The opinion of the court was delivered by: Seybert, District Judge:
Presently pending before the Court is Defendant Christian Gerold Tarantino's ("Defendant" or "Tarantino") motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. For the following reasons, Defendant's motion is DENIED.
On September 23, 2008, a four count Indictment charged Tarantino with: (1) the 1994 murder of armored car guard Julius Baumgardt ("Baumgardt"); (2) the 1994 murder of Louis Dorval ("Dorval"); (3) Conspiracy to Commit the Obstruction-of-Justice Murder of Vincent Gargiulo ("Garguilo"); and (4) the 2003 murder of Vincent Gargiulo.
A jury trial commenced before this Court on March 28, 2011. At trial, evidence was presented that on June 23, 1994, two individuals--Baumgardt and his partner---were armored car guards working for Mid-Island Check Cashing Company ("Mid-Island"). As the two men exited the armored car and attempted to begin their work day, Defendant and Dorval, armed with a shotgun and a pistol respectively, approached. Nearby, Scott Mulligan ("Mulligan") sat as the look-out. Defendant and Dorval ordered Baumgardt and his partner to the ground. Though Baumgardt complied, Dorval shot and killed him.
After the murder, Defendant, Dorval, and Mulligan fled and dumped the pistol and other materials in a self-storage facility. The pistol had been registered in Dorval's name and had been recovered by Nassau County Police shortly after Baumgardt's death. According to the prosecution, Defendant became concerned that Dorval might eventually cooperate with police and implicate Defendant in the Baumgardt murder. As a result, Defendant confided in Mulligan and Gargiulo that he would "take care of the problem."
In the summer of 1994, Defendant told Mulligan that Dorval had been killed and that he needed to dispose of the body. Mulligan contacted an acquaintance whom they knew to have a boat. The next day, Mulligan and Defendant took Dorval's body, which had been stuffed into a tool bin, and threw it into the Atlantic Ocean off of the shore of Long Island.
For years the state of affairs remained unchanged. Then, in the fall of 2000, Gargiulo secretly taped Defendant. During this conversation, Defendant admitted to his involvement in the Baumgardt and Dorval murders. Following the downfall of Gargiulo's gym business, Gargiulo threatened Defendant, claiming that if Defendant did not pay Gargiulo, then Gargiulo would turn the secret tape over to the police. Defendant refused Gargiulo's demand and instead hired his business associate, Justin Bressman, to kill Gargiulo. On August 18, 2003, Mr. Bressman shot and killed Gargiulo.
On May 23, 2011, a jury convicted Defendant of the Baumgardt and Dorval murders. The jury, however, did not reach a verdict on Counts Three and Four of the Indictment, which charged Defendant with Conspirary to Commit the Obstruction-of-Justice Murder of Vincent Gargiulo and the Obstruction-of-Justice Murder of Vincent Gargiulo, respectively.
A re-trial was held on Counts Three and Four of the Indictment before this Court beginning on April 23, 2012. A jury subsequently convicted Defendant of Conspiracy to Commit the Obstruction of Justice Murder of Vincent Gargiulo and acquitted Defendant on the Obstruction-of-Justice Murder of Vincent Gargiulo.
Defendant now seeks a new trial on several grounds. First, he asserts that perjurious testimony was presented at the re-trial. Second, he seeks a new trial on Counts One and Two due to a conflict of interest of trial counsel. Third, he contends that the Court erroneously allowed the admission of secondary evidence during the re-trial. Fourth, he contends that the Government withheld Brady material, thus impacting the re-trial. Finally, Defendant asserts that specific evidence should have been suppressed at the re-trial.
The Court will first discuss the standard governing Rule 33 motions. It will then address the merits of Tarantino's motion.
