United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
Defendant Steven Mandell has again moved for a new trial based on alleged newly discovered evidence. The Court denies Defendant's motion.
On November 1, 2012, a grand jury returned an Indictment against Steven Mandell ("Mandell", or the "Defendant") and his co-defendant, Gary Engel ("Engel"), charging them with two counts of extortion under 18 U.S.C. § 1951(a). (R. 13.) The Court subsequently granted the government's motion to dismiss co-defendant Gary Engel from the indictment after he was found dead in his prison cell. (R. 24.)
On March 21, 2013, a grand jury returned an eight-count Superseding Indictment against Defendant Mandell. (R. 38, Sup. Ind.) The Superseding Indictment charged Mandell with conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201 (Count I); conspiracy and attempted extortion, in violation of 18 U.S.C. § 1951 (Counts Two and Three); possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Four); being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count Five); obstruction of justice, in violation of 18 U.S.C. § 1512 (Count Six); and murder-for-hire, in violation of 18 U.S.C. § 1958(a) (Counts Seven and Eight). The Superseding Indictment also contained a forfeiture allegation. Defendant pled not guilty to each of the counts in the Superseding Indictment.
The jury returned a verdict of guilty against Defendant on Counts One through Six of the Superseding Indictment and not guilty on Counts Seven and Eight of the Superseding Indictment. On November 3, 2014, the Court denied Defendant's motion for a judgment of acquittal and motion for a new trial (the "November 3 Opinion"). (R. 260, Memorandum Opinion and Order.) For a detailed discussion of the evidence in the case, the Court refers to the November 3 Opinion. Defendant now moves again for a new trial.
Counts Four and Five pertain to a.22 caliber Ruger. Defendant asserts that he is entitled to a new trial because the government turned over evidence regarding the source of this firearm after the trial in this case. Specifically, the government turned over two redacted IRS Memoranda of Interview, dated January 28, 2013 and February 26, 2013.
Rule 33(a) of the Federal Rules of Criminal Procedure provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a); see also United States v. Berg, 714 F.3d 490, 500 (7th Cir. 2013); United States v. Smith, 674 F.3d 722, 728 (7th Cir. 2012) (reviewing a district court's order on a Rule 33 motion for abuse of discretion); United States v. McGee, 408 F.3d 966, 979 (7th Cir. 2005). "To show that the interest of justice requires a new trial, a defendant must provide evidence that (1) came to his knowledge only after trial; (2) could not have been discovered sooner through the exercise of 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. Westmoreland, 712 F.3d 1066, 1072 (7th Cir. 2013). See also United States v. Eads, 729 F.3d 769, 780 (7th Cir. 2013). This rule is "reserved for only the most extreme cases." United States v. Hagler, 700 F.3d 1091, 1100 (7th Cir. 2012) (citations and quotations omitted). Such motions are approached "with great caution." Eads, 729 F.3d at 780.
"A Brady violation occurs when the prosecution suppresses evidence favorable to the defense and the evidence was material to an issue at trial." United States v. Mota, 685 F.3d 644, 648 (7th Cir. 2012). A defendant is entitled to a new trial based on such a violation "only if the failure to disclose the evidence resulted in denial of a fair trial." Id., citing United States v. Banks, 546 F.3d 507, 509-10 (7th Cir. 2008). "And this happens only when the suppressed evidence is material, meaning when there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. (citations omitted). See also Youngblood v. West Virginia, 547 U.S. 867, 870, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) (quoting Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).
Defendant claims that he is entitled to a new trial based on newly discovered evidence. Specifically, Defendant contends that the government did not disclose the source of the.22 caliber Ruger at issue in Counts Four and Five until May 8, 2014 - well after the jury returned its verdict. According to Defendant, "all available evidence and information now directly points in the direction of [George] Michael as the source of the weapon." (R. 255 at 2.)
I. The "New Evidence" Is Not Exculpatory
Specifically, Defendant argues that two IRS Memoranda of Interview, dated January 28, 2013 (the "January 2013 Memo") and February 26, 2013 (the "February 2013 Memo"), mandate a new trial. The January 2013 Memo reflects an interview of Individual A, and the February 2013 Memo reflects an interview of Individual B. The January 2013 Memo indicates that Individual A previously was married to an individual who had an interest in the Polekatz strip club from 1976 until approximately 1982. Around the time Individual A's former spouse died in 2005, he had approximately 100 guns that were sold or abandoned. Individual B helped dispose of these firearms after the death of Individual A's spouse. Nothing in the January 2013 Memorandum suggests that ...