The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Defendant Franklin Sanchez ("Sanchez") has moved for the second time for a new trial pursuant to Rule 33, Fed.R.Crim.P. For the reasons set forth below, the motion is denied.
Trial against Sanchez and eleven other defendants charged with participating in a conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base, in a form known as "crack," in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A), took place from May 15, 2000 to May 19, 2000. A guilty verdict was returned.
By motion of September 29, 2000, Sanchez and one of his co-defendants, Brent Birkett ("Birkett"), moved to set aside the verdict and grant a new trial on the basis of two handwritten letters purportedly written before the trial by James Clyburn ("Clyburn"), an accomplice witness, that they contended were inconsistent with material portions of Clyburn's trial testimony and established that Clyburn knew that the government had targeted them and had urged his co-defendants to testify against Birkett and Sanchez, both to "get" them and to mitigate the co-defendants' own punishment. The motion was heard on December 6, 2000 and denied by opinion of January 10, 2001. United States v. Sanchez, No. S1 99 CR 338, 2001 WL 26212 (S.D.N.Y. Jan. 10, 2001) (the "January 10 Opinion").
The evidence presented at trial was summarized in the January 10 Opinion.
In the course of the process of sentencing certain of the co-defendants, Fatico hearings were held on June 27, 2001, and September 4, 2001, at both of which Clyburn testified.
According to Sanchez, Clyburn committed perjury at trial regarding two letters as established by his testimony given at the Fatico hearings. At the time of his trial testimony, Clyburn steadfastly denied that the letters were his. At the Fatico hearing, confronted by the government with an expert's opinion that indeed he wrote the letters, Clyburn admitted his aforementioned perjury to the government (at least to the supervising agent).
According to Sanchez, Randolph Helvy ("Helvy"), another accomplice witness at trial, also changed his testimony at the Fatico hearing with respect to cooperation between accomplices.
The pending motion seeking a new trial based upon the Clyburn letters and testimony at the Fatico hearings was heard and marked fully submitted on March 12, 2003.
The Standard Under Rule 33
The standard and authorities to be applied upon the consideration of a Rule 33 application were described in the January 10 Opinion.
A New Trial Is Not Warranted The Clyburn letter to "Dash" (Damion Gowdie, a co-defendant) and its provenance were discussed in the January 10 Opinion, including Clyburn's denial of having written any such letter.
The Court assumed "[f]or the purposes of this motion . . . [that] the letters were written by Clyburn, and that they [were] authentic." Sanchez, 2001 WL 26212 at *3. However, the opinion stated, even if it were to be found that there was perjury at trial, there was no suggestion that the government knew about it, and accordingly the conviction could "be set aside `only if the testimony was material and the court [was] left with a firm belief that but for the perjured testimony, the ...