S5 15 Cr. 706 (VSB)
OPINION & ORDER :
Before me is the motion of Defendant Ng Lap Seng ("Defendant" or "Ng") for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. (Doc. 653.) Ng seeks a new trial on essentially two grounds: first, that the Government introduced a new theory of liability at trial that was never previously disclosed in any of the charging instruments, which constituted either a constructive amendment of the indictment or a prejudicial variance; and second, that the Government's main witness, Defendant Francis Lorenzo ("Lorenzo"), committed perjury during his testimony at trial, which the Government failed to adequately investigate and correct. Ng also requests that I direct the Government to conduct an independent investigation into Lorenzo's alleged perjury, or in the alternative, to allow Ng to issue a defense subpoena under Rule 17 of the Federal Rules of Criminal Procedure.
Because (1) there was no constructive amendment of the superseding indictment; (2) there was no prejudicial variance from the superseding indictment; (3) Ng has not established that Lorenzo committed perjury; and (4) even if Lorenzo had committed perjury, it was not material to the jury's verdict under any standard, Ng's motion for a new trial is DENIED. I also deny Ng's request that I direct the Government to conduct an independent investigation and his alternative request to permit the issuance of a post-trial Rule 17 defense subpoena.
I. Background and Procedural History
In the Background and Procedural History section, I recount only the facts that are pertinent to the instant Opinion & Order, and do not attempt to summarize the extensive factual background related to the substance or procedural history of this case.
A. The Indictments and Related Motions
On June 30, 2016, the Government filed Superseding Indictment S4 15 Cr. 706 (the "S4 Indictment") against Ng alleging four counts of bribery, money laundering, and conspiracies to commit bribery and money laundering. (Doc. 211.) The S4 Indictment charged that from 2011 through September 2015, Ng and others engaged in an international bribery and money laundering scheme to, among other things, bribe John Ashe ("Ashe")—the former Ambassador to the United Nations ("UN") from Antigua and Barbuda and President of the UN General Assembly—to obtain official actions benefitting Ng's interests in certain business opportunities, including the construction of a multi-billion dollar conference center in Macau (the "Macau Conference Center"). (See id. ¶¶ 1, 4-5, 14.) It further charged that Ng continued this scheme after Ashe left the UN in December 2014 by providing benefits to one or more officials at the United Nations Development Programme ("UNDP") in exchange for further support for the Macau Conference Center. (Id. ¶ 9.)
On June 22, 2016, John Ashe died. As a result, the Government sought and obtained an order dismissing all charges against Ashe. (See Doc. 216.)
On September 19, 2016, Ng moved to dismiss the S4 Indictment on the basis, among other things, that the Government failed to allege a legally sufficient official act by any of the bribe recipients. (See Doc. 275, at 14-28.) In the alternative, Ng's motion sought an order directing the Government to provide a bill of particulars specifically identifying (1) the alleged official acts of the bribe recipient(s); (2) the alleged co-conspirators; and (3) the basic facts concerning the alleged bribe payments. (Id. at 39-47.) Ng also contended that a bill of particulars was warranted because the Government produced an overwhelming quantity of information in discovery. (Id. at 46-47.)
During the pendency of Ng's motion to dismiss, on November 22, 2016, the Government filed Superseding Indictment S5 15Cr. 706 (the "S5 Indictment"). (S5 Ind.) In addition to the previous charged offenses, the S5 Indictment added three counts against Ng alleging that he violated and conspired to violate the Foreign Corrupt Practices Act ("FCPA"). (Id. ¶¶ 1-22, 24-27.) It also included allegations about the United Nations Office for South-South Cooperation ("UNOSSC"), "an office within UNDP that focuses on issues related to cooperation among developing countries." (Id. ¶ 4.) The S5 Indictment described that since 2008, "UNOSSC has run an annual 'Global South-South Development Expo' (the 'UNOSSC Expo'), hosted in a different country or city each year." (Id.)
"S5 Ind." refers to the S5 Indictment, filed on November 22, 2016. (Doc. 322.)
The S5 Indictment also added allegations concerning Ng's international bribery and money laundering scheme. For example, the S5 Indictment alleged that Ng's "principal objective . . . was to obtain official action from the UN with respect to a multi-billion dollar conference center that NG hoped to build in Macau, China . . . using his company." (Id. ¶ 11.) In particular, Ng sought "Formal UN Support" for the Macau Conference Center, which was defined to include the "establish[ment] [of] the Macau Conference Center as the permanent site of the annual UNOSSC Expo and as a location for other meetings, forums, and events associated with the UN." (Id.)
I use the phrase "Formal UN Support" in this Opinion & Order as that term is defined in the S5 Indictment. (See S5 Ind. ¶ 11.)
To carry out his objective, the S5 Indictment alleged that Ng paid bribes to Lorenzo, the Dominican Ambassador to the UN, in addition to Ashe (together, the "Ambassadors"). (Id. ¶ 9.) Specifically, the S5 Indictment charged:
[T]he defendants paid and agreed to pay bribes to the Ambassadors for the purpose of obtaining official action for the benefit of NG and his company, as opportunities arose, by each of the Ambassadors, and for the purpose of having the Ambassadors influence, exert pressure on, and advise other UN officials and diplomats, including the UN Secretary-General, intending for those officials and diplomats to take official action, as opportunities arose, to advance the interests of NG and his company. NG and YIN also paid and agreed to pay the Ambassadors to reward their efforts to take, and to influence other UN officials and diplomats to take, official action for the benefit of NG and his company.(Id. ¶ 10.) According to the S5 Indictment, "each of the Ambassadors agreed to and did, among other things, use their positions to advance and to seek to have others advance NG's interest in obtaining Formal UN Support for the Macau Conference Center." (Id. ¶ 13.) The S5 Indictment then listed two specific examples of official acts by the Ambassadors to advance Ng's interests in obtaining Formal UN Support for the Macau Conference Center: (1) the submission of an official UN document to the UN Secretary-General claiming that there was a need to build the Macau Conference Center in aid of the UN's global development goals and the circulation of said document as a UN General Assembly document; and (2) an official visit by Ashe to Macau. (Id.) The S5 Indictment further referred to these acts as two overt acts, "among others," taken in furtherance of the bribery conspiracy. (Id. ¶ 21.) Finally, the S5 Indictment alleged that because of Ng's bribes, "UNOSSC did not hold a UNOSSC Expo in 2015. Instead, UNOSSC held a 'forum' in Macau, China, co-hosted by a foundation in the name of the Macau Real Estate Development Company, in or about late August 2015." (Id. ¶ 15; see also id. ¶ 4.)
The "Macau Real Estate Development Company" is defined in the S5 Indictment as the real estate development company based in Macau, China run by Ng. (S5 Ind. ¶ 7.)
The Government filed its opposition to Ng's motion to dismiss or for a bill of particulars on November 30, 2016, after the filing of the S5 Indictment. (MTD Opp.) In its opposition, the Government did not concede that the "official act" requirement articulated in McDonnell v. United States, 136 S. Ct. 2355 (2016), applied to the statutes and facts of this case, but it argued that even if McDonnell did apply, the "official act" allegations in the S5 Indictment were sufficient. (Id. at 26-41.) In particular, the Government argued that the "question" or "matter" requirement of McDonnell was satisfied by the allegations that Ng's primary objective was to obtain Formal UN Support for the Macau Conference Center, including the establishment of the Macau Conference Center as the location for UN meetings and events such as the UNOSSC Expo. (Id. at 32-33.) The Government further argued that the S5 Indictment alleged that the Ambassadors took concrete acts with respect to the alleged questions or matters in exchange for bribe payments, including using their positions to seek to have others advance Ng's interest in obtaining Formal UN Support for the Macau Conference Center. (Id. at 34-35.) The Government then listed—as alleged in the S5 Indictment—examples of concrete acts taken by the Ambassadors in furtherance of Ng's interests. (Id. at 35.) The Government did not assert that these were the only such acts.
"MTD Opp." refers to the Memorandum of Law of the United States of America in Opposition to Defendant Ng Lap Seng's Motion to Dismiss the Indictment or for a Bill of Particulars, filed on November 30, 2016. (Doc. 327.)
On April 26, 2017, I denied Ng's motion to dismiss, finding that the S4 and S5 Indictments were legally sufficient. (Doc. 452, at 9.) I also denied Ng's motion for a bill of particulars on the basis that the S5 Indictment, criminal complaints, search warrant affidavits, and materials produced in discovery adequately informed Ng of the charges against him. (Id. at 10.) Despite my denial of Ng's motion for a bill of particulars, I directed the Government, based on my inherent authority to regulate pre-trial and trial proceedings, to identify Ng's alleged co-conspirators and alleged bribe payments at least two weeks prior to trial. (Id. at 11.)
B. The Government's Motions in Limine , Identification of 3500 Material and Trial Exhibits , and the Final Pre-Trial Conference
On May 1, 2017, the Government filed its motions in limine. (Doc. 457.) As it did in the S5 Indictment and its opposition to Ng's motion to dismiss, the Government identified in its supporting memorandum that the main objective of Ng's bribery scheme was to obtain Formal UN Support for the Macau Conference Center, including having the Macau Conference Center established as the permanent home of the UNOSSC Expo. (Id. at 4.) The Government also indicated that the evidence at trial would demonstrate that the Ambassadors used their positions to influence other UN officials and diplomats to support the Macau Conference Center. (Id. at 4-5.) The Government identified two specific acts that the Ambassadors obtained from other UN officials: (1) a letter of support for the Macau Conference Center signed by Yiping Zhou ("Zhou"), the then-Director of UNOSSC (together with other letters of support signed by Zhou, the "UNOSSC Support Letters"); and (2) a pro bono agreement with the UNOSSC that identified a foundation associated with Ng's company as being involved in the next UNOSSC Expo (the "Pro Bono Agreement"). (Id. at 6-7.) Specifically, the Government stated:
In an effort to further [Ng's] objectives—and to avoid losing the payments that they had been receiving from [Ng]—the Ambassadors pressured and advised other UN officials and diplomats to support the Macau Conference Center. In particular, the defendant wanted the support of UNOSSC, which was the UN office principally responsible for matters involving south-south cooperation, and which ran the annual UNOSSC Expo that the defendant wanted to relocate permanently to the Macau Conference Center. For example, in or about late 2013 and early 2014, the Ambassadors, acting in their official capacities, caused the then-director of UNOSSC to sign a letter expressing his office's support for the Macau Conference Center. [Ng] used this letter—like he used the revised UN Document—to demonstrate that the Macau Conference Center project had the UN's support.
