United States v. Valentine

655 F. Supp. 731, 1987 U.S. Dist. LEXIS 791
District Court, S.D. New York·Decided February 5, 1987·No. No. S 86 Cr. 375 (RWS)·Published·Cited by 1 cases

Opinion

OPINION

SWEET, District Judge.

Defendant Kenneth Valentine (“Valentine”) has moved for an order pursuant to Fed.R.Crim.P. 33, setting aside the jury [732] verdict in this case and ordering a new trial or, in the alternative, granting a factual hearing on the basis of newly discovered evidence of prosecutorial misconduct. The motion is hereby denied.1

In post-trial motions, Valentine requested a new trial in the interests of justice because of an alleged pattern of prosecuto-rial misconduct, including the use of false testimony and a deliberate misrepresentation in summation. Valentine claimed that the prosecutor manipulated the testimony of Robert Grubin (“Grubin”) to give the jury the false impression that Grubin had recéived a loan and then, in summation, falsely claimed that Grubin, like the other brokers who testified at trial, had received a loan. The motion for a new trial was denied by this court’s opinion of September 23, 1986.

Valentine now asserts that he has “newly discovered evidence” of unfair conduct by the prosecutor. Fed.R.Crim.P. 33. This evidence consists of events from another prosecution, United States v. Flannery, 86 Cr. 374 (Duffy, J.), which did not involve the issues addressed in the present trial: whether Valentine received a $1,000 loan from Jamie Spangler (“Spangler”) in order to contribute to the Bell Campaign, and whether he falsely denied receiving such a loan in his testimony before the grand jury. Its only relation to this case is that it involved charges of perjury and obstruction of justice in connection with the Falls Church, Virginia branch of First Jersey Securities, Inc., by whose Rochester branch Valentine was employed. Although Flan-nery was tried by the same prosecutor, it did not involve loans made to brokers, nor did Grubin testify at trial in this connection.

In Flannery, the Honorable Kevin T. Duffy ordered a new trial after a hearing on allegedly improper conduct by the same prosecutor who is before the court in this case. Defense counsel claimed that the prosecutor (1) failed to disclose to the defense an S.E.C. cooperation agreement with a Government witness, (2) distorted the testimony of Richard Saunders (“Saunders”) by failing to elicit from Saunders the context of a statement which he overheard Flannery make, and (3) stated in summation that Saunders was a “totally disinterested witness,” despite the fact that Saunders had told the Government that he did not like Flannery and suspected him of stealing his customer book. In the hearing on the Flannery claims, the court questioned the same prosecutor about an incident in a third case, United States v. Guntle, 86 Cr. 377 (Pollack, J.), in which the prosecutor made allegedly unfounded objections to questions to Saunders about the overheard conversation.

This “newly discovered evidence” of prosecutorial misconduct in the Valentine trial is insufficient to warrant re-examination of the issues already raised in post-trial motions. The prosecutor’s alleged misconduct in other trials — “a misleading direct, improper objections on cross to prevent exposure of the distortion, and false representations in his summation” — while not irrelevant to a determination of the prosecutor’s conduct in this unrelated case, is not sufficiently probative of the prosecutor’s conduct here to constitute newly discovered evidence of misconduct in this case. This is not a case, as Flannery was, where the witness whose testimony is at issue later stated that he told the prosecutor that his testimony as elicited by the prosecutor was misleading. Cf United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1317 (2d Cir.) (witness’ recantation necessitates a new trial when certain conditions are met), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). Nor does the evidence constitute newly discovered impeachment material which, in any event, is ordinarily not sufficient to justify a new trial. See Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956); United States v. Myers, 534 F.Supp. 753, 756 (E.D.N.Y.1982). The discovery of evidence [733] that might be relevant to a claim of prosecutorial misconduct already made but which is not material to such a claim does not rise to the level of newly discovered evidence. Cf. United States v. Myers, supra, 534 F.Supp. at 756. (“To require a new trial the newly discovered evidence must be material, not merely cumulative____”). Furthermore, this evidence was not in existence at the time of Valentine’s trial and thus cannot constitute evidence upon which a new trial could be based. See United States v. Bolden, 355 F.2d 453, 461 (7th Cir.1965), cert. denied, 384 U.S. 1012, 86 S.Ct. 1919, 16 L.Ed.2d 1018 (1966); see also Ryan v. United States Lines Co., 303 F.2d 430, 434 (2d Cir.1962) (holding that the analogous civil rule, Fed.R.Civ.P. 60(b)(2), permits reopening a judgment “only on the discovery of evidence in existence and hidden at the time of judgment”).

Alternatively, even accepting the Flannery and Guntle proceedings as newly discovered evidence, Valentine has failed to meet the standard for granting a new trial. In most cases, a defendant seeking a new trial on the basis of newly discovered evidence must meet the exacting standard that the new evidence is material, not merely cumulative or impeaching, see United States v. Oates, 445 F.Supp. 351, 353 (E.D. N.Y.), aff'd, 591 F.2d 1332 (2d Cir.1978), and is such that its introduction “would probably produce an acquittal.” United States v. Gilbert, 668 F.2d 94 (2d Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2014, 72 L.Ed.2d 469 (1982). In some situations, however, a less restrictive standard has been held to apply. When the prosecutor has knowingly allowed false testimony to go uncorrected, or has failed to disclose exculpatory material, the Second Circuit has held that the standard to be applied is whether “there was any reasonable likelihood that it affected the fairness of the defendant’s trial.” Perkins v. LeFevre, 642 F.2d 37, 40 (2d Cir.1981) (citing Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959)). Compare United States v. DeSapio, 435 F.2d 272, 287 (2d Cir.1970) (noting that in instances of prosecutorial misconduct, this Circuit applies “the less severe test of probable effect”), cert. denied, 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971).

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United States v. Valentine, 655 F. Supp. 731, 1987 U.S. Dist. LEXIS 791 (S.D.N.Y. 1987).

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