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United States v. Boros

February 12, 2010

UNITED STATES OF AMERICA
v.
RICK BOROS A/K/A VINCE KWIATKOWSKI



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

On May 20, 2008, a jury found defendant Rick Boros, also known as Vince Kwiatkowski, guilty of drug and money laundering conspiracies. On May 27, 2008, pursuant to Federal Rule of Criminal Procedure 33, Boros filed a timely pro se motion for a new trial and motion for judgment of acquittal. On November 3, 2009, the court denied Boros's motion for judgment of acquittal and ordered further briefing on issues relating to his motion for a new trial. For all the foregoing reasons, Boros's motion for a new trial is denied.

I. Analysis

A. Rule 33 Standard

Pursuant to Federal Rule of Criminal Procedure 33, a court may grant a defendant a new trial "if the interest of justice so requires." Fed. R. Crim. P. 33(a). This decision is "committed to the sound discretion of the trial judge." United States v. Gillaum, 372 F.3d 848, 857-58 (7th Cir. 2004) (citations omitted). In determining whether to grant a new trial, a court should exercise "great caution" and be "wary of second guessing the determinations of the . . . jury." Id. (citing United States v. DePriest, 6 F.3d 1201, 1216 (7th Cir. 1993)). Further, the power to grant a Rule 33 motion should be exercised only in the "most 'extreme cases.'" United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1988) (quoting United States v. Morales, 902 F.2d 604, 605 (7th Cir. 1990)).

B. Brady

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." To establish a Brady violation, a defendant must prove that: "(1) the evidence at issue was favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the Government, either willfully or inadvertently; and (3) the denial was prejudicial." United States v. Kimoto, 588 F.3d 464, 474 (7th Cir. 2009).

At issue is an alleged*fn1 October 11, 2004 email from Larry Calow to Boros (the "October 2004 email") which read:

He [Gary] has 2 websites working all the time. Purchasemeds.com was the one you and the CC [credit card] processors saw. He also had pmeds.com that he used to sell steriods and the other stuff. I should have told you sooner but he is my brother and I did not want to go against him. He and Liz formed the new company in Feb to be ready if you ever found out what was really going on.

Pro se Mot. at 20. Having reviewed the parties' submissions, the court finds no basis to conclude that the second Brady requirement -- a showing that the email was suppressed by the government, either willfully or inadvertently -- has been met. Asserting that it never had the email within its possession at any time before or during trial, the government explained that it first learned of the existence of the alleged email when Boros attached it to his pro se motion for a new trial in May 2008. Further, the government explained that it served search warrants upon Yahoo! for Larry Calow's email account, lcalow@yahoo.com, and Gary Calow's email account, gcalow@yahoo.com. Therefore, the email at issue, from Larry Calow at lcalow@frankfortdrywall.com to Boros at doctork@unix.com, was not uncovered by the government. In his brief, Boros makes no attempt to argue that the government nevertheless had the email in its possession prior to receipt of his pro se motion for a new trial. The court finds no basis to conclude that a Brady violation occurred here.*fn2

C. Newly Discovered Evidence

Boros argues that the post-trial discovery of the October 2004 email is "newly discovered evidence" which necessitates a new trial. To win a new trial based on newly discovered evidence, a defendant must show that "'the evidence (1) came to [his] knowledge only after the trial; (2) could not have been discovered sooner and [he] 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 retrial.'" United States v. Bender, 539 F.3d 449, 455-56 (7th Cir. 2008) (citations omitted).

The court concludes that Boros has failed to show that the email could not have been discovered sooner and that he exercised due diligence. According to Boros, he could not have discovered the email prior to trial because the government failed to return two computers it seized from him. The government asserts that it has returned all of Boros's computers, and this court, relying on affidavits and receipts provided by the government, has already rejected Boros's position by concluding that all computers seized by the government were returned to Boros prior to trial. See 9/25/08 Minute Order. In light of this, the court rejects Boros's assertion that he could not retrieve the email at issue because of the allegedly missing computers. In addition, according to Boros, those two computers remain in the custody of the government, and yet, just after his trial, Boros was able to access the email. Boros stated, "after his trial in May 2008, Mr. Boros, who historically had performed computer technical services for Frankfort Drywall Supply, Inc[.], along with Larry Calow, was providing services for the company. While accessing Frankfort Drywall Supply, Inc[.]'s computer systems, he discovered the email from Larry Calow at lcalow@frankfortdrywall.com to him at doctork@unixgroup.com." Boros Resp. at 3-4. Boros claims he has no recollection of receiving the email at the time it was originally sent.

Boros has not provided adequate proof that he could not have uncovered this email before trial. He has failed to explain why he could not have accessed this email through his own email account at doctork@unixgroup.com or why he could not have taken the identical steps he took to access the email in May 2008 at some point prior to his criminal trial. Boros has failed to convince the court that, even if diligent, he could not have retrieved this email prior to ...


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