United States v. Suri

13-1149
United States v. Suri
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 30th day of January, two thousand fifteen.
PRESENT:
PIERRE N. LEVAL,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v.
13-1149 (L);
13-3223 (Con)
BILL SURI,
Defendant-Appellant.
_____________________________________
FOR DEFENDANT-APPELLANT: Bill Suri, pro se, Butner, N.C.
FOR APPELLEE: Justin Anderson, Max Nicholas, Assistant U.S.
Attorneys for the Southern District of New York
(Preet Bharara, United States Attorney, on the
brief), New York, N.Y.
Appeals from orders of the United States District Court for the Southern District of New
York (Stein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the orders of the district court are AFFIRMED.
Bill Suri appeals from (1) the January 11, 2013 order of the United States District Court
for the Southern District of New York (Stein, J.) denying his motion to dismiss the allegedly
defective indictment pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure;
and (2) the August 9, 2013 order of the same court denying his motion for a new trial pursuant to
Federal Rule of Criminal Procedure Rule 33. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
This Court reviews the denial of a motion for a new trial under Rule 33 for abuse of
discretion. See United States v. James, 712 F.3d 79, 107 (2d Cir. 2013). To obtain Rule 33 relief
based on newly discovered evidence a defendant must show:
(1) that the evidence is newly discovered after trial; (2) that facts
are alleged from which the court can infer due diligence on the part
of the movant to obtain the evidence; (3) that the evidence is
material; (4) that the evidence is not merely cumulative or
impeaching; and (5) that “the evidence would likely result in an
acquittal.
Id. (internal quotation marks omitted).
Rule 12(b)(3)(B) requires a motion alleging “a defect in the indictment” to be made prior
to trial, but it allows a defendant to argue at any time during the pendency of the appeal that the
indictment fails to state an offense or that the court lacks jurisdiction. Fed. R. Crim. P.
12(b)(3)(B). “The sufficiency of the indictment is a matter of law that is reviewed de novo.”
United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000). To state an offense, an indictment need
only track the language of a criminal statute and apprise the defendant of the nature of the
accusation against him. United States v. Frias, 521 F.3d 229, 235 (2d Cir. 2008) (internal
quotation marks omitted).
We affirm for substantially the same reasons set forth by the district court in its well-reasoned
orders. See United States v. Suri, No. 9-CR-1190 (S.D.N.Y. Jan. 11, 2013) (ECF Docket No.
114); United States v. Suri, No. 9-CR-1190 (S.D.N.Y. Aug. 9, 2013) (ECF Docket No. 135). We
decline to consider Suri’s claim, raised for the first time on appeal, that the evidence of Dustin
Suri’s perjury was not available to him until after trial. See Greene v. United States, 13 F.3d 577,
586 (2d Cir. 1994). In any event, the allegation does not change the district court’s conclusion
that Suri failed to allege any facts showing that due diligence before trial failed to uncover the
evidence in question.
We have considered Suri’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the orders of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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