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MEMORANDUM AND ORDER Pending before the Court is a second motion by defendant Larry Carpenter pursuant to Rule 33 of the Federal Rules of Criminal Procedure, seeking to overturn his conviction on drug conspiracy charges based upon newly discovered evidence. As Judge Spatt noted in response to defendant’s first Rule 33 motion, Carpenter “was convicted of the three criminal counts presented in the second superseding indictment, which consisted of (1) conspiring to distribute heroin and 280 or more grams of cocaine base between September 2015 and June 2018 (‘Count One’); (2) using a firearm in furtherance of the same, as well as in furtherance of drug sales that occurred on June 24, 2018 (‘Count Two’); and (3) possessing a firearm after a felony conviction (‘Count Three’).” United States v. Carpenter, No. 18-CR-362 (ADS), 2019 WL 3216619, at *1 (E.D.N.Y. July 17, 2019). The case, which was resolved by a seven-day jury trial before Judge Spatt, has been extensively litigated, generating an “underlying trial record which spans over one thousand (1,000) transcribed pages.” Id. The present motion turns on purported “newly-discovered evidence” relating to Latoya Mitchell, the mother of Carpenter’s child (“L.C.”1). The defendant offers work records, medical records relating to the birth of “L.C.”, and an affidavit from Mitchell, which, defendant argues, taken together, prove that Mitchell did not act as a co-conspirator in Carpenter’s drug sales. Specifically, counsel contends that Mitchell was working full-time or medically bedridden throughout the period of the alleged conspiracy, rendering her unable to participate in the two-year period of the conspiracy. Counsel further contends that a large number of text messages (over 2,000) between Carpenter and Mitchell proves that Mitchell was not in possession of Carpenter’s phone and, by extension, could not have served as the co-conspirator who occasionally answered his phone to assist in the charged drug conspiracy. STANDARD OF REVIEW As Judge Spatt previously observed in this case: Rule 33 states 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). Although the Court “has broad[ ] discretion to grant a new trial under Rule 33[,]” it “ nonetheless must exercise [its] Rule 33 authority ‘sparingly’ and in ‘the most extraordinary circumstances’.” United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)); United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996). “The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice.” Ferguson, 246 F.3d at 134. “In other words, there must be a real concern that an innocent person may have been convicted” for the Court to grant such a motion. United States v. Snype, 441 F.3d 119, 140 (2d Cir. 2006) (internal quotations and citations omitted). “The defendant bears the burden of proving that he is entitled to a new trial under Rule 33[.]” United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (internal citations omitted). Trial judges “must defer to the jury’s resolution of the weight of the evidence and the credibility of the witnesses…. It 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 (internal citations omitted). “In 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.” Id. Id. at *2. Importantly on this motion, as defendant’s counsel correctly states: When the Rule 33 motion is based upon a claim of newly discovered evidence (Fed. R. Crim. P.33(b)), a defendant generally must show: (1) the evidence is newly discovered; (2) due diligence on the part of the movant in obtaining the evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching; and (5) the evidence would likely result in an acquittal. United States v. James, 712 F.3d 79, 107 (2d Cir. 2013). Docket Entry (“DE”) 154 at 9. DISCUSSION Measured against the above standards, Carpenter’s renewed motion under Rule 33 falls short in several respects. First, there is nothing to suggest that the matters presented constitute “new evidence” as defined by the governing caselaw. To justify the extraordinary relief authorized by Rule 33, the evidence must not simply be “newly discovered” by defendant; rather, the defendant must demonstrate that such evidence was effectively undiscoverable at the time of trial. United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir. 1992) (defendant must show that the “new” evidence “could not have been discovered, exercising due diligence, before or during the trial”). Here, defendant makes “no showing that the new evidence could not have been uncovered earlier through exercise of due diligence.” United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980) (rejecting Rule 33 motion where defendant “was apparently aware of the [evidence] during trial [such that] he could just as easily have obtained it then as after his conviction”). “[I]f the reason that testimonial evidence was unavailable at trial was the defendant’s failure to call a witness that he knew could provide exculpatory testimony, a