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United States District Court, S.D. New York

June 8, 2005.

KURIAN CHACKO, Petitioner,

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


The petitioner, Kurian Chacko ("Chacko"), brings this motion purportedly pursuant to Rule 12(b) (2) of the Federal Rules of Criminal Procedure seeking to dismiss the Superseding Indictment returned against the petitioner in 1997. Chacko alleges that the Government used perjured testimony before the Grand Jury, and that the Superseding Indictment returned against him should therefore be dismissed. The motion is denied.


  The facts of this case are detailed in the Court's prior opinions, United States v. Chacko, No. 96 Cr. 519, 1997 WL 481862 (S.D.N.Y. Aug. 21, 1997), aff'd, 169 F.3d 140 (2d Cir. 1999), and Chacko v. United States, Nos. 96 Cr. 519 & 00 Civ. 405, 2000 WL 1808662 (S.D.N.Y. Dec. 11, 2000) (denying habeas corpus), certificate of appealability denied, No. 01-2130 (2d Cir. May 30, 2001). Familiarity with these opinions is assumed, and details are recounted here as necessary to decide the issues raised in the petitioner's current motion.

  Chacko was charged in a six count Superseding Indictment S1 96 Cr. 519 filed on March 31, 1997. Count One charged Chacko with engaging in a conspiracy, in violation of 18 U.S.C. § 371, from June 1992 through August 1995. The conspiracy involved making false statements to a bank in connection with a loan application, in violation of 18 U.S.C. § 1014, and committing bank fraud in violation of 18 U.S.C. § 1344. Counts Two through Five charged Chacko with making false statements in connection with loan applications in violation of 18 U.S.C. § 1014. Each of those counts alleged a separate false statement submitted to the New York Branch of the State Bank of India (the "Bank"). Count Six charged the petitioner with committing bank fraud, from May 1992 through August 1995, in violation of 18 U.S.C. § 1344. On June 3, 1997, a jury returned a verdict of guilty on Counts One, Two, Three, Five, and Six, and a verdict of not guilty on Count Four.

  The evidence presented at trial established that Chacko made false statements and submitted false documents to the Bank in order to obtain $5 million in loans to Balogh Jewelers ("Balogh"), the jewelry business that Chacko owned and operated. The evidence presented at trial included evidence that Chacko submitted phony documents in June 1992 to the Bank, which contained the letterhead and corporate seal of a jewelry repair business owned and operated by Leo Lalieu ("Lalieu"). These submissions gave rise to Count Three of the indictment, and included two appraisals of Balogh's merchandise that contained signatures purportedly by Lalieu. At trial, Lalieu testified that he never performed a valuation of Balogh's jewelry and never examined Balogh's books and records. Lalieu also testified that he gave his stationery and corporate seal to Chacko, that he signed a document at the request of the petitioner or the petitioner's assistant, and that Chacko returned the corporate seal to Lalieu.

  After trial, Chacko moved for a new trial pursuant to Federal Rule of Criminal Procedure 33 on various grounds, including the introduction of the allegedly perjured testimony of four Government witness: Michael Steinmetz, Joseph Rafalowicz, Paul Doyle, and Leo Lalieu. The Court rejected each of the petitioner's arguments in an opinion dated August 21, 1997. See Chacko, 1997 WL 481862, at *9. The Court noted that, with respect to Chacko's allegations of perjury, "Chacko has not demonstrated that any of these witnesses' testimony was perjurious, because none of their testimony was patently incredible or defied physical realities." Moreover, the Court explained that, "because there is no objective basis to doubt the testimony of any of these witnesses, much less conclude that any committed perjury, there is no basis to disturb the jury's credibility determinations." Id.

  On October 22, 1997, Chacko filed a motion for reconsideration of the Court's Order denying the petitioner's first post-trial motions. Chacko asked the Court to reconsider his argument that the Government witnesses committed perjury. Chacko also moved to set aside the verdict based on a handwriting analysis of documents that the Government provided to Chacko before trial. Chacko claimed that the handwriting analysis was "newly discovered evidence."