. . .(Id.)
As a result of the efforts of [Ng] and his co-conspirators, [Ng] obtained a "pro bono agreement" with UNOSSC, identifying a foundation in the name of the Macau Real Estate Development Company as involved in the next anticipated UNOSSC Expo and other UNOSSC-affiliated events. Ultimately, at least in part because of influence of the Ambassadors, UNOSSC held a "forum" in Macau in August 2015, co-hosted by the same foundation, with one purpose being to officially launch the Macau Conference Center project, and UNOSSC also made plans to hold an official Expo the following year, again in Macau.
On the same day the Government filed its motions in limine, it began identifying trial exhibits to the defense and producing material pursuant to 18 U.S.C. § 3500 ("3500 Material"). (See Govt.'s Opp. 10.) The trial exhibits included draft and final versions of the UNOSSC Support Letters and the Pro Bono Agreement, as well as email correspondence about those documents. (Id.) Similarly, the 3500 Material contained multiple references to the UNOSSC Support Letters and the Pro Bono Agreement. (Id.)
"Govt.'s Opp." refers to the Memorandum of Law of the United States of America in Opposition to Defendant Ng Lap Seng's Motion for a New Trial, dated October 30, 2017. (Doc. 677.)
Finally, during the final pre-trial conference on May 18, 2017, the Government referenced Zhou and the Ambassadors' efforts to influence him on multiple occasions. For example, the Government noted:
[W]hat was going on in this case was that [Ng] was seeking to bribe [the Ambassadors] for several reasons, but one of those reasons was to have those [A]mbassadors acting in their official capacities, influence and advise and pressure UN officials, including specifically officials at the UN Office for South-South Cooperation, and perhaps most prominently, the director of that office. . . . [T]he record in this trial is going to have a lot of evidence about actions that the director of that office took to benefit [Ng], and the government expects the evidence to show that those actions were taken, in large part, as a result of bribes paid to Ashe or Lorenzo or both.(May 18, 2017 Tr. 169:21-170:11.)
"May 18, 2017 Tr." refers to the transcript of the final pre-trial conference held on May 18, 2017. (Doc. 545.)
Trial commenced on June 26, 2017. In its opening statement on June 29, 2017, the Government outlined four of the official acts it intended to prove in its case: (1) the document submitted to the UN General Assembly; (2) the UNOSSC Support Letters; (3) Ashe's official visit to Macau; and (4) the Pro Bono Agreement. (Tr. 78:6-80:19.) The defense claims that it "learned for the first time that the government contended that the UNOSSC materials [the UNOSSC Support Letters and the Pro Bono Agreement] and Mr. Yiping Zhou were part of the bribery allegations during the [Government's] opening statement." (Def.'s Mem. 5.) At various points during the trial, the Government presented evidence that the Ambassadors used their influence over Zhou to obtain the UNOSSC Support Letters and the Pro Bono Agreement. (See, e.g., Tr. 665:4-676:23, 764:10-766:25, 1217:18-1227:16, 1314:11-1316:23, 1345:14-1350:25.) During closing arguments, the Government argued, among other things, that Ng paid bribes to obtain the UNOSSC Support Letters and the Pro Bono Agreement. (See, e.g., Tr. 3934:18-23.) At no point during trial did defense counsel object to the UNOSSC Support Letters or the Pro Bono Agreement or to the Government's reliance on those documents as evidence of official acts, nor did defense counsel request an adjournment to attempt to call Zhou or anyone else affiliated with the UNOSSC to testify.
"Tr." refers to the trial transcript. (Docs. 574-612.)
"Def.'s Mem." refers to the Memorandum of Law in Support of Defendant's Motion for a New Trial, filed on September 26, 2017. (Doc. 655.)
Of the four-week trial, eight trial days were devoted to the testimony of Lorenzo, a Government cooperator who was the only co-conspirator to testify at trial. Lorenzo's testimony established several components of the Government's case over the span of his nearly three-day direct examination. Lorenzo also testified about his cooperation agreement with the Government and the numerous crimes to which he pled guilty, which included conspiracy, bribery, money laundering, FCPA violations, and multiple tax crimes. (Tr. 676:24-683:18; see also Tr. 1479:8-1488:6.) Defense counsel vigorously cross-examined and re-cross examined Lorenzo for more than five trial days, attacking his credibility on numerous occasions about a multitude of issues and highlighting his criminal history. (See generally Tr. 1393:6-1440:11, 1479:8-1701:23, 1897:4-2020:14, 2096:20-2326:1, 2392:25-2618:25, 2669:1-2674:22, 2815:6-2865:9.)
During the first day of his cross-examination, on July 11, 2017, defense counsel questioned Lorenzo about his history of using other individuals' bank accounts to avoid paying taxes, including bank accounts of family members. Lorenzo was initially questioned about his use of his siblings' bank accounts to commit tax fraud, which he had admitted and described to the Government during the course of his cooperation. (Tr. 1395:1-1397:7, 1399:5-1402:25.) Defense counsel then questioned Lorenzo about whether he diverted funds owed to him by a company called The Sunland Group Corp. ("Sunland Group") into the bank account of his ex-girlfriend, KW, to commit the same type of tax fraud. (Tr. 1403:1-1409:6, 1415:3-1419:18, 1423:8-1425:10.) After defense counsel showed Lorenzo a January 10, 2011 email to him from KW to refresh his memory about the alleged tax-evasion scheme, (see Genser Decl. Ex. A), the following questions were posed and answers given:
The parties agreed to refer to Lorenzo's ex-girlfriend as KW to protect her identity. (See Govt.'s Opp. 24.)
"Genser Decl." refers to the Declaration of Andrew M. Genser in Support of the Defendant's Motion for a New Trial, filed with redacted exhibits on September 28, 2017. (Doc. 660.)
Q. What you did was you had a company called Sunland Group send money that was destined for you to her account at Chase, correct?
A. Not quite. [KW] was serving as a consultant at that time. This is 2011
when this letter came out. [KW] was very upset with me. We had a relationship. Unfortunately, we were no longer together anymore.(Tr. 1404:19-1406:13.) After an objection from the Government, the following questions were posed and answers given:
. . .
Q. Is it your testimony that KW was owed money from Sunland Company?
A. She was working as a consultant. She was a flight attendant. The money that she received during the period of time was the money that she earned. That's the reason why.
Q. From Sunland Company?
A. That's correct, yes. That's correct.
Q. What did she do for Sunland Company that would have entitled her to money?
A. At that time when she was a flight attendant, the Sunland chairman had an aircraft. During that time he hired her for several reasons. Sometimes there were flights, flights that she was supposed to be, as well as other consultancy in relation to that aircraft.
Q. Just so it is clear, the money that Sunland Company sent to her was money that she had earned from Sunland, is that correct?
A. That's correct, yes.
Q. This was not a situation where you were diverting Sunland Company moneys to her bank account without her knowledge, is that right?
Q. Do you recall KW in 2011 coming to you and saying that she had learned from the IRS that there had been deposits or that there had been payments from Sunland that she now owed taxes on and that she did not know that she had been receiving funds from Sunland? Do you remember her telling you that?
. . .
A. I recall her telling me many things.
Q. Do you recall her telling you that?(Tr. 1407:2-1408:8.)
A. I don't recall her telling me exactly that. What I recall her telling me is so many things because she was so upset with me. The only thing she wanted was the money that she said that I needed to pay her only on the 4th of the month, and I did pay her, and she apologized to me. She said, look, I'm sorry, I wanted to hurt you. That's what she said at that time. I remember.
During the evening on the day of this testimony, defense counsel informed the Government of their belief that Lorenzo committed perjury. (See Genser Decl. Ex. E.) Defense counsel turned over to the Government, at the Government's request, notes of its interview of KW in March 2017, when she first informed the defense about Lorenzo's purported scheme to use her bank account without her knowledge to evade paying taxes. (Id.; see also id. Ex. D.) According to the notes, upon the defense's questioning concerning whether Lorenzo had ever written checks in her name for consulting services, KW "admitted that she was made aware that this occurred when she went to an accountant in 2008 or 2009 to have her taxes prepared." (Id. Ex. D.) KW stated that upon learning from her accountant of a discrepancy between her income and what the IRS claimed that she earned during several years in which she had not prepared her taxes because she was "constantly working," she contacted the IRS and was made aware of checks made out to her from a company called Sunland Group. (Id.) KW claimed that she had never worked for Sunland Group, but knew Lorenzo had dealings with it. (Id.) When she confronted Lorenzo about the checks from Sunland Group, he "skirted the issue" and provided her a vague explanation that she could not recall. (Id.) She stated that she did not pursue the issue "because Lorenzo paid [her] tax liability to the IRS and New York State." (Id.)
Although the notes appear to indicate that KW was asked about Lorenzo writing checks in KW's name for consulting, Ng has presented no evidence that Lorenzo ever wrote checks in KW's name for consulting. Ng does not explain this discrepancy.
Defense counsel also provided five documents—originally produced by the Government—to me and the Government, which defense counsel claimed supported their position that Lorenzo committed perjury. (Id. Ex. E.) Those documents included: (1) an email from Grace Sosa, a Sunland Group employee, to Lorenzo requesting KW's social security number, and Lorenzo's June 19, 2006 response providing KW's social security number, address, and date of birth; (2) a July 10, 2007 email from Edelle Desert, an administrative assistant at Sunland Group, to Lorenzo, with Grace Sosa copied, requesting an invoice for $5,000 for "Advisory and Consulting Services" and informing Lorenzo that a check is made out to KW, dated May 30, 2007; (3) an August 16, 2007 email from Lorenzo to Grace Sosa forwarding a "letter to be sent" from Daniel Mejia, Chairman of Sunland Group, to "WAFUNIF" indicating that a check in the amount of $5,484.00 should be made out to KW as a "consultation fee"; (4) an April 14, 2008 email from Grace Sosa to Lorenzo attaching, at Lorenzo's request, KW's Form 1099 from 2007, indicating income from Sunland Group in the amount of $25,000; and (5) the January 10, 2011 email from KW to Lorenzo attaching a document detailing money Lorenzo owed to KW and claiming that Lorenzo used KW's social security number without her knowledge to make it appear that KW received income from Sunland Group and another company called "The Intl. Shipping Co (The Chinese New Year Group)," resulting in approximately $6,500 in tax liability on the part of KW to the IRS and the state of New York. (Id.) The January 10, 2011 email indicated that KW was "advised by" Lorenzo of the purported fraud "after the fact." (Id.)
