United States v. Forbes
790 F.3d 403
| 2d Cir. | 2015Background
- Walter A. Forbes, former CEO/chairman of CUC and Cendant, was convicted in 2006 of conspiracy to commit securities fraud and making false statements in SEC filings; convictions and sentence were affirmed on direct appeal.
- Stuart Bell, former CUC CFO, was proffered by Forbes' counsel pre-trial as having exculpatory testimony but invoked the Fifth Amendment at trial; the government refused to grant immunity and Bell did not testify at any trial.
- Forbes filed a Rule 33 motion (filed within the three-year window for newly discovered evidence) after the statute of limitations for prosecuting Bell expired, arguing Bell’s testimony was now newly available and would exculpate him.
- The district court denied the Rule 33 motion without a hearing, finding Forbes failed to credibly show Bell’s testimony was available and, relying on United States v. Owen, that testimony obtained after conviction is not "newly discovered" if the defendant knew of it at trial and it was unavailable then due to a legal barrier (e.g., the Fifth Amendment).
- The Second Circuit affirmed, holding that evidence known before or during trial but unavailable at trial because of a legal impediment (like a valid Fifth Amendment invocation) is not "newly discovered" under Rule 33 even if it becomes available later (e.g., by statute-of-limitations expiration).
Issues
| Issue | Plaintiff's Argument (Forbes) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether post-trial testimony of a witness who invoked the Fifth Amendment at trial qualifies as "newly discovered evidence" under Rule 33 | Bell’s testimony became newly available after the statute of limitations ran and thus qualifies as newly discovered evidence warranting a new trial | Evidence was known before/during trial and was unavailable due to a legal privilege; such evidence is not "newly discovered" under Owen | Evidence known pre-trial but unavailable at trial due to a legal impediment (Fifth Amendment) is not "newly discovered"; Rule 33 relief denied |
| Whether Owen should be limited narrowly to convicted codefendants or applied more broadly to coconspirators like Bell | Owen should be read narrowly; it addressed only convicted codefendant testimony | Owen governs broadly; the key is prior knowledge and a legal basis for unavailability, not the witness’s status | Owen applies to coconspirators too; the reason for unavailability controls, not who the witness is |
| Whether the district court abused its discretion by denying a Rule 33 hearing or discovery (deposition of Bell) before ruling | District court should have permitted a hearing/deposition to develop record and assess Bell’s availability and potential impact | Even with a hearing or deposition, the evidence would not be "newly discovered" as a matter of law, so no abuse of discretion | No abuse: because Bell’s testimony is not "newly discovered" as a matter of law, denying a hearing was within discretion |
| Whether post-conviction availability created by lapse of statute of limitations converts privileged, previously-known testimony into newly discovered evidence | Passage of time that removes privilege makes the testimony newly discovered and cognizable under Rule 33 | Passage of time only makes testimony newly available, not newly discovered; allowing otherwise undermines finality and invites gamesmanship | Lapse of statute of limitations only makes testimony newly available; it does not make it newly discovered for Rule 33 purposes |
Key Cases Cited
- United States v. Owen, 500 F.3d 83 (2d Cir. 2007) (previously-known but privilege-blocked testimony post-trial is not "newly discovered" under Rule 33)
- United States v. Johnson, 327 U.S. 106 (U.S. 1946) (Rule 33 affords extra time for newly discovered evidence but cautions against delay tactics)
- United States v. Alessi, 638 F.2d 466 (2d Cir. 1980) (to be "newly discovered," evidence must not have been discoverable with due diligence before/during trial)
- Brown v. United States, 333 F.2d 723 (2d Cir. 1964) (failure to call a known witness precludes Rule 33 relief for newly discovered evidence)
- Bain v. MJJ Productions, Inc., 751 F.3d 642 (D.C. Cir. 2014) (post-trial availability can be "newly discovered" in some contexts where evidence was truly lost or unknowable at trial)
- United States v. Jacobs, 475 F.2d 270 (2d Cir. 1973) (discussing concerns about post-conviction testimony from co-defendants and potential gamesmanship)