S1 05 Cr. 1077 (PKL).
July 30, 2007
MICHAEL J. GARCIA, ESQ., United States Attorney for the Southern District of New York, New York, NY, Miram E. Rocah, Esq.,Attorney for United States.
MR. MARTIN J. SIEGEL, ESQ., Law Offices of Martin J. Siegel, New York, NY, Standby Attorney for Defendant.
OPINION AND ORDER
On April 20, 2006, following a one-week trial, defendants Musfafa Ozsusamlar ("Mustafa") and Osman Ozsusamlar ("Osman") were convicted by a jury of one count of conspiracy to commit a murder-for-hire, in violation of 18 U.S.C. § 1958(b); one count of murder-for-hire, in violation of 18 U.S.C. §§ 1958; and one count of conspiracy to commit extortion, in violation of 18 U.S.C. § 1951.
Following the verdict, while still represented by his trial counsel Barry Turner, Esq., Mustafa sent numerous communications directly to the Court regarding his representation as well as his concerns about and challenges to the jury verdict. Based on Mustafa's written requests, the Court held conferences on August 26, 2006, March 20, 2007, April 4, 2007, and June 5, 2007 to discuss his concerns. At the April 4, 2007 conference the Court granted Mustafa's request to proceed pro se.
Citations to the transcripts from these conferences are designated by "([m/d] Tr.)" while citations to the transcript from the Trial are designated by "(Tr.)".
In addition, on June 5, 2007, the Court granted Mustafa's request for a hearing, now scheduled for August 7, 2006 at 10:30 a.m. (the "Aug. 7 Hearing"), in order to place on the record evidence regarding certain of Mustafa's pro se motions, including a request for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, and for dismissal of the charges against him pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure. As part of that hearing, Mustafa has requested that the Court allow him to present evidence from 16 witnesses. The Court now reviews Mustafa's request that those 16 witnesses be allowed to testify at his Aug. 7 Hearing.
For the reasons set forth below, the Court will permit only the testimony of Mustafa's former attorney, Mr. Turner. The Court will also permit Mustafa's son, Osman, to attend the Aug. 7 Hearing with his standby counsel, with the possibility that Osman be allowed to testify only as to those areas outlined by the Court below.
I. The Evidence at Trial
The defendants are father and son; Mustafa is the father and Osman is the son. They were convicted as the result of a scheme, brought to light through the use of an undercover agent and a government informant, in which Mustafa and Osman conspired to hire someone to collect a debt from, and subsequently to murder, a husband and wife (the "Batcas" or "Victims"). Based on the Government's evidence, which included witness testimony and audiotape recordings and transcripts, the jury found the defendants guilty of murder-for-hire, conspiracy to commit murder-for-hire, and conspiracy to commit extortion.
Specifically, the evidence at trial established that Mustafa told a cooperating witness named Mohamed Mabrouk at the Metropolitan Correction Center (the "MCC") that he sought assistance in locating someone who could kill a person who owed him approximately $283,000, offering to pay the killer ten percent of the money collected. (Tr. 142:7-14, 152:7-21.) Mabrouk indicated to Mustafa that he was interested in the job, and then reported this conversation to the Government. (Tr. 143:22-148:4.) Mabrouk, at the Government's behest, provided Mustafa with the telephone number for a Federal Bureau of Investigations ("FBI") agent who, using the name "Joe," posed as Mabrouk's associate by pretending to arrange for the collection of the debt and the murder of the Batcas. (Tr. 60:3-61:18, 160:1-161:11.) Mustafa passed on this information to his son, Osman (Gov't Exs. 13, 13T; Tr. 63:3-18), who then had a number of conversations with "Joe" regarding the scheme (Gov't Exs. 21-22, 21T, 22T-1, 22T-2). Finally, "Joe" called Osman to tell him that the job was done and that he had the money, and the two made arrangements to meet. (Gov't Exs. 23, 23T-2, 23T-3; Tr. 320:5-321:18; 324:9-325:15.) Osman was arrested when he arrived at the agreed-upon location that night (Tr. 326:17-19, 410:16-411:7), and subsequently made a number of admissions and false exculpatory statements (Tr. 411:9-414:6). Mustafa was arrested the following day. (Tr. at 416.) As Mustafa was being arrested and processed, the FBI conducted a search of his jail cell at the MCC, pursuant to a search warrant, and found two pieces of paper containing the name and phone number for the Victims, as well as the name "Joe" along with his phone number. (Gov't Exs. 1, 2-A.)
Mustafa was incarcerated at the MCC while awaiting sentencing on a different matter at the time he first had this discussion with Mabrouk. He remained incarcerated there during the investigation into the matter before the Court at this time, as well as during the trial.
