescence in the factual picture drawn in support of that motion was not silent but active and overt. As such, defendants may not again undertake to deconstruct the facts, distinguish true from false, and reassemble a new picture which they hope will better support their claims. They have waived their right to do so, and they have done so knowingly, intelligently, and deliberately.
The time for Monday morning quarterbacking in this case has long since passed. For all of the foregoing reasons, new counsels' motion for rehearing and second motion for a new trial must be, and the same hereby are, DENIED.
Thomas C. Platt, U.S.D.J.
Dated: Uniondale, New York
30 April 1997