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UNITED STATES v. DUCATO

June 30, 1997

UNITED STATES of AMERICA, Plaintiff
v.
PHILIP DUCATO, Defendant.



The opinion of the court was delivered by: MANNING

 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. ยง 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 case 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, such 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 cases). There exists a strong hesitation "before setting aside a jury verdict and ordering a new trial." United States v. Ghanayem, 1994 U.S. Dist. LEXIS 7456, 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, "Courts 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 "when the claim incorporates an allegation that the witness(es) 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, 925 F.2d 1026, 1029 (7th Cir. 1991). The prerequisite to utilizing the "Larrison test" is that the court is "reasonably well satisfied" that there was false testimony. See Id. See also United States v. Austin, 103 F.3d 606, 609 (7th Cir. 1996). Following this "threshold factual determination," the court then considers whether a "jury might have reached a different conclusion absent the false testimony [or if it had known that testimony by a material witness was false] and [] whether the party seeking the new trial either was surprised by and unable to meet the false testimony or did not learn of its falsity until after trial." See Id.; United States v. Reed, 2 F.3d 1441 (7th Cir. 1994); United States v. Mazzanti, 925 F.2d 1026, 1029 (7th Cir. 1991). There is no reason to pursue the elements of the Larrison test as it is clear from the record that Ducato was not convicted on the basis of false testimony. The court is not "reasonably well satisfied" that either Bustami or Bruno testified falsely at trial, nor is it reasonably satisfied that a "jury might have reached a different conclusion" without Bustami and Bruno's testimony if, in fact, their testimony had been false. As is more specifically set forth below, Ducato does not satisfy the Seventh Circuit's general test, either. Applying the principles set forth above to the instant case, Defendant's motion for new trial based on newly discovered evidence is denied.

 I. Government Witness Bustami

 Ducato's motion for new trial is based on "newly discovered" evidence that Bustami gave false testimony in the instant case. Bustami, at trial, gave testimony that placed Ducato at "deal" meetings and corroborated other evidence proving Ducato's involvement in a conspiracy to distribute five kilos of cocaine. Most importantly, in his motion, Ducato notes that Bustami, on direct-examination, claimed to have had a "very limited involvement in drug deals, mostly as a broker, and only with cocaine." Bustami explained that his involvement was limited to six transactions with two suppliers. Moreover, "Bustami emphasized that he fully disclosed all his knowledge and all the names of those he was aware were involved in drug dealing ... [and] he further advised the jurors that his failure to be truthful would void his plea agreement." Defendant's motion for new trial also avers that on cross-examination, ...


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