II. Post-Trial Activities
As was mentioned previously, Mustafa is currently proceedingpro se with Mr. Martin Siegel, Esq. from the Criminal Justice Act panel as standby counsel. The Court granted Mustafa's request to proceed pro se on April 4, 2007 at a conference in which the Court warned Mustafa for the second time of the perils of representing himself, as set forth in United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995). At that conference, the Court also informed Mustafa that he could not retry his case (4/4 Tr. at 12; see also 3/20 Tr. at 25), but that he would be able to raise many of his issues on appeal (4/4 Tr. at 13-14; see also 8/28 Tr. at 15-16; 3/20 Tr. at 13).
The Court first addressed these considerations with Mustafa at a conference held on August 28, 2006. However, at that conference Mustafa decided that he would prefer new counsel to be appointed rather than proceeding pro se. Thus, at that time the Court appointed Mr. Siegel as Mustafa's counsel. (8/28 Tr. at 19.)
On June 5, 2007, the Court held another conference in which it informed the parties that it would grant Mustafa's request for a hearing. (6/5 Tr. at 10.) The Court informed the parties that it will hold this hearing in order for Mustafa to put on the record all additional evidence he would like regarding the claims he has made in his post-trial motions. (Id.) The Court further informed Mustafa that, even though he was proceeding pro se, he would be expected to "follow all of the appropriate standards of proof and follow the Federal Rules of Evidence." (6/5 Tr. at 19.) Mustafa was reminded that "the Court cannot give [him] instruction or advice" and that he "should trust and rely on Mr. Siegel, who is his standby counsel and has Mustafa's best interests at heart, to assist him in understanding the appropriate procedures and law at issue here." (6/5 Tr. at 19.) As such, he was directed by the Court to submit an offer of proof in writing as to each of the 16 witnesses he had indicated he would like to call on his own behalf at the Aug. 7 Hearing. (6/5 Tr. at 13-18.) Based on the Government's request, the Court specifically informed Mustafa that this offer of proof would have to comply with Rule 17(b) of the Federal Rules of Criminal Procedure, which requires that Mustafa show "the necessity of the witness's presence for an adequate defense." (6/5 Tr. at 15-18.)
At the June 5, 2007 conference, the Court also informed the parties that the Aug. 7 Hearing would have a "limited function." (Id.) It would provide Mustafa an opportunity to present evidence related to claims Mustafa has made in five different communications he has had with the Court. Specifically, (1) Mustafa's August 12, 2006 letter "in concerns with a notice of re motion pursuant to Rule 29 of the Federal Rules of Criminal Procedure for a judgement of acquittal, and Rule 33. Orderin new trial proceeding"; (2) a January 10, 2007 motion entitled "Motion for Violation of Constitutional Right for Due Process and Perjury and US. Rule 18 § 1623 (Dismissing Case)"; (3) a February 21, 2007 affidavit entitled "Affidavit in Support of Notice of Motion" and the attached memorandum of law; (4) a March 9, 2007 letter to the Court claiming a Rule 28 U.S.C. 753(b) violation; and (5) an April 2, 2007 motion requesting dismissal or a new trial, pursuant to Federal Rules of Criminal Procedure 29 and 33. (6/5 Tr. at 10-11.)
Mustafa's first language is not English, and the Court has had a Turkish interpreter at every conference for this defendant. Thus, though his English is quite good — he has indicated at times that he is comfortable speaking to the Court in English and also writing to the Court in English, and the Court has noted that he has very neat handwriting (6/5 Tr. at 22) — Mustafa's submissions are occasionally somewhat difficult to understand and have a variety of spelling and typographical errors. The Court has not undertaken to correct any of these errors, and has quoted his submissions exactly as it received them.
Based on the Court's and the Government's reading of these documents, it appears that Mustafa has three primary claims that he seeks to prove in the Aug. 7 Hearing. (6/5 Tr. at 10-11.) First, Mustafa has requested that the Court dismiss the conspiracy charge against him under Rule 12(b)(2) of the Federal Rules of Criminal Procedure. (Feb. 21, 2007 Mot. at 1.) While this Rule generally applies to motions made prior to trial, see Fed.R.Crim.P. 12, Mustafa invokes it here, claiming that the conspiracy charge should be dismissed because there was insufficient evidence to prove the charge, and that conspiracy cannot be found where a party has conspired with a "government agent or informant." (Feb. 21, 2007 Mot. at 1.) The Government challenges this claim on the basis that Mustafa's motions to dismiss are untimely and that they "lack any foundation in the record or even sworn affidavit." (Gov't Opp. at 8.) Moreover, the Government notes that Mustafa was convicted of a conspiracy with Osman, not with the cooperating witness. (Id. at 9.)