I. Standard for Granting Motion for a New Trial under Rule 33 "The burden of proving the need for a new trial lies with the defendant." United States v. Ferguson, 49 F. Supp. 2d 321, 323 (S.D.N.Y. 1999) (citing United States v. Soblen, 203 F. Supp. 542 (S.D.N.Y. 1961)), aff'd, 301 F.2d 236 (2d Cir. 1962); see also United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995). The decision whether to grant or deny a motion for a new trial is firmly within the discretion of the trial judge. See Sasso, 59 F.3d at 350; see also Ferguson, 49 F. Supp. 2d at 323 (citing United States v. Rodriguez, 738 F.2d 13, 17 (1st Cir. 1984)); United States v. Zane, 507 F.2d 346, 347 (2d Cir. 1974) (reviewing a trial court's denial of a Rule 33 motion for abuse of discretion); United States v. Madeoy, 912 F.2d 1486, 1490 (D.C. Cir. 1990) (decision to grant post-trial relief is within trial court's sound discretion). "[I]n deciding whether to grant a Rule 33 motion, a judge may weigh the evidence and determine the credibility of witnesses." Ferguson, 49 F. Supp. 2d at 323 (citing United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992)). Moreover, on a Rule 33 motion, "[t]he Court is not required to view the evidence in the light most favorable to the Government." Id. (citing United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). Nevertheless, the Court's discretion is limited to the extent that Rule 33 motions for a new trial are "not favored and should be granted only with great caution." United States v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975) (internal quotation marks and citation omitted).
During Defendant's re-trial, the Government presented the testimony of Scott Mulligan. Mulligan testified that Defendant indicated during several conversations that Dorval was Defendant's "mess" and that Defendant would "clean it up." (Re-Trial 1492-93.)*fn1 Thereafter, Defendant approached Mulligan and stated that he shot Dorval in the head, the murder "was done", and that Dorval "didn't bleed much." (Re-Trial 1498-99.) The two men then took Dorval's body, by now in a tool bin, out to sea via a friend's boat. (Re-Trial 1508-10.) As they attempted to fill the tool box with debris to help it sink, Mulligan dropped a bolder onto Defendant's right hand. (Re-Trial 1524.) Defendant attempted to further aid the sinking by shooting holes into the bottom of the bin. (Re-Trial 1525.) Defendant and Mulligan were eventually successful in getting the tool bin into the water and they fled the scene. (Re-Trial 1530.)
Defendant now asserts that this testimony was perjured. As proof of the alleged perjury, Defendant cites to the April 6, 2000 grand jury testimony of FBI Agent Schelhorn and AUSA Miskiewicz. (Def. Br. 3.) At that time, the Government had indicted Joseph Pistone ("Pistone"). Pistone provided an account of the Dorval murder in which Pistone admitted to being the shooter and having disposed of the body with the help of his brother, Peter Pistone. The Government apparently does not dispute that it investigated Pistone's account of events and, for at least a period of time, believed Pistone to have shot and killed Dorval. Because this account, placing Pistone as the shooter, is inconsistent with the trial testimony of Mulligan placing Defendant as the gunman, Defendant argues that Mulligan's testimony was perjurious.
A. Standard for New Trial Based on Perjury
The parties disagree as to the appropriate standard
applicable to a motion for a new trial based upon the presentation of perjurious trial testimony. Both parties agree that the materiality of the perjured testimony and the extent to which the prosecution was aware of the perjury are two factors. See United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991). The Government, however, also cites to United States v. Zichettello, 208 F.3d 72 (2d Cir. 2000). In Zichettello, the Second Circuit delineated a four-part test: "(i) the witness actually committed perjury; (ii) the alleged perjury was material; (iii) the government knew or should have known of the alleged perjury at the time of trial; and (iv) the perjured testimony remained undisclosed during trial." 208 F.3d at 102 (internal citations omitted). In a relatively recent opinion, the Second Circuit in United States v. Ferguson acknowledged that the two tests appear to be "in tension", though it did not ultimately address the appropriate test. 676 F.3d 250, 282 (2d Cir. 2011).
As in Ferguson, the Court need not decide whether Wallach or Zichettello governs this inquiry because Defendant's argument fails as a threshold matter. No matter the applicable standard, the first consideration in this inquiry is whether a party in fact presented perjured testimony, see United States v. Haouari, No. 00-CR-0015, 2001 WL 1586676, *4 (S.D.N.Y. Dec. 11, 2001), a requirement Defendant does not meet.
B. Testimony of Scott Mulligan
Defendant has not shown that Mulligan's testimony was perjurious. "Perjury" is when a witness deliberately makes a "material false or misleading statement while under oath." Black's Law Dictionary 1254 (9th ed. 2009). Although Mulligan's testimony is arguably inconsistent with Pistone's admission, there is nothing to suggest that Mulligan deliberately gave false or misleading testimony. Mulligan did not testify that he saw who shot Dorval. Rather, he testified that Defendant told Mulligan that Defendant committed the murder. (Re-Trial 1498-99.) With respect to the discarding of Dorval's body, Mulligan testified that he was present and watched ...