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United States District Court, S.D. New York

May 4, 2005.


The opinion of the court was delivered by: JOHN KOELTL, District Judge


The defendant, Christian Viertel ("Viertel"), was found guilty by a jury on October 2, 2002 on each count of a three-count indictment charging conspiracy to commit mail and wire fraud, as well as substantive counts of mail fraud and wire fraud. The defendant now moves pursuant to Federal Rule of Criminal Procedure 33 for a new trial based on allegedly "newly discovered evidence," which, the defendant argues, establishes that his mail and wire fraud convictions were not supported by sufficient use of the mails and wires, respectively, and that no action in furtherance of the conspiracy occurred within the statute of limitations. The defendant has also filed a motion seeking the production of certain Grand Jury exhibits related to the allegedly "newly discovered evidence."


  Familiarity with the facts and procedural history of the case are assumed and details are recounted to the extent necessary to decide the present motion. These facts are set forth in the Court's prior Opinion and Order dated February 19, 2003. See United States v. Viertel, No. S2 01 Cr. 571, 2003 WL 367867 (S.D.N.Y. Feb. 19, 2003). In that decision, the Court denied the defendant's previous motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial based on the Government's alleged withholding of material exculpatory evidence in violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963).*fn1

  The original indictment in this case charged Christian Viertel, Fritz Blumenberg ("Blumenberg"), and John Lee ("Lee") with conspiring to commit mail and wire fraud in connection with the submission of false invoices to Burda Media, Inc. ("Burda"). Burda Media, the direct victim of the fraud, served as the New York press office for Burda Holding, a magazine and newspaper publisher in Germany. (Trial Transcript ("Tr.") 89-90.) The indictment also charged the three defendants with substantive counts of mail and wire fraud as part of the scheme. A superseding indictment filed February 14, 2002 added two counts of tax evasion against Blumenberg. Blumenberg, the President of Burda Media, maintained substantial control over the company's New York office, including its finances.

  Blumenberg pleaded guilty to the charges in Indictment S1 01 Cr. 571 on April 5, 2002 and later testified before the Grand Jury pursuant to a grant of immunity. Blumenberg's testimony included an admission that he owed roughly $67,000 to Christian Viertel on an outstanding loan. See Viertel, 2003 WL 367867, at *1 (citing Grand Jury Transcript dated June 6, 2002 at 2:05 p.m. at 43).

  The Grand Jury subsequently returned Indictment S2 01 Cr. 571 against Viertel and Lee on June 6, 2002.*fn2 The Indictment charged Viertel with conspiring with Blumenberg to commit mail and wire fraud by submitting false invoices to Burda from five companies owned by Viertel ("Viertel companies"). The Indictment also charged Viertel with substantive counts of mail and wire fraud in furtherance of the conspiracy.

  Viertel's trial began on September 12, 2002. There was substantial evidence at trial that false invoices were submitted to Burda from the Viertel companies — Transvideo, TV Broadcast Center, Inc., Eurocast Corp., Telcopa Ltd., and Agate Reality Corp. Burda employees testified that they had never heard of most of the companies, never saw work product from the companies to justify the invoices, and never saw invoices from some of the companies. (See, e.g., Tr. 762-66, 803, 842-48, 852-70, 883-903, 1061-1068, 1116-1128.) Moreover, the witnesses testified that the invoices described work that Burda never requested and had no reason to request. (See, e.g., Tr. 842-48, 852-70, 883-903, 1061-68, 1102-03, 1116-32.) Some of the invoices were paid by checks made out to "cash" or to the Viertel companies and that the checks payable to the companies were deposited into bank accounts controlled by Viertel. (See, e.g., Tr. 1374-1384, 1398-1427, 1433-1437.) Viertel, via his own accounts and those of the Viertel companies, made payments to Blumenberg, often by direct payment of Blumenberg's bills. (See, e.g., Tr. 1459-1520, 1525-1536.)

