United States v. Koschuk, 1:09-cr-00323

Defendant Chad Koschuk was convicted after a two-day trial of retaliating against a witness in an official proceeding under 18 U.S.C. §§ 1513(b)(1)-(2).
Macken, a former Chosen Few Motorcycle Club member, testified about awaiting indictment-related information; Koschuk’s father was a current member and president of the club.
Macken provided information leading to the Chosen Few investigation and a third superseding indictment; Koschuk allegedly threatened Macken after the indictment was returned.
Defendant was sentenced on November 22, 2010 to 18 months; the Second Circuit affirmed the conviction on appeal.
Defendant moved for a new trial under Rule 33 and for relief under 28 U.S.C. § 2255; the court denied both motions.
The court held the November 2012 Macken statement recanting earlier testimony was cumulative and not newly discovered, and rejected § 2255 claims including ineffective assistance, Brady, and selective prosecution.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Rule 33 basis for a new trial	Koschuk argues new recantation evidence warrants a new trial.	Koschuk contends the new statement would exculpate him.	Denial of Rule 33; no probable acquittal from new evidence.
Ineffective assistance of counsel under § 2255	Counsel failed to cross-examine star witness Ignasiak and exposed him to ineffective representation.	Strategy decisions were reasonable; no prejudice shown.	Denied; no deficient performance or prejudice established.
Brady violations	Government failed to disclose exculpatory materials.	Issues were procedurally barred; materials irrelevant to witness retaliation conviction.	Procedurally barred and, alternatively, not material to the charged conduct.
Selective prosecution equal protection	Prosecution as to Koschuk was selective in light of Chosen Few dismissal.	No selective prosecution; others similarly situated were not charged for witness retaliation.	No merit; not an equal protection violation.

United States v. Ferguson, 246 F.3d 129 (2d Cir. 2001) (Rule 33 discretion; extraordinary circumstances; manifest injustice standard)
United States v. Sanchez, 969 F.2d 1409 (2d Cir. 1992) (new trial must be based on evidence that would likely change outcome)
United States v. Owen, 500 F.3d 83 (2d Cir. 2007) (new evidence must be material, not cumulative, and not discoverable earlier)
United States v. DiPaolo, 835 F.2d 46 (2d Cir. 1987) (recantation standards for new-trial relief)
United States v. Schlesinger, 438 F. Supp. 2d 76 (E.D.N.Y. 2006) (recantation skepticism; extraordinary circumstances required)
United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) (perjury and new-trial safeguards must be highly cautious)
Cohen v. United States, 427 F.3d 164 (2d Cir. 2005) (trial strategy; deference to counsel; avoid second-guessing reasonable decisions)
Massaro v. United States, 538 U.S. 500 (2003) (ineffective assistance claim may be raised on collateral review)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance)
United States v. Fares, 978 F.2d 52 (2d Cir. 1992) (selective-prosecution standards under Equal Protection)
Pizzuti v. United States, 809 F. Supp. 2d 164 (S.D.N.Y. 2011) (procedural bar to § 2255 claims not raised on direct appeal)
Graziano v. United States, 83 F.3d 587 (2d Cir. 1996) (collateral attacks limited to constitutional, jurisdictional, or fundamental defects)