United States v. Ducato

968 F. Supp. 1310, 1997 U.S. Dist. LEXIS 9525, 1997 WL 371134
CourtDistrict Court, N.D. Illinois
DecidedJuly 1, 1997
DocketNo. 95 CR 189
StatusPublished

This text of 968 F. Supp. 1310 (United States v. Ducato) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ducato, 968 F. Supp. 1310, 1997 U.S. Dist. LEXIS 9525, 1997 WL 371134 (N.D. Ill. 1997).

Opinion

MEMORANDUM AND ORDER

MANNING, District Judge.

Defendant Philip Ducato (“Ducato”), through his counsel, moves this court for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure based on newly discovered evidence. For the reasons below, Defendant’s motion for new trial is denied.

BACKGROUND

Following a jury trial, Ducato was found guilty of conspiracy to distribute five kilograms of cocaine in violation of 21 U.S.C. § 846. The verdict was returned on July 18, 1996. Defendant was sentenced on December 20, 1996. The following summary of the factual background is taken from Defendant’s Motion for New Trial, Government’s Opposition to Defendant’s Motion, trial transcripts, and exhibits.

On January 27, 1995, Ducato was arrested for conspiracy to distribute cocaine and possession with intent to deliver cocaine. Also arrested was co-defendant Antonino Cusimano (“Cusimano”). The arrest was the result of a Drug Enforcement Agency (“DEA”) surveillance operation. At trial, two key Government witnesses testified against Ducato. These witnesses were Philip Bruno (“Bruno”) and Nassir or Naser “Victor” Bustami (“Bustami”). Bustami was involved with the instant DEA operation acting as a confidential informant. Bustami’s involvement stemmed from his plea agreement with the Government regarding unrelated charges and sentencing matters. Bustami agreed to testify against Ducato and Cusimano in exchange for a downward departure in sentencing. Bruno made a similar agreement following his arrest in this matter, exchanging his testimony against Defendant at trial for a sentence mitigation.

The weight of evidence against Ducato was overwhelming at trial. Such evidence included direct testimony from Bruno and Bustami, several audio tapes indicating Ducato’s perpetration of the conspiracy, including one audio tape of Ducato himself, testimony by DEA agents who had witnessed meetings between Defendant, Cusimano, Bruno, and Bustami, and evidence of Defendant’s possession of a loaded weapon and $90,000 drug money (received from an undercover DEA agent) at the time of arrest. Defendant’s motion, however, focuses solely on the testimonial evidence of Bruno and Bustami, an issue on which the court has previously ruled in Defendant’s prior motion for a new trial.

Bustami was effectively impeached at trial by both Defense and Government counsel. The impeachment of Bustami revealed that he trafficked drugs, plead guilty to federal drug charges, laundered money, made a plea agreement in the instant case, to wit: trading his testimony for a reduced sentence, was arrested for carrying a weapon in Florida, was arrested in Wisconsin for automobile theft, and so on. Bruno, likewise, was impeached by both sides. Bruno admittedly participated in the same conspiracy as Ducato, made a plea agreement in the instant ease trading his testimony for a sentence mitigation, did not disclose all truthful information immediately following his arrest in this matter, accepted bribes from Chicago Transit Authority employees, falsified court documents and passport applications, laundered money, and so on.

Defendant’s motion for new trial is based on claims that “one or both of the cooperating Government witnesses [Bruno and/or Bustami] testified falsely at the trial below.” Moreover, Defendant claims that the Government failed to disclose alleged wrongdoings of these Government witnesses in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). This alleged undisclosed information, claims Defendant, would have aided the defense in additional impeachment of these Government witnesses.