  Burda Holding funded Burda Media by wiring money from Germany to Burda Media's New York bank account whenever that account fell below a certain level. (Tr. 309-10, 319.) Burda Media sent paid invoices from New York to Germany by Apex air freight on a monthly basis in order to document its expenses. (Tr. 94-101, 205, 302-04.) Fraudulent invoices created for the Viertel companies were sent by interstate carrier from New York to Germany on a monthly basis, and regular interstate wires from Germany to New York funded the payments that Burda Media made to Viertel and Blumenberg. (Tr. 94-101, 302-19.) Blumenberg frequently directed Ellen Kiefer, treasurer at Burda Media, to cash checks in payment of invoices from the Viertel companies and to provide that cash to Blumenberg. Kiefer became suspicious, and in or about May 1996, advised Burda Holding's attorneys of her concerns. (Tr. at 386.) Kiefer was instructed by these attorneys to continue "business as usual" and not to "change anything while they were investigating." (Tr. at 387.)

  On June 18, 1996, in a handwritten note (Gov't Ex. 3, see also Tr. 285), Blumenberg instructed Kiefer to issue a check to Agate Reality Media Services for $8120.10 that Viertel would pick up later that day. (Gov't Ex. 501; see also Tr. 289-90.) Kiefer issued the check on June 18, 1996 (Gov't Ex. 767; see also Tr. 288-90), and it was deposited into a bank account controlled by Viertel the same day. (Gov't Ex. 767; see also Tr. 1436.) Viertel deposited this check into his bank account, which depleted Burda Media's bank account and led Burda Holding, on June 24, 1996, to wire $350,000 to Burda Media in order to replenish Burda Media's accounts. (Tr. 324-327.) On or about June 28, 1996, Kiefer mailed either a copy or the original Agate Reality invoice (Gov't Ex. 501, see also Tr. 630-31) from Burda Media in New York, to Burda Holding in Germany as part of the routine mailing of all invoices (Tr. 318-19.) The June 24, 1996 wire of cash from Germany to New York and the June 28, 1996 mailing of the Agate Reality invoice provided the jurisdictional predicates for the substantive wire and mail fraud counts against Viertel.*fn3

  Viertel's counsel advanced the theory at trial that Viertel was in fact a victim of Blumenberg. (Tr. 72-82.) The defendant argued that Blumenberg submitted false invoices to Burda from the Viertel companies and then pocketed the proceeds or deposited Burda's payment checks into the companies' accounts as loan repayments to Viertel — all without Viertel ever knowing that the funds were the product of the submission of fictitious invoices. (Tr. 75-80, 1919-1920.) The Government challenged the defendant's loan repayment theory and instead portrayed the payments as kickbacks. (Tr. 1941-1945.)

  At the conclusion of the Government's case, Viertel made a motion for dismissal of the charges and entry of a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. With respect to the mail and wire fraud charges, Viertel argued that Burda Holding already knew of the fraud at the time of the June wiring and mailing, and that neither of these acts truly advanced the fraud. The defendant also argued that he had received payment for the Agate Reality invoice before the mailing occurred and that the evidence did not establish that the June 18, 1996 check to Agate Reality had triggered the subsequent June 24, 1996 wire. With respect to the conspiracy charge, the defendant argued that the evidence did not show that Viertel had seen the actual invoices or that Viertel knew that the checks deposited into his bank account were issued pursuant to fraudulent invoices.

  The Court denied the defendant's Rule 29 motion. The Court noted that the alleged mail and wire fraud scheme


was not simply fraud by which a payment was made but a scheme whereby the funds to obtain the money for the payment would be obtained from Burda in Germany such that, pursuant to the scheme, an invoice would be sent to Germany, where it would be kept, and that the funds of Burda in New York would be replenished by wires from Burda in Germany such that Burda in New York would have sufficient ongoing funds. (Tr. 1817-18.)
  The Court also noted that there was sufficient evidence from which the jury could find that there was an agreement between Viertel and Blumenberg to engage in a scheme to defraud and that the scheme to defraud had as its objects mail fraud and wire fraud. (Tr. 1818.) On October 2, 2002, the jury returned a verdict finding Viertel guilty on all three counts of the indictment.