Two of these documents—the July 10, 2007 email from Edelle Desert and the April 14, 2008 email from Grace Sosa attaching KW's Form 1099—were shown to Lorenzo during cross- examination and offered by the defense, but I declined to admit them in evidence because they were extrinsic evidence of a collateral matter. (See Tr. 1417:17-19, 1419:20-22, 1423:2-4.) However, I did not preclude defense counsel from asking Lorenzo about other documents related to this topic either to "refresh his recollection or just [as] part of [defense counsel's] cross-examination . . . . Whether or not [the documents were] going to come in [evidence]." (See Tr. 1421:24-1422:3.)
Upon receiving the documents and interview notes from defense counsel, while Lorenzo was still testifying, the Government took certain steps to investigate the alleged perjury. First, it reviewed the materials provided by defense counsel. Second, it reviewed KW's other emails that were produced by the Government in discovery but not shown to Lorenzo during his testimony. Third, it interviewed KW and confronted her with said emails. (Govt.'s Opp. 25.) Based on its investigation, the Government concluded that KW was not credible for several reasons, including that KW denied knowledge of emails sent to or from her during the relevant time period; admitted that she failed to properly file tax returns during the relevant time period; could not explain why she had received a recommendation letter from a UN official around the relevant time period; and experienced a traumatic end to her relationship with Lorenzo. (Id.; see also Tr. 2662:18-2663:3.) The Government produced notes of its interview to defense counsel. (See Genser Decl. Ex. F.)
Defense counsel did not question Lorenzo any further on the subject of KW, and the Government did not address the subject on Lorenzo's direct or re-direct examinations. On July 19, 2017, prior to the Government's re-direct examination, defense counsel stated outside the presence of the jury that they believed Lorenzo had committed perjury. (Tr. 2661:10-18.) The Government disagreed, citing KW's "incredible bias against Mr. Lorenzo" due to their tumultuous break-up as well as other issues related to KW's credibility. (Tr. 2662:18-2663-6.) The defense (1) questioned whether the Government had inquired with Sunland Group about whether or not KW performed work for it, (Tr. 2661:10-18); (2) questioned the propriety of the Government questioning Lorenzo on re-direct concerning the provisions of his cooperation agreement and his obligations under that agreement, as the Government was purportedly on notice of a direct conflict in Lorenzo's testimony, (Tr. 2664:9-24); and (3) noted that the Government should have contacted Sunland Group and interviewed Lorenzo further on the issue, (Tr. 2667:1-7). The Government declined to contact Sunland Group directly or interview Lorenzo at that time. (Tr. 2662:18-2663:13.)
On July 24, 2017, following the close of the Government's case in chief, Ng moved pursuant to Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal on the basis that there was insufficient evidence to prove guilt beyond a reasonable doubt. (Tr. 3568:6-13.) Defense counsel argued, among other things, that the Government failed to prove that Ng was a knowing participant in any conspiracy or that Ng possessed a corrupt intent in making any payments to the Ambassadors. (Tr. 3568:6-3579:15.) As part of his argument on Ng's Rule 29 motion, defense counsel contended that Lorenzo "perjured himself repeatedly to assist the government's case," (Tr. 3571:25-3572:2), but neither the Government nor the defense referred to the testimony specifically related to KW. For reasons stated on the record, I denied Ng's Rule 29 motion. (See Tr. 3587:20-3592:20.) On July 27, 2017, more than a month after trial began, the jury convicted Ng on all counts of the S5 Indictment, including bribery, money laundering, violations of the FCPA, and conspiracies to commit bribery, money laundering, and violations of the FCPA. (See Doc. 572; Tr. 4336:22-4337:19.)
Following the conclusion of trial, on August 28, 2017 defense counsel followed up with the Government to question whether it had taken any further steps with regard to the subject of Lorenzo's possible perjury. (See Genser Decl. Ex. F.) The Government informed defense counsel that it did not believe it had an obligation to conduct any further inquiry beyond what it had conducted during trial. (See id.)
On September 6, 2017, the Government informed defense counsel that it had received an email from Lorenzo's counsel attaching a letter from Daniel Mejia, Chairman of Sunland Group. (See id. Ex. G; Govt.'s Opp. 27.) The Government forwarded that email and the attached letter to defense counsel. (See Genser Decl. Ex. G.) Mejia's letter, dated August 1, 2017—after the conclusion of trial—stated in full: "TO WHOM IT MAY CONCERN The attached 1099 in favor of [KW], has been issued for services rendered on our corporate jet Hawker 700A serial No. N425SD during a period of one year. Any questions please do not hesitate to contact me." (Id.) The Government also informed defense counsel that it did not believe there was a basis to launch a criminal investigation into Lorenzo's possible perjury, in part because it did not believe KW was credible. (Govt.'s Opp. 27.)
On September 18, 2017, the Government interviewed Lorenzo regarding, among other things, the subject of KW. Lorenzo informed the Government that KW's January 2011 email accusing him of using her bank account to evade taxes was intended to hurt him due to their acrimonious break-up. (Genser Decl. Ex. H.) Lorenzo also stated that KW was emotionally unstable. (Id.) In addition, he claimed that KW was supposed to work on Sunland Group's private jet, but the plane broke, and that KW helped Mejia negotiate the sale of the plane, but the sale never occurred because the plane was too old. (Id.) Finally, Lorenzo informed the Government that he had met Mejia after the conclusion of the trial, but they did not speak about KW or about what should be said to the prosecutors. (Id.) According to the Government, its post-trial interview of Lorenzo "reconfirmed that Lorenzo had not committed perjury." (Govt.'s Opp. 27.)
On September 26, 2017, Ng filed his motion for a new trial, as well as a memorandum of law in support and the Declaration of Andrew Genser with exhibits. (Docs. 653, 655-56.) The Government filed its opposition to Ng's motion on October 30, 2017, (Doc. 677), and Ng filed his reply memorandum on November 14, 2017, (Doc. 682).
II. Legal Standard
"Upon 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). A district court has "broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). However, the court must "strike a balance between weighing the evidence and credibility of witnesses and not wholly usurping the role of the jury." United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (internal quotation marks omitted). It is the jury's role to weigh the evidence and assess a witness's credibility, and a district court generally "must defer to the jury's resolution" of those issues. United States v. Bell, 584 F.3d 478, 483 (2d Cir. 2009) (per curiam) (quoting Sanchez, 969 F.2d at 1414). Indeed, only in "exceptional circumstances" may a trial judge "intrude upon the jury function of credibility assessment." Sanchez, 969 F.2d at 1414.
"The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice. The trial court must be satisfied that competent, satisfactory and sufficient evidence in the record supports the jury verdict." Ferguson, 246 F.3d at 134. "There must be a real concern that an innocent person may have been convicted. It is only when it appears that an injustice has been done that there is a need for a new trial in the interest of justice." Bell, 584 F.3d at 483 (internal quotation marks omitted). "The defendant bears the burden of proving that he is entitled to a new trial." United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009).
Ng's motion for a new trial is based on two primary arguments: (1) that the Government's reliance at trial on two "new official actions"—the UNOSSC Support Letters and the Pro Bono Agreement—that were not specifically alleged in the S5 Indictment constituted a constructive amendment of the S5 Indictment, or at least a prejudicial variance, which deprived Ng of his right to present a complete defense; and (2) that Lorenzo's allegedly perjurious testimony and the Government's failure to investigate and correct it warrant a new trial. Ng also requests that I order the Government to conduct an independent investigation into Lorenzo's alleged perjury, or in the alternative, to permit the issuance of a post-trial Rule 17 defense subpoena directed to Sunland Group. I address each of these arguments in turn.
A. The UNOSSC Support Letters and the Pro Bono Agreement
Ng argues that the Government's purported late disclosure of its intent to rely on the UNOSSC Support Letters and the Pro Bono Agreement as official acts constituted a constructive amendment of the S5 Indictment. (Def.'s Mem. 15-16.) Ng also argues that even if the Government's reliance on the UNOSSC Support Letters and the Pro Bono Agreement as official acts did not amount to a constructive amendment, it rose to the level of a prejudicial variance. (Id. at 16-18.)
1. Applicable Law
"An indictment is constructively amended when the proof at trial broadens the basis of conviction beyond that charged in the indictment." United States v. Patino, 962 F.2d 263, 265 (2d Cir. 1992). To establish that a constructive amendment occurred, a defendant must demonstrate that "the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment." United States v. D'Amelio, 683 F.3d 412, 416 (2d Cir. 2012) (quoting United States v. Mollica, 849 F.2d 723, 729 (2d Cir. 1988)).
In determining whether an "essential element" of the offense has been modified, the Second Circuit has "consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial." United States v. Ford, 435 F.3d 204, 216 (2d Cir. 2006) (quoting United States v. Delano, 55 F.3d 720, 729 (2d Cir. 1995)). The "core of criminality" is "the essence of a crime, in general terms," rather than "the particulars of how a defendant effected the crime." D'Amelio, 683 F.3d at 418. There is no constructive amendment "where a generally framed indictment encompasses the specific legal theory or evidence used at trial." United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003) (quoting United States v. Wallace, 59 F.3d 333, 337 (2d Cir. 1995)).
