The opinion of the court was delivered by: Sand, J.
A. On June 27, 2005 after a jury trial of over four months resulted in the conviction of defendants on 18 counts, this Court imposed a sentence of 15 years incarceration on John Rigas and 20 years on Timothy Rigas.
On May 24, 2007, the Court of Appeals affirmed the conviction on all but one count (Count 23) which it reversed and "remanded" for an entry of acquittal on Count Twenty-Three "and for resentencing." 490 F.3d 208, 239 (2d Cir. 2007)
Count 23 was a charge of bank fraud involving the OCH Co-Borrowing agreement. The Court of Appeals held that "the evidence submitted to a jury cannot support a finding that any misrepresentations regarding [this agreement] were material. 490 F.3d at 236 With regard to Count 22 involving the OCH Co-Borrowing agreement which provided that a higher interest rate would be charged if the leverage ratio was above 5.0, the Court of Appeals found the evidence was sufficient to establish that the misrepresentations were material and affirmed the conviction on Count 22. Id.
This Court had sentenced John Rigas to 15 years on Counts 22 and 23 to run concurrently with each other and concurrently with Counts 1 and 2 through 16. Timothy Rigas was sentenced to 20 years on Counts 22 and 23 to run concurrently with all counts.
The Rigas's applied to the Supreme Court for Certiorari which was denied on March 3, 2008.
In the interim, between the Court of Appeals decision and the resentencing hearing, defendants moved for a new trial pursuant to F.R. Crim. Proc. 33 on the grounds that newly discovered evidence in the form of testimony given by the government's central witness (James Brown) at a civil trial demonstrated that his testimony at the criminal trial was perjurious. The Court denied the motion on November 20, 2007, holding that:
"We conclude that in the context of the entire trial and considering the challenged testimony in its entirety, rather than as isolated and inapposite comparisons of Brown's testimony at trial with subsequent testimony as to different and more specific questions, the jury's verdict would not have been different had it considered the allegedly conflicting testimony."
No new PSR was prepared for the resentencing, but by letter dated April 29, 2008, prepared at the Court's request (Court Ex. A) the probation officer opined:
"Inasmuch as none of the counts of conviction carries a lifetime term of imprisonment, the guideline range of life is effectively capped by the aggregate of the statutory maximum terms of the counts of conviction. With the dismissal of Count 23 (which carried a 30-year maximum), this aggregate amount is now 185 year (as opposed to 215 years).
The dismissal of Count 23 has no bearing on the term of supervised release, since such terms must run concurrently. The special assessment, however, must be reduced by $100.00."
The rehearing on sentencing took place on May 22, 2008.
At that hearing John Rigas and Timothy Rigas waived the right to be physically present in open court when the court pronounces the amended sentence and agreed that this Court may file an opinion and order without further in-court proceedings. See Transcript, May 22, 2008, pp113-116.
Defendants relying on U.S. v. Quintieri, 306 F.3d 1217(2nd Cir. 2002) take the position that the consequence of the remand is to open up for de novo review all counts of conviction because the reversal was based on a "conviction error" not a "sentencing error", i.e. an error other than use of an improper guideline or an error in the sentencing calculation. Defendants assert that this is so even if there is no factual nexus between the "conviction error" and other counts which were affirmed. Defendants further contend that they may as part of the de novo resentencing rely on evidence that was not introduced during the trial and are not precluded from advancing claims which were available to defendants but not raised at the time of the original sentencing or appeal.
The Government believes that de novo review of all counts is not required by Quintieri and is inappropriate on the facts of this case and that the usual rules of waiver and "rule of the case" preclude the raising of previously abandoned issues. Mindful of the fact that defendants may be expected to appeal every issue the Government urges that this Court make alternative findings based on either de novo or limited review. Transcript, May 22, 2008, p. 94.
In Quinteiri the Court of Appeals discussed an issue which arises where, as here, the appellate court remands for resentencing without explicitly stating whether limited or de novo review is intended (306 F.3d at 1226-1281). The Court contrasted those cases where a sentencing error has ...