  At sentencing on June 9, 2003 the Court rejected Viertel's argument that the checks issued by Burda Media and deposited into Viertel's bank accounts were actually repayments of personal debts that Blumenberg owed to Viertel. (See Tr. dated Jun. 9, 2003 at 13.) The Court noted that the Government had shown by more than a preponderance of the evidence, that Viertel participated with Blumenberg in the fraud, and that the bank accounts of Viertel and his wife, Laura Petrella, were used to siphon money from Burda. The frequency of the payments into these accounts, the odd amounts of the payments, and the fact that a number of the checks had been endorsed by Viertel and Petrella, indicated that the accounts were used to facilitate the fraud and that Viertel was in fact aware of the fraud. (Id. at 13-14.) Accordingly, the Court held Viertel responsible for the amount of $345,673.96, the total amount deposited into the various bank accounts controlled by Viertel. (Id. at 14.) The Court also rejected Viertel's request for a minor participant downward adjustment based on the long-standing and repeated nature of the fraud in which Viertel was a key participant. (Id. at 15.) The defendant was sentenced to a term of 21 months' imprisonment, a term of three years' supervised release, restitution in the amount of $345,673.96, a fine in the amount of $5,000, and a mandatory $300 assessment. (Id. at 17.)

  Viertel subsequently appealed his conviction, arguing that the evidence was insufficient to support the mail and wire fraud convictions because the June mailing and the June wire did not further the scheme to defraud; that the Government misled the jury concerning the elements of mail and wire fraud; and that the evidence was insufficient to establish the conspiracy convictions because no overt act occurred within the statute of limitations period. The Court of Appeals for the Second Circuit affirmed the defendant's conviction by summary order on May 28, 2004. See United States v. Viertel, 98 Fed. Appx. 68 (2d Cir. 2004). Viertel filed a petition for rehearing, which was denied by the Court of Appeals on June 21, 2004.

  In his present motion, the defendant notes that he filed a "Motion to Vacate Judgment Under Rule 60(b)(3) for Fraud Upon the Court and Lack of Subject Matter Jurisdiction" and that the motion was restyled as a "Motion for a New Trial" pursuant to Federal Rule of Criminal Procedure 33 at the suggestion of the Court. (See "General Traverse to Gov't Mem. of Law in Opp'n to Christian Viertel's Mot. for a New Trial, Challenge to Jurisdiction and an Evidentiary Hearing, All Pursuant to Rule 33," ("General Traverse") at 2.) By Order dated August 5, 2004, the Court had explained that, because no mandate had yet issued from the Court of Appeals, this Court lacked jurisdiction over the case and could not grant a motion for new trial, although, the Court noted that while a case is pending in the Court of Appeals, it could deny such a motion or indicate its inclination to grant such a motion. See id. (citing United States v. Camacho, 302 F.3d 35, 36-37 (2d Cir. 2002) (per curiam); United States v. Brodwin, 292 F. Supp. 2d 484, 486 (S.D.N.Y. 2003)). In a subsequent Order dated August 19, 2004, the Court denied the defendant's purported "Rule 60(b) (3) motion," and noted that the defendant's reference to Rule 60(b) (3) to vacate the judgment for fraud upon the Court suggested that the defendant was relying on Federal Rule of Civil Procedure 60(b) (3), which does not apply in this criminal case. The Court also suggested that the defendant consult appointed counsel as to the status of the appeal and the options available to him. See Order dated Aug. 19, 2004. In a letter dated February 7, 2005, the defendant sent the Court a copy of a "Crosby Form" that the defendant filed pro se with the Court of Appeals the same day. By filing that form with the Court of Appeals, the defendant sought a remand for consideration of whether resentencing should occur in light of United States v. Booker, 125 S. Ct. 738 (2005), and United States v. Crosby, No. 03-1675, 2005 WL 240916 (2d Cir. Feb. 2, 2005). By Order dated February 16, 2005, this Court appointed CJA counsel to represent the defendant with respect to the probable Crosby remand, but defense counsel and the defendant have requested that the Court consider the current motion submitted by the defendant pro se. On April 13, 2005, the Court of Appeals remanded the case to this Court for further proceedings in conformity with its decision in Crosby. The Court noted that its disposition in the Order previously issued in connection with the appeal is fully effective, except to the extent inconsistent with the remand in conformity with Crosby. Hence, this Opinion and Order considers the defendant's motion for a new trial. The Court will separately consider any issues raised in connection with the request for resentencing under Crosby when they have been briefed by counsel. II.

  On September 12, 2004, the defendant filed the current motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial based on allegedly newly discovered evidence. None of these items of alleged newly discovered evidence warrant a new trial.

