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United States District Court, Southern District of New York

April 17, 2003


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.

Prior Proceedings

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 defendant would most likely not have been convicted.'" Id. at *2 (quoting United States v. Gallego, 191 F.3d 156, 161 (2d Cir. 1999)).

As set forth in the January 10 opinion:

Absent Clyburn's testimony (assuming it would have been "cancelled out" by the introduction of the letters), the government still had the testimony of two other codefendants, Helvy and Martin, who described the operation from within, and Birkett and Sanchez as the organization's leaders. Even if the testimony of all three of these accomplices were set aside, the government presented more than sufficient proof that the defendants are guilty of the crimes charged beyond a reasonable doubt. The guilty plea allocutions of six other accomplices established the existence of a conspiracy, its scope, purpose, and location. Videotapes of drug sales in the courtyard and the testimony of an undercover NYPD officer who purchased crack cocaine from the organization, and testimony regarding surveillance of the defendants, provided additional proof of their membership in the conspiracy. The defendants' own post-arrest statements provided evidence that they had knowledge of the investigation and of their impending arrest — knowledge that inferred membership in the conspiracy — and cocaine and drug paraphernalia seized from a stash house proved to have been used by defendants tied them directly to the crime. Finally, the nexus between Birkett, Sanchez, and the conspiracy was solidified with telephone records that established that the defendants were in constant communication with one another and with their workers during the course of the conspiracy.
Id. at *4.

The facts adduced in the Fatico hearings in effect confirmed the assumption which was the basis of the January 10 Opinion, namely, that there was sufficient evidence to support the conviction of Sanchez as described in the earlier opinion.

Sanchez also suggests that a further hearing is required to learn when the government knew of Clyburn's perjury relating to the letter. However such knowledge might affect the standard to be applied under Rule 33, it does not alter the sufficiency of the non-Clyburn evidence to provide grounds for the verdict against Sanchez.

Sanchez also seeks Rule 33 relief based upon Helvy's testimony, first at trial as contradicted by his testimony at the Fatico hearings.

On cross-examination at each session of the Fatico hearings, Helvy denied having discussed with Clyburn, prior to trial, the idea of cooperating with the government and testifying against Sanchez and Birkett. On each occasion, Helvy continued to deny plotting with Clyburn to cooperate, and said that if he had previously testified to that effect, the prior testimony would have been false.

Even if the assumption is made, as Sanchez contends, that Helvy falsely stated at trial that he and Clyburn had conspired to testify against Sanchez and Birkett, the trial perjury favors Sanchez as supporting the defense theory at trial and, therefore, fails to meet the burden of creating "a firm belief that but for the perjured testimony, the defendant most likely would not have been convicted." United States v. Moreno, 181 F.3d 206, 213 (2d Cir. 1999) (quoting United States v. Wong, 78 F.3d 73 81 (2d Cir. 1996).

In addition, as the government has noted, the perjury of Helvy as claimed by Sanchez may result from his answer to a compound question, only the first portion of which dealt with the claimed conspiracy with Clyburn.

Finally, even if Helvy and Clyburn's testimony is disregarded, the remaining evidence was sufficient to establish the guilt of Sanchez. The testimony of William Martin, the testimony of officers who conducted surveillance of Sanchez, Birkett and the other members of the crew during the course of the conspiracy, the guilty plea allocutions of six co-conspirators, Sanchez's post-arrest statement that he knew that the police had "snitches" and knew when they were brought to talk to the authorities, Sanchez's January 1999 arrest while in possession of over $2,000 in cash and a driver's license in a false name, and the telephone records establishing that there were 82 calls placed from Clyburn's home ((212) 234-5650) to Sanchez's cell phone in the period December 1, 1998 through January 14, 1999, and that 146 calls were placed from Birkett's home to that cell phone in approximately the same time period, as well as an additional 237 calls from Birkett's home to a number registered to Sanchez's wife, all constituted sufficient evidence to support the conviction.

Rule 33 relief based on the Fatico hearings testimony is not warranted.


The motion for a new trial and for a further hearing is denied.

It is so ordered.


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