Because the only issue before the Court at this time is whether Mustafa should be allowed to call his requested witnesses at the Aug. 7 Hearing, the Court will not address the question of timeliness of his motions here; however, it notes that this consideration will be taken into account in its final ruling on Mustafa's motions.
Mustafa also moves for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, and for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (Aug. 12, 2006 Mot at 1; Apr. 2, 2007 Mot. at 1.) His primary support for these two claims includes allegations of prosecutorial misconduct and use of false evidence based on his assertions that the Government altered the trial transcripts and the transcripts of the recorded conversations used as evidence at trial. (Id.; see also Jan. 10, 2007 Mot.; Feb. 21, 2007 Mot.; Mar. 9, 2007 Mot.) Mustafa also asserts that his counsel at trial, Mr. Turner, was ineffective at trial because Mr. Turner did not call certain witnesses and improperly kept Mustafa from testifying on his own behalf. (Apr. 12, 2006 Mot. at 3-4.) The Government also opposes these motions, claiming that Mustafa's allegations are baseless, and that they fall "far short of the high standards applicable to Rule 39 and 33 motions." (Gov't Opp. at 14.) The Government claims that Mustafa has not provided any evidence that he was prevented from testifying and that he has made no showing of any prejudice resulting from him not testifying. (Id.) At the June 5, 2007 conference in which these allegations were discussed, the Court informed Mustafa that, by bringing a claim of ineffective assistance of counsel, Mr. Turner, would have the opportunity to defend himself, and that as a result Mustafa may have implicitly waived his attorney-client privilege in that regard. (6/5 Tr. at 20.)
On June 26, 2007, Mustafa submitted via letter dated June 26, 2007 ("June 26 Letter") a list of witnesses he would like to call "in order to prove evidence in my case. Due to the fact that my previous attorney Mr. Turner and my son's attorney Mr. Osuna never quastion the witnesses at trial time." (June 26 Letter.) While this submission was filed more than a week after the deadline originally set by the Court (see 6/5 Tr. at 16), the Court did accept and review it for purposes of determining whether it met the standards of Rule 17(b), namely that Mustafa has shown whether these witnesses' presence are necessary for an "adequate defense." Fed.R.Crim.P. 17(b). The Government responded in a letter dated July 10, 2007 ("Gov't Letter"), again arguing that Mustafa's claims are "meritless, factually baseless," and should be denied because they fall short of the requirements of Rule 17(b). (Gov't Letter at 3.) The Government does, however, concede that Mustafa should be allowed to present evidence regarding his claim that he received ineffective assistance of counsel. (Gov't Letter at 9.) In a letter to the Court dated July 25, 2007 ("July 25 Letter"), Mustafa responds to the Government's Letter with a reiteration of his concerns that, among other things, "the goverment know should be known, and knowingly used false and fabricated evidence." (July 25 Letter at 1.)
The Court thus turns to consideration of Mustafa's request, pursuant to Rule 17(b) of the Federal Rules of Criminal Procedure, that 16 witnesses be allowed to testify at his Aug. 7 Hearing. For the reasons set forth below, the Court will permit only the testimony of Mustafa's former attorney, Mr. Turner.
I. Standard for Issuance of a Subpoena Under Rule 17(b)Rule 17(b) of the Federal Rules of Criminal Procedure generally provides a procedure by which an indigent defendant can request that the Court issue a subpoena for a witness whose presence is a "necessity" for the defendant to set forth an "adequate defense." Fed.R.Crim.P. 17(b). For purposes of the Aug. 7 Hearing, the Court interprets "adequate defense" to mean an adequate opportunity for Mustafa to prove the claims he has brought in his post-trial motions. The goal of Rule 17(b) is to provide indigent defendants with a means of approaching a court and requesting subpoenas directly for witnesses to be called at trial, without the knowledge of the Government, so as not to reveal trial strategy, or identify witnesses. In doing so, the Rule was intended to place all defendants, regardless of economic status, on a more equal footing. See U.S. v. Reyes, 162 F.R.D. 468, 469 (S.D.N.Y. 1995); 8 J. Moore, Moore's Federal Practice ¶ 17.01 at 17-5 (2d ed. 1986).