  The standard for granting a motion for a new trial is a demanding one. A court will grant a new trial only "in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993). (citing United States v. Imran, 964 F.2d 1313, 1318 (2d Cir. 1992)). The Second Circuit Court of Appeals has noted: "Because motions for a new trial are disfavored in this Circuit the standard for granting such a motion is strict; that is, newly discovered evidence must be of a sort that could, if believed, change the verdict." United States v. Gambino, 59 F.3d 353, 364 (2d. Cir. 1995) (citing United States v. Gilbert, 668 F.2d 94, 96 (2d Cir. 1981)). This standard has been held to counsel in favor of granting a new trial motion only where the evidence would probably lead to an acquittal. Gilbert, 668 F.2d at 96 (citations omitted). Another way to phrase the inquiry is "whether or not there is in reality a `significant chance' that the disclosure would have induced reasonable doubt in the minds of enough jurors to prevent a conviction." United States v. Rosner, 516 F.2d 269, 273 (2d Cir. 1975) (citations omitted). The discovery of new evidence that merely discredits a Government witness, but does not contradict the Government's case, generally does not merit a new trial. See United States v. Spencer, 4 F.3d 115, 119 (2d Cir. 1993) (citations and internal quotation marks omitted).

  Where a motion for a new trial is based on a claim of newly discovered evidence, the defendant bears the burden of proving that: (1) the evidence is genuinely "new," because it was "discovered after trial"; (2) that the evidence could not, with the exercise of due diligence, have been discovered sooner; and (3) that the evidence is so material that it would "probably produce a different verdict." United States v. Slutsky, 514 F.2d 1222, 1225 (2d Cir. 1975) (citations omitted).

  The decision whether to grant a new trial motion is committed to the Court's discretion. See, e.g., United States v. Diaz, 922 F.2d 998, 1006 (2d Cir. 1990). In deciding a motion for a new trial based on newly discovered evidence, the district court may use knowledge gained from presiding over the trial as well as the showing made on the motion. United States v. On Lee, 201 F.2d 722, 723 (2d Cir. 1953) (citations omitted); see also Brodwin, 292 F. Supp. 2d at 492 ("A district court `has `broad discretion' to decide Rule 33 motions based upon its evaluation of the proof produced . . . because, having presided over the trial, it is in a better position to decide what effect the newly discovered materials might have had on the jury.'" (quoting Gambino, 59 F.3d at 364 (citations omitted)).

  The district court also has the discretion to hold an evidentiary hearing on a motion for a new trial but "evidentiary hearings on motions in criminal cases are the exception, not the rule." United States v. Alicea, 205 F.3d 480, 487 (1st Cir. 2000). "If the moving papers themselves disclose the inadequacies of the defendant's case, and the opportunity to present live witnesses would clearly be unavailing, the court may rest its decision solely on the basis of the affidavits and memoranda submitted and need not resort to an evidentiary hearing." United States v. Salameh, 54 F. Supp. 2d 236, 248 (S.D.N.Y. 1999) (citations omitted), aff'd, 16 Fed. Appx. 73 (2nd Cir. 2001).

  The defendant alleges that there are five pieces of "newly discovered evidence" that merit either an evidentiary hearing or a new trial, including: (1) documents that the defendant describe as transcripts from 1997 of German police interviews of Wolfgang Maginot, a Group Controller of Burda Holding who conducted an internal investigation of Blumenberg (see Def.'s "Supplemental" and "Amended" Mot. for New Trial dated Nov. 4, 2004, at 1; Def.'s "Motion for New Trial Pursuant to Fed.R.Crim.P. 33, and/or an Evidentiary Hearing, Including Release on Own Recognizance to Investigate and Prepare for Evidentiary Hearing and/or New Trial," ("Mot. for New Trial"), at Ex. G); (2) an invoice that Viertel maintains is the Agate Reality invoice allegedly hand-carried by Maginot to Germany from New York (see Def.'s Mot. for New Trial, at 9); (3) a document that Viertel maintains is a waybill issued by Lufthansa at Newark International Airport on or around June 28, 1996 (see Mot. for New Trial at 6-7); (4) a 1996 audit of Burda Media (see Mot. for New Trial at 5); and (5) a document bearing the corporate letterhead of Telcopa, Ltd., which lists Telcopa's alleged place of business at a building address in Manhattan that the defendant maintains was once occupied by Blumenberg's Burda Agency during the 1970s (see Def.'s "Second Judicial Notice and Affidavit" ("Second Judicial Notice and Aff.") at 3, attached to Mot. for New Trial.)


