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United States v. Rosario

United States District Court, S.D. New York

September 1, 2017

UNITED STATES OF AMERICA,
v.
ALCY ROSARIO, Defendant.

          MEMORANDUM & OPINION

          Vernon S. Broderick United States District Judge.

         Currently before me is the motion of Defendant Alcy Rosario (“Rosario”) for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure based upon new evidence-the disclosure that Geovanny Florimon, one of the cooperating witnesses who testified for the Government during Rosario's trial, lied during his testimony. In the alternative Rosario requests that I authorize subpoenas and other discovery regarding the other cooperating witness who testified at his trial, Fausto Infante-Fernandez (“Fernandez”). Rosario also claims that evidence revealed that Fernandez lied about his immigration application and that he committed immigration fraud with the assistance of his wife. Because I find that (1) Florimon's perjurious testimony was not material; (2) Fernandez's testimony and the documentary and physical evidence standing alone was sufficient to support the jury's guilty verdict; and (3) the evidence identified by Rosario related to Fernandez was not new, material, and is cumulative, Defendant's motion for a new trial is denied. I also deny Rosario's request for a subpoena and discovery because the Government provided Rosario with a copy of Fernandez's immigration alien file (“A-File”), and Rosario has failed to establish that he is entitled to additional discovery.

         I. Background

         The factual background can be found in my prior Memorandum and Order denying Rosario's initial motion for a judgment of acquittal pursuant to Rule 29(c), or in the alternative for a new trial pursuant to Rule 33 (the “9/16 M&O”); therefore, I include below on those facts relevant to deciding the pending motion. (Doc. 85.)

         II. Procedural History

         The procedural history can be found in my 9/16 M&O and I will not repeat it here. I include only the procedural history relevant for this decision.

         On May 1, 2015, following a five-day jury trial that began on April 27, 2015, Rosario was convicted of conspiracy to steal government funds, in violation of Title 18, United States Code, Section 371 (“Count One”), theft of government funds, in violation of Title 18, United States Code, Sections 641 and 2 (“Count Two”), and aggravated identity theft, in violation of Title 18 United States Code, Sections 1028A and 2 (“Count Three”). At the close of the Government's case, Rosario moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure (“Rule”) 29(a). I found that there was sufficient evidence for the case to be presented to the jury. Following the jury's verdict, Rosario renewed his motion for judgment of acquittal pursuant to Rule 29(c) and also moved, in the alternative, for a new trial pursuant to Rule 33. By Memorandum & Order dated September 16, 2015, I denied Rosario's motions for judgment of acquittal and for a new trial. (Doc. 85.)

         On November 9, 2015, the Government disclosed to Rosario's counsel that, after being confronted by the Government, Florimon admitted that “he had not been truthful when he testified that [Hairold (or Hairo) Roman] had introduced himself to Florimon as ‘William Diaz' and acknowledged that he had supplied Roman with the ‘William Diaz' pseudonym, ” “so that Roman could open a bank account into which fraudulently obtained or stolen Treasury checks were deposited.” (Govt. Ltr. 2.)[1] By Order dated December 4, 2015, I directed the parties to meet and confer concerning a briefing schedule. (Doc. 94.) By letter dated December 21, 2015, Rosario indicated that he had filed his motion for a new trial on that same day and the parties proposed the remainder of the briefing schedule providing that the Government's opposition be due on January 29, 2016, and Rosario's reply on February 12, 2016. (Doc. 95.) Thereafter I granted several extensions requested by the Government, (Docs. 100, 106), and a request by Rosario to file a supplemental memorandum, (Doc. 101). Rosario filed his supplemental memorandum of law on March 23, 2016, (Doc. 102), the Government filed its opposition on May 2, 2016, (Doc. 107), and Rosario filed his reply on May 16, 2016, (Doc. 108).

         III. Applicable Law

         A. Motion for a New Trial Pursuant to Rule 33

         “Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33. Courts must “strike a balance between weighing the evidence and credibility of witnesses and not wholly usurping the role of the jury.” United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (internal quotation marks omitted). “It is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). The Second Circuit has stated that:

The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice. The trial court must be satisfied that competent, satisfactory and sufficient evidence in the record supports the jury verdict. The district court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation. There must be a real concern that an innocent person may have been convicted.

Ferguson, 246 F.3d at 134 (citations and internal quotation marks omitted).

         “The defendant bears the burden of proving that he is entitled to a new trial, ” United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009), and motions for a new trial filed more than fourteen days after the verdict is issued must be based on “newly discovered evidence, ” Fed. R. Crim. P. 33(b). “Relief under Rule 33 based on newly discovered evidence” requires a five-part “‘showing that (1) the evidence [was] newly discovered after trial; (2) facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching; and (5) the evidence would likely result in an acquittal.'” United States v. Forbes, 790 F.3d 403, 406-07 (2d Cir. 2015) (quoting United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007)). “A district court must exercise ‘great caution' in determining whether to grant a retrial on the ground of newly discovered evidence, and may grant the motion only ‘in the most extraordinary circumstances.'” United States v. Imran, 964 F.2d 1313, 1318 (2d Cir. 1992) (alteration in original) (quoting United States v. Di Paolo, 835 F.2d 46, 49 (2d Cir. 1987)), cert. denied, 506 U.S. 1009 (1992).