Generally a court will grant a defendant's request for such a subpoena. While the Second Circuit has not provided any clear guidance on how a district court should evaluate whether or not to grant a subpoena, it does note that the decision is within the sound discretion of the district court. See United States v. Gotti, 784 F. Supp. 1011, 1012 (E.D.N.Y. 1992) ("As a threshold matter, the grant or denial of a Rule 17(b) motion is committed to the discretion of the court. . . ." (citing United States v. Rinchack, 820 F.2d 1557, 1567 (11th Cir. 1987))). In addition, some Courts of Appeals have adopted the approach that requests for subpoenas should be granted where a defendant "avers facts which, if true, would be relevant to any issue in the case . . . unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments are untrue or that the request is otherwise frivolous." United States v. Sims, 637 F.2d 625, 627-28 (9th Cir. 1980) (citing Greenwell v. United States, 317 F.2d 108, 110 (D.C. Cir. 1963); United States v. Hegwood, 562 F.2d 946, 953 (5th Cir. 1977); United States v. Barker, 553 F.2d 1013, 1020 (6th Cir. 1977)).
Still, a district court may deny a request for a subpoena "where the testimony of the witness would be only cumulative,United States v. Rosa, 493 F.2d 1191, 1194 (2d Cir. 1974), where the defendant is vague as to the witness's potential evidence and is also aware that the witness might invoke the Fifth Amendment,United States v. Wyler, 487 F.2d 170, 173-74 (2d Cir. 1973), or where the witness would only give irrelevant testimony not necessary to an adequate defense, United States v. Romano, 482 F.2d 1183, 1195 (5th Cir. 1973)." United States v. Taylor, 562 F.2d 1345, 1362 (2d Cir. 1977). This guidance is consistent with Federal Rule of Evidence 403, which allows relevant evidence to be deemed inadmissible based on "considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403; see also Taylor, 562 F.2d at 1362.
Thus, the Court looks to the legal standards under Rule 12, Rule 29, and Rule 33, which underlie the claims about which Mustafa would like present evidence at the Aug. 7 Hearing. It then addresses whether the witnesses Mustafa has requested are "a necessity" to adequately make these claims, and thus whether the Court should issue a subpoena.
A. Rule 12(b)(2) Standard
According to Rule 12(b)(2) of the Federal Rules of Criminal Procedure, a party may "raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed.R.Crim.P. 12(b)(2); U.S. v. Williams, 389 F.3d 402, 404 (2d Cir. 2004). As is evidenced by the language of the rule, this relief is available to a defendant prior to trial, except on a motion relating to the Court's jurisdiction, which may be made at any time. United States v. Crowley, 318 F.3d 401, 420 (2d Cir. 2003) ("Rule 12(b)(2) governs the timing of all motions relating to defects in the indictment (other than defects defeating the jurisdiction of the court)."). According to the Advisory Committee Notes to the Federal Rules, the five types of objections a defendant may make include "all defenses and objections which are capable of determination without a trial of the general issue. They include such matters as former jeopardy, former conviction, former acquittal, statute of limitations, immunity, lack of jurisdiction, failure of indictment or information to state an offense, etc." Advisory Committee Notes to Federal Rules of Criminal Procedure, Rule 12, Note # 2.
A court can only resolve a legal issue prior to trial, as "fact questions raised by an Indictment are the province of the jury."United States v. Pirro, 96 F. Supp. 2d 279, 283 (S.D.N.Y. 1999). Indeed, "a defendant may not challenge a facially valid Indictment prior to trial for insufficient evidence. Instead, a defendant must await a Rule 29 proceeding or the jury's verdict before he may argue evidentiary sufficiency." United States v. Kelly, 91 F. Supp. 2d 580, 583 (S.D.N.Y. 2000). Here, Mustafa has attempted to bring a pre-trial motion, claiming that the indictment for conspiracy was insufficient, despite the fact that a trial has been conducted and completed.
B. Rule 29 Standard
When a defendant moves pursuant to Rule 29 for a judgment of acquittal on the grounds that the evidence against him at trial was insufficient, the district court must determine, based on all of the relevant evidence, whether a rational juror "might fairly conclude guilt beyond a reasonable doubt." United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (internal quotations omitted). A defendant challenging the sufficiency of the evidence "bears a very heavy burden." United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002); United States v. Scarpa, 913 F.2d 993, 1003 (2d Cir. 1990) (internal quotations omitted); see also United States v. Tillem, 906 F.2d 814, 821 (2d Cir. 1990) (motions challenging the sufficiency of the evidence for a conviction "rarely carry the day"). The district court must draw all reasonable inferences in favor of the Government, see Mariani, 725 F.2d at 865, and must resolve all issues of credibility in favor of the jury's verdict, see United States v. Weiss, 930 F.2d 185, 191 (2d Cir. 1991); United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir. 1990). To succeed, a defendant must persuade the court that, "viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997) (McLaughlin, J.) (internal quotations omitted).
