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
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.)
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
"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
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
(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.