  The transcripts of the German police interviews of Maginot are not new evidence that warrant a new trial. The gist of the defendant's argument is that Maginot allegedly admitted to carrying the fraudulent Agate Reality invoice to Germany and therefore Kiefer could not have mailed this invoice to Germany, and the jurisdictional predicate for the mail fraud charge would be eliminated.

  The transcripts are not new evidence that could not, with the exercise of due diligence, have been discovered sooner. The interviews were conducted in 1997, years before the trial in this case. At trial, Viertel's counsel questioned Kiefer about the fact that Maginot came to New York in June 1996 and collected documents, including a copy or the original of the Agate Reality invoice. (Tr. 630-31.) That did not shake Kiefer's testimony that a copy or the original of Government Exhibit 501, the Agate Reality invoice, was mailed to Germany with the report. (Tr. 629-31.) His counsel's questions show that, at the time of trial, Viertel was aware of the existence of Maginot and that Maginot had taken documents to Germany in 1996. Moreover, Viertel was well aware that Burda was alerted to the scheme. The defendant relied on Burda's detection of the scheme when his counsel argued at trial that the mailing and wire transfer occurred only after Burda already knew about the scheme, and that those acts could not be in furtherance of any fraud. (Tr. 1807-09.)

  The defendant could have sought records regarding Maginot's investigation from Burda and sought to take depositions in Germany. There is no representation that the defendant took such actions and there is no basis for a new trial because there has been no showing that these documents could not have been discovered with the exercise of due diligence before or during the trial. See, e.g., United States v. Petrillo, 237 F.3d 119, 124 (2d Cir. 2000), abrogated on other grounds, Crawford v. Washington, 541 U.S. 36 (2004); United States v. Middlemiss, 217 F.3d 112, 122-23 (2d Cir. 2000).

  Moreover, the Maginot interviews are not so material that they would probably produce a different verdict. The Maginot interviews refer to "originals" that Maginot brought from New York. (See Mot. for New Trial, Ex. G at 3.) The interviews do not refer specifically to the Agate Reality invoice as a document that Maginot brought from New York. In any event, the interviews are not inconsistent with Kiefer's trial testimony and they do not undermine in any way the evidence of the use of an international freight company to transport the invoice to Germany, as charged in the indictment. Kiefer testified that she sent the Agate Reality invoice by air freight, either a copy or the original, along with the other invoices she received that month and the vendor report from New York to Germany as part of her regular monthly mailing, which suffices for purposes of the mail fraud count. (Tr. 205, 303, 629-31.) Although the defendant now alleges that Kiefer never testified that the Agate Reality invoice had been mailed, the defendant mischaracterizes the testimony presented at trial. It is plain that Kiefer testified that she sent the Agate Reality invoice to Germany by Apex, an international air freight company, in the regular course of business (Tr. 302-03), and that she subsequently gave either copies or originals of various documents to Maginot. (Tr. 630-31.) Moreover, on cross-examination, Kiefer testified that, when Maginot came to New York to collect evidence against Blumenberg, Kiefer provided Maginot with either a copy or the original of the Agate Reality invoice and that she mailed the other to Germany with the collection of other invoices paid that month. (See Tr. 303-05, 630-31.) Thus, the Maginot interviews discuss matters that are neither new nor would probably produce a different verdict.


  The defendant argues that he now possesses an "original" Agate Reality invoice that he alleges constitutes "new" evidence that was either an attachment or enclosure to the transcripts of the interview of Maginot by German police. Viertel notes that this allegedly "original" Agate Reality invoice is not stamped with a Bates stamp or a Government exhibit number, and does not have number "347" at the top of the invoice, a number that Kiefer described in her testimony, as reflecting the receipt number that also appeared on the report sent to Germany with the invoice. (Gov't Ex. 510; Tr. 303-18.) Viertel's invoice does not contain a handwritten mark that changed the amount of the invoice in evidence as Government Exhibit 501 from "$8120.00," to "$8120.10." The defendant alleges that "$8120.00" was improperly changed to "$8120.10" by prosecutors during trial in an effort to "match" the amount listed on the invoice with Government Exhibit 767, the June 18, 1996, check issued by Burda Media made payable to Agate Reality in the amount of $8120.10. The defendant further notes that the "original" invoice in his possession also bears handwriting which reads "Anlage 10/30," which translates as "Enclosure 10/30," and that this is the "original" invoice that Maginot was referring to in the interview with German police.

