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United States District Court, S.D. New York

July 9, 2004.

U.S., Respondent.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


Movant was convicted on October 13, 1999 of 23 counts of theft of employee benefit plan funds; money laundering; creation of, and conspiracy to create, false documents required by the Employee Retirement Income Security Act of 1974; and embezzlement of bankruptcy assets. He was sentenced principally to 78 months imprisonment and moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence.

In thorough report and recommendation dated January 23, 2004, Magistrate Judge Gabriel W. Gorenstein recommended denial of the petition. Movant's objections to the report and recommendation are patently without merit and, except in one instance, require no comment. The exception is his contention that he was denied due process of law by reason of prosecutorial misconduct, viz. that the prosecution knowingly presented perjured testimony of Kelder, Hickey and, perhaps, O'Reilly. (Obj. 1-2)

  Nowhere in the motion did movant assign as a ground for relief that the government knowingly presented perjured testimony. Rather, the issue first was injected into these proceedings by a July 15, 2003 letter to Judge Gorenstein in which movant, in the context of making a Brady claim, asserted that the government knowingly had presented perjurious testimony of Kelder, Hickey and, perhaps, O'Reilly.

  Rule 2(b) of the Section 2255 Rules require that a motion pursuant to that statute "specify all the grounds for relief which are available to the movant and of which he has, or by the exercise of reasonable diligence, should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified." Moreover, a Section 2255 motion may be amended or supplemented when such relief is appropriate. See Section 2255 Rule 12 (applicability of Criminal and Civil Rules to Section 2255 motions). But movant failed to allege the ground now relied upon in the motion and failed to amend or supplement the motion, failures independently sufficient to warrant denial of the motion insofar as it rested on this ground. But even if the Court were to put aside this failure and construe the July 15, 2003 letter as an amendment to the motion asserting this ground, the claim nevertheless would fail.

  First, McCarthy raised the same claim as to Hickey on his direct appeal to the Second Circuit, in which he argued that the government knowingly permitted the introduction of perjured testimony of O'Reilly and Hickey. See Brief for Defendant-Appellant, dated January 26, 2001, at 39-44. The Second Circuit rejected this claim both because it had not been raised in the trial court and also on the merits, on the ground that McCarthy's trial counsel "addressed the conflicting testimony on cross examination" and "nothing in the record indicates the alleged perjury remained undisclosed during trial." United States v. McCarthy, 271 F.3d 387, 399-400 (2d Cir. 2001). A claim that has been "raised and considered on direct appeal" is not available under 28 U.S.C. § 2255. Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995) (internal quotation marks and citation omitted).

  In any event, the claim fails on the merits. "Whether the introduction of perjured testimony requires a new trial depends on the materiality of the perjury to the jury's verdict and the extent to which the prosecution was aware of the perjury" at the time of trial.*fn1 If the defendant demonstrates that the prosecution knew or should have known of the perjury, then the court will set aside the conviction `"if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury."'*fn2 If, however, the government is not shown to have been aware of the perjury, a new trial is warranted only if (1) the testimony was material, and (2) `"the court [is left] with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted."'*fn3

  The gist of McCarthy's argument is that the prosecutor's interview of Kibrick and O'Reilly (and/or O'Reilly's testimony at trial) put the prosecutor on notice that Hickey, Kelder, and/or O'Reilly were giving false testimony at trial when they testified they had informed McCarthy — or that McCarthy was otherwise aware — that the transactions at issue were illegal. See McCarthy Ltr. at 6; Id. Ex. A at 11-12; Obj. at 1-2. The fundamental flaw in this argument, however, is that nothing McCarthy has presented to the Court demonstrates that any witness "actually committed perjury," United States v. Zichettello, 208 F.3d 72, 102 (2d Cir. 2000), cert. denied, 531 U.S. 1143 (2001) — a showing essential to establishment of a due process violation. At most, McCarthy has shown only that some witnesses, including Kibrick, had information or gave testimony that contradicted the trial testimony of other witnesses.*fn4 But even a "direct conflict in testimony does not in itself constitute perjury." E.g., United States v. Gambino, 59 F.3d 353, 365 (2d Cir. 1995), cert. denied, 517 U.S. 1187 (1996). Thus, the mere showing of contradictory stories among witnesses is insufficient to demonstrate a violation of the Due Process Clause. See, e.g., Magnotta v. Berry, 906 F. Supp. 907, 922, 925 (S.D.N.Y. 1995) (inconsistency between trial testimony and an earlier statement made to police officers did not warrant habeas relief "because the mere fact that [the witness] made statements that were inconsistent with her trial testimony did not establish the knowing use of perjured testimony" (internal quotation marks and citation omitted)); see also Lyon v. Senkowski, 109 F. Supp.2d 125, 140 (W.D.N.Y. 2000) (coroner's testimony at trial, which cast doubt on a witness's testimony of how the crime had occurred, "f[ell] short of demonstrating that [the witness] perjured himself, much less that the prosecution knowingly adduced perjured testimony" from the witness).

  Accordingly, the objections to the report and recommendation are overruled. The motion is denied. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 915(a)(3). The Clerk shall close the case.


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