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CHACKO v. U.S.

June 8, 2005.

KURIAN CHACKO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



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

OPINION AND ORDER

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.

I.

  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 ...

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