new trial on the basis of newly discovered evidence would not be warranted.” United States v. Forbes, 790 F.3d 403, 409 (2d Cir. 2015). Yet this is precisely the situation here: Mitchell, who has an established personal relationship with the defendant, avers that “[w]hen Larry was arrested in June of 2018, I did everything I could to support him and I did speak with him on the phone and exchange emails with him.” DE 156-12 6. Thus, not only was the defendant aware of the purported new evidence, Mitchell was plainly available to supply testimony and records at the time of trial. These facts, standing alone, warrant denial of Rule 33 relief. Even assuming, arguendo, that the Court could consider this evidence, the matters presented do not undercut the Government’s proof of conspiracy and thus, would not warrant the conclusion that “the evidence would likely result in an acquittal.” James, 712 F.3d at 107 (citation omitted). The proffered evidence does not rule out Mitchell’s participation in the conspiracy, as would evidence that a co-conspirator was, say, serving abroad in the armed forces or was physically incapacitated throughout the conspiracy. For example, proof that Mitchell worked full-time during much of the charged period does not eliminate the possibility that, at other times, she rendered Carpenter assistance distributing drugs. In the same way, the fact that Carpenter and Mitchell sent 2,000 texts to each other certainly does not exclude the prospect that, at times, she was in possession of Carpenter’s phone in furtherance of the conspiracy. In fact, given contemporary texting habits, this figure — amounting to an average of less than 20 texts per day over the 26 months of the conspiracy — is relatively small. Furthermore, the evidence of conspiracy here remains even if Ms. Mitchell did not participate in the conspiracy. As Judge Spatt ruled, “the trial record reveals an agreement between Carpenter and an unidentified female co-conspirator to distribute cocaine base during the scope of the conspiracy.” Carpenter, 2019 WL 3216619, at *5; see United States v. Valencia, 100 F. App’x 17, 18 (2d Cir. 2004) (uncertainty as to the identity of a defendant’s coconspirator does not bar a conspiracy conviction). In fact, Judge Spatt has previously ruled on the adequacy of the conspiracy evidence here: Yet, the trial record reveals an agreement between Carpenter and an unidentified female co-conspirator to distribute cocaine base during the scope of the conspiracy. Multiple witnesses testified that this individual assisted with various responsibilities in Carpenter’s efforts to sell cocaine base. Testimonial evidence demonstrates that she possessed the cellular phone used by the Defendant to conduct his narcotics business, answered this phone, recorded orders for transactions, drove the Defendant to and from sales, and performed hand-to-hand deals. For example, Jerold Rubin, one of Carpenter’s customers, testified that he often spoke with her over the phone and discussed the quantity of drugs he wished to purchase. He explained that this individual used to deliver him drugs and at other times accompanied the Defendant in deliveries both as a driver and as a passenger. Salter and Scott Allen, also customers, similarly testified about their interactions with the female, unidentified co-conspirator. Carpenter, 2019 WL 3216619 at *5. While counsel points to other language in the opinion suggesting that this determination was predicated, in part, on texts with Mitchell, that point does not undermine Judge Spatt’s findings. Moreover, though counsel attempts to persuade this Court that three customer witnesses were “lying” about Carpenter’s assistant, this bare contention does not warrant the rejection of the jury’s verdict and the determinations made by Judge Spatt, who made specific findings supporting the credibility of these witnesses. See, e.g., id. at *4 (“Taken as a whole, the jury’s credibility determination regarding Salter should not be disturbed.”). Indeed, these arguments suggest that the proffered evidence is being offered for impeachment purposes, which is not appropriate in the context of a Rule 33 motion. Finally, to the extent that the defendant attempts to relitigate the other decisions rendered by Judge Spatt — including recycled arguments concerning the jury charges given — such efforts are rejected. This Court will not reconsider the rulings by Judge Spatt, who had the benefit of presiding over the trial and other proceedings in this matter. His careful, thoughtful determinations, like those of the jury in this case, appear proper and will not be disturbed. CONCLUSION The evidence relied upon does not constitute new evidence under Rule 33. Moreover, such evidence is impermissibly (if unpersuasively) offered for impeachment purposes and would not likely result in acquittal. Thus, based on the foregoing, the renewed motion pursuant to Rule 33 is denied. Dated: February 19, 2021

 
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