ANALYSIS

Ducato moves this court for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. The court may grant a motion for new trial “if required in the interest of justice.” Fed.R.Crim.P. 33. However, [1312]*1312such motions “are not favored by the courts and are viewed with great caution.” United States v. Kamel, 965 F.2d 484, 490 n. 7 (7th Cir.1992) (collecting eases). There exists a strong hesitation “before setting aside a jury verdict and ordering a new trial.” United States v. Ghanayem, 1994 WL 247069, *2 (N.D.Ill.1994) citing Id. When confronted with a motion for a new trial based upon newly discovered evidence under Federal Rule of Criminal Procedure 33, “[Cjourts exercise great caution ... because of the importance accorded to repose, regularity of decision-making, and conservation of judicial resources.” United States v. Young, 20 F.3d 758, 763 (7th Cir.1994) citing United States v. Kamel, 965 F.2d 484, 490 (7th Cir.1992). In that connection, the Seventh Circuit “has established a four-part test a defendant must satisfy to establish his right to a new trial.” Id. The defendant must demonstrate that the evidence “(1) came to [his] knowledge only after trial; (2) could not have been discovered sooner had due diligence been exercised; (3) is material and not merely impeaching or cumulative: and (4) would probably lead to an acquittal in the event of a retrial.” Id. quoting Jarrett v. United States, 822 F.2d 1438, 1445 (7th Cir.1987). See also United States v. Nero, 733 F.2d 1197 (7th Cir.1984); United States v. Oliver, 683 F.2d 224, 228 (7th Cir.1982).

Ducato’s motion is advanced in two parts relating to: 1) Government witness Bustami and 2) Government witness Bruno. Ducato alleges that Bustami committed perjury; that the newly discovered evidence proves as such; and that the Government, in violation of Defendant’s due process rights, failed to disclose exculpatory information to the defense. Defendant also alleges that newly discovered evidence is available to further impeach Bruno’s credibility, and to show that Bruno committed perjury.

Defendant’s motion states that “[w]hen the claim incorporates an allegation that the witnesses) testified falsely, as here, a ‘more lenient test’ is utilized.” The “more lenient test” Defendant describes derives from Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928) and, more recently, United States v. Reed, 2 F.3d 1441 (7th Cir.1994). See also United States v. Mazzanti,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Napue v. Illinois
360 U.S. 264 (Supreme Court, 1959)
Brady v. Maryland
373 U.S. 83 (Supreme Court, 1963)
Giglio v. United States
405 U.S. 150 (Supreme Court, 1972)
United States v. Bagley
473 U.S. 667 (Supreme Court, 1985)
Kyles v. Whitley
514 U.S. 419 (Supreme Court, 1995)
United States v. John Anthony Oliver
683 F.2d 224 (Seventh Circuit, 1982)
United States v. Colleen Nero
733 F.2d 1197 (Seventh Circuit, 1984)
Ronald Jarrett v. United States
822 F.2d 1438 (Seventh Circuit, 1987)
United States v. Donald Mazzanti
925 F.2d 1026 (Seventh Circuit, 1991)
United States v. Kamel Kamel and Musa Khabbas
965 F.2d 484 (Seventh Circuit, 1992)
United States v. Daniel A. White and Judith A. White
970 F.2d 328 (Seventh Circuit, 1992)
United States v. Willie J. Reed
2 F.3d 1441 (Seventh Circuit, 1994)
United States v. Peter S. Dimas and Ramon Roman
3 F.3d 1015 (Seventh Circuit, 1993)
United States v. Allen Young
20 F.3d 758 (Seventh Circuit, 1994)
United States v. Mark W. Fruth
36 F.3d 649 (Seventh Circuit, 1994)
United States v. Dickson Veras
51 F.3d 1365 (Seventh Circuit, 1995)
United States v. Jeff Boyd
55 F.3d 239 (Seventh Circuit, 1995)
United States v. Arturo Gonzalez and Ricardo Ramirez
93 F.3d 311 (Seventh Circuit, 1996)
United States v. Donald Austin
103 F.3d 606 (Seventh Circuit, 1997)
United States v. Boyd
833 F. Supp. 1277 (N.D. Illinois, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
968 F. Supp. 1310, 1997 U.S. Dist. LEXIS 9525, 1997 WL 371134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ducato-ilnd-1997.