When evaluating a claim under Rule 29, a court must analyze the evidence from trial in its totality. United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (the sufficiency test should be applied "to the totality of the government's case and not to each element, as each fact may gain color from others");United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994). Moreover, a court "may not substitute [its] own determinations of credibility or relative weight of the evidence for that of the jury." United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000); United States v. James, 239 F.3d 120, 124 ("[T]he credibility of witnesses is the province of the jury.").
B. Rule 33 Standard
Rule 33 of the Federal Rules of Criminal Procedure provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). It confers broad discretion upon a trial court to set aside a jury verdict and order a new trial in order to avert a perceived miscarriage of justice. See United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). A defendant seeking a new trial bears the burden of demonstrating the "essential unfairness of the [original] trial." United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956). In adjudicating a Rule 33 motion, a court is entitled to weigh the evidence and, in so doing, to evaluate the credibility of witnesses. See Sanchez, 969 F.2d at 1413.
However, "[i]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment." Sanchez, 969 F.2d at 1414; see also United States v. Ferguson, 246 F.3d 129, 133-34 (2d Cir. 2001). For example, "exceptional circumstances" may be found where, "testimony is `patently incredible or defies physical realities.'" Ferguson, 246 F.3d at 134 (quoting Sanchez, 969 F.2d at 1414). Thus, courts should exercise their discretion under Rule 33 sparingly. See Sanchez, 969 F.2d at 1414. Indeed, "motions for a new trial are disfavored in this Circuit." United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995).
The only reason clearly stated in Rule 33 for the granting of a new trial is in the case of newly discovered evidence. Fed.R.Crim.P. 33(b)(1). Still, a new trial will only be granted based on newly discovered evidence where the evidence (1) was discovered after trial, (2) could not have been discovered before or during trial through the exercise of due diligence, (3) is material, non-cumulative and not merely impeaching, and (4) if admitted, "would probably lead to an acquittal." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993) (quoting United States v. Gilbert, 668 F.2d 94, 96 (2d Cir. 1981), cert. denied, 456 U.S. 946 (1982)); United States v. Salameh, 54 F. Supp. 2d 236, 248-49 (S.D.N.Y. 1999) (Duffy, J.).
Where, as here, a defendant seeks a new trial pursuant to Rule 33 based on a claim of ineffective assistance of counsel, a court should inquire as to whether that defendant's legal representation was "so deficient that it violated the Sixth Amendment to the United States Constitution." Salameh, 54 F. Supp. 2d at 248 (citing U.S. Const. amend VI). Thus, to prove ineffective assistance of counsel, a defendant must (1) show that his counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) demonstrate that he suffered prejudice through a showing that there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-94 (1984). Moreover, a court should be "highly deferential" to a counsel's performance, as there are strong presumptions regarding the provision of legal representation, particularly with respect to strategic choices made by counsel. Id. at 690-91 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.").
II. Mustafa's Proposed Witnesses
In total, Mustafa requests that the Court allow him to call 16 witnesses in order to provide evidence in support of his motions. Because Mustafa is proceeding pro se, and therefore has not had the benefit of legal training and expertise in fashioning his request that these witnesses be allowed, the Court will be somewhat lenient in reading his request, where possible.See United States v. Ben-Shimon, 249 F.3d 98, 103 (2d Cir. 2001). However, as the Court has stated to Mustafa on the record that, despite his pro se status, he is expected to follow the procedures of this Court, and meet the same standards of proof expected of any party before it. (6/5 Tr. at 19.) Thus, the Court turns to its analysis of whether these proposed witnesses are "a necessity" for Mustafa to prove his motions under Rule 12(b), Rule 29, or Rule 33.
A. The Federal Bureau of Investigation Witnesses
Mustafa requests that the Court subpoena certain agents of the Federal Bureau of Investigation ("FBI") because he believes they "knowingly desingnated false case evidence and made statement and giving false statement and lie testimony against to both defendant to the wrongfully conviction." (June 26 Letter ¶ 1.) Specifically, he requests that the Court allow him to call Agents Theresa McKeever, Melvin Bailey, Michael Linder, and Christopher Petrellese. (Id.; see also Gov't Letter at 6.)
All of these four agents testified at Mustafa's trial. In addition, each was cross examined by defense counsel. (Tr. 79-104, 329-403, 429-34, 450-52.) Mustafa would like to call these witnesses, however, in an attempt to now challenge the veracity of their trial testimony.
Mustafa "bears a very heavy burden" on a motion for acquittal under Rule 29. Desena, 287 F.3d at 177. Moreover, when evaluating the sufficiency of the evidence, this Court will look at the totality of the Government's case, Guadagna, 183 F.3d at 129, and will not "substitute [its] own determinations of credibility or relative weight of the evidence for that of the jury." Autuori, 212 F.3d at 114.
