Opinion
01 Cr. 571 (JGK).
April 29, 2008
MEMORANDUM OPINION AND ORDER
The defendant, Christian Viertel ("Viertel"), was found guilty by a jury on October 2, 2002 on each count of a three-count indictment charging conspiracy to commit mail and wire fraud, as well as substantive counts of mail fraud and wire fraud. Viertel has filed a document entitled "Motion and Mandatory Judicial Notice." The document appears to be a renewed motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial based on the Government's alleged withholding of material exculpatory evidence in violation of its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963), together with a request to cancel all restitution obligations of the defendant.
Familiarity with the facts and procedural history of the case are assumed. These facts are set forth in the Court's prior Opinion and Order dated February 19, 2003. See United States v. Viertel, No. S2 01 Cr. 571, 2003 WL 367867 (S.D.N.Y. Feb. 19, 2003). In that decision, the Court denied the defendant's previous motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial based on the Government's alleged withholding of material exculpatory evidence in violation of its obligations under Brady. The Court also denied the defendant's subsequent motion pursuant to Rule 33 for a new trial based on the discovery of new evidence in a separate Opinion and Order dated May 5, 2005. See United States v. Viertel, No. S2 01 Cr. 571, 2005 WL 1053434 (S.D.N.Y. May 5, 2005), aff'd, 242 Fed. Appx. 779 (2d Cir. 2007).
I
The defendant alleges that he is entitled to a new trial based on the Government's failure to disclose balance sheet books that the Government received from Burda Media, Inc., which allegedly reflected significant income for Burda Media during the relevant period. The defendant alleges that this evidence was materially exculpatory.
A Brady violation requires a new trial where the Government fails to disclose favorable evidence and the undisclosed evidence is material. See United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004); United States v. Middlemiss, 217 F.3d 112, 123 (2d Cir. 2000); United States v. Adams, 97 Cr. 51, 1998 WL 516115, at *3 (S.D.N.Y. Aug. 20, 1998). Evidence is material when "there is a reasonable likelihood that disclosure of the evidence would have affected the outcome of the case, or would have put the case in such a different light as to undermine confidence in the outcome." Rivas, 377 F.3d at 199 (internal citations omitted); see also United States v. Amiel, 95 F.3d 135, 144-45 (2d Cir. 1996).
As an initial matter, the defendant has failed to substantiate his allegation that the Government possessed the balance sheet books and failed to disclose them to defense counsel prior to the trial. "As a threshold matter, the defendant must show that the Government actually suppressed evidence." United States v. Esposito, 834 F.2d 272, 275 (2d Cir. 1987). The defendant has failed to provide evidence to support his allegations that the Government failed to disclose balance sheet books that it had, and therefore his Brady claim should be denied as speculative.See Skinner v. Duncan, No. 01 Civ. 6656, 2003 WL 21386032, at *25 and n. 39 (collecting cases). In any event, the defendant has made no showing that the balance sheet books are so material that there is a realistic likelihood that their disclosure would have resulted in a different verdict or undermined confidence in the outcome of the case, which provides an alternative basis to deny the defendant's claim of withheld Brady material.
It should be noted that the defendant raises new arguments in his reply brief referring to the Agate Reality Invoice. New arguments in a reply brief are not a proper basis for a motion, and in any event they are a restatement of arguments the Court has already rejected. Viertel, 2005 WL 1053434, at *7-*8. There is no basis for reconsideration of this Court's prior decision.
II
With respect to the issue of restitution, the defendant argues that his restitution obligations have been satisfied. He relies on the submissions of defendant Blumenberg who has also questioned the restitution calculations. By Order dated April 24, 2006, the Court advised that it would conform the Judgment to reflect the language adopted at sentencing that "[n]o further payment shall be required after the sum of the amounts actually paid by all those responsible for the loss has fully covered the compensable injury." (Order, dated April 24, 2006 at 2; Tr. dated June 9, 2003 at 31.) The Court notes that the Judgment was not amended to reflect the Court's April 24, 2006 Order, and that the Judgment will be conformed to the language of the order of restitution announced at sentencing as soon as possible to make clear that Blumenberg's payments of the loss are to be credited toward the determination of whether there remains any loss for purposes of restitution.
Viertel relies on the statements of Blumenberg that Blumenberg has satisfied his restitution obligations. The Government, in its letter dated November 21, 2007, states that the attorney for the victim asserts that Blumenberg has made no further payments, and that according to the Financial Litigation Unit of the United States Attorney's Office Blumenberg owes $2 million in restitution. (Government letter dated Nov. 21, 2007 at 2.) However, that response does not address what payments the victim acknowledges that Blumenberg has made and whether the victim asserts that there is any loss that remains unsatisfied. The Government has an obligation to determine what amount of restitution remains unpaid in the face of Blumenberg's allegations that he did make payments to reduce the amount of restitution outstanding, even if those amounts have not been credited by the Financial Litigation Unit.
CONCLUSION
denied. Cf. Lyndonville Sav. Bank Trust Co. v. Lussier 211 F.3d 697 700 United States v. Hotte 2007 WL 2891313 18 U.S.C. § 3664
1. The defendant's motion for a new trial pursuant to Rule 33 is 2. The Court will refer this case to the Magistrate Judge for a determination of the amount of the original orders of restitution for both Blumenberg and Viertel that remain unsatisfied. , , (2d Cir. 2000) (noting report by Magistrate Judge in connection with a petitioner's motion to vacate a restitution order in connection with § 2255 petition); , No. 97 Cr. 669, (E.D.N.Y. Sept. 28, 2007) (adopting Report and Recommendation prepared by Magistrate Judge in connection with motion to modify restitution order); (d)(6). SO ORDERED.