  At a hearing on December 17, 1997, the Court rejected Chacko's motion for reconsideration in an oral ruling. (See Tr. of Dec. 17, 1997 Hearing at 12-17.) The Court determined that the petitioner's renewed allegations of perjury by Government witnesses were untimely and without merit. (See id. at 13-14.) The Court explained that the handwriting analysis conducted after the trial was not newly discovered evidence because the underlying documents had been produced prior to trial and the handwriting analysis could have been performed then. (See id. at 15.) The Court determined that the handwriting analysis was "meaningless within the context of Rule 33" and would not lead to an acquittal. (See id. at 15-16.)

  In a judgment filed on February 4, 1998, Chacko was sentenced principally to a term of 121 months' imprisonment to be followed by three years' supervised release. The Court also imposed $250 in mandatory assessments. See United States v. Chacko, No. 96 Cr. 519 (S.D.N.Y. Feb. 4, 1998). As part of that judgment, and as a condition of Chacko's supervised release, the Court ordered Chacko to "pay 10% of his gross monthly income toward the payment of the [civil] judgment of $5,586,138.05 in favor of the State Bank of India entered by Judge Mukasey until it is fully paid." (Id. at 5.)

  Chacko appealed the judgment of conviction and repeated some of the arguments that he had raised in his post-trial motions. On March 1, 1999 the Court of Appeals for the Second Circuit affirmed the judgment of conviction. See Chacko, 169 F.3d 140.

  Chacko filed a first petition pursuant to 28 U.S.C. § 2255 on or about January 20, 2000. Chacko argued that his conviction and sentence should be vacated because: the Government allegedly suppressed exculpatory and impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); Chacko received allegedly ineffective assistance from his trial and appellate counsel; the Government allegedly knowingly introduced perjured testimony at trial; and the Court allegedly used sentencing enhancements, pursuant to the United States Sentencing Guidelines, which were not alleged in the indictment and proved beyond a reasonable doubt by the jury in violation of the Fifth Amendment as determined by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000).

  The Court rejected each of these arguments in an opinion dated December 11, 2000. See Chacko v. United States, 2000 WL 1808662. Despite the fact that several claims were procedurally barred, the Court nevertheless evaluated the merits of all of the petitioner's claims, noting that the petitioner's claims that the Government introduced perjured testimony at trial were without merit, and that the Court had


found twice that petitioner has not established that any of these witnesses committed perjury. . . . there is no basis to conclude that the testimony against the petitioner was false, and no basis to conclude that the Government knowingly used false testimony.
Id. at *10.

  Chacko appealed the Court's denial of his first Section 2255 motion, and the Court of Appeals for the Second Circuit dismissed the appeal and denied a certificate of appealability. (See Chacko, No. 01-2130 (2d Cir. May 30, 2001).)

  Chacko then brought a second or successive Section 2255 petition, which attacked his conviction and objected to the Court's order directing Chacko to pay the judgment in State Bank of India, No. 95 Civ. 4416, in monthly installments, a condition that Chacko characterized as the Court's "order of restitution."*fn1 By Order dated March 22, 2004, Chief Judge Mukasey construed Chacko's motion pursuant to Federal Rule of Criminal Procedure 35(a) as a second or successive habeas petition and transferred it to the Court of Appeals for the Second Circuit. (See Chacko v. United States, No. 04 Civ. 2258, Transfer Order (S.D.N.Y. Mar. 22, 2004).)

  To the extent Chacko challenged his term of imprisonment, the Court of Appeals denied Chacko's motion to file a second or successive Section 2255 petition. (See Chacko v. United States, No. 04-1668 (2d Cir. May 24, 2004).) The Court of Appeals also denied Chacko's motion as unnecessary to the extent Chacko challenged the order of restitution, "because a challenge to restitution is not cognizable under § 2255," and therefore the motion to file a second or successive Section 2255 petition was unnecessary to challenge that order. (Id.) (citing Kaminski v. United States, 339 F.3d 84, 87 (2d Cir.), cert. denied, 124 S. Ct. 948 (2003).)

  This Court subsequently denied the petitioner's Amended Motion to the extent that it challenged the Court's calculation of the length of the petitioner's term of imprisonment. (See Order dated Oct. 19, 2004.) In a separate Opinion and Order issued with this Opinion and Order, the Court is denying the petitioner's challenge to the condition of supervised release that requires him to make payments toward the payment of the State Bank of India judgment.