Here, these FBI agents each testified as to their respective role in the investigation of Mustafa and Osman. In addition, each was cross-examined by at least one of the defendants' attorneys, giving the jury an adequate opportunity to evaluate each witness's credibility and the veracity of that witness's testimony. To allow Mustafa to now call these witnesses again to attempt to discredit their trial testimony is inappropriate at this time. He has provided the Court with no reason to believe that the jury's evaluation of these witnesses's credibility should be questioned. Their testimony and any evidence they could provide would be merely cumulative, see Rosa, 493 F.2d at 1194, and is thus not a "necessity" for Mustafa to make his motion under Rule 29.
The burden is somewhat lighter for a defendant requesting a new trial under Rule 33, in that the Court may weigh the evidence and evaluate the credibility of witnesses, however, it is still clearly established that, a court should not "intrude upon the jury function of credibility assessment" except in "exceptional circumstances." Sanchez, 969 F.2d at 1413-14; see also Ferguson, 246 F.3d at 133-34. "Motions for a new trial are disfavored in this Circuit." Gambino, 59 F.3d at 364.
Here, Mustafa has made no showing of exceptional circumstances. He is simply claiming that the Court should now allow him to challenge the credibility and testimony of witnesses who were already cross-examined at trial. This in no way rises to the level of exceptional circumstances recognized by other Courts in this District. See Ferguson, 246 F.3d at 134 (finding exceptional circumstances where "testimony is `patently incredible or defies physical realities'") (quoting Sanchez, 969 F.2d at 1414).
In addition, there is no indication here that Mustafa means the testimony of these witnesses to provide the Court with newly discovered evidence. All of these witnesses have already testified before this Court as to their knowledge of, and role in investigating the crimes Mustafa was convicted of committing. Further, Mustafa provides no indication of new information these witnesses may be able to provide the Court, nor does he make any showing that information these witnesses may have could not have been discovered during the trial through the exercise of due diligence. And finally, there is no indication that any information from these witnesses would be anything more than impeaching or cumulative, or even come close to to providing evidence that would lead to an acquittal. See Locascio, 6 F.3d at 949 (2d Cir. 1983) (quoting Gilbert, 668 F.2d at 96).
The Court is thus again faced with a situation in which these witnesses are hardly a "necessity" for Mustafa to make his motion under Rule 33. Thus, Mustafa's request that the Court subpoena these four witnesses is denied.
B. MCC Corrections Officers
Mustafa next requests a subpoena as to two Corrections Officers from the MCC. Specifically, he names "C/O Coroll Lee and Luthenent Mr. Pott (Mr. Pott, moved to Texas)." (June 26 Letter ¶ 2.) He then also states that he needs "to call any luthenent which was employe in MCC NY at this time." (Id.) Mustafa believes he needs to call these witnesses "to prove witness credibility to case procedure and some jail presedure related to [his] case." (Id.)
For the same reasons set forth above in the Court's discussion regarding the request to call the FBI agents, Mustafa's request as to these Corrections Officers is denied. Presumably he believes these Officers can provide the Court with information regarding the credibility of certain trial witnesses who testified at trial. However, Mustafa has given no indication of any reason this Court should now question the credibility of witnesses whose credibility was already subject to cross examination for impeachment purposes during the trial. To do so would fly in the face of the legal limitations of both a Rule 29 and Rule 33 motion, as this would be cumulative evidence going solely to witness credibility. See Autuori, 212 F.3d at 114; Sanchez, 969 F.2d at 1413-14. Again, this Court declines to grant Mustafa's request that a subpoena be issued as to these witnesses.
C. MCC Inmates
Mustafa next requests a subpoena as to three inmates from the MCC: Michael Dokovich, Jermaine Stromen, and Alzubi Gunther, though he believes "Mr. Gunther maybe be deported." (June 26 Letter ¶ 2.) As with the MCC Corrections Officers, he states that he needs to call these witnesses "to prove witness credibility to case procedure and some jail presedure related to [his] case." (Id.) However, again, the Court cannot allow Mustafa to challenge the credibility of witnesses who already testified at his trial and had been cross-examined thoroughly by defense counsel; the Court has no reason to question the Jury's determination of credibility here. See Autuori, 212 F.3d at 114; Sanchez, 969 F.2d at 1413-14.
Musafa and the Government provide different spellings of Mr. Gunther's name. According to Mustafa it is `Gunther', and according to the Government it is `Gunter'. Either spelling of the name apparently refers to the same person.