  It is clear that the existence of the allegedly "original" invoice does not warrant a new trial. The alteration on Government Exhibit 501 was apparent on the exhibit during trial and could have been pursued at that time. There is nothing to support the defendant's conclusory allegation that any prosecutor altered the exhibit. Defense counsel understandably chose not to pursue the issue because the alteration is plainly not consequential to any of the issues in the case. The amount of the invoice with the alteration corresponds to the contemporaneous records including the check (Gov't Ex. 767) and the summary report to Germany (Gov't Ex. 510). Government Exhibit 501 was identified by Kiefer and is consistent with the report that went to Germany. The additional invoice that Viertel has produced shows only that there was another copy of the invoice that did not correspond to the check and the report and that does not appear to be the one sent to Germany. It does not affect the substance of Kiefer's testimony and could not conceivably have resulted in a different verdict.


  Viertel also argues that a purported "waybill" from Lufthansa dated June 28, 1996 proves that Lufthansa must have carried the Agate Reality invoice because, according to the defendant, "Lufthansa is the only airline used by German media companies to ship urgent press materials to Germany from the U.S." (Mot. for a New Trial at 7.) The Government responds that such a waybill proves, at most, that Lufthansa transported something for Apex Air freight on June 28, 1996.

  The defendant's allegations regarding this waybill do not support a new trial. First, there is no explanation why the defendant could not have subpoenaed any records from Lufthansa or Apex Air Freight for purposes of the trial. There is no explanation why, with the exercise of reasonable diligence, this evidence could not have been discovered in time to be introduced at trial.

  Moreover, even if the defendant had possessed the waybill before or during the trial, the defendant has not shown that the evidence was so material that it would probably lead to a different verdict. Indeed, while there is no evidence from the airbill what was shipped by Lufthansa or Apex, the airbill is perfectly consistent with the charges in the indictment and with the evidence at trial. At trial, Kiefer testified that Burda Media used Apex, a freight company, to ship items to Germany on a daily basis, and that invoices and a vendor history report were sent by Apex once a month. (Tr. 303, 305.) Kiefer also testified that she knew that the monthly mailing containing the Agate Reality invoice was sent between June 28, 1996 and July 1 or July 2, 1996 because the report, Government Exhibit 510, which was sent with the invoices was printed on June 28, 1996. (Tr. at 319.) The indictment charged that on June 28, 1996, there was a delivery by an international freight company from New York, New York to Burda Holding in Offenburg, Germany. The waybill would support rather than undermine that charge. There is nothing about the waybill that warrants a new trial. D.

  The defendant argues that a new trial is warranted based on his discovery of a 1996 audit of Burda Media, which describes Burda Media as "self-sustaining." He argues that this is inconsistent with the Government's theory as to how Burda Media was funded with wire transfers from Burda Holding.

  The 1996 audit of Burda Media does not warrant a new trial pursuant to Rule 33. The defendant has made no showing that either the 1996 audit or a similar purported statement by Maginot are so material that they would probably lead to a different verdict. The defendant alleges that the 1996 audit states that "since 1 January the corporation is selfsustaining." (General Traverse at 7 (emphasis in the original).) The meaning of this statement is unclear, although, in context, it suggests only that Burda Media was organized as a separate company. (See Def.'s Ex. C-2, attached to Mot. to Vacate filed Aug. 18, 2004 ("Until 31. December 1991, the corporation [Burda Media] was a branch office (bureau) of Burda GmbH, Offenburg. Since 1. January 1992 the corporation is selfsustaining (independent company).") (emphasis in original)). That Burda Media was organized as a separate company does nothing to undermine the clear evidence that invoices were sent by Burda Media in New York to Burda Holding in Germany and Burda Holding wire transferred funds to Burda Media. The scheme in this case worked because fraudulent invoices were air freighted from New York and because funds were wired from Germany. Whenever the bank account of Burda Media dropped below a certain level due to the payment of these invoices, Burda Holding wired money to replenish Burda Media's bank account in New York. (Tr. 310, 318-19.) The funds were fraudulently obtained by Viertel and Blumenberg and the 1996 audit does not provide any evidence that would probably change the verdict.


