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United States v. Viertel

United States District Court, Second Circuit

October 7, 2013

UNITED STATES OF AMERICA,
v.
CHRISTIAN T. VIERTEL, Defendant.

MEMORANDUM OPINION AND ORDER

JOHN G. KOELTL, District Judge.

Following a jury trial, the petitioner, Christian Viertel, was found guilty on each count of a three-count superseding indictment charging conspiracy to commit mail and wire fraud, as well as substantive counts of mail fraud and wire fraud.

The petitioner has filed an "Amended and Adjunctim AWA (18: § 1651), " seeking a writ of error coram nobis on the grounds of lack of federal jurisdiction over the mail fraud charge of which he was convicted, factual innocence, and other claims. The Government opposes this request on the basis that, as this Court previously found, there was federal jurisdiction over the mail fraud charge because the Government satisfied the interstate element of the mail fraud statute. The Government also contends that any other arguments were forfeited because the petitioner did not raise them previously despite the opportunity to do so. The petitioner has also filed a motion for three orders to show cause asking that the Court require the Government to provide responses to various requests for information. For the following reasons the petitioner's motion and orders to show cause are denied.

I.

A.

In a superseding indictment, the petitioner was charged with conspiracy to commit mail and wire fraud in connection with the submission of false invoices to Burda Media Inc. ("Burda"), and with substantive counts of mail and wire fraud.[1] At the trial, which began on September 12, 2002, the Government produced substantial evidence that Viertel's companies had submitted false invoices to Burda in New York, that those invoices were sent to Germany using Apex Air Freight ("Apex"), and that funds were wired to New York. The jury was instructed correctly that, with respect to the mail fraud statute, the Government "must establish beyond a reasonable doubt... the use of the mails in furtherance of the scheme to defraud. The use of the mails as I have used it here includes material sent through either the United States Postal Service or a private or interstate carrier." (Trial Tr. 1992); see also 18 U.S.C. § 1341 (a person is guilty of mail fraud when that person, for the purpose of executing a scheme or artifice to defraud, or attempting to do so, uses the mails, or "deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing").

The jury found the petitioner guilty of conspiracy to commit mail and wire fraud, as well as substantive counts of mail fraud and wire fraud. The Court sentenced the petitioner principally to 21 months imprisonment on each count to run concurrently, to be followed by a three-year term of supervised release.

This Court denied a motion by the petitioner for a new trial pursuant to Federal Rule of Criminal Procedure 33 based on allegations that the Government had withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963). See United States v. Viertel , 01 Cr. 571, 2003 WL 367867 (S.D.N.Y. Feb. 19, 2003).

The petitioner then appealed his conviction, claiming, among other things, that there was insufficient evidence to support a conviction on the conspiracy charge and the substantive mail and wire fraud counts, and the Court of Appeals affirmed the conviction. United States v. Viertel , 98 F.App'x 68, 69-70 (2d Cir. May 28, 2004) (summary order). In his appeal, the petitioner did not raise the argument that the Government had not satisfied the interstate element of mail fraud. On June 21, 2004, the Court of Appeals denied the petitioner's request for rehearing en banc.

B.

The petitioner then moved again for a new trial, arguing that newly discovered evidence eliminated the jurisdictional predicate for mail fraud by demonstrating that the key invoice was carried rather than mailed to Germany. Viertel, 2005 WL 1053434, at *6. This Court denied the petitioner's motion for a new trial, finding, among other things, that there had been no showing that the newly discovered documents could not have been discovered before or during the trial in the exercise of due diligence. Id. at *7. The Court also pointed to evidence supporting the conviction, including testimony that Burda used Apex to ship items to Germany on a daily basis, and that the key invoice was in fact sent. Id. at *8. The petitioner also raised insufficiency of the evidence as ground for a new trial. Id. at *9. However, this Court found the objection to the sufficiency of the evidence untimely and unmeritorious given that there was ample evidence to support the petitioner's conviction, and that the Court of Appeals had affirmed the conviction. Id. at *10.

Following the decision of the Court of Appeals in United States v. Crosby , 397 F.3d 103 (2d Cir. 2005), abrogated in part by United States v. Fagans , 406 F.3d 138 (2d Cir. 2005), the petitioner's case was remanded for further sentencing proceedings. On remand, this Court determined that the sentence was reasonable in view of the nature of the offense and the history and characteristics of the petitioner. United States v. Viertel , 01 Cr. 571, 2005 WL 1844774, at *1 (S.D.N.Y. Aug. 3, 2005). The Court of Appeals affirmed the sentence in light of Crosby, and also affirmed the denial of the petitioner's motion for a new trial. United States v. Viertel, 242 F.App'x 779, 780 (2d Cir. Sept. 26, 2007) (summary order).

C.

The petitioner then filed another motion for new trial on the basis that the Government had allegedly withheld favorable evidence in violation of Brady. This Court denied the motion because the petitioner had failed to substantiate his allegation that the Government had withheld favorable evidence. United States v. Viertel, No. 01 Cr. 571, 2008 WL 1944851, at ...


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