A constructive amendment may be established where the defendant demonstrates that "the jury convicted based on a complex of facts distinctly different from that which the grand jury set forth in the indictment." United States v. Vilar, 729 F.3d 62, 90 (2d Cir. 2013) (quoting D'Amelio, 683 F.3d at 419). However, where the indictment and the government's proof at trial are both part of "a single set of discrete facts," there is no constructive amendment. Id. (quoting D'Amelio, 683 F.3d at 419). In the latter scenario, "the indictment provides sufficient notice to defendants of the charge(s) lodged against them." D'Amelio, 683 F.3d at 419.
A variance exists "when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment." Id. at 417 (quoting Salmonese, 352 F.3d at 621). Only a variance that causes "substantial prejudice" to a defendant demands a new trial. United States v. Rigas, 490 F.3d 208, 226 (2d Cir. 2007) (quoting United States v. McDermott, 918 F.2d 319, 326 (2d Cir. 1990)). Prejudice does not exist "where the allegation and proof substantially correspond, where the variance is not of a character that could have misled the defendant at trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense." United States v. LaSpina, 299 F.3d 165, 183 (2d Cir. 2002) (quoting United States v. Mucciante, 21 F.3d 1228, 1236 (2d Cir. 1994)).
a. Constructive Amendment
Turning first to Ng's argument of constructive amendment, Ng contends that the Government's reliance at trial on the UNOSSC Support Letters and the Pro Bono Agreement constituted a constructive amendment of the S5 Indictment because the S5 Indictment lacked specific allegations referring to these documents as "official acts." (Def.'s Mem. 15-16; Def.'s Reply 2-5.) According to Ng, the only official acts alleged in the S5 Indictment were (1) the Ambassadors' submission of the UN Document to the UN Secretary-General; and (2) Ashe's official visit to Macau. (Def.'s Mem. 15; see S5 Ind. ¶¶ 13(a), (b).) The Government's offer and the admission in evidence of the UNOSSC Support Letters and the Pro Bono Agreement, as well as the Government's focus on these documents in its opening and summation, Ng argues, "substantially altered its theory of the case and expanded the 'core criminality' that the government sought to prove at trial beyond the charges alleged in the [S5 Indictment]." (Def.'s Mem. 16.) According to Ng, the possibility that the jury convicted him on the basis of the UNOSSC Support Letters or the Pro Bono Agreement mandates a new trial. (Id. at 14-16.) I disagree and find Ng's arguments to be without merit.
"Def.'s Reply" refers to the Reply Memorandum of Law in Support of Defendant's Motion for a New Trial, dated November 14, 2017. (Doc. 682.)
The allegations in the S5 Indictment describe an international bribery scheme orchestrated by Ng and others from about 2011 through September 2015 with the aim of benefiting Ng and his company, the Macau Real Estate Development Company. (S5 Ind. ¶¶ 9-15.) The "principal objective" of the scheme "was to obtain official action from the UN with respect to [the Macau Conference Center]." (Id. ¶ 11.) More specifically, Ng paid bribes to the Ambassadors to obtain Formal UN Support for the establishment of the Macau Conference Center as "the permanent site of the annual UNOSSC Expo" and as a location for other UN events. (Id.) In other words, the "core of criminality" charged in the S5 Indictment was Ng's payment of bribes to the Ambassadors in an effort to obtain Formal UN Support for the Macau Conference Center.
Ng sought to achieve his objective by "having the Ambassadors influence, exert pressure on, and advise other UN officials and diplomats . . . intending for those officials and diplomats to take official action, as opportunities arose, to advance the interests of Ng and his company." (Id. ¶ 10.) The S5 Indictment also alleged that the Ambassadors did in fact "use their positions to advance and to seek to have others advance NG's interest in obtaining Formal UN Support for the Macau Conference Center." (Id. ¶ 13.) As a result of Ng's efforts, in late August 2015, UNOSSC held a "forum" in Macau—which was co-hosted by a foundation in the name of Ng's real estate company—in lieu of the annual UNOSSC Expo. (Id. ¶¶ 4, 15.)
Taking these allegations into account, the Government's reliance at trial on evidence of the UNOSSC Support Letters and the Pro Bono Agreement as official acts did not "broaden the basis of conviction beyond that charged in the indictment." Patino, 962 F.2d at 265. Rather this evidence was encompassed within, and was consistent with, the S5 Indictment's allegations—that Ng sought to have the Ambassadors influence, and exert pressure on, UN officials and diplomats to take official action to advance Ng's interest in obtaining Formal UN Support for the Macau Conference Center, and that the Ambassadors did so. (S5 Ind. ¶¶ 10, 13.) Where "a generally framed indictment encompasses the specific . . . evidence at trial," as is the case here, there is no constructive amendment. Salmonese, 352 F.3d at 620. The UNOSSC Letters and the Pro Bono Agreement clearly fall within the scope of the S5 Indictment's general allegations, and the Government's reliance on them at trial does not constitute a constructive amendment.
The fact that the S5 Indictment listed two examples of official acts, but did not list the UNOSSC Letters or the Pro Bono Agreement, does not mean that it was constructively amended. The Second Circuit's reasoning in D'Amelio is instructive on this point. There, the indictment charged the defendant with attempted enticement of a minor through a facility of interstate commerce, "to wit . . . a computer and the internet." 683 F.3d at 414. At trial, the Government offered evidence of telephone calls between the defendant and the minor and requested jury instructions permitting a finding of liability based on those telephone calls, which the district court granted. Id. at 414-15. After trial, the district court reversed its earlier decision and granted the defendant's motion for a new trial, finding that the jury instructions constituted a constructive amendment. Id. at 415-16. The Second Circuit reversed, reasoning that "the essential elements of the enticement crime involved communications conveyed by facilities of interstate commerce, not the specific interstate commerce facilities used to achieve these communications." Id. at 423. The court explained that "the charged offense took place as part of a single course of conduct . . . within [a] discrete time period . . . [and with] a single, ultimate purpose (its core of criminality)—to entice [the minor]." Id. at 421 (internal citation and quotation marks omitted). The evidence of telephone calls relied upon by the government, although not specifically listed in the indictment, "took place as part of [that] single course of conduct," id. at 421-22, and were not part of "a complex of facts distinctly different from that which the grand jury set forth in the indictment," id. at 419 (quoting Jackson v. United States, 359 F.2d 260, 263 (D.C. Cir. 1966)).
Here, the S5 Indictment detailed a bribery conspiracy and the payment of bribes that were part of a single course of conduct that took place within a defined time period—2011 to 2015—and had a singular purpose—to establish the Macau Conference Center as the permanent site of the annual UNOSSC Expo and as a location for other UN meetings. (S5 Ind. ¶¶ 9-11.) Ng's efforts, through the Ambassadors' influence over Zhou, to obtain the UNOSSC Support Letters and the Pro Bono Agreement were part of that course of conduct, not part of a set of facts separate from what was alleged in the S5 Indictment. The essential elements of the bribery scheme involved Ng's payment of bribes to obtain "official acts" by UN officials, rather than the specific nature of the official acts Ng sought through his payments. Like the "to wit" clause in D'Amelio, the two examples of official acts listed in the S5 Indictment, (id. ¶¶ 13(a), (b)), did not operate to limit the Government's proof only to those examples, see D'Amelio, 683 F.3d at 423; see also United States v. Dupre, 462 F.3d 131, 141 (2d Cir. 2006) (holding that an indictment containing a "to wit" clause describing a specific wire transfer was not constructively amended by proof at trial of other wire transfers); Salmonese, 352 F.3d at 620-21 (holding that an indictment listing twenty-five overt acts in furtherance of a conspiracy was not constructively amended by proof at trial of unalleged overt acts); United States v. Danielson, 199 F.3d 666, 669-71 (2d Cir. 1999) (per curiam) (holding that an indictment containing a "to wit" clause describing "7 rounds of .45 calibre ammunition" transported through interstate commerce was not constructively amended by proof at trial of the transport of shells rather than rounds). Rather, the allegations describing the details of the bribery scheme gave Ng sufficient "notice of the core of criminality to be proven at trial." Rigas, 490 F.3d at 228 (quoting Patino, 962 F.2d at 266).
I note that the two examples of official acts listed in the S5 Indictment are not identified as being the only official acts undertaken as part of the bribery scheme. (See generally S5 Ind.) In addition, during oral argument on Ng's motion to dismiss the indictment on February 16, 2017, in response to my question of whether the S5 Indictment alleged all of the official acts of which the Government was aware, the Government responded that it was "not prepared to say that every official act that [the Government] would intend to prove at trial has been set forth in writing." (Doc. 403, at 32:24-33:4.) Therefore, there is no question that Ng was on notice of the possibility that not all of the official acts the Government intended to prove at trial were alleged specifically in the S5 Indictment.
Ng's argument that "there was nothing to suggest that generic language [in the S5 Indictment] was meant to charge Mr. Ng with seeking any official action from the UNOSSC," (Def.'s Mem. 15), is unpersuasive. The S5 Indictment clearly states that the "principal objective" of the bribery scheme was to establish the Macau Conference Center as "the permanent site of the annual UNOSSC Expo." (S5 Ind. ¶ 11.) One of the methods Ng used to achieve that objective was to bribe the Ambassadors to influence and exert pressure on "other UN officials and diplomats . . . intending for those officials and diplomats to take official action." (Id. ¶ 10.) Ng cannot credibly claim that it was unexpected that the Government would attempt to prove its case with evidence that the Ambassadors exerted pressure on officials at UNOSSC—including Zhou, the director of UNOSSC at the time—to take official action to advance Ng's interests with respect to the Macau Conference Center. Stated differently, it certainly could not have been a surprise that in order to establish the Macau Conference Center as "the permanent site of the annual UNOSSC Expo," (id. ¶ 11), the Ambassadors would and did seek to influence, and exert pressure on, individuals working at the very office within the UNDP "that focuse[d] on issues related to cooperation among developing countries" and that was responsible for the UNOSSC Expo, (id. ¶ 4); see also Rigas, 490 F.3d at 230 ("[W]e must read an indictment to include facts which are necessarily implied by the specific allegations made." (internal quotation marks omitted)).