  The defendant requests an evidentiary hearing because he asserts that he now has evidence that shows that Blumenberg Burda Agency occupied a building address in Manhattan during the 1970s, and that this address was used as a false address for Telcopa, Ltd. The defendant states that an "FBI 302 Report" indicates that the building owner at this address in Manhattan did not know of either Telcopa, Ltd. or the defendant. (See General Traverse at 4.) The defendant has not explained why this evidence could not have been discovered before or during the trial with the exercise of due diligence. Nor is this evidence so material that it would probably lead a jury to acquit the defendant. The fact that an address used on Telcopa letterhead was an address that was once connected to the defendant's co-conspirator, Blumenberg, does not help the defendant and would not have resulted in a different verdict.

  In sum, for all of the reasons indicated, each of the allegedly "newly discovered" pieces of evidence presented by the defendant do not warrant a new trial.


  In addition to his claims based on "newly discovered evidence," the defendant also alleges that there was "insufficient evidence to sustain a conviction" and "the verdict is contrary to the weight of the evidence and law" (Mot. for New Trial at 2); "the verdict is not supported by substantial evidence (id.); the Court "erred, pre-trial, in denying defendant/movant permission to travel internationally to Germany to investigate and gather pertinent and critical documentary evidence critical for his defense" (id.); the Court erred in precluding "the defense from arguing that because Burda `knew' about Blumenberg's fraud, the June 1996 mailing and the June 1996 wire transaction were not `in furtherance' of the scheme or were not `caused' by the defendant (id.); the Court failed to consider the Government's alleged failure to "secure and present in discovery" a typewriter that belonged to co-defendant Blumenberg (id. at 2-3); the Court erred by permitting the allegedly fraudulent Agate Reality invoice into evidence (id. at 3); and the Government failed to present evidence that this invoice was shipped or mailed to Germany from New York (id. at 6).

  The defendant was required to raise any claims for a new trial, other than those based on newly discovered evidence, within seven days after the entry of the verdict, or such other time as the Court set. See Fed.R.Crim.P. 33(b)(2) (providing time limit for motions for new trial "grounded on any reason other than newly discovered evidence"). To the extent that these claims are based on the allegedly newly discovered evidence, they fail because, for the reasons stated above, the alleged newly discovered evidence does not warrant a new trial. To the extent this list of claims is not based on newly discovered evidence, the claims are untimely under Federal Rule of Criminal Procedure 33(b)(2).

  In any event, none of the objections raised have any merit. There was ample evidence to support the defendant's conviction on each of the three counts of which he was convicted and there was more than sufficient evidence of the jurisdictional requirements for each of the charges. This Court correctly denied the defendant's Rule 29 motion at trial and the Court of Appeals summarily affirmed the defendant's conviction in the face of very similar arguments by the defendant. The Court has considered each of the defendant's claims and finds them to be without merit.

  The defendant has also raised a number of complaints about extensions granted to the Government and states that he never received the Government's Memorandum in Opposition until March 4, 2005. The Court answered similar complaints in its Order dated March 9, 2005, which denied the defendant's application for a default judgment against the Government and directed the Government to send another copy of its memorandum to the defendant. At the conference on April 21, 2005, the Government indicated that it had sent all filings in this action to the defendant. (Tr. dated Apr. 21, 2005 at 25.)

  The defendant filed a "Motion for an Order to Produce Grand Jury Exhibits." The motion is based on the same allegations of allegedly false testimony by Kiefer and alleged Government misconduct in submitting Government Exhibit 501 to the jury. There is no basis presented for the allegation and no basis for the discovery of exhibits submitted to the grand jury. See, e.g., Ida v. United States, 191 F. Supp. 2d 426, 434-35 (S.D.N.Y. 2002) (denying discovery of grand jury materials where movant failed to show particularized need for access to grand jury materials); see also Czernicki v. United States, 270 F. Supp. 2d 391, 395 (S.D.N.Y. 2003) (denying discovery in connection with habeas petition); Rossney v. Travis, No. 00 Civ. 4562, 2003 WL 135692, at *12 (S.D.N.Y. Jan. 17, 2003) (same), aff'd, 93 Fed. Appx. 285 (2d Cir. 2004). The motion for the production of grand jury exhibits is therefore denied.

  The Court has considered all of the arguments raised by the defendant in support of his motion for a new trial. To the extent not specifically addressed above, the arguments are either moot or without merit.


  For the reasons stated above, the defendant's motion for a new trial pursuant to Rule 33 as well as the defendant's motion for the production of Grand Jury exhibits are both denied in their entirety.


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