The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
On July 29, 2010, after a two-day trial, the jury returned a guilty verdict against Defendant Chad Koschuk on a single-count indictment, which charged him with retaliating against a witness in an official proceeding in violation of 18 U.S.C. §§ 1513(b)(1) and (2). Defendant was sentenced on November 22, 2010 to an eighteen-month term of imprisonment. Following his appeal, the Second Circuit Court of Appeals affirmed Defendant's conviction.
Presently before the Court are Defendant's Motion for a New Trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure and his Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, both motions are denied.
Defendant was convicted of threatening bodily injury to an individual named Jason Macken, in retaliation for Macken providing information to federal law enforcement. Macken is a former member of the Chosen Few Motorcycle Club. Defendant's father, Alex Koschtschuk, is a current member and president of the Chosen Few. During an ongoing investigation into the Chosen Few (the "Chosen Few prosecution"), federal agents interviewed Macken about allegations that Koschtschuk extorted $9,300 from him when Macken left the club. This interview occurred in June 2009, and the information Macken provided led to the grand jury returning a third superseding indictment against Koschtschuk and other members of the Chosen Few on September 8, 2009, the second racketeering act of which included Koschtschuk's alleged extortion of Macken.
Three days after return of the third superseding indictment in the Chosen Few prosecution, Defendant encountered Macken outside a local convenience store, where Macken and three of his employees were having lunch at a picnic table. As Defendant entered the store, he saw Macken and stated, "There is the mother fucker saying shit about my dad [Koschtschuk]," or words to that effect. (Trial Transcript ("Tr.") 194.) On the way out of the store several minutes later, Defendant again engaged Macken, "talking about pulling [his] hair and fucking [him] in the ass." (Tr. 166.)
Rule 33(a) provides 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." A district court has broad discretion to grant a new trial under this rule, but "it nonetheless must exercise the Rule 33 authority 'sparingly' and only in 'the most extraordinary circumstances.' " United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992)). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be manifest injustice. . . . There must be a real concern that an innocent person may have been convicted." Ferguson, 246 F.3d at 134 (internal quotation marks omitted). A reviewing court must be satisfied that "competent, satisfactory and sufficient evidence" in the record supports the jury verdict. Sanchez, 969 F.2d at 1414 (internal quotation marks omitted).
Defendant's present Rule 33 motion requests a new trial based on newly discovered evidence. See Fed. R. Cr. P. 33 (b)(1)(a Rule 33 motion based on newly discovered evidence my be brought within three years after a guilty verdict). "A new trial 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) (quoting United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980)), cert denied, 552 U.S. 1237 (2008).
In the instant case, the purported new evidence submitted by Defendant is a November 6, 2012 notarized statement from complainant Jason Macken that states:
Regarding the case against [Defendant]. The incident took place in September of 2009 at an Alden NY convenience store. Almost 3 years to the date of the incident, I have heard that [Defendant] has been incarcerated.
On the date of the incident, I did as I was instructed by authorities and reported the incident. At that time, I did not feel threatened or intimidated by [Defendant], nor have I in the past three years. I felt more intimidated by the Federal Government during this process. I did not want to testify against him but was told I would be subp[oena]ed to do so and if I did not cooperate with them, I would be indicted. This is the reason I did and said what was instructed by authorities. (Decl. of Att'y Timothy P. Murphy, Esq, Ex. C, Docket No. 138.) Defendant argues that, when this statement is considered ...