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United States v. Akefe

United States District Court, Second Circuit

August 30, 2013

UNITED STATES OF AMERICA,
v.
ADEREMI J. AKEFE, Defendant.

OPINION AND ORDER

ROBERT P. PATTERSON, Jr., District Judge.

On March 19, 2013, Aderemi J. Akefe moved pro se for a new trial pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure. (Def.'s Mot. Req. New Trial ("Def.'s Mot."), 09 CR 196, ECF No. 134.) The Government responded in opposition to this motion on April 19, 2013. (Gov't Mem. in Opp'n to Def.'s Mot. New Trial ("Gov't Mem. in Opp'n"), 09 CR 196, ECF No. 138.) This motion was followed by a pro se reply, (Def.'s Reply to Gov't Resp. in Opp'n to Def.'s Mot. New Trial ("Def.'s Reply"), 09 CR 196, ECF No. 143), and a supplemental reply drafted by counsel (Def.'s Supplemental Reply to Gov't's Opp'n & in Further Supp. of Def.'s Mot. New Trial ("Def.'s Supplemental Reply"), 09 CR 196, ECF No. 147). The Government responded by letter to new arguments made in the supplemental reply. (Gov't Resp. to Def.'s Supplemental Reply ("Gov't Resp"), 09 CR 196.)

Taken together, Akefe's motions make two arguments. First, Akefe alleges that new evidence has come to his attention regarding one of the Government's cooperating witnesses, Hafrida Saad. This evidence, he argues, calls into question his guilt and discredits Saad's testimony. Second, Akefe alleges that the Government wrongfully withheld evidence that it was required to produce under Brady v. Maryland , 373 U.S. 83 (1963).

Having considered both of these arguments, the Court concludes that a new trial is not warranted in this case. None of the evidence referenced by Akefe was newly discovered and the Government did not withhold any Brady material. Even if Akefe's arguments had merit, the strength of the evidence of Akefe's guilt presented at trial leaves this Court with no "concern that an innocent person may have been convicted." United States v. Ferguson , 246 F.3d 129, 134 (2d Cir. 2001). Therefore, Akefe's motion for a new trial is DENIED.

I. BACKGROUND

This is Akefe's second motion for a new trial, and the second opinion written by this Court. Familiarity with the earlier opinion is presumed, and only background information relevant to the instant issue is described here.

On March 17, 2010, after a seven-day jury trial, and approximately one day of deliberations, a jury unanimously found Akefe and his co-defendant guilty on both of the counts charged. The first count charged Akefe with conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin from 2005 to February 18, 2009, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) & 846. The second count charged Akefe with conspiracy to import into the United States one kilogram or more of heroin from 2005 to February 18, 2009, in violation of 21 U.S.C. §§ 812, 952(a), 960(a)(1), 960(b)(1)(A) & 963. The jury also unanimously answered the special interrogatory as to drug weight, finding that for each of the two charged conspiracies, Akefe either had personal involvement with or reasonably could have foreseen that the conspiracy involved one kilogram or more of heroin.

On April 2, 2010, Akefe moved for judgment of acquittal or, in the alternative, for a new trial. The Court denied that motion in an opinion dated July 21, 2010. United States v. Akefe, No. 09 CR 196, 2010 WL 2899805 (S.D.N.Y. July 21, 2010).

On October 11, 2012, Akefe filed a notice of appeal of his sentence. The appeal is now pending before the Second Circuit Court of Appeals.[1] Akefe subsequently made the instant motion pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure. On June 16, 2013, the Second Circuit issued an order granting Akefe an extension of time to submit his appellate brief and appendix until 30 days after this Court's decision on the instant motion. (2d Cir. Order 1, June 16, 2013, 12-4546 CR, ECF No. 53.)

II. DISCUSSION

A. Legal Standard

Evidence is newly discovered if it was not known to the defense before or during the trial or readily obtainable by the defense in the exercise of due diligence. See United States v. Soblen , 203 F.Supp. 542 (S.D.N.Y.1961), aff'd, 301 F.2d 236 (2d Cir.1962).

If evidence is newly discovered, a court may grant a new trial "if the interest of justice so requires." Fed. R. Crim. P. 33(a). However, a motion for a new trial should be granted only in cases where, after evaluating the entire record of the trial, a district court is left with a "real concern that an innocent person may have been convicted." Ferguson , 246 F.3d at 134. The newly discovered evidence must be of a sort that "could, if believed, change the verdict, " United States v. Gambino , 59 F.3d 353, 364 (2d Cir. 1995). The trial court's discretion in this ...


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