  Chacko raises five arguments in his current motion: (1) that the superseding indictment and subsequent conviction are based on allegedly false testimony by Lalieu regarding appraisals submitted to the Bank in Lalieu's name and an allegedly false affidavit that Lalieu submitted to obtain a court appointed attorney; (2) that the Court never considered the claim that Lalieu's testimony before the grand jury was perjured, that Government witnesses Doyle and Steinmetz also committed perjury before the grand jury, and that defense counsel's failure to raise the alleged perjury of witnesses before the grand jury constituted ineffective assistance of counsel; (3) that the Court's instruction to the trial jury regarding Lalieu's testimony violated the petitioner's right to due process; (4) that Federal Rule of Criminal Procedure 12(b)(2) is the proper avenue by which to dismiss the indictment; and (5) that alleged jurisdictional defects in the indictment may be raised at any time and warrant the dismissal of the indictment in this case. Chacko also requests that the Court direct the Government to disclose transcripts of the grand jury proceedings pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E).


  Chacko alleges that this Court lacks jurisdiction because of alleged defects in the indictment, particularly because it was allegedly based on perjured testimony. Chacko styles his motion as made under Federal Rule of Criminal Procedure 12(b) (2), but he is apparently referring to Rule 12 before the 2002 Amendments. At that time, Federal Rule of Criminal Procedure 12(b) (2) provided for pretrial motions alleging defects in the indictment. That section is now contained Federal Rule of Criminal Procedure 12(b)(3)(B), which, as part of the motions that "must be raised before trial," provides:

[A] motion alleging a defect in the indictment or information — but at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense . . .
  Any motion under Federal Rule of Criminal Procedure 12(b)(3)(B) must be made "while the case is pending." This phrase has been interpreted to include motions made while the case is on direct appeal. See United States v. Ivic, 300 F.2d 51, 59 n. 5 (2d Cir. 1983). However, the phrase could not reasonably be construed as allowing such motions after direct appeal and the time for filing a petition for certiorari has expired. See United States v. Valdez-Camarena, 402 F.3d 1259, 1260-61 (10th Cir. 2005); United States v. Wolff, 241 F.3d 1055, 1057 (8th Cir. 2001) (per curiam) (after final judgment was entered and the petitioner did not file a direct appeal, the proceedings were "no longer pending."). In this case, Chacko's conviction was affirmed on direct appeal in 1999, and the time for a petition for certiorari has long passed. The case is no longer pending and the Rule 12(b)(3) motion is therefore time-barred.

  In any event, Chacko's argument that the Court lacked jurisdiction is without merit. Chacko has failed to establish that there was any defect in the indictment. The Court of Appeals for the Second Circuit has explained that, in a criminal case, certain claims may be treated as challenges to the Court's jurisdiction, including the failure of the indictment to charge an offense. See United States v. Foley, 73 F.3d 484, 488 (2d Cir. 1996) (noting that claims that raise issues that go to whether the conduct alleged and proved is punishable under the statute charged are jurisdictional challenges in criminal cases), overruled on other grounds, Salinas v. United States, 522 U.S. 52 (1999); see also United States v. Moloney, 287 F.3d 236, 239-40 (2d Cir. 2002). However, Chacko cannot point to any elements or details that were missing from the counts set forth in the indictment. Indeed, the conduct alleged in the indictment was criminal, properly informed Chacko of the charges against him, and the court had subject matter jurisdiction to hear the charges against Chacko, which were based on his violations of federal law. The indictment closely tracks the language of the relevant sections of Title 18, United States Code, and sufficiently sets forth the elements of the crimes with which Chacko was charged. Accordingly, Chacko is not entitled to any relief under Rule 12 (b).


  Moreover, the petitioner's claims that Government witnesses Lalieu, Doyle, and Steinmetz perjured themselves before the grand jury and at trial are without merit. The Court has repeatedly rejected identical allegations by the petitioner regarding the testimony of these witnesses at trial.

