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January 13, 2004.


The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge


Defendant Juan Santos moves the Court to reconsider its opinion of October 31, 2003 denying his motions for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(a) and 29(c) and his motion for a new trial pursuant to Fed.R.Crim.P. 33(a). Defendant brings this motion for reconsideration claiming newly discovered evidence.


  On August 8, 2003, a jury convicted Defendant of conspiracy to commit robbery of articles in interstate commerce pursuant to 18 U.S.C. § 1951 (The Hobbs Act). The facts were presented in detail in the October 31, 2003 opinion. United States v. Santos. 2003 WL 22479224 at *1-3 (S.D.N.Y. 2003). A brief summary of the relevant facts follows.

  In May 2002, DBA Agent Milione was undercover as a drug courier and negotiating with Alejandro Paulino for the exchange of marijuana for cocaine. Paulino was to deliver cocaine to Page 2 Agent Milione for Agent Milione to transport to Canada. (Trial Tr. at 114, 150.) Agent Milione was to deliver marijuana from Canada to Paulino. (Id.) On May 20, 2002, Agent Milione, met with Paulino near the corner of W. 100th Street and West End Avenue in order to deliver a bag, allegedly containing marijuana, to Paulino. (Id. at 186.) Paulino directed Agent Milione to deliver the drugs to a gray livery cab parked across the street from Paulino. (Id. at 189, 227) As Agent Milione approached the cab, the cab pulled away (id. at 219-20), and two men descended upon Agent Milione in an attempt to rob him (id. at 220, 363). DEA agents on the scene acting as lookouts arrested the would-be robbers. (Id. at 365.) Evidence presented at trial demonstrated that Defendant was part of this conspiracy to rob Paulino of the drugs to be delivered to Paulino. Santos, 20003 WL 22479224.

  Agent Weil testified that DEA agents at the scene noted that the gray livery cab to which Agent Milione was directed to deliver the marijuana had license plate number T406494C. (Trial Tr. at 393.) According to motor vehicle records, the car with that license plate number was registered to Defendant. (Id.) The surveillance tape filmed on May 20, 2002 showed the gray livery cab parked across the street from Paulino's livery cab. (Id. at 226-27.) Agent Milione identified Defendant as the driver of the gray livery cab. (Id. at 229.)

  In his statement upon arrest, Defendant admitted that on May 20, 2002, Paulino met with Defendant at Washington Car Service and requested that Defendant follow Paulino to the corner of W. 100th Street and West End Avenue and remain there. (Id. at 433.) According to his statement, Defendant complied with Paulino's request. (Id.) Page 3

  In the present motion, Defendant disputes that he was even present at the comer of W. 100th Street and West End Avenue on May 20, 2002. Defendant states that in October 2003 his sister-in-law found two receipts from Rico Auto Repair, Inc., in the pocket of a coat of the Defendant at his former girlfriend's house. (Def.'s Supp'ing. Aff. at ¶ 10.) The receipts or bills are dated May 20, 2002 and May 22, 2002. (Mem. of P. & A. in Supp. of Recons. for J. of Acquittal or, in the Alternative for a New Trial Ex. A and B [hereinafter Ex. A and Ex B].) The receipt dated May 20, 2002 is for a car with licence plate T406494C and states, "complete tune-up, (pending air filter), change spring, 1 bostador head right site." (Ex. A.) The bill dated May 22, 2002 does not provide a license plate number; it simply says "taxi," and it is for the purchase of gas. (Ex. B.) In Defendant's sworn affidavit, he affirms that his car was in the shop from May 19, 2002 to May 24, 2002. (Def.'s Supp'ing. Aff. at ¶ 11.) Defendant asserts that this new evidence warrants a reconsideration of the Court's denial of previous motions for a judgment notwithstanding the verdict and a new trial.


  "A district court learning of newly discovered evidence after a conviction will only grant a new trial pursuant to Rule 33 if the evidence is material, non cumulative and `would probably lead to an acquittal.'" United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993) (quoting United States v. Gilbert, 668 F.2d 94, 96 (2d Cir. 1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2014 (1982)). If the new evidence reveals that false testimony was, "used by the State in securing the conviction of petitioner," and that false testimony has "an effect on the outcome of the trial," post-conviction relief Page 4 must be granted Napue v. People of State of Ill. 79 S.Ct. 1173, 1179 (1959). Finally, the Defendant must show that the new evidence, "could not with due diligence have been discovered before or during trial." United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995).

  Because these receipts do not demonstrate that the gray livery cab with license plate T406494C was being repaired at the time of the robbery, they do not provide an alibi for Defendant. The receipts do not corroborate defendant's affidavit that the car was not in his possession on May 20, 2002 at 3 p.m., but was being repaired during the period May 19 to May 24, 2002. Indeed, the receipts only show that the defendant paid $450 for a tune up and other work sometime on May 20, 2002 and paid $30.00 for gas on May 22, 2002. (Ex. A, B.) Neither receipt shows when the car was dropped off and when it was picked up, and the receipts indicate that Rico Auto Repair is open 24 hours. (Id.) Defendant could have picked up his car before driving to W. 110th Street and West End Avenue on May 20, 2002, or he could have dropped his car off for repairs after leaving scene of the attempted robbery. Indeed, the receipts tend to show that Defendant picked up the livery cab on May 22 and May 24, 2002, which is not inconsistent with the Defendant's admission upon arrest that he was at the scene of the robbery on May 20, 2002. (Trial. Tr. at 433.) Thus, the new evidence is not material and fails to demonstrate that Agent Weil testified falsely when he said that a gray livery cab with license plate T406494 was at the corner of W. 100th Street and West End Avenue on May 20, 2002.

  Furthermore, evidence concerning the Defendant's alibi could have been presented at trial if due diligence were exercised. Defendant's first trial was before Judge Duffy in July 2003. The notes of defense investigator Nicholas Panarella state that he went RICO Auto Repair on July 14, Page 5 (Letter from Gregory Smith to Judge Patterson dated Jan. 6, 2004.) After noting that the repair shop "kept a poor filing system," he "decided that a subpoena would be useless." (Id.) Defendant failed to exercise due diligence in searching for evidence to corroborate his alibi between July 14, 2003 and the start of his second trial on August 4, 2003. Moreover, Defendant had over ten days from the investigator's visit to Rico Auto Repair until Defendant's first trial before Judge Duffy, which began on July 16, 2003 to find corroborating records at Rico Auto Repair. Accordingly, Defendant's motion for reconsideration is denied.


20040113 ...

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