United States v. Zemlyansky, 1:12-cr-00171

Background

Mikhail Zemlyansky was convicted after a jury trial (March 19, 2015) of participating in a racketeering conspiracy and of securities, mail, and wire fraud tied to investment schemes (Lyons Ward and Rockford Group) and related conspiracies.
Government evidence included cold-caller testimony, witness identifications, a voice recording alleged to be Zemlyansky ("Bob Hamilton" call), bank records showing funds routed overseas, and testimony from co-conspirators and a money launderer.
Prior EDNY investigation into Rockford Group and a related Grayson Hewitt scheme produced extensive materials and led to prosecutions of Rapaport, Liounis, and Yagodayev; Zemlyansky contends those EDNY materials (65,000+ pages) were withheld.
Zemlyansky moved under Rule 33 for a new trial alleging (1) Rule 16 discovery violations and (2) Brady due-process violations based on nondisclosure of EDNY investigation materials.
The district court analyzed Rule 33/newly discovered evidence standards and Brady/constitutional materiality (reasonable probability/collective-impact standards) and evaluated whether nondisclosure undermined confidence in the verdict.
Court denied the motion: it found the EDNY materials largely cumulative of trial evidence, not sufficiently likely to produce an acquittal, and not so material under Brady as to undermine confidence in the verdict.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether nondisclosure of EDNY investigation materials violated Rule 16 and warrants Rule 33 relief (new trial)	Zemlyansky: EDNY materials would show paucity of documentary proof and differing investigative findings/techniques, altering quantum of proof and justifying a new trial	Government: either disclosed relevant materials or materials were cumulative/irrelevant (many concern Grayson Hewitt), so nondisclosure would not meet Rule 33 standards	Denied — even if materials were subject to Rule 16, they were largely cumulative/impeaching and would not likely produce acquittal; no Rule 33 relief granted
Whether nondisclosure of EDNY materials violated Brady (Due Process)	Zemlyansky: suppressed EDNY evidence (including statements identifying a different "main guy") was favorable, impeaching, and could have changed the trial outcome or fairness	Government: materials mainly relate to a different scheme; Rockford Group evidence in EDNY files is consistent with trial evidence; suppression did not undermine confidence in verdict	Denied — court found no reasonable probability that nondisclosure undermined confidence in the verdict; trial remained fair
Whether particular post-arrest statements (e.g., Liounis identifying "Alex" as main actor) would have been admissible or outcome-changing	Zemlyansky: such statements would have impeached Government theory and connected others as primary actors, weakening case against him	Government: such statements likely inadmissible hearsay or unavailable (witness outside U.S. or Fifth Amendment issues); even if admissible, they would not overcome corroborating evidence	Denied — court held statements unlikely to change outcome given corroborating voice IDs, witness testimony, and other evidence; admissibility issues also limit impact
Standard for evaluating suppressed evidence collectively	Zemlyansky: aggregated EDNY materials create a different picture of culpability and investigative focus	Government: collective review shows consistency with trial proof and does not produce reasonable probability of different result	Court applied collective/ Kyles standard and concluded suppressed evidence does not undermine verdict confidence

Key Cases Cited

Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose favorable material evidence to defendant)
Strickler v. Greene, 527 U.S. 263 (1999) (Brady duty covers impeachment evidence and applies even without request)
Kyles v. Whitley, 514 U.S. 419 (1995) (materiality assessed by reasonable probability standard and collective impact)
Bagley, 473 U.S. 667 (1985) (reasonable probability standard for impeachment evidence)
United States v. Bell, 584 F.3d 478 (2d Cir. 2009) (Rule 33 requires real concern that innocent person convicted)
United States v. Forbes, 790 F.3d 403 (2d Cir. 2015) (newly discovered evidence relief requires evidence not merely cumulative/impeaching and likely to result in acquittal)
United States v. Owen, 500 F.3d 83 (2d Cir. 2007) (standards for newly discovered evidence under Rule 33)
United States v. McCourty, 562 F.3d 458 (2d Cir. 2009) (Rule 33 motions are granted only in extraordinary circumstances)
United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) (discussing scope of materiality in Brady context)
United States v. Gil, 297 F.3d 93 (2d Cir. 2002) (prejudice required to establish Brady violation; discusses admissibility limits on hearsay as Brady material)
United States v. Sanchez, 969 F.2d 1409 (2d Cir. 1992) (Rule 33 relief standard: manifest injustice to let guilty verdict stand)