         B. Motion for a New Trial Based Upon Newly Discovered Evidence of the Government's Alleged Use of Perjured Testimony

         When a defendant seeks a new trial based upon newly discovered evidence of the Government's alleged use of perjured testimony the defendant must establish that: “‘(i) the witness actually committed perjury;' (ii) ‘the alleged perjury was material;' (iii) ‘the government knew or should have known of the alleged perjury at time of trial;' and (iv) ‘the perjured testimony remained undisclosed during trial.'” United States v. Ferguson, 676 F.3d 260, 282 (2d Cir. 2011) (emphasis omitted) (quoting United States v. Zichettello, 208 F.3d 72, 102 (2d Cir. 2000)). “A witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory.” United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001). If a court concludes that perjury was committed, “there are different standards of review on this issue depending upon whether the prosecution knew or should have known of the perjury.” United States v. White, 972 F.2d 16, 21 (2d Cir. 1992). “[I]f the prosecution is charged with knowledge of the perjury, the conviction must be set aside ‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.'” Id. (citing United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991)). However, “[i]f the prosecution was unaware of the perjury, a new trial is warranted if the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.” White, 972 F.2d at 21 (internal quotation marks omitted).

         IV. Discussion

         A. Florimon's False Testimony Was Not Material

         During the trial, Florimon during cross examination admitted that he had opened bank accounts with someone named William Diaz. (Tr. 307:24-25.)[2] Florimon acknowledged that he told the Government that William Diaz might not be his real name but that was how he identified himself to Florimon. (Id. 313:7-10.) He conceded that although he told the Government that he believed William Diaz was in Texas that he knew that he lived in Pennsylvania, and is married to Florimon's wife's cousin. (Id. 313:13-314:14.) He also admitted during cross examination that he knew William Diaz was a pseudonym for Hairo Roman, but persisted in claiming that he had not disclosed Roman's real name to the Government prior to trial because Roman had originally introduced himself to Florimon as William Diaz. (Id. 318:11-23.) Florimon denied that he was trying to protect a family member and continued to insist during cross examination that he did not know William Diaz's real name prior to trial even when he was confronted with the fact that he had entered the name Hairo instead of William Diaz in the contacts of his cellular telephone. (Id. at 318:11-23; 320:9-24; 321:3-10; 322:3-25.) After trial, the Government disclosed that, after being confronted by the Government, Florimon admitted that “he had not been truthful when he testified that [Hairold (or Hairo) Roman] had introduced himself to Florimon as ‘William Diaz' and acknowledged that he had supplied Roman with the ‘William Diaz' pseudonym” “so that Roman could open a bank account into which fraudulently obtained or stolen Treasury checks were deposited.” (Govt. Ltr. 2.)

         The parties agree that Florimon lied during his trial testimony related to William Diaz, that his lies constitute newly discovered evidence, and that the Government was unaware Florimon was lying during his testimony. (Def.'s Mem. 5-6; Govt. Mem. 3-5.)[3] Rosario, however, argues that Florimon's “testimony was so material to the jury's finding of guilt that, absent the perjurious testimony, the jury probably would not have convicted Mr. Rosario.” (Def.'s Mem. 6.) I disagree. Florimon's lies were not material, and did not go to the essence of the Government's case against Rosario.

         Rosario argues that Florimon's lies were critical to the case against him stating that “Florimon's testimony directly implicated [him] as understanding the scope of the conspiracy when he opened bank accounts for Florimon and deposited checks, ” and that therefore “Florimon's testimony about his co-conspirators was thus central to the Government's case against Mr. Rosario.” (Def.'s Mem. 6-7.) This argument is misplaced, and does not support a finding that Florimon's lies were material.

         There is no claim or evidence that Florimon lied about Rosario's participation in the conspiracy to steal government funds, theft of government funds, and theft of the identities of innocent victims. Instead, Florimon lied about knowing Roman's real name, and that he had provided Roman with the name William Diaz to open up a bank account as part of the Treasury check scheme. (Govt. Ltr. 2.) There was no evidence presented during the trial that suggested that Rosario was told about, interacted with, or knew Roman or someone going by the name William Diaz. In other words, despite Rosario's attempt to link Florimon's testimony about Roman to his testimony about Rosario, there is no factual connection in the record to support that claim. These facts do not support Rosario's claim that Florimon's testimony about William Diaz was “central to the Government's case against [him].” (Def.'s Mem. 6.)

         Moreover, contrary to the suggestion embedded within Rosario's argument, the Government has not claimed or argued that Florimon's testimony-or any evidence it presented for that matter-“directly implicated [] Rosario as understanding the scope of the conspiracy.” Indeed, the law does not require[4] and the jury was specifically instructed that Rosario need not have been aware of the full scope of the conspiracy to be found guilty of being a participant. (See Tr. 788:3-788:18) (“Knowledge is a matter of inference from facts proved. To have guilty knowledge, a defendant need not know the full extent of the conspiracy, or even who all coconspirators are. Similarly, a defendant need not know all of the actives of the conspiracy. Indeed, a single act may be enough to bring one within the membership of the conspiracy, provided that the defendant was ...


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