Ng suggests that the facts here are analogous to those in United States v. Milstein, 401 F.3d 53 (2d Cir. 2005), where the Second Circuit vacated a defendant's conviction upon finding that the indictment had been constructively amended. I find Ng's attempted comparison unpersuasive. In Milstein, the original indictment charged the defendant with distribution of misbranded drugs based on the allegation that the defendant had distributed repackaged drugs using forged materials as if they were the original product from licensed manufacturers. Id. at 64. During the trial, the government obtained a superseding indictment from the grand jury to cure a jurisdictional defect. Id. In addition, however, it also presented newly discovered evidence to the grand jury that certain of the drugs distributed by the defendant were contaminated, but it did not add these allegations to the superseding indictment. Id. at 64. Nevertheless, at trial, the government offered evidence of contaminated drugs to support the charge of distribution of misbranded drugs under the theory that the saline capsules labeled "sterile" were misbranded because they were contaminated. Id. The Second Circuit held that this constituted a constructive amendment of the indictment, reasoning that "[a]lleging . . . that [defendant] was charged with misbranding because he 're-packaged drugs as if they were the original product from the licensed manufacturers' would not necessarily place [defendant] on notice that the Government would also attempt to prove that the drugs were not sterile." Id. at 65.
This case is distinguishable from Milstein. As an initial matter, in this case the Government did not obtain a superseding indictment during trial. In addition, the indictment in Milstein contained no allegations from which the defendant could have gleaned that evidence of contamination might be relevant to the misbranding charge. See id. at 64-66. Here, the S5 Indictment plainly put Ng on notice that evidence of "official action" by "UN officials and diplomats" other than the Ambassadors may be relevant to the Government's case. (S5 Ind. ¶¶ 10, 13.) The fact that the S5 Indictment included two examples of official action, but did not specifically allege the UNOSSC Support Letters or the Pro Bono Agreement, did not diminish that notice. In addition, the court in Milstein noted that at the time of the offenses, "there were twenty different methods of misbranding" under the statute that the defendant violated. 401 F.3d at 65. There was no reason for the defendant to expect that he may be convicted based on evidence of a particular method of misbranding—contamination—when the indictment alleged a substantially different method of misbranding—repackaging. Id.; see also D'Amelio, 683 F.3d at 423-24 (distinguishing Milstein because there, the "government presented evidence establishing guilt based on [a] completely different theory of misbranding"). Here, it cannot be said that the Government offered a new or separate theory of liability at trial. As discussed above, the theory of liability in the S5 Indictment encompassed bribery of the Ambassadors in order to influence and exert pressure on UN officials and diplomats to take official actions. Milstein, therefore, does not provide support for Ng's position.
Ng's contention that prior to trial, he had "no notice that any conduct by Zhou or the UNOSSC would be relevant," (Def.'s Mem. 16), is simply implausible. As an initial matter, I note that this contention in Ng's motion papers is not supported by affidavits from trial counsel. (See id.); see also D'Amelio, 683 F.3d at 422 (holding that the absence of evidence of surprise weighed against defendant's argument for constructive amendment). In fact, a member of Ng's trial team contacted Zhou in October 2015, stating that "[s]ince [Ng's] matter involves the UN South South Cooperation, I would like to have the opportunity to discuss Mr. Ng's interactions with you." (Govt.'s Opp. Ex. A.) This indicates that as early as October 2015, Ng's counsel was aware that the conduct of UNSOCC and Zhou might be relevant to the charges against Ng.
Furthermore, as discussed above, the S5 Indictment clearly suggests that such conduct would be relevant to the alleged bribery scheme, since one of the objects was to establish the Macau Conference Center as the site of the annual UNOSSC Expo. The Government also highlighted the relevance of UNOSSC and its officials throughout the pre-trial phases of the case. For example, at oral argument on Ng's motion to dismiss the indictment on February 16, 2017, the Government highlighted that the UNOSSC was one of the entities relevant to the bribery scheme. (Doc. 403, at 34-35.) In its memorandum of law submitted in support of its motions in limine nearly two months before trial on May 1, 2017, the Government noted that Ng sought the support of UNOSSC for the Macau Conference Center and that "in or about late 2013 and early 2014, the Ambassadors, acting in their official capacities, caused the then-director of UNOSSC to sign a letter expressing his office's support for the Macau Conference Center." (Doc. 457, at 7.) The Government further stated that Ng "obtained a 'pro bono agreement' with UNOSCC" through the efforts of the Ambassadors in 2014. (Id.) Also about two months before trial, the Government identified as trial exhibits draft and final versions of the UNOSCC Support Letters and the Pro Bono Agreement and produced documents referencing them to Ng as 3500 Material. At the final pretrial conference, held more than a month before trial, the Government indicated that the "record in this trial is going to have a lot of evidence about the actions that the director of [UNOSCC] took to benefit [Ng]." (May 18, 2017 Tr. 169:21-170:11.) Although not dispositive, these facts materially undermine Ng's current claims of surprise and weigh against the argument that the S5 Indictment was constructively amended. See D'Amelio, 683 F.3d at 422. Indeed, based upon all of the facts outlined above—including the words and actions of a member of his trial team—it would not have been reasonable for Ng's experienced and able trial counsel not to have been on notice that "conduct by Zhou or the UNOSSC would be relevant" to the trial. (Def.'s Mem. 16.)
I note that there is no dispute that Ng was aware that the UNOSSC Support Letters and the Pro Bono Agreement existed, and they were likely in his possession, custody, or control well before the Government identified them as trial exhibits.
I find that there was no constructive amendment for the additional reason that the Government proved the two examples of official acts alleged in the S5 Indictment at trial. See United States v. Jasmin, 668 F. App'x 375, 376 (2d Cir. 2016) (summary order) (finding no constructive amendment or prejudicial variance where "the Government had proved the [act] charged in the indictment" (internal quotation marks omitted)). For the reasons stated above, I find that the S5 Indictment was not constructively amended.
The Second Circuit has held that "[c]onstructive amendment of an indictment is a per se violation of the grand jury provision of the Fifth Amendment when such an amendment affects an essential element of the offense. Such a violation requires reversal of the conviction, without a showing of prejudice." See United States v. Coyne, 4 F.3d 100, 112 (2d Cir. 1993). However, the Supreme Court has held that most constitutional errors, including indictment defects, are subject to harmless- and plain-error review. See, e.g., United States v. Cotton, 535 U.S. 625, 626 (2002). Because I find that the S5 Indictment was not constructively amended, I need not address this issue. See D'Amelio, 683 F.3d at 417 n.2.
b. Prejudicial Variance
Nor do I find that there was a prejudicial variance between the proof at trial and the allegations of the S5 Indictment. As an initial matter, because the general allegations with respect to bribery in the S5 Indictment encompassed the Government's proof at trial, I do not find that there was a variance between the S5 Indictment and the Government's proof. Even if there were a variance, however, it did not cause substantial prejudice to the defendant so as to warrant a new trial.
First, for the reasons detailed above, the allegations in the S5 Indictment that Ng sought to have the Ambassadors exert pressure on other UN officials and diplomats to obtain official acts by them, (see S5 Ind. ¶¶ 10, 13), substantially corresponded to the proof at trial set forth by the Government, including the UNOSSC Support Letters and the Pro Bono Agreement.
Second, despite Ng's assertions, any alleged variance could not be said to have misled Ng so as to have caused him substantial prejudice. As discussed above, at various points preceding the trial, the Government highlighted the relevance of the UNOSSC and Zhou to the bribery it intended to prove. Although Ng characterizes the Government's pre-trial references to the UNOSSC Support Letters and the Pro Bono Agreement as "passing," (Def.'s Reply 5), it cannot be disputed that those references specifically provided Ng with notice that those documents would be relevant to the Government's bribery case. While Ng argues that he was "bombarded with a mass of material" in the course of discovery, hindering his effort to identify material documents, (id. at 5-6), the Government identified draft and final versions of the UNOSSC Support Letters and the Pro Bono Agreement, as well as correspondence relating to them, as trial exhibits more than a month before trial, and the parties stipulated to the admissibility of several of those documents, (Govt.'s Opp. 10); see also Dupre, 462 F.3d at 141 (holding that pre-trial disclosure of exhibits, introduction of which at trial defendant argued constituted a prejudicial variance, eliminated any surprise, and therefore, prejudice, to defendant); United States v. Kaplan, 490 F.3d 110, 129-30 (2d Cir. 2007) (finding no indication of surprise when defendant failed to object to admission of evidence or request continuance when evidence was introduced). At the final pretrial conference on May 18, 2017, the Government specifically indicated that "the record in this trial is going to have a lot of evidence about actions that the director of [UNOSSC] took to benefit this defendant, and the government expects the evidence to show that those actions were taken, in large part, as a result of bribes paid to Ashe or Lorenzo." (May 18, 2017 Tr. 170:6-11.) Taken together—and in addition to the allegations in the S5 Indictment—these pre-trial references and disclosures gave Ng more than sufficient notice of the Government's theory as to official acts.
Ng contends that he "was primed by the government to focus on the wrong information," (Def.'s Reply 6), based in part on the Government's arguments in its opposition to Ng's motion to dismiss, (see MTD Opp. 26-41). Ng points out that the Government's opposition failed to mention the UNOSSC Support Letters or the Pro Bono Agreement, and instead focused on the UN Document and Ashe's trip to Macau, misleading Ng to focus only on the latter two as official acts. (Def.'s Reply 6.) This argument cannot withstand scrutiny as it, among other things, ignores several aspects of the Government's opposition. First, it ignores the Government's argument that the "official act" requirement of McDonell was met by the S5 Indictment's general allegation that the Ambassadors "agreed to and did, among other things, use their positions to advance and to seek to have others advance [Ng's] interest in obtaining Formal UN Support for the Macau Conference Center." (MTD Opp. 34-35 (quoting S5 Ind. ¶ 13).) Second, it ignores that the Government explicitly referred to the UN Document and Ashe's trip to Macau as "example[s]" of official acts. (Id. at 35.) Nowhere in the Government's opposition did it state that they were the only official acts. I find unpersuasive, therefore, Ng's argument that he was misled by the Government's opposition.
