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United States v. Basciano

March 31, 2008


The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.

Defendant Vincent Basciano ("Basciano" or "Defendant") moves for reconsideration of this court's March 24, 2008 Memorandum and Order ("March 24 M&O") denying his motion for a new trial, an evidentiary hearing, and discovery. Basciano's motion for reconsideration focuses on the court's conclusions and analysis surrounding the allegations that cooperating witness Dominick Cicale ("Cicale") committed certain acts of vandalism while in prison and concocted a bogus murder plot in which Basciano purportedly sought to kill Cicale. Familiarity with the March 24 M&O is assumed. For the reasons set forth below, Defendant's motion is DENIED.

I. Standard of Review

There is no specific rule providing for the reconsideration of a ruling on a criminal matter. United States v. Morrison, No. 04-CR-699 (DRH), 2007 WL 4326796, at *1 (E.D.N.Y. December 7, 2007). However, "when deciding motions for reconsideration in criminal matters, courts in this district have resolved such motions according to the same principles that apply in the civil context." Id. The standard for a motion for reconsideration in the civil context "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc. 70 F.3d 255, 257 (2d Cir.1995) (citation omitted). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Morrison, 2007 WL 4326796, at *1 (citation and internal quotation marks omitted).

II. Discussion

Defendant does not argue that the court overlooked controlling precedent. Instead, Defendant argues that the court overlooked substantial portions of the record when it concluded that the Cicale allegations were not "material" as required to warrant a new trial.*fn1 (Memorandum in Support of Motion for Reconsideration of Order Denying Motion for a New Trial, For an Evidentiary hearing, and To Compel Discovery ("Def.'s Br.") at 1 (Docket Entry # 1067).) As he did in his submissions in support of the original motion, Defendant again asserts that, based on Cicale's centrality to the Government's case, his testimony would have been undermined had the jury heard about the Cicale allegations. (Id. at 3-5.) Defendant points to the government's repeated reference to Cicale's testimony in its closing argument as the primary facts the court "appears to have overlooked." (Id. at 3-4.)

The arguments and facts Defendant sets forth now are in essence the same arguments and facts urged in his submissions in support of the original new trial motion, all of which the court considered in deciding that motion. The transcript citations Defendant offers show only that the Government referred to Cicale's testimony many times during its closing argument and that he was an important Government witness. (See Def.'s Br. at 3-4). The court was aware of and considered this evidence when it decided the post-trial motions (see March 24 M&O at 12-13 ("Finally, the court has reviewed the transcripts of the Government's arguments to the jury at trial.")) and still concluded that the significant independent evidence implicating Basciano as well as the significant impeachment evidence against Cicale rendered the Cicale allegations immaterial impeachment evidence, (id. at 8-13). As in his submissions in support of the original motion for new trial, Defendant again does not dispute the existence of the significant independent and corroborating evidence offered at trial in addition to Cicale's testimony, (see id. at 9-10), nor does he dispute the multitude of impeachment evidence offered against Cicale (see id. at 10-11).

In short, the court did not overlook the evidence to which Defendant now points in reaching its original decision. The significant independent and corroborating evidence offered against Basciano and the significant impeachment evidence offered against Cicale support the conclusion that the Cicale allegations do not warrant a new trial. See United States v. Parkes, 497 F.3d 220, 233 (2d Cir. 2007) ("[N]ew impeachment evidence is not material, and thus a new trial is not required, when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable. "); United States v. Jackson, 345 F.3d 59, 74 (2d Cir. 2003) ("[A] new trial is generally not required when the testimony of the witness is corroborated by other testimony."); United States v. Orena, 145 F.3d 551, 558 (2d Cir. 1998) ("the existence of substantial independent evidence of guilt is unavoidably relevant to whether withheld impeachment evidence can reasonably call the jury's verdict into question") (citation omitted); United States v. Gambino, 59 F.3d 353, 366 (2d Cir. 1995) (holding that the lengthy and precise cross- examination of the witness gave the jury "a fair opportunity to evaluate the witness' credibility" and thus the suppressed impeachment evidence was not material).

Finally, to the extent that it was not self-evident from the court's March 24 M&O, Defendant's motion for a new trial based on newly discovered evidence is denied. (See Def.'s Br. at 6.) The court declined to grant Basciano a new trial under the lower standard applicable to such a motion where the Government has suppressed evidence, namely where the question is whether the defendant received a fair trial, i.e., whether the Government's "evidentiary suppression undermines confidence in the outcome of the trial."*fn2 Kyles v. Whitley, 514 U.S. 419, 434 (1995); (see March 24 M&O at 5-7 & n.5.) Thus, Defendant necessarily cannot establish that he should receive a new trial under the more rigorous standard applicable to a motion based upon newly discovered evidence. Specifically, the standard requires a showing that admission of the newly discovered evidence would probably lead to an acquittal. See Parkes, 497 F.3d 220, 233 (2d Cir. 2007) ("A motion for a new trial on the ground of newly discovered evidence is granted only in the most extraordinary circumstances. Newly discovered evidence supports the grant of a new trial only if the defendant demonstrates that the evidence could not have been discovered through the exercise of due diligence before or during trial, and that the evidence is so material and non-cumulative that its admission would probably lead to an acquittal.") (internal citations and quotations marks omitted).

The court has considered each of the additional arguments set forth in Defendant's brief and finds them to be without merit.

III. Conclusion

For the foregoing reasons, Defendant's motion for reconsideration of the March 24 M&O denying his post-trial motion for a new trial, for an evidentiary hearing, and to compel discovery is DENIED.


NICHOLAS G. GARAUFIS Brooklyn, N.Y. United States ...

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