The opinion of the court was delivered by: Denise Cote, District Judge
Angelo DiPietro ("DiPietro") has filed a second motion for a new trial pursuant to Rule 33, Fed. R. Crim. P. DiPietro was one of six defendants convicted of racketeering charges, among other crimes, following a three-and-a-half-month trial. For the following reasons, his motion is denied.
DiPietro's motion is largely based on events that occurred in a related prosecution in which he was charged with extortion offenses and loansharking. DiPietro was arrested on those charges on February 4, 2004 and the indictment was assigned to the Honorable Shirley Wohl Kram (the "SWK case"). DiPietro was convicted by a jury on all counts in the SWK case on July 12, 2005.
Meanwhile, DiPietro was arrested in October 2004 on the charges in this case (the "Racketeering case"). Six of the defendants in the Racketeering case, including DiPietro, proceeded to trial in September 2005, about two months after the jury's verdict in the SWK case. The defendants in the Racketeering case who proceeded to trial constituted the management of an organized crime ring that ran gambling operations in Queens, the Bronx, and Westchester (the "Rudaj Organization" or "Organization"). On January 4, 2006, the jury found all six defendants guilty of various crimes, including racketeering, gambling, and firearms charges.
DiPietro appealed both convictions and filed a motion for a new trial in both cases. The convictions have been affirmed and the new trial motions were denied. Judge Kram denied DiPietro's motions for a judgment of acquittal and for a new trial on August 5, 2005. United States v. DiPietro, No. 02 Cr. 1237(SWK), 2005 WL 1863817 (S.D.N.Y. Aug. 5, 2005). The Court of Appeals affirmed DiPietro's conviction in the SWK case on April 22, 2008. United States v. Genua, 274 Fed.Appx. 53 (2d Cir. 2008). DiPietro's first motion for a new trial in the Racketeering case was denied on October 23, 2007, United States v. DiPietro, No. 04 Cr. 1110(DLC), 2007 WL 3120902 (S.D.N.Y. Oct. 23, 2007), and his motion for reconsideration was denied on November 1, 2007. The Court of Appeals affirmed this Court's denial of DiPietro's first Rule 33 motion on May 21, 2008. United States v. DiPietro, 278 Fed.Appx. 60 (2d Cir. 2008). The Court of Appeals affirmed his conviction in the Racketeering case on June 11, 2009 in an opinion and accompanying summary order. United States v. Ivezaj, 568 F.3d 88 (2d Cir. 2009); United States v. Ivezaj, No. 06-3112-cr, 2009 WL 1636018 (2d Cir. June 11, 2009) (summary order).
DiPietro's current motion relates in part to transcripts and documents sealed in the SWK case. On November 2, 2006, Judge Kram ordered that sealed transcripts in the SWK case be unsealed so that counsel for the Government and DiPietro could use them to frame arguments in the appeal in the SWK case. Judge Kram also ordered defendants to identify any other documents that they wished unsealed. On August 18, 2008, DiPietro requested that Judge Kram unseal all documents filed in the SWK case. On December 23, 2008, the Government consented to the unsealing of all but three documents that appear on the docket: Documents 139, 145, and 152.
On March 24, 2009, Judge Kram granted DiPietro's motion in part and unsealed all of the docket entries and filed documents, with the exception of the three documents identified by the Government. DiPietro v. United States, No. 02 Cr. 1237-01(SWK), 2009 WL 801609, at *5 (S.D.N.Y. Mar. 24, 2009). Document 139 is described in Judge Kram's opinion as an ex parte letter regarding potential Giglio material. Id. at *3 (citing Giglio v. United States, 405 U.S. 150, 153-54 (1972)). The remaining two documents, which are denominated the "Perazzo Letters," were not filed by any party or introduced as evidence during the SWK trial. Id. at *4.*fn1 The Perazzo Letters were mailed anonymously to Judge Kram and she filed them under seal without reading them. Id. The Government represents that "[n]one of the three documents that the Government argued should remain sealed appears to involve" the witness who testified in the Racketeering trial and who, as described below, DiPietro now argues he was entitled to impeach with the putative newly discovered evidence that underpins this motion.
While DiPietro's appeal in the Racketeering case was pending, he filed this second Rule 33 motion. The motion is dated and post-marked January 2, 2009. It was received in this Court's Chambers on January 5 and docketed on January 23. The motion identifies three grounds for relief: (1) recently discovered materials regarding a trial witness's cooperation and past relationship with the Westchester District Attorney's Office; (2) exculpatory information in New York State Police Reports; and (3) a purported secret docketing scheme in the SWK case.
In the January 2 motion, DiPietro requested permission to file a brief in support of the motion by February 4. The application was granted, and a twenty-one page brief and attachments were received by this Court in early February. The Government responded with a memorandum in opposition on March 18. DiPietro submitted an April 10 reply, and a June 10 letter in further support of his motion.
DiPietro's Rule 33 motion raises four issues. The Government contends that the motion is untimely, that none of the evidence described by DiPietro is newly discovered evidence, and that none of the evidence described by DiPietro warrants a new trial.
Rule 33 states that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). If the motion is grounded on any reason other than "newly discovered evidence," the motion must be filed within 7 days after the verdict or finding of guilty. Fed. R. Crim. P. 33(b)(2). If the motion for a new trial is grounded on newly discovered evidence, it "must be filed within 3 years after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(1). If an appeal of the conviction is pending, a new trial may not be granted until the appellate court remands the case. Id.
A Rule 33 motion is to be granted "sparingly" and only in "exceptional circumstances." United States v. Bell, -- F.3d --, 2009 WL 3353084, at *4 (2d Cir. Oct. 20, 2009) (citing United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)). "The test is whether it would be a manifest injustice to let the guilty verdict stand." Id. A new trial pursuant to Rule 33 based on "newly discovered evidence" may be granted "only upon a showing that the evidence could not with due diligence have been discovered before or during trial, that the evidence is material, not cumulative, and that admission of the evidence would probably lead to an acquittal." United States v. Owen, 500 F.3d 83, 87 (2d Cir. 2007) (citation omitted). ...