Ng's claims of surprise are further undermined by the fact that he never raised the issue of the Government's purportedly new theory at trial nor sought an adjournment to explore the possibility of calling Zhou to testify. Even if Ng is correct as a legal matter that he was not required to object at trial to preserve the issue, (Def.'s Reply 7)—an issue that I do not decide here—it is telling that his counsel failed to call attention to the purported "seismic shift," (id. at 1), in the Government's theory even once during the month-long trial. Indeed, throughout the trial, defense counsel raised various issues to me orally and in writing, including issues related to Lorenzo's possible perjury. The likelihood that defense counsel failed to raise the issue because they believed it was preserved for purposes of appeal is not plausible.
Moreover, even if it would have been logistically difficult and/or time consuming to obtain Zhou's testimony, Ng does not suggest that he ever explored that option upon learning of the Government's supposedly new theory during its opening statement. At the very least, Ng did not raise the need to obtain Zhou's testimony with me at any point. As such, I find "no indication in the record" that Ng was unfairly surprised. Kaplan, 490 F.3d at 130.
Ng's representation to the Court that "Mr. Zhou [was] not available to either side," (Tr. 2383:6), calls into question whether it was even possible to compel Zhou's testimony at all.
Finally, I find no risk, nor does Ng argue, that any alleged variance deprives Ng of his right against double jeopardy. Nor do I find that letting the guilty verdict stand in light of the challenged conduct would constitute a "manifest injustice" warranting a new trial, Ferguson, 246 F.3d at 134, or that "[t]here [is] a real concern that an innocent person may have been convicted," Bell, 584 F.3d at 483. Ng's motion for a new trial based on a prejudicial variance, therefore, is denied.
B. Lorenzo's Testimony
Ng argues that a new trial is also warranted because Lorenzo, the Government's cooperating witness, allegedly committed perjury during his testimony, and the perjury was material to the jury's guilty verdict. (See Def.'s Mem. 19-27; Def.'s Reply 9-15.) The Government maintains that Lorenzo did not commit perjury, and even if he did, it was not material to the jury's verdict. (Govt.'s Opp. 22-35.)
1. Applicable Law
When a defendant seeks a new trial based on the government's introduction of perjury, the defendant must "first demonstrate that the witness in fact committed perjury." United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001). "A witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory." Id. "Perjury is not demonstrated by showing that the testimony of a witness is inconsistent with the statements of another witness." United States v. Nazario, No. 04 CR. 796(DAB), 2006 WL 3375391, at *4 (S.D.N.Y. Nov. 17, 2006) (citing United States v. Gambino, 59 F.3d 353, 365 (2d Cir. 1995)), aff'd, 374 F. App'x 63 (2d Cir. 2010). Nor is it necessarily perjury when a witness's testimony conflicts directly with her previous testimony. See United States v. Bortnovsky, 879 F.2d 30, 33 (2d Cir. 1989). It is the defendant's burden to prove perjury by a preponderance of the evidence. Cunningham v. Bennett, No. 02 CV 4635(ARR), 2005 WL 1162475, at *8 (E.D.N.Y. May 16, 2005) (citing Ortega v. Duncan, 333 F.3d 102, 106 (2d Cir. 2003)).
"Perjury in and of itself is insufficient to justify relief under Rule 33." United States v. Stewart, 433 F.3d 273, 297 (2d Cir. 2006). When a defendant seeking a new trial establishes that a witness committed perjury, the court must next examine the materiality of the witness's perjury. See id. If the government knew or should have known of the perjury prior to the conclusion of trial, "the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991) (internal quotation marks omitted). The Second Circuit has held that if "the government knowingly permitted the introduction of false testimony reversal is virtually automatic." Id. (internal quotation marks omitted). On the other hand, if the government lacked any knowledge of the perjury and had no reason to be aware of it, "a new trial is warranted only if the testimony was material and the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." Id. (internal quotation marks omitted).
"[M]otions for a new trial based on the identification of perjured testimony should be granted only with great caution and in the most extraordinary circumstances." Sanchez, 969 F.2d at 1414. A court should not grant a new trial based on perjured testimony "unless the judge is prepared to answer 'no' to the following question: 'Am I satisfied that competent, satisfactory and sufficient evidence in this record supports the jury's finding that this defendant is guilty beyond a reasonable doubt?'" Bell, 584 F.3d at 483 (quoting Sanchez, 969 F.2d at 1414). Further, "[i]n making this assessment, the judge must examine the totality of the case. All the facts and circumstances must be taken into account. An objective evaluation is required. There must be a real concern that an innocent person may have been convicted." Id. (quoting Sanchez, 969 F.2d at 1414).
Ng contends that Lorenzo perjured himself by testifying that payments deposited by Sunland Group into KW's bank account in 2007 were payments for work performed by KW for Sunland Group. (Def.'s Mem. 20-22; Def.'s Reply 10-12.) The Government disagrees, asserting that Ng simply asks the court to believe KW's statements over Lorenzo's, that the documents Ng references do not support his position, and that Lorenzo had no incentive to lie. (Govt.'s Opp. 29-32.)
I find that Ng has not met his burden of proving by a preponderance of the evidence that Lorenzo committed perjury. As an initial matter, KW's statements that she had never worked for Sunland Group, on their own, do not demonstrate that Lorenzo lied during his trial testimony. A showing that one witness's statements conflict with the testimony of another witness is not enough to establish perjury. Nazario, 2006 WL 3375391, at *4 ("Perjury is not demonstrated by showing that the testimony of a witness is inconsistent with the statements of another witness."). In addition, there are reasons to question KW's credibility on this issue. Lorenzo described during his trial testimony, as well as in his interview with the Government on September 18, 2017, that he and KW experienced an acrimonious end to their relationship, which caused KW to "want to hurt" Lorenzo by making certain accusations against him. (See Tr. 1408:2-8, 1408:13-16; 1409:2-6; Genser Decl. Ex. H.) The Government's interview of KW after defense counsel raised their suspicion of Lorenzo's possible perjury revealed additional reasons to doubt the veracity of KW's memory and/or credibility. In particular, she denied knowledge of emails sent to her or received by her during the relevant time period regarding work she had performed, she failed to properly file tax returns during the relevant time period by, in part, claiming a false deduction, and she represented to tax authorities at some point prior to being interviewed for this case that she never received income from Sunland Group. (Govt.'s Opp. 29-30.) As such, KW's statements, on their own, do not warrant a finding that Lorenzo lied during his testimony.
The parties stipulated that the issue that led to the end of the relationship between Lorenzo and KW was not an appropriate ground for cross-examination. (See Tr. 1411:12-19.)
Ng contends that certain emails corroborate KW's statements that she never worked for Sunland Group. For example, Ng cites a January 2011 email from KW to Lorenzo with an attachment in which KW states that Lorenzo used her social security number without her knowledge to make it appear that KW was employed by, and received income from, Sunland Group and another company called "The Intl. Shipping Co (The Chinese New Year Group)." (Def.'s Mem. 20; Genser Decl. Ex. A.) He also references two emails from 2007 and 2008 from Sunland Group to Lorenzo—which did not include KW as a recipient—regarding payments made to KW, including an email forwarding KW's Form 1099 "per [Lorenzo's] request." (Def.'s Mem. 20; Genser Decl. Exs. B, C.)
These documents do not demonstrate that Lorenzo committed perjury. While the January 2011 email from KW largely corroborates what KW told interviewers in March 2017, it does not demonstrate that Lorenzo lied. In fact, there are certain aspects of the document that raise issues concerning the accuracy and credibility of KW's statements in it. First, as mentioned above, KW's and Lorenzo's relationship ended tumultuously, giving KW reason at the time of the January 2011 email to make accusations against Lorenzo. (See Tr. 1404:22-25, 1408:1-8.) Second, KW states in the January 2011 email that she received fraudulent payments from two companies—Sunland Group and "The Intl. Shipping Co"—the second of which was never mentioned again by KW, including in her 2017 interviews. Third, KW states in the January 2011 email that she "was advised by [Lorenzo] after the fact" of his scheme to use her bank account to evade taxes, (Genser Decl. Ex. A), but in her 2017 interview, KW states that she learned of the scheme from her accountant in 2008 or 2009 and that Lorenzo "skirted the issue" and provided her a vague explanation when she confronted him about it, (id. Ex. E). Finally, KW's assertion that she did not become aware of $25,000—an amount that is not de minimis—being deposited into her bank account until either Lorenzo or an accountant called it to her attention years later further undermines KW's credibility. These inconsistencies call into question the veracity of KW's January 2011 email and militate against a finding that Lorenzo committed perjury.
The 2007 and 2008 emails from Sunland Group to Lorenzo similarly do not support a finding of perjury. The 2007 email from Sunland Group requests an invoice for "Advisory and Consulting Services," (id. Ex. B), which is consistent with Lorenzo's testimony that KW served as a consultant to Sunland Group at the time, (Tr. 1404:22-25). The 2008 email from Sunland Group provides Lorenzo with KW's 2007 Form 1099, which indicates that she earned $25,000 that year. (Genser Decl. Ex. C.) Lorenzo never explains why these emails were sent to him without copying KW; however, I do not find that his lack of explanation amounts to perjury. Neither email establishes, or even implies, that KW never worked for Sunland Group.
The notes of Lorenzo's September 18, 2017 interview with the Government suggest that Lorenzo helped KW get work with Sunland Group during a period when KW was experiencing trouble at her job with Continental Airlines as a flight attendant. (Genser Decl. Ex. H.) Lorenzo's role in connecting KW with Sunland Group may explain, at least in part, why Lorenzo received communications related to KW from Sunland Group.
Ng argues that Lorenzo had a strong incentive to lie during his testimony because admitting to using KW's bank account to evade taxes would have revealed an additional crime that he did not reveal to the Government prior to signing his cooperation agreement. (Def.'s Mem. 22.) However, Lorenzo disclosed other schemes to the Government in which he used the accounts of his family members to evade paying taxes. Therefore, it is unclear why Lorenzo would not have disclosed a tax-evasion scheme using KW's bank account to the Government as well, particularly when the purported evidence of the scheme was in the possession of the Government and third parties such as KW and Sunland Group.
