United States District Court, S.D. New York
Michael D. Lockard, Ryan P. Poscablo, Assistant United States Attorneys, New York, NY, for the Government.
Lee A Ginsberg, Esq., Nadija Limani, Esq., Freeman, Nooter & Ginsberg, New York, NY, for Defendant Abakporo.
Michael T. Cornacchia, Esq., New York, NY, Jeffrey Hoffman, Esq., Susan Wolfe, Esq., Hoffman & Pollok LLP, New York, NY, for defendant Pierce.
MEMORANDUM OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Following a three-week jury trial, Ifeanyichukwu Eric Abakporo was found guilty on all three counts of the S3 Superseding Indictment (the "Indictment"). Following trial, Abakporo moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, severance from his co-defendant Latanya Pierce; and dismissal of the Indictment in its entirety. On November 25, 2013, I denied all of these post-trial motions. On May 28, 2014, I sentenced Abakporo to a term of 72 months imprisonment. Abakporo now moves for a new trial or acquittal under Federal Rule of Criminal Procedure 33 ("Rule 33") on the basis of newly discovered evidence. For the following reasons, the motion is DENIED.
The Indictment charges Abakporo and Pierce with one count of conspiring to commit bank fraud in violation of Title 18, United States Code, Section 1349 (Count One), one count of conspiring to commit wire fraud in violation of Title 18, United States Code, Section 1349 (Count Two), and one count of bank fraud in violation of Title 18, United States Code, Section 1344 (Count Three). Counts One and Two charge fraudulent conspiracies in connection with various residential and commercial real estate transactions and mortgage loan applications.
One of the properties included in both conspiracy counts is an apartment building located at 1070 St. Nicholas Avenue. The government alleged that, in early 2006, Abakporo and Pierce induced Ina McCarther to enter into a contract to sell the property to Top Hill, one of Abakporo's companies, by presenting her with several checks at the closing that they never intended she would keep. After the closing, McCarther was owed approximately $1.98 million. In August 2006, Top Hill assigned its contract to purchase the property to Creekhill Realty, LLC ("Creekhill"), Pierce's real estate company. In December 2006, McCarther entered into a purported "private mortgage agreement" with Creekhill for the amount of $1.98 million. The loan agreement stated: "This loan shall be repaid at $10, 000.00 per month interest only until principal amount of $1, 98$;000 is paid off.... Failure to make any monetary payment shall result in foreclosure of the property that secures this loan." Count Three charges a substantive bank fraud offense in connection with a $1.8 million mortgage loan obtained by Creekhill from Washington Mutual Bank, secured by 1070 St. Nicholas Avenue. The loan application did not disclose Creekhill's outstanding obligation to McCarther.
II. LEGAL STANDARD ON RULE 33 MOTION
Rule 33 provides that a court "may vacate any judgment and grant a new trial if the interest of justice so requires." A district court "has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise the Rule 33 authority sparingly' and [only] in the most extraordinary circumstances.'"
A defendant may move under Rule 33 for acquittal or new trial based on newly discovered evidence within three years after a jury verdict. A successful Rule 33 motion based on "newly discovered evidence" must demonstrate that "facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence" before or during trial.
When a defendant moves for a new trial on the basis of newly discovered evidence, the defendant must satisfy the following criteria: (1) the evidence must, indeed, be newly discovered, i.e., discovered after trial; (2) the evidence must be such that it could not, with due diligence, have been discovered prior to or during trial; (3) the evidence must be material to the issue of guilt, and not merely for the purpose of impeaching other testimony; (4) the evidence must not be cumulative; and (5) the evidence must be such that it would probably lead to acquittal.
The now evidence must be so material that it would "probably" cause a result of acquittal upon retrial. The ultimate test' is whether letting a guilty verdict stand would be a manifest injustice.... There must be a real ...