  The Court rejected such allegations in Chacko's first post-trial motion, and noted that Chacko has, at most, shown that the testimony of certain witnesses conflicted with the facts contained in various documents or with the testimony of other witnesses presented at trial. See Chacko, 1997 WL 481862, at *9. Similarly, in his second post-trial motion, Chacko renewed allegations that Lalieu, Doyle, and Steinmetz had, along with a fourth witness, Joseph Rafalowicz, committed perjury at trial. The Court explained that after listening to the testimony of these four witnesses, there was no reason for a reasonable juror to doubt the testimony of the witnesses, much less to conclude that the witnesses committed perjury. (See Tr. of hearing dated Dec. 17, 1997 at 14.) ("[T]he petitioner's motion for reconsideration with respect to the allegedly perjured testimony would be denied even if it had been timely filed, and it is denied.") The Court again rejected the same claims of witness perjury when it denied Chacko's first Section 2255 petition. See Chacko, 2000 WL 1808662, at *10 ("this Court has found twice that petitioner has not established any of these witnesses committed perjury . . . The petitioner has presented no evidence to cause the Court to reconsider those decisions.") These denials were affirmed on appeal. See Chacko, 169 F.3d 140.

  In his present motion, Chacko fails to show that the testimony of these witnesses was perjured and there is still no basis to disturb the trial jury's credibility determinations. There is no basis to conclude that any of the witnesses committed perjury at trial. See id.

  Chacko's argument is not strengthened by the petitioner's new assertion that the same allegedly perjured testimony was given before the grand jury. The Supreme Court has provided the standard for determining when errors before the grand jury warrant dismissal of an indictment in Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). "[A]s a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants." Id. In addition, claims that the grand jury was presented with incompetent evidence do not warrant dismissal of the indictment: It is well settled that an indictment returned by a legally constituted grand jury, if valid on its face, is enough to call for a trial on the merits. See United States v. Calandra, 414 U.S. 338, 345 (1974); Costello v. United States, 350 U.S. 359, 363 (1956) . . . Indeed, even if the grand jury indicted on the basis of inadequate or incompetent evidence, dismissal is not warranted.

 United States v. Diaz, 675 F. Supp. 1382, 1389 (E.D.N.Y. 1987).

  Moreover, an error in a grand jury proceeding is generally considered harmless once a defendant has been convicted at trial after a jury has found that defendant guilty of crimes charged in the indictment beyond a reasonable doubt. See, e.g., United States v. Mechanik, 475 U.S. 66, 70 (1985) ("Measured by the petit jury's verdict . . . any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt."); see also United States v. Flores-Rivera, 56 F.3d 319, 328 (1st Cir. 1995). Although Mechanik involved an alleged violation of Federal Rule of Criminal Procedure 6(d), and did not involve the issue of alleged false grand jury testimony now before the Court, Mechanik's logic has been applied to bar claims based on allegedly false grand jury testimony that are raised after conviction. See Spencer v. United States, No. 97 Civ. 3256, 2000 WL 172636, at *2 (S.D.N.Y. Feb. 14, 2000) (quoting United States v. Gibson, No. 91 Cr. 669 & No. 94 Civ. 626, 1994 WL 88619, at *1 (S.D.N.Y. Mar. 11, 1994) ("[e]ven if [witness's] grand jury testimony had been perjurious and it somehow tainted the indictment, that is of no consequence now that the petitioner has been convicted after trial.").

  In this case, Chacko has not demonstrated that any perjury before the grand jury in fact occurred, or that there was any prejudicial or outrageous error in the grand jury proceeding that would warrant a dismissal of the indictment. Furthermore, any alleged errors before the grand jury were cured by Chacko's conviction by the trial jury beyond a reasonable doubt. See Flores-Rivera, 56 F.3d at 328.

  Chacko's argument that his counsel was ineffective because his counsel failed to challenge the indictment based on allegedly perjured testimony before the grand jury is without merit for similar reasons. The Court previously denied similar complaints of ineffective assistance of counsel before the trial jury, and noted that defense counsel presented the trial jurors with evidence to bolster Chacko's version of events at trial. See Chacko, 2000 WL 1808662, at *8-*9. Because there is no merit to Chacko's claim of a jurisdictional defect in the indictment, there was no ineffective assistance for not raising that claim at trial.


  The petitioner objects to a portion of the charge, particularly as it related to Lalieu as a cooperating witness with informal immunity. The petitioner argues that the instruction created a "mandatory presumption" in favor of Lalieu's testimony in violation of the Due Process Clause.

