United States District Court, S.D. New York
June 8, 2005.
KURIAN CHACKO, Petitioner,
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.
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."
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
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
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
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
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
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)
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.