United States v. Amin Rashid , 607 F. App'x 226 ( 2015 )

CLD-182 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-3768
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UNITED STATES OF AMERICA
v.
AMIN A. RASHID,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-08-cr-00493-001)
District Judge: Cynthia M. Rufe
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 30, 2015
Before: FUENTES, GREENAWAY, JR. and VANASKIE, Circuit Judges
(Filed: June 11, 2015)
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OPINION*
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Amin A. Rashid appeals from an order of the District Court denying his motion
for a new trial and subsequent motion for reconsideration. For the reasons that follow,
we will summarily affirm.
In May, 2009, a Superseding Indictment filed in the United States District Court
for the Eastern District of Pennsylvania charged Rashid with ten counts of mail fraud,
eight counts of aggravated identity theft, and one count of passing an altered postal
money order. The Superseding Indictment alleged that Rashid defrauded clients of his
company, the Center for Constitutional and Criminal Justice, by accepting fees to stop or
reverse Sheriff’s sales, or to recover proceeds from Sheriff’s sales, while in fact
performing none of these services. Rashid also stole his clients’ identities. City Line
Abstract Company, a title insurance company used in connection with the various
Sheriff’s sales, issued distribution policies that ultimately paid Rashid over $600,000.
Following a jury trial, Rashid was convicted of nine counts of mail fraud and eight counts
of aggravated identity theft. The District Court sentenced Rashid in July, 2013 to a total
term of imprisonment of 240 months, to be followed by 5 years of supervised release.
Rashid appealed, contending that (1) the District Court erred in declining to hold a
hearing on his motion to suppress evidence obtained from the Center for Constitutional
and Criminal Justice; (2) the Government improperly used grand jury subpoenas issued to
Maurice Mander and Mannie Green, after the superseding indictment was issued, to
obtain evidence for use at trial; (3) the Government improperly obtained consent to
search the property at 1014 N. 63rd Street, and the District Court erred in denying a
motion to suppress on the ground of Mannie Green’s consent; (4) the District Court was
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not impartial and should have recused; (5) the Speedy Trial Act was violated; (6) the
Government engaged in misconduct during its closing argument; (7) the Government’s
witnesses, Ann Marie Kelly and Todd Pride, committed perjury at the sentencing hearing;
(8) the District Court erred in ruling that Kelly’s loss amount of $26,850 should be
included; (9) the Presentence Investigation Report was not supported by evidence; and
(10) the evidence was insufficient to support the convictions. We affirmed the
convictions and sentence, concluding that all of these contentions were meritless, United
States v. Rashid, 593 F. App’x 132 (3d Cir. 2014).
At issue in this appeal, Rashid filed a motion for a new trial pursuant to Federal
Rule of Civil Procedure 33, in which he argued that a “Forensic Investigative Report of
the Philadelphia Sheriff’s Office” that resulted from an investigation by the City
Controller into wrongdoing at the Sheriff’s office, dated October, 2011, conclusively
demonstrated his innocence because it covered all financial transactions between the
Sheriff’s Office and others who were alleged to have benefitted from millions of dollars
mismanaged by the Sheriff’s Office, and showed unequivocally that Rashid was not
among those alleged to have defrauded the Sheriff’s Office. In an order entered on July
31, 2014, the District Court denied the motion, concluding that nothing in the report
exonerated Rashid, and that the report appeared to have nothing to do with him. The
District Court denied Rashid’s subsequent motion for reconsideration in an order entered
on August 18, 2014.
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Rashid appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk advised
him that the appeal was subject to summary action under Third Cir. LAR 27.4 and I.O.P.
10.6. He was invited to submit argument in writing, and he has done so.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. Rule
33(b)(1) provides that a motion for a new trial may be brought up to three years after the
verdict if the motion is grounded upon newly discovered evidence. Fed. R. Crim. Pro.
33(b)(1). In order to grant a new trial on the basis of newly discovered evidence, the
District Court must find that the following five requirements have been met: (a) the
evidence must have been discovered since the trial; (b) facts must be alleged from which
diligence on the part of the movant may be inferred; (c) the evidence must not be merely
cumulative or impeaching; (d) the evidence must be material; and (e) the evidence must
be of such nature that in a new trial it would probably produce an acquittal. See United
States v. Quiles, 618 F.3d 383, 388-89 (3d Cir. 2010). The burden of proving each of the
elements is on the movant. See United States v. Cimera, 459 F.3d 452, 458 (3d Cir.
2006). If any one of the five elements is not satisfied, the Rule 33 motion must be
denied. See United States v. Jasin, 280 F.3d 355, 365 (3d Cir. 2002).
In his supplemental summary action response, Rashid argues that the report shows
that the District Court erred by denying his request for a subpoena to call Acting Sheriff
Barbara Deeley as a witness because her testimony was material to his defense that he did
not defraud anyone. However, Rashid’s assertion that Deeley would have provided
testimony to exonerate him is speculative, and not supported by the report. As noted by
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the District Court, the report appears to have nothing to do with Rashid and his crimes.
Accordingly, we conclude that, even assuming that he could meet the first three
requirements for a Rule 33 motion through the October, 2011 report, see Quiles, 618 F.3d
at 388-89, Rashid has failed to allege facts that would meet the other two requirements
that the evidence be material and be of such nature that in a new trial it would probably
produce an acquittal, id.For the foregoing reasons, we will summarily affirm the order of the District Court
denying Rashid’s Rule 33 motion for a new trial and subsequent motion for
reconsideration.
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