  There is no reasonable argument that this is a challenge to the indictment that could be heard under Rule 12(b) and it is yet another effort at a Section 2255 petition for which the petitioner must seek the permission of the Court of Appeals. In any event, the argument is without merit. The Court gave the parties multiple opportunities to comment on the charge both before and after it was read to the jury. However, plaintiff's counsel never objected to the charge on such grounds. (See id. at 1378-1405; 1577.) Having failed to raise the objection before the jury retired to deliberate, the plaintiff waived his right to do so, except for plain error. See Fed.R.Crim.P. 30(d); see also United States v. Nathan, 536 F.2d 988, 992 (2d Cir. 1976).

  Moreover, the petitioner's substantive objections to the charge are without merit because the Court's instruction to the jury was proper, balanced, and fair. The Court gave the recommended charge regarding consideration of the testimony of a government witness with informal immunity, which is contained in Judge's Sand's treatise. (Trial Tr. at 1527-28; see also L. Sand et al., Modern Federal Jury Instructions, Instruction 7-9.) The charge was proper at it was given, and there was no presumption created. See, e.g., United States v. Stirling, 571 F.2d 708, 735 (2d Cir. 1978) (collecting cases involving similar instructions).


  Chacko is not entitled to a transcript of the grand jury proceedings. A party seeking disclosure of grand jury minutes confronts a stringent standard, namely, that party must show "a particularized need" for such materials. See Ida v. United States, 191 F. Supp. 2d 426, 434 (S.D.N.Y. 2002). Moreover, grand jury proceedings are accorded a "presumption of regularity," which a movant may disturb only by a showing of particularized proof of irregularities in the grand jury process. Mechanik, 475 U.S. at 75; United States v. Torres, 901 F.2d 205, 232 (2d Cir. 1990); see also United States v. James, No. 94 Cr. 750, 1995 WL 81295, at *5 (S.D.N.Y. Feb. 28, 1995); United States v. Brilliant, 172 F. Supp. 712, 713 (E.D.N.Y. 1959) ("[W]hen a claim is made that the [government] colluded with a witness to commit perjury, or had knowledge that they had done so, the person making such a claim has the burden to allege and prove, not conclusions, but facts which would entitle him to relief.") (citations and internal quotation marks omitted), aff'd, 274 F.2d 618 (2d Cir. 1960).

  Chacko has not established a particularized need for the grand jury minutes that outweighs the government's strong interest in the secrecy of grand jury proceedings. Moreover, he has offered no proof that the Government knew that any witness provided false testimony before the grand jury or at trial, nor any evidence that these witnesses actually gave false testimony at any stage of the proceedings. See James, 1995 WL 81295, at *6; see also United States v. Piedrahita, 791 F. Supp. 418, 420 (S.D.N.Y. 1992); Diaz, 675 F. Supp. at 1389 ("The defendants' speculation about what went on before the grand jury is insufficient to warrant inspection of the minutes")). Chacko's motion to inspect the minutes of the grand jury is therefore denied.


  The only remaining issue is whether the petitioner's Rule 12 motion can be construed as a Section 2255 petition. See, e.g., Jiminian v. Nash, 245 F.3d 144, 148 (2d Cir. 2001). While the claims in the current motion are allegedly brought pursuant to Rule 12(b), they are in fact challenges to the petitioner's conviction and should be construed as claims pursuant to 28 U.S.C. § 2255.

  Because Chacko has already filed a second or successive habeas petition, he is already subject to the gate-keeping requirements established by Congress that govern such petitions. See 28 U.S.C. §§ 2255, 2244. Therefore, Chacko will not be prejudiced by the Court's conversion of his Rule 12 motion into a Section 2255 petition without providing Chacko with the opportunity to withdraw the motion. See Jiminian, 245 F.3d at 148. Accordingly, the Court construes the Rule 12 motion as a successive Section 2255 petition, and forwards it to the Court of Appeals for the Second Circuit for a determination of whether the petition is consistent with the congressional limitations placed on such petitions. See 28 U.S.C. § 1631; Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996) (per curiam).


  The petitioner's motion pursuant to Rule of Criminal Procedure 12(b) is denied, and the case is transferred to the Court of Appeals for the Second Circuit for a determination of whether the petitioner should be authorized to file his claims as a successive Section 2255 petition.


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