Moreover, as to one of these inmate witnesses, the Government has provided the Court with "matters already of record" showing that Mustafa's request is frivolous at this time. See Sims, 637 F.2d 625, 627-28 (9th Cir. 1980) (citing Greenwell v. United States, 317 F.2d 108, 110 (D.C. Cir. 1963). The record at trial shows that Mustafa had already discussed with his attorney whether to call at least one of the inmates he now seeks to call, Mr. Gunter. (Tr. 249-50; Gov't Letter at 7.) The Government notes that Mustafa and his attorney decided not to call Mr. Gunter "after the Government revealed on the record that it had information that Mustafa was attempting to suborn perjury with this witness." (Gov't Letter at 7.) Certainly the Court will not allow Mustafa to make such an attempt again. Thus, a subpoena will not be issued as to this witness.
D. "CWs a Turkish Translator"
Mustafa next states that he needs "to request who is CWs a Turkish translator with Agent Bailey of Clifton NJ. Batca check cashing place. The Government used by trial." (June 26 Letter ¶ 4.) Presumably, as the Government supposes in its submission, this is a request for information about a Turkish-speaking cooperating witness ("CW") who assisted Agent Bailey in the initial stages of his investigation, and who accompanied him in his first meeting with the Batcas. (Tr. 277-81; Gov't Letter at 8.) According to the record at trial, a recording of Agent Bailey's conversation with the Batcas and the CW, as well as a transcript of that conversation, was admitted into evidence and heard and read by the jury. (Tr. 281-87; Gov't Letter at 8.) However, due to safety concerns, the name of the CW was not released, nor was it requested. (Gov't Letter at 8.)
Thus, this is clearly not newly discovered evidence, as the conversation in which this supposed witness was involved was admitted into evidence at trial. Mustafa provides no indication of any other new information this witness may be able to provide the Court, nor does he make any showing that information this witness may have could not have been discovered during the trial through the exercise of due diligence. Moreover, there is no indication that any information from this witness would lead to an acquittal, let alone be anything more than impeaching or cumulative. See Locascio, 6 F.3d at 949 (quoting Gilbert, 668 F.2d at 96).
In his request for this information now, Mustafa provides the Court with no indication of why he believes this witness is "a necessity" to his ability to make an adequate showing under any of the three possible motions he seems to be bringing. Therefore, the Court denies Mustafa's request for a Rule 17(b) subpoena as to this witness.
E. Agent John F. Campanella
Mustafa next requests a subpoena as to FBI Agent John F. Campanella, who he claims "was main organaizer this case (and my Kimba Wood Case) under Campanella control provide false case evidence against to both defendants." (July 26 Letter ¶ 5.) Mustafa seems to be claiming that Agent Campanella controlled the other Agents involved in this case, whom he believes provided false evidence. Mustafa seems to believe the failure of the Government to call Agent Campanella at trial then somehow constitutes a violation of due process. (July 26 Letter ¶ 5.)
At the time of trial, Mustafa discussed his desire to call this witness with his attorney, who informed Mustafa that Agent Campanella was not involved in the case, and that therefore his testimony was not relevant. (8/28 Tr. at 8, 10-11, 14.) Mustafa has not provided the Court with any reason to believe that Agent Campanella's testimony would now be relevant in any way to his ability to make his post-trial motions. Moreover, the Court has already discussed the limitations placed upon it in matters where it is being asked to question determinations of credibility made by a jury. See Autuori, 212 F.3d at 114; Sanchez, 969 F.2d at 1413-14. Where Mustafa is asking the Court to allow Agent Campanella's testimony now in an effort to challenge the credibility and veracity of the testimony of those FBI Agents who testified at trial, he simply has not met the burden under either Rule 29 or Rule 33. Moreover, again, he has not made any showing that Agent Campanella has any newly discovered evidence to contribute to this case. See Locascio, 6 F.3d at 949 (quoting Gilbert, 668 F.2d at 96). Therefore, Mustafa's request for a subpoena as to this witness is denied.
F. Ahlam Khalil
Mustafa claims that one of the key witnesses against him at trial — Mohammed Mabrouk — "lie and motified witness under government benefit." (July 26 Letter ¶ 6.) He claims that "jail house wisitor Ahlam Khalil knew." (Id.) He thus presumably here requests that the Court issue a subpoena as to Mr. Khalil, who would then testify that Mabrouk lied at trial. First, Mabrouk was extensively cross-examined at trial by defense counsel for both Mustafa and Osman. (Tr. 168-274.) The nature of Mabrouk's cooperation agreement, which Mustafa here calls the "government benefit" with the Government was discussed in such detail that Mustafa's counsel felt it unnecessary to have the actual agreement admitted into evidence. (Tr. 269-70.) Thus, the Jury had plenty of information with which to evaluate Mabrouk's credibility. It is thus not for the Court to now question those determinations of credibility made by the Jury. See Autuori, 212 F.3d at 114; Sanchez, 969 F.2d at 1413-14. The request for a subpoena as to this witness is denied.
