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United States District Court, Southern District of New York

March 21, 2003


The opinion of the court was delivered by: Robert P. Patterson, Jr., United States District Judge


On April 11, 2002, this Court granted the government's motion for reconsideration and denied Petitioner Eugene Romero's motion for a new trial pursuant to 28 U.S.C. § 2255, superseding its opinion and order of August 14, 2001.

Petitioner then moved for reconsideration of the Court's April 11, 2002 opinion and order (the "April 11, 2002 Opinion"), and filed a memorandum on April 30, 2002 to which the government responded on July 10, 2002. Thereafter, Petitioner filed a supplemental memorandum received October 15, 2002, to which the government replied by letter dated January 27, 2003. Finally, Petitioner filed an answer dated February 21, 2003 to the government's January 27, 2003 letter.

Review of the moving papers and responsive papers on Petitioner's motion for reconsideration leads the Court to revise the April 11, 2002 Opinion, to delete the sentence on page 10 referring to the tape-recorded conversations of Pratt and Carter as evidence that Romero aided and abetted use of the Hannah apartment. Those conversations were not admitted as acts in furtherance of the conspiracy and were admitted only insofar as they showed Carter had made admissions of his acts in furtherance of the conspiracy. A revised copy of the April 11, 2002 Opinion is being filed simultaneously with this opinion.*fn1

Petitioner's motion for reconsideration asks for an evidentiary hearing based on his claim that Joseph Pratt and Justine Roberts gave false testimony on which this Court relied in its April 11, 2002 Opinion. This contention is misplaced in a motion for reconsideration. The issue the Court determined was that, based on the trial record, it was beyond a reasonable doubt that the jury would have found, had it been properly instructed pursuant to Richardson v. United States, 526 U.S. 813 (1999), that Petitioner was guilty of participating in a third predicate substantive narcotics violation and therefore the error in the Court's instructions was harmless. See Neder v. United States, 527 U.S. 1, 17-18 (1999).

Most of Petitioner's argument is based on the admissions of prior convictions that these witnesses made in their direct testimony at trial, or on matters where it could only be expected due to the elapse of time that witnesses would have differences in recollections as to the time when a particular event took place. All the discrepancies in testimony were before the jury and those that were significant were raised by defense counsel and answered by the government during its summation. Those discrepancies are of little significance in view of the overwhelming evidence presented by the government concerning (1) the existence of the conspiracy to distribute, and to possess with intent to distribute, narcotics; (2) the membership of each conspirator in the conspiracy; and (3) overt acts committed by members of the conspiracy in the Southern District of New York, as well as the defendant's participation in the other crimes charged in the indictment. Accordingly, Petitioner's motion for an evidentiary hearing is denied.

Nor did the Court abuse its discretion in allowing the government to present "new facts" and "expand the record" in its motion for reconsideration, as Petitioner contends in his motion for reconsideration. In considering the government's motion for reconsideration, the Court had been hampered in its review of the evidence by having in its possession only the Court Reporter's transcript of the Court record and not the transcripts of tape-recorded conversations or the other exhibits admitted in evidence. The Court was also aware that the government's briefs were authored by an Assistant U.S. Attorney not previously involved in the case, a significant handicap in responding to petitioner's papers in this relatively lengthy case and a handicap which had been enhanced, as it turned out, by the government's inability to locate the transcript exhibits. The Court allowed the government's motion for reconsideration because of these deficiencies in its record and because of the length of time that had elapsed between Petitioner's conviction and Petitioner's Section 2255 motion. On a motion for reconsideration, as in all matters, the Court has an obligation to ensure it does not overlook factual matters in considering issues brought before it, Eisemann v. Greene, 204 F.3d 393, 395, n. 2 (2d Cir. 2000), as well as an obligation to be fair to the litigants on both sides of the case, and, if necessary, "to correct clear error and to prevent manifest injustice." Mikes v. Strauss, 78 F. Supp.2d 223, 224 (S.D.N.Y. 1999) (quoting Doe v. New York City Dept. of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983).

Petitioner has failed to show that in the April 11, 2002 Opinion, the Court had overlooked controlling decisions of factual matters that were put before it on the government's underlying motion. Eisemann, 204 F.3d at 395, n. 2; Local Civil Rule 6.3. Nor has Petitioner shown that there was not a need "to correct clear error or manifest injustice." Mikes, 78 F. Supp.2d at 224. The Petitioner's motion for reconsideration is denied.


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