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June 13, 1990


Brian Barnett Duff, United States District Judge.

The opinion of the court was delivered by: DUFF


 Dimitrios Kladouris first appeared before this court on November 3, 1989. He was to enter a guilty plea that day to a charge of interfering with a federal agent. This court declined to take the plea, because on its examination of Mr. Kladouris, it appeared that he had a valid defense to the charge, of which he was not aware. The case was tried on November 28 and 29, 1989. The jury found Mr. Kladouris guilty on November 29.

 Immediately after the trial, this court granted defense counsel until January 7 to file his post-trial motions. They were timely filed, and this court denied the motions for acquittal and a new trial on February 1, 1990. On February 6, Mr. Kladouris retained a new attorney, Normand Cohen. Mr. Cohen immediately requested transcripts of the pretrial and trial proceedings. He received them on February 22, and upon review, determined that Mr. Kladouris had a colorable "ineffective assistance of counsel" claim.

 Because sentencing was set for February 26, 1990, Mr. Cohen requested additional time to prepare a motion for a new trial based on his opinion that Mr. Kladouris' former counsel had been ineffective. This court granted Mr. Cohen leave to file an amended post-trial motion by March 26, 1990, and Mr. Cohen did file the motion on that date. Mr. Kladouris' new counsel moved for a new trial on two grounds; ineffective assistance of counsel and newly discovered evidence. The government claims that the first ground is untimely, and the second inadequate. This court disagrees, and grants Mr. Kladouris' motion for a new trial.


 On September 17, 1989, Robert Reidell, an Immigration and Naturalization Service (INS) agent entered Mr. Kladouris' restaurant in New Holland for the purpose of finding and arresting certain persons who he believed were in this country illegally, and were employed by Mr. Kladouris. At the time Agent Reidell was moving through the restaurant, Mr. Kladouris was in an area to the back of the restaurant, near the kitchen, where he would not normally expect to see members of the public.

 The parties differ as to what happened next. Mr. Kladouris claims that the unidentified agent was chasing his two employees out of the restaurant, and Mr. Kladouris stepped in to stop what he thought was an unlawful intrusion into his place of business. Agent Reidell, on the other hand, claims that he did identify himself to Mr. Kladouris, and Mr. Kladouris assaulted him in an attempt to thwart the arrest of his employees.

 When Mr. Kladouris appeared before this court on November 3, 1989 to enter his guilty plea, this court followed its usual practice and questioned Mr. Kladouris about the circumstances which led to the charge, and his decision to plead guilty. The facts, as set forth by Mr. Kladouris, simply did not permit this court to accept a guilty plea. Mr. Kladouris clearly believed himself to be innocent of the charged crime. *fn1" Furthermore, Mr. Kladouris' version of the facts demonstrated to this court that he had a legitimate defense available. *fn2" For these reasons, this court, with Mr. Kladouris' approval, refused to take the plea. A trial date was set, and the government requested a jury. The record now before the court demonstrates that Mr. Kladouris' trial counsel was either unaware of the availability of the defense, or had simply neglected to inform his client of it. *fn3"

 It is not clear that Mr. Kladouris' trial counsel ever came to understand the nature of the defense available to Mr. Kladouris. He failed to tender an instruction apprising the jury of its availability, and he did not elicit testimony which bore directly upon it. Nonetheless, because Mr. Kladouris did offer some testimony which could have supported his defense, this court prepared a "justification" instruction and delivered it to the jury.

 Mr. Kladouris makes two arguments in support of his motion for a new trial; that he is entitled to a new trial because of newly discovered evidence (impeaching the government's chief witness, Agent Reidell) and because his trial counsel was ineffective. This court will address each argument in turn.

 Agent Reidell's Civil Suit

 Agent Reidell filed a civil suit against Mr. Kladouris (seeking to recover for injuries he allegedly suffered during the incident with Mr. Kladouris) about a week after the jury returned its verdict in the criminal case. In fact, he was considering or even planning filing the suit at the time he testified against Mr. Kladouris. Mr. Kladouris argues that this is "newly discovered evidence" which justifies an order granting a new trial.

 Rule 33 of the Federal Rules of Criminal Procedure provides that "the court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. * * * A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment . . . ." Generally, the discovery of evidence which impeaches a prosecution witness is not sufficient to merit a new trial on the basis of "newly discovered evidence". U.S. v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989).

 The standard for granting a new trial based upon newly discovered evidence in this circuit requires a defendant to show that the new evidence "(1) came to his or her knowledge only after trial; (2) could not have been discovered sooner had the defendant exercised due diligence; (3) is material, and not merely impeaching or cumulative; and (4) would probably lead to an acquittal in the event of a trial." U.S. v. Tucker, 836 F.2d 334, 336 (7th Cir. 1988) (citations omitted).

 Evidence that, at the time he testified against Mr. Kladouris in the criminal matter, Agent Reidell intended to file a civil suit against Mr. Kladouris would certainly have called Agent Reidell's credibility into question. *fn4" The jury could have used that evidence to infer that Agent Reidell had a motive to lie -- to further his plan to collect money from Mr. Kladouris. Furthermore (despite the advice Agent Reidell claims to have received from his attorney, see Reidell affidavit, attached to the government's response to the motion for a new trial), a criminal conviction could have been used against Mr. Kladouris in a civil trial.

 This information also calls into question the medical testimony submitted in the criminal trial. The doctor who offered testimony about Mr. Reidell's injuries may have been consulted in connection with his plan to file suit. None of these avenues of inquiry were pursued before the jury because the defense was not aware of Agent Reidell's intention to file the civil suit.

 This court cannot characterize evidence of Mr. Reidell's intention to file a civil suit against Mr. Kladouris as "merely" impeaching. Agent Reidell was the only person who testified that he identified himself to Mr. Kladouris. He was the only person, other than Mr. Kladouris, who testified as to what occurred during the second or two before Mr. Kladouris pushed him into the wall. His testimony was the linchpin of the prosecution's case. The fact that he claims his attorney (erroneously) told him that the outcome of the criminal case would not affect the civil case makes his intention no less material.

 This court is not suggesting that Agent Reidell was not truthful in his testimony. It is, however, suggesting that the fact that Agent Reidell was planning to file a civil suit at the time he testified in the criminal case was material, and the defense should have had an opportunity to cross-examine him on the question. Not to require cross-examination on this point would allow Agent Reidell to use (or at least appear to use) the government as an instrument to achieve his own ends. That is unacceptable.

 This court finds that the Mr. Kladouris did not discover that Agent Reidell had intended to file a civil suit until that suit was filed, after a verdict had been reached in the criminal trial. This court does not believe that Mr. Kladouris' attorney should have, in the exercise of due diligence, discovered Agent Reidell's intention to filed the suit during the course of the criminal trial. As stated above, the evidence of the civil suit is not "merely impeaching", and had that evidence been introduced at trial, the outcome of the trial might very well have been different. For all these ...

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