The opinion of the court was delivered by: P. Kevin Castel, U.S.D.J.
This is a motion for a new trial by defendants Bobby Weston, Conrad Cooper, Sheldon Fuller and Enrico Thomas. Cooper, Fuller, and Thomas were convicted of engaging in a racketeering enterprise and membership in a conspiracy to violate the racketeering laws. The three were also convicted of various crimes associated with the lying-in-wait, double murders of Rohan Bailey and Camila Simmonds.*fn1 Cooper, Fuller, Thomas and Weston were convicted of conspiracy to distribute and possession with intent to distribute marijuana and each were found to have been responsible for 1,000 kilograms or more of marijuana. A motion for a new trial by defendant Weston and three other defendants who have not joined in this motion was previously denied. United States v. Brown, No. 04 CR 801 PKC, 2006 WL 2724025, at *6-*14 (S.D.N.Y. Sept. 22, 2006).
While Weston asserts various additional grounds that are unique to him, all moving defendants assert that the they are entitled to a new trial or an evidentiary hearing in support of a new trial because it has come to light that one of several government co-conspirator witnesses, Stephen Mattis, known as "Rockpeck," was not truthful when he testified at trial that he had ceased his involvement with drug trafficking. Also, when Mattis was asked in proffer sessions about the whereabouts of a co-conspirator, he did not disclose what he knew on the subject.
For the reasons discussed herein, I conclude that the defendants have failed to come forward with any evidence to undermine the government's factual showing that, at the time of trial, members of the prosecution team did not know, nor should they have known, of Mattis's continuation of illicit activities. Moreover, there is no basis to conclude that but for Mattis's perjured testimony the defendants would not have been convicted. No hearing is necessary and no new trial is warranted. As explained below, Weston's motion for a new trial premised upon the affidavit of Obesia Phillips is also denied, as is his challenge to the sufficiency of the evidence before the grand jury.
The False Testimony of Mattis' About Ending his Drug Trafficking Activities
Mattis was named in a superseding indictment filed on September 30, 2004 (S5), along with six others. An arrest warrant was issued the same day. His initial presentment before the Magistrate Judge occurred on December 15, 2004. Mattis attended several proffer sessions with the government in aid of a cooperation agreement. Pursuant to the terms of a plea which contemplated a substantial assistance motion by the government, Mattis pleaded guilty on September 15, 2005 to a single-count information charging him with participating in the operation and management of a racketeering enterprise. Sentencing was deferred until after his cooperation was complete.
According to a Special Agent of the Drug Enforcement Administration, Matthew Martin, known as "Blacks," was arrested in May 2006 in connection with the same drug trafficking activities that were charged in the indictment that proceeded to trial. Martin revealed that, commencing about three months after Mattis was arrested and continuing up to the time of Martin's arrest, Mattis spoke with Martin on the telephone approximately 6 times. Mattis reported to Martin that he was owed $130,000 in drug-related money by "Driver." Martin collected about $19,000 in cash from Driver. Martin used $10,000 of this money to buy 800 pounds of marijuana in Arizona for resale by Mattis and himself. Portions of the proceeds were paid by Martin to Mattis's wife, his lawyer and his jail commissary account.
On April 14, 2007, the government disclosed to defense counsel and the Court that Mattis had breached his plea agreement by accepting receipt of narcotics proceeds and failing to disclose the whereabouts of Martin, despite questions during debriefings on Martin's location.
The government declined to make a substantial assistance motion with respect to Mattis. On April 8, 2008, Mattis was sentenced by this Court. In the course of the sentencing proceeding, this Court made a finding that Mattis had been untruthful when he testified at trial that he had ended his involvement in the marijuana business. At trial, Mattis had testified as follows:
Q: When did you stop being involved in the business of dealing in marijuana?
A: When I was---when I was?
Q: When did you stop being involved in the business of marijuana?
A: When I was stopped being involved?
THE COURT: When did you stop?
THE WITNESS: 2004, 14th of December, when I was arrested. ...