The opinion of the court was delivered by: PLATT
By notice of motion filed 31 March 1997, defendants' new counsel move for re-argument of their post trial motion for a new trial and for a new trial, the latter on grounds of trial counsels' alleged ineffectiveness by reason of, inter alia, their alleged denial of Roz Ben Zvi's right to testify. New counsel claim no procedural basis for the motion. Defendants were convicted on 15 June 1995 on charges of conspiracy, wire fraud, and tax fraud. By Order dated 13 March 1997 this Court denied defendants' prior new-trial motion. As with the last, defendants present motion is meritless and must be denied.
Familiarity with the Court's Order of 13 March 1997, which contains an extensive exposition of relevant facts, is assumed.
Two particularly salient features of defendants' present motion bear mention. First--though developed at trial and previously available to new counsel--the facts supporting the present ineffective assistance claim are quite different from those supporting the prior claim. Second--despite their availability and defendants' thorough familiarity with them before, during, and after trial--few, if any, of those facts appear to have been pointed out by defendants to their trial attorneys for presentation at trial. In defendants' memorandum and the letter "addendum" thereto, Roz Ben Zvi now in effect is endeavoring to "testify" to both new counsel and the Court about what he knew and did during the time preceding his conviction. The "surprise" the Court expressed at new counsels' willingness to pursue their prior motion given the relevant legal standards now borders upon disbelief. Does it never occur to "new" counsel in criminal cases that their clients may not have disclosed to their predecessors and/or to them all that needs to be known?
New counsel's instant motion must be denied on at least three independent bases: on the merits; pursuant to Federal Rule of Criminal Procedure 33; and based upon the doctrine of waiver.
A. The Ineffective Assistance Claim on the Merits
B. Jurisdiction Under Rule 33
The appropriate procedural mechanism for defendants' motion, had counsel undertaken to research the matter, is Federal Rule of Criminal Procedure 33. The Rule provides that district courts may grant a defendant's new trial motion "if required in the interest of justice." Fed. R. Crim. P. 33. Though new counsel also seek reargument of their prior motion, the present motion in fact is one for a new trial. Such motion may be made within two years of final judgment where based on newly discovered evidence, and must be made within seven days of "verdict or finding of guilty" where based on any other ground. Id. A court "may not extend the time for taking any action" under Rule 33 other than as provided for in the Rule. Fed. R. Crim. P. 45(b). The systemic interest in finality, which oft times is sought to be circumvented, demands that new trial motions be filed strictly within the Rule 33 time limits, thus avoiding "imposition of sentence in advance of resolution of dispositive motions." United States v. Hocking, 841 F.2d 735, 737 (7th Cir. 1988) (Easterbrook, J.).
The time limits Rule 33 prescribes are jurisdictional; "if a motion is not timely filed, the district court lacks power to consider it." United States v. Dukes, 727 F.2d 34, 38 (2d Cir. 1984); see United States v. DiBernardo, 880 F.2d 1216, 1223 (11th Cir. 1989) (using "interest of justice" standard to find district court without jurisdiction to grant new trial motion unless filed within seven days). A motion premised upon poor "tactical decisions by defendant's lawyer as to how to handle the evidence already in his possession at trial" must be filed within the seven day limit absent a court-authorized extension of that period. United States v. Pagan, 829 F. Supp. 88, 90 (S.D.N.Y. 1993), aff'd, 28 F.3d 102 (2d Cir.), cert. denied, 513 U.S. 904, 130 L. Ed. 2d 185, 115 S. Ct. 267 (1994).
To obtain a new trial based upon newly discovered evidence, a defendant "must show that the evidence was discovered after trial and that it could not have been discovered sooner with the exercise of due diligence." Duke, 727 F.2d at 38. The evidence also must be material and not cumulative or merely impeaching. United States v. Castano, 756 F. Supp. 820, 823 (S.D.N.Y. 1991); United States v. Matos, 781 F. Supp. 273, 279 (S.D.N.Y. 1991). Even where the three preceding criteria are satisfied, a new trial motion may be granted only if the evidence probably would lead to an acquittal, United States v. Underwood, 932 F.2d 1049, 1052 (2d Cir.), cert. denied, 502 U.S. 942, 116 L. Ed. 2d 333, 112 S. Ct. 382 (1991); even then, the motion must be granted only with "great caution" and in "the most extraordinary circumstances." United States v. DiPaolo, 835 F.2d 46, 49 ...