Ng also argues that statements made by Lorenzo in his September 18 interview, after the conclusion of trial, confirm that he perjured himself while on the stand. (Id. at 21-22.) Specifically, he asserts that Lorenzo shifted his story after trial when he realized there was no proof of KW performing work for Sunland Group by claiming that she was paid to be on call for flights that never happened and to provide consulting services for an aircraft sale that never occurred. (Id.) Those statements, however, are not inconsistent with Lorenzo's trial testimony. Lorenzo clearly testified at trial that KW "was working as a consultant" and "a flight attendant" for Sunland Group. (Tr. 1405:19-21.) When asked what KW specifically did for Sunland Group, Lorenzo answered:
At that time when she was a flight attendant, the Sunland chairman had an aircraft. During that time he hired her for several reasons. Sometimes there were flights, flights that she was supposed to be, as well as other consultancy in relation to that aircraft.(Tr. 1406:1-5.) It is certainly a plausible reading of Lorenzo's testimony that KW was supposed to serve as a flight attendant on flights that did not occur, and also served as a consultant in relation to a particular aircraft. This testimony is consistent with Lorenzo's statements during the September 18 interview.
Finally, Ng emphasizes that the August 1, 2017 letter from Daniel Mejia, Chairman of Sunland Group, which attached KW's 2007 Form 1099 and stated that it was "issued for services rendered on our corporate jet . . . during a period of one year," (Genser Decl. Ex. G), all but confirms that Lorenzo committed perjury, (Def.'s Mem. 21). While it is unclear what the circumstances were surrounding Mejia's letter, it does not demonstrate that Lorenzo committed perjury. Rather, it appears to corroborate Lorenzo's statements that KW performed services for Sunland Group with respect to an aircraft. As such, I do not find that Mejia's letter leads to the conclusion that Lorenzo committed perjury.
During his September 18 interview, Lorenzo indicated that he met with Mejia after the conclusion of the trial, but he did not discuss the KW matter with Mejia, nor what Mejia should say to prosecutors. (See Genser Decl. Ex. H.) Neither party makes clear whether the Government, through Lorenzo's counsel, reached out to Sunland Group regarding KW's work for Sunland Group, or whether the August 1, 2017 letter from Mejia was sent to Lorenzo's counsel unsolicited.
Although I find that Ng has not met his burden of demonstrating that Lorenzo committed perjury, assuming for the purpose of this decision that Ng had met his burden, I find that Lorenzo's perjury was not material to the jury's determination of guilt. As mentioned above, the materiality question depends, in part, on whether the Government knew or should have known of the witness's perjury. See Wallach, 935 F.2d at 456. Assuming Lorenzo committed perjury, I find that the Government did not know, nor should it have known, that he did so.
Ng contends that the Government should have known that Lorenzo perjured himself because defense counsel placed "powerful evidence" before the Government that Lorenzo was lying. (Def.'s Mem. 23.) That evidence included KW's statements, KW's January 2011 email, the 2007 and 2008 emails from Sunland, and KW's Form 1099 from 2007. However, as discussed above, taken together, that evidence establishes, at most, that KW and Lorenzo disagreed over the relevant facts regarding whether she worked for Sunland Group and that Sunland Group sent Lorenzo emails containing information regarding KW's work with Sunland Group. The fact that Lorenzo had evaded taxes using the bank accounts of his family members does not convert this evidence into "powerful evidence" that he did the same thing with KW's bank account, particularly when taking into account that Lorenzo admitted these previous crimes, implicating certain of his family members, to the Government. In addition, the Government interviewed KW and Lorenzo after Lorenzo's testimony and concluded that KW lacked credibility for a variety of reasons, as discussed above. (See supra Section III.B.2.a.) Furthermore, "[w]here [as here] the challenged false testimony was elicited by the defense, rather than the prosecution, that circumstance tends to establish the government's unawareness of the perjury." United States v. Damblu, 134 F.3d 490, 493 (2d Cir. 1998); see also United States v. Seck, 175 F. Supp. 2d 526, 529 (S.D.N.Y. 2001) (holding that the government did not know of the witness's perjury where "the issue was raised at trial for the first time by defense counsel on cross-examination").
Although Ng correctly points to several factual similarities between this case and Wallach—where the Second Circuit held that the government should have known of its witness's perjury, 935 F.2d at 457—there are also material differences. First, in Wallach, the government elicited testimony that the witness had stopped his compulsive gambling in the summer of 1988 on direct examination, and after the defense confronted the witness on cross-examination with evidence that he signed gambling markers totaling $65,000 in September and October 1988, the government attempted to rehabilitate the witness on re-direct by eliciting implausible explanations for why the witness drew the markers. 935 F.2d at 455-56. Here, by contrast, the Government did not elicit the alleged perjury from Lorenzo, Lorenzo did not offer an unconvincing explanation when confronted with the January 2011 email from KW by defense counsel, and the Government did not attempt to rehabilitate Lorenzo on this issue during re-direct. Second, in Wallach, the government was presented with direct evidence from the Tropicana Casino—in the form of "player rating slips"—that identified the witness as having placed bets in October 1988. Id. at 456. The government refused to agree that the witness committed perjury, and attempted to rehabilitate the witness on re-direct on the gambling issue, despite defense counsel disclosing the "powerful evidence" of perjury, i.e., the written records from the Tropicana Casino. Id. at 457. Here, defense counsel has presented no such direct evidence that KW never worked for Sunland Group. As discussed above, the email records Ng relies upon to support his position do not establish that KW did not work for Sunland Group. Therefore, Wallach does not require a finding that the Government here knew or should have known of the alleged perjury.
The defense in Wallach also proffered testimony from a Tropicana employee to support the argument that the witness had committed perjury. Wallach, 935 F.2d at 456. The government objected to this testimony and the admission of the player rating slips under Federal Rule of Evidence 608(b), arguing that the records and testimony were extrinsic evidence. Id. Although the district court sustained the objection, id., the government was aware of the records and testimony demonstrating that its witness committed perjury. In addition, there is no indication in the Second Circuit's opinion that the testimony of the Tropicana employee suffered from the same credibility issues as KW's statements do here.
Regardless, under either standard of materiality elaborated in Wallach, I find that the perjured testimony would not have affected the jury's verdict. It is undisputed that the alleged perjury concerned a matter entirely collateral to issues related to the crimes of which Ng was convicted. See United States v. White, 972 F.2d 16, 20-21 (2d Cir. 1992) ("The importance of such evidence is, of course, lessened when the perjury involves some collateral matter concerning the witness, rather than testimony about facts relevant to the merits of the case."). While it is true that "the credibility of a witness who testifies to substantive facts is a material issue at trial," evidence impeaching a witness's credibility "is not necessarily material to the jury's verdict when it is cumulative of other impeachment evidence known to the jury." United States v. Karlov, 534 F. App'x 38, 39-40 (2d Cir. 2013) (summary order) (citing White, 972 F.2d at 20); Gambino, 59 F.3d at 366 ("Nondisclosure of cumulative evidence tending only to further impeach a witness' general credibility is not grounds for granting a Rule 33 motion.").
Here, the defense presented substantial impeachment evidence regarding Lorenzo to the jury over the course of over five days of cross-examination, and highlighted that evidence, as well as inferences to be drawn from that evidence, to the jury during closing arguments. Specifically, defense counsel elicited testimony from Lorenzo during cross-examination about his tax fraud schemes using the bank accounts of his family members, and highlighted that testimony during closing arguments. (See, e.g., Tr. 1395:1-1396:18 ("Q. You used your little sister over and over again to commit a federal crime, is that right? . . . A. Yes."); Tr. 3963:16-24 ("Was there a crime here? Absolutely. . . . Lots of them. Lorenzo was engaged in a massive tax evasion scheme for five years . . . using his own little sister's account again and again . . . .").) In addition, defense counsel emphasized during closing arguments various other crimes Lorenzo committed, including defrauding Ng, (Tr. 3963:25-3964:1), and accepting bribes from individuals other than Ng, (Tr. 3964:1-18). During closing arguments, defense counsel repeatedly called into question Lorenzo's credibility, claiming on numerous occasions that Lorenzo lied to the jury. (See, e.g., Tr. 3966:12-16 ("He walks up there and, literally sitting just yards from you, he told you, I'm here to tell the truth, I have to tell the truth . . . if I tell the truth, I'm going to get a leniency letter. . . . That was a lie, flat-out lie."); Tr. 3966:23-3967:4 ("Lie number two, flat-out, shameless. I was sending thousands of dollars to my sister's account, to my brother's account, so that I can avoid taxes for five years. . . . I said, did you talk to your sister about why you were doing this? No. He looked at you right in the eye and said never. That's who you're dealing with. He didn't care about the truth."); Tr. 3967:21-25 ("He just lies. . . . All he had to say was, yeah, sometimes I took a little bit for myself . . . . But he won't do that, will he. He'd rather just lie his way out of a problem."); Tr. 3969:4-9 ("That case, their case, is Francis Lorenzo. He is the very embodiment of reasonable doubt, ladies and gentlemen. He cannot tell the truth unless he thinks he might be able to worm his way through this. He is walking, talking reasonable doubt. You wouldn't trust him to take your garbage out. You cannot trust him to determine the fate of an accused human being."); Tr. 3990:24-3991:1 ("He tells you that from the very beginning the UN conference center was Mr. NG's idea. That's a lie, flat-out lie. It was all about Forest Cao."); Tr. 3997:9-22 ("Lorenzo has suggested to you, not only suggested but testified, swore under oath, that in October 2010 the idea of a UN official document came out of that guy's head without any prompting . . . . He lied to you. He plainly lied to you, and we got to show him this thing and confront him with it, and he still won't admit it."); Tr. 4003:14-4004:7 ("This is that IOSSC brochure, right? And I want you to remember two lies by Lorenzo associated with this document."); Tr. 4005:2-6 ("What he does is he's like a cornered rat, literally. And you get him in that corner and he will scurry in a totally different direction, rather than simply manning up and telling the truth."); Tr. 4005:7-19 ("My grandmother always told me, tell the truth because the truth will protect you. If you start telling lies, the truth will strike you down, because you can't keep your lies straight. I'm not saying I always obeyed her, but boy, this guy don't know that adage. . . . But instead of using truth to protect himself, he will always rely on his native instincts, and that's to lie."); Tr. 4013:2-15 ("He told Mr. Ng exactly the same lie he told his good friend Garcia. Why? Because it's the easy thing to do. Francis Lorenzo is all about the easy thing to do. Lying to his good friend is easy. Lying to that guy is even easier.").) Assuming that Lorenzo perjured himself regarding the payments to KW, that perjury, were it revealed to the jury, would have been cumulative of the extensive impeachment evidence presented and argued to the jury with respect to Lorenzo's testimony. United States v. Spinelli, 551 F.3d 159, 166 (2d Cir. 2008) ("The additional potential for impeachment of [the witness] would in the circumstances have raised no reasonable likelihood of affecting the jury's verdict."); White, 972 F.2d at 21 (declining to grant new trial where perjury "was cumulative to other evidence of collateral matters that focused on [the witness's] credibility"); United States v. Biaggi, 823 F. Supp. 1151, 1156-57 (S.D.N.Y. 1993) (holding that "where the newly discovered perjury concerns solely the witness' credibility, and the perjury is merely additional information tending to further impeach the credibility of a witness whose character has already been shown to be questionable, then it is unlikely that the jury would have acquitted on this basis" (internal quotation marks omitted)), aff'd, 48 F.3d 1213 (2d Cir. 1994); United States v. Devery, 935 F. Supp. 393, 413 (S.D.N.Y. 1996) (declining to grant new trial where witness's credibility "was roundly challenged" by defense counsel and record was "rife with testimony and argument" regarding witness's credibility and criminal history), aff'd sub nom. United States v. Torres, 128 F.3d 38 (2d Cir. 1997).
