United States District Court, S.D. New York
For Anthony Paulino, also known as Toast, Defendant: Domenick J Porco, LEAD ATTORNEY, Domenick J. Porco, Attorney At Law, Scarsdale, NY.
For USA, Plaintiff: David Noel Kelley, LEAD ATTORNEY, Andrew Seth Dember, U.S. Attorney's Office, S.D.N.Y. (St Andw's), New York, NY; Douglas Benjamin Bloom, LEAD ATTORNEY, U.S. Attorney's Office, S.D.N.Y. (White Plains), White Plains, NY; John Michael Hillebrecht, LEAD ATTORNEY, DLA Piper U.S. LLP (NY), New York, NY; Andrew Douglas Beaty, U.S. Attorney's Office For The Southern District of New, New York, NY; Noah David Solowiejczyk, United States Attorney Office, SDNY, New York, NY.
MEMORANDUM & ORDER
LORETTA A. PRESKA, Chief United States District Judge.
Tuere Barnes (" Barnes" or " Defendant") moves for a new trial pursuant to Fed. R. Crim. P. 33. In 2009, a jury convicted Barnes of seven offenses involving racketeering, narcotics distribution, kidnapping, conspiracy to murder, and use of a firearm. Three years later he filed the instant motion, arguing that new evidence from an individual who was incarcerated with two of the Government's witnesses merits a new trial. Specifically, he asserts that a declaration from that individual proves that the two witnesses perjured themselves when testifying about their interactions with each other.
For the reasons below, Defendant's motion is denied.
Beginning in the late 1990s, Barnes was a member of a narcotics trafficking enterprise, known as the " Barnes Brothers Organization, " through which Barnes, his brothers Khalid and Dawud Barnes (" Khalid" and " Dawud"), an individual named Bryan Conklin (" Conklin"), and other members distributed crack cocaine, powder cocaine, and marijuana. In furtherance of that enterprise, Organization members engaged in a number of violent acts.
At the crux of the present motion is the November 2003 kidnapping and attempted murder of Eddy Solano-Herrera (" Solano-Herrera"), an employee of a local drug dealer named Choco, who Barnes, Khalid, Dawud, and Conklin conspired to rob. After setting up a cocaine deal with Choco, those four drove to his apartment in Yonkers with guns and latex gloves. When Solano-Herrera arrived, the group attacked him and searched him for drugs or the keys to Choco's apartment. When they found neither, the four men decided to drive Solano-Herrera to Yonkers Raceway and kill him. Barnes and Dawud took Solano-Herrera into a car, which Barnes drove while Dawud guarded Solano-Herrera in the back seat. Before the group reached Yonkers Raceway, however, Solano-Herrera leapt from the moving car and managed to escape.
In 2004, Barnes and several co-defendants were charged in a one-count indictment related to the Organization. (Indictment dated Feb. 27, 2004 [dkt. no. 1].) Barnes and three codefendants were subsequently charged in a 38-count superseding indictment related to that enterprise. (Superseding Indictment dated Aug. 7, 2006 [dkt. no. 235].) In 2009, Judge Stephen C. Robinson presided over Barnes' jury trial on sixteen of those counts. The jury convicted Barnes of seven offenses, including racketeering, conspiracy to distribute narcotics, kidnapping and conspiracy to commit kidnapping, conspiracy to commit murder, and using a firearm in relation to a violent crime. (See Judgment dated Aug. 5, 2010 [dkt. no. 575].)
The violent offenses of which Barnes was convicted all stemmed from the kidnapping and attempted murder of Solano-Herrera. At trial, the two key Government witnesses regarding that event were Conklin and Solano-Herrera, both of whom testified pursuant to cooperation agreements. To bolster these witnesses' testimony, the Government offered recordings of Barnes discussing the kidnapping and telephone records showing that he called a taxi service in the Bronx near the scene of the kidnapping on the afternoon it took place. During the Government's case, both Conklin and Solano-Herrera admitted that they were incarcerated in the same housing unit prior to trial. Solano-Herrera also testified that he discussed the trial date with Conklin but otherwise avoided conversations with him because of his participation in the kidnapping and attempted murder. (Trial Tr. at 1849-51.)
Barnes' defense largely hinged on the credibility of Conklin and Solano-Herrera. To that end, Defendant's attorney conducted extensive cross-examination of both witnesses, during which he delved into the extent of their communications and opportunities to interact while incarcerated together. This line of questioning resulted in concessions from Conklin that he and Solano-Herrera had " a lot of contact" when they were in the same unit for " about a year, " during which were able to speak with each other, though Conklin denied being friendly or having specific conversations with Solano-Herrera. (Id. at 787-88; see also id. at 1149-50.) The defense also elicited from Solano-Herrera that he did not immediately request to be moved out of Conklin's unit, despite his role in the kidnapping and attempted murder. (Id. at 1913.) Beyond pointing out both witnesses' opportunities to communicate prior to trial, Defendant's attorney significantly undermined their credibility by eliciting that Conklin had previously aided another in committing perjury, pointing out both witnesses' criminal history, and arguing that as cooperators both had motive to align their testimony. (See id. at 1280-82, 3633.) To further combat the Government's case, Barnes took the stand and testified that he was attending class in Westchester County during the time of the kidnapping and called the taxi service from his school after Dawud called asking for help leaving the Bronx. Despite this vigorous defense, the jury convicted Barnes of all charges related to the Solano-Herrera kidnapping and attempted murder.
Nearly three years after his conviction, Barnes filed the instant motion for a new trial based on new evidence consisting of a declaration by a former inmate named Adhurim Muriqui (" Muriqui"). (Decl. of Adhurim Muriqui (" Muriqui Decl.") dated Aug. 2, 2010 [dkt. no. 615].) According to the declaration, Muriqui was incarcerated with Conklin and Solano-Herrera in the Putnam County Jail for approximately six months prior to Defendant's trial. During that time, Muriqui, Conklin, and Solano-Herrera were " part of a group of about seven inmates who played poker together almost every day" and who " frequently played basketball together after the daily poker games ended." (Id. ¶ 5.) The declaration describes Conklin and Solano-Herrera as " very friendly" toward each other and states that Muriqui was surprised to learn from another inmate that Conklin had kidnapped Solano-Herrera prior to their incarceration. (Id. ¶ ¶ 6-7.) Barnes argues that this declaration reveals that Conklin and Solano-Herrera perjured themselves when testifying about their interactions in jail, which justifies a new trial.
II. Applicable Law and Standard of Review
Rule 33 grants a district court discretion to " vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Cr. P. 33(a). Motions based on new evidence are only granted " in the most extraordinary circumstances." United States v. Parkes, 497 F.3d 220, 233 (2d Cir. 2007) (emphasis in original) (quoting United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993)) (internal quotation mark omitted). Indeed, " [t]here must be a real concern that an innocent person may have been ...