F. The Attorneys
Mustafa next requests that the Court subpoena three different lawyers involved in his trial. First, he names Winston Lee, Esq. (July 26 Letter ¶ 7.) Mr. Lee was Mabrouk's attorney at the time Mabrouk and Mustafa had their initial discussion in the MCC about Mustafa's desire to hire someone to kill the Batcas (Tr. 404-07.) Mustafa claims that Mr. Lee "must be need to clear all the statement issues." (Id.) It is unclear to the Court what Mustafa means by this. It is possible that Mustafa believes Mr. Lee has some information about statements made by Mabrouk at trial, or possibly those statements made by Mustafa to Mabrouk while in the MCC. However, Mr. Lee testified at trial as to his role in this case, namely that he received a call from Mabrouk and then proceeded to contact the Government. (Tr. 406.) Moreover, Mr. Lee was cross-examined by Mustafa's attorney. Thus, the Court has no reason to believe that additional testimony from Mr. Lee would be anything other than cumulative testimony regarding the credibility of Mabrouk. Again, questions of witness credibility are simply not a reason to issue a subpoena requiring that this witness testify at the Aug. 7 Hearing.
Next Mustafa states that he wishes to call "Attorney Barry Turner and Robert Osuna." (July 26 Letter ¶ 8.) They were trial counsel for Mustafa and Osman, respectively, at trial. Mustafa now claims that they "did violation professional responsibility made a deal with the government givin permition to knowingly use false evidence and help to the Government to for wrongfully conviction." (Id.) While not entirely clear based on this explanation, the Court's prior discussions and communications from Mustafa have led it to understand that Mustafa believes he has received ineffective assistance of counsel from his trial lawyer, Mr. Turner. In particular, he claims that Mr. Turner failed to call certain witnesses at trial, and, more importantly, improperly kept Mustafa from testifying at trial on his own behalf.
To evaluate Mustafa's claim of ineffective assistance of counsel the Court will need to determine whether Mr. Turner's counsel was "so deficient that it violated the Sixth Amendment to the United States Constitution." Salameh, 54 F. Supp. 2d at 248 (citing U.S. Const. amend VI). Specifically, Mustafa will need to show that (1) his counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) he suffered prejudice though a showing that there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-94.
The Court accords great deference to Mr. Turner's performance at trial, id. at 690, particularly given that the Court has noted on the record its belief that Mr. Turner did provide adequate, if not excellent, counsel to Mustafa in a case where the "evidence was strongly in favor of conviction." (8/28 Tr. at 5-6; see also 3/20 Tr. at 25.) However, the Court does believe Mustafa should have the opportunity to discuss his concerns on the record. To make a showing of ineffective assistance, Mustafa will need to "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 U.S. at 690. The Court will then "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id.
However, the Court does not see a reason for Mr. Osuna to testify at the Aug. 7 Hearing. He was Osman's trial counsel, and will not be able to testify as to trial preparation and conversations related to trial preparation with Osman, as they are protected by attorney-client privilege.
Thus, the Court will grant Mustafa's request as to Mr. Turner. It is the Court's understanding that Mr. Turner has agreed to appear voluntarily at this hearing, and thus no subpoena is necessary. However, should the circumstances change, the Court will issue a subpoena requiring that Mr. Turner attend the Aug. 7 Hearing. The Court does warn Mustafa, as it has done before, that testimony by Mr. Turner will be limited to those areas that are relevant to the considerations before this Court, namely the question of whether Mr. Turner provided effective counsel at trial.
G. Osman Ozsusamlar
Finally, Mustafa notes that he would like his son Osman along with Osman's current stand-by counsel, Mr. Rothman, to be present at the Aug. 7 Hearing. (July 26 Letter ¶ 9.) Mustafa does not indicate whether he would like his son to testify. (Id.) At this time the Court believes it may be helpful for Osman to be present at the hearing, and agrees that he may be allowed to testify, should Mustafa so desire. The Court will not issue a subpoena because it understands that that Osman has voluntarily agreed to be present, and that the Government will request that Osman be produced. However, Osman's possible testimony will be limited to those areas this Court has indicated are permissible areas of testimony, namely, regarding Mustafa's claim that his attorney improperly prevented him from testifying on his own behalf. Testimony regarding the credibility of witnesses or other allegations that are more appropriately raised on appeal will not be permitted.