Ng contends that the fact that Lorenzo lied in court, under oath, and after he entered into a cooperation agreement with the Government in which he pledged to tell the truth "could have radically revised [the jury's] assessment of his credibility." (Def.'s Mem. 26.) However, "where the trial record already contains 'an abundance of evidence' of the witness's mendacity and criminality," as it does here, the witness's perjury is not necessarily material to the jury's verdict. Karlov, 534 F. App'x at 40 (quoting United States v. Avellino, 136 F.3d 249, 258 (2d Cir. 1998)) (holding that in "cases involving cooperating witnesses who lied at trial about the scope of their criminal activities, we have concluded that the perjury was nevertheless not material to the jury verdict where, as here, the conduct falsely denied or not disclosed was similar to crimes already known to the jury"); see also United States v. Orena, 32 F.3d 704, 717 (2d Cir.1994) (holding that witness's undisclosed criminal activity did not warrant new trial where jury heard evidence of other similar crimes).
Relying on Wallach, Ng argues that the general rule that perjured testimony does not require a new trial when it serves as cumulative impeachment material should not apply here because Lorenzo was "the centerpiece of the government's case." (Def.'s Mem. 25 (quoting Wallach, 935 F.2d at 457).). As an initial matter, there is no dispute that Lorenzo's testimony was significant to the Government's case. However, I note that the majority of Lorenzo's testimony concerning the bribery scheme was corroborated by emails, other documentary evidence, and witness testimony. I also note that the Government argued in its rebuttal summation to the jury that the jury could convict Ng based solely on evidence independent of Lorenzo's testimony. (Tr. 4150:11-18; Tr. 4153:4-9 ("You could convict the defendant on every count in this case alone if Lorenzo had never testified and if you saw nothing else but emails and bank records and official documents of the UN.").)
Regardless of the centrality of Lorenzo's testimony to the Government's case, however, "the appropriate analysis is not the importance of the witness to the prosecution's theory of the case, but 'the materiality of the perjury to the jury's verdict.'" United States v. Stewart, 323 F. Supp. 2d 606, 620 (S.D.N.Y. 2004) (quoting Wallach, 935 F.2d at 456). There is no dispute that the alleged perjury related to a collateral issue and had nothing to do with the substance of the charges against Ng. As described above, Lorenzo's credibility was attacked vigorously over five days of cross-examination, and a central component of defense counsel's summation was to characterize Lorenzo as a liar. As such, I cannot conclude that there is a reasonable likelihood that the revelation of perjured testimony by Lorenzo about a collateral issue would have altered the jury's verdict or that exceptional circumstances exist requiring a new trial.
Moreover, while Ng correctly points out that the Second Circuit held in Wallach that a new trial was necessary despite the fact that the perjury related solely to the witness's credibility, 935 F.2d at 459, Wallach does not stand for the proposition that perjured testimony by a central government witness necessarily requires the grant of a new trial. Rather, the court based its holding on the fact that the witness was the "centerpiece" of the government's case, in combination with the fact that the government "led [the jury] to believe [that the witness] had undergone a radical moral transformation." Id. at 458. Here, the Government did not attempt to persuade the jury that Lorenzo was a reformed criminal. (See, e.g., Tr. 4160:11-15 ("That does not make Francis Lorenzo a good person. That does not mean you should trust everything he says. You should be sickened by how he abused his power, lied to a friend, lied to a bank, viewed money as more important than his duties to the United Nations and his country.").) In fact, Lorenzo admitted doing exactly what Ng contends he lied to the jury about—using others' bank accounts to commit tax evasion—and he committed other criminal acts up to his arrest in October 2015. The jury was thus well aware that Lorenzo had lied repeatedly throughout his life; therefore, evidence that Lorenzo committed perjury concerning a collateral issue was not reasonably likely to change the jury's perception of whether or not they should believe him. Karlov, 534 F. App'x at 40-41 (distinguishing Wallach and denying a motion for a new trial in part on the basis that government did not argue to jury that witness had undergone moral transformation).
In addition, the jury here—unlike in Wallach—was instructed to examine Lorenzo's testimony closely and consider it with skepticism. In Wallach, the jury was not instructed to scrutinize carefully the testimony of the cooperating witness. 935 F.2d at 455. By contrast, I instructed the jury here that, as a cooperating witness, Lorenzo had a motive to testify falsely and that they "must examine [Lorenzo's] testimony with caution and weigh it with great care." (Tr. 4280:2-11); see also Karlov, 534 F. App'x at 40-41 (distinguishing Wallach and denying motion for new trial in part because court instructed jury to scrutinize cooperating witness's testimony carefully). "There is therefore no reason to believe that if the jury had knowledge of [Lorenzo's] perjur[y] that it would have acquitted [Ng]. It would only be cumulative impeachment evidence of an already impeached witness whose testimony the jury was instructed to regard with searching scrutiny." Biaggi, 823 F. Supp. at 1158; see also Devery, 935 F. Supp. at 413 (holding that cautionary instructions put jury on notice to carefully consider perjuring witness's testimony).
Therefore, even assuming that Lorenzo committed perjury and that the Government knew or should have known of the perjury, there is not a "reasonable likelihood" that the perjury could have resulted in Ng's acquittal.
Ng separately contends that the Government's failure to investigate and/or correct the false testimony violates his constitutional right to due process and thus requires a new trial. (Def.'s Mem. 27-28 (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)).) As an initial matter, I find that the Government's investigation during and after trial into whether Lorenzo committed perjury was adequate and done in good faith. In addition, to make out a due process claim, the defendant must show that the perjury was material. See Morris v. Ylst, 447 F.3d 735, 743 (9th Cir. 2006) (holding that the Supreme Court's line of cases including Napue requires a showing of materiality). Perjury is material if there is "a reasonable likelihood that the false evidence or testimony could have affected the judgment of the jury." Id. (citing United States v. Agurs, 427 U.S. 97, 103 (1976)). This is the same standard for materiality that the Wallach court applied when the government knew or should have known of the perjury, see 935 F.2d at 456, a standard that I have found Ng has not met. Therefore, Ng has not made out a due process claim.
C. Independent Investigation/Rule 17 Subpoena
Whether or not I grant a new trial, Ng requests that I direct the Government "to conduct an independent and effective investigation of this matter or, in the alternative, authorize a defense subpoena to Sun Land." (Def.'s Mem. 28-29.) I decline to do either.
"[I]n the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress." United States v. Hasting, 461 U.S. 499, 505 (1983). The purposes of a federal court's supervisory powers include "to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury" and to provide "a remedy designed to deter illegal conduct." Id. However, when a "conviction would have been obtained notwithstanding the asserted error," a court need not exercise its supervisory powers. Id. at 506.
Here, I do not find that the Government failed to perform an independent and effective investigation of Lorenzo's possible perjury, and thus, it is not necessary for me to exercise my supervisory powers to order one. In addition, as discussed above, because Ng would not be entitled to a new trial even if I assumed Lorenzo committed perjury and that the Government knew or should have known that he did, I decline to authorize a defense subpoena pursuant to Rule 17 of the Federal Rules of Criminal Procedure to obtain information regarding KW's work with Sunland Group.
During trial, on July 19, 2017, I suggested to the parties that I would direct the Government to contact Sunland Group. (Tr. 2665:15-19.) At that time, the Government had not yet interviewed Lorenzo, nor had it received the letter from Mejia. As such, and because I find that Ng is not entitled to a new trial even if he could establish that Lorenzo committed perjury, I need not direct the Government to contact Sunland Group.
I note that the text of Rule 17 authorizes a court to permit a defense subpoena to obtain materials "before trial" for use "as evidence." Fed. R. Crim. P. 17(c)(1). As such, it is questionable whether Rule 17 provides authority for a post-trial defense subpoena for purposes of supporting a Rule 33 motion. See United States v. Stringer, No. S 10 Cr. 632(GEL), 2012 WL 11269, at *18 (S.D.N.Y. Jan. 3, 2012) (holding that "Rule  does not permit a defendant to subpoena documents where, as here, a trial has already ended and the defendant has been convicted"), aff'd, 730 F.3d 120 (2d Cir. 2013); see also United States v. Nix, 251 F. Supp. 3d 555, 564 (W.D.N.Y. 2017) (holding that request for subpoena to obtain "documents [that] will lead to the discovery of information that can be used in support of post-trial motions to set aside the convictions in this case . . . extend [Rule 17] far beyond its limits" (internal quotation marks omitted)). --------
For the reasons stated above, Defendant Ng's motion for a new trial is DENIED. The Clerk of the Court is respectfully directed to terminate the pending motion. (Doc. 653.) SO ORDERED. Dated: May 9, 2018
New York, New York
Vernon S. Broderick
United States District Judge