United States v. Jiau

15-366
United States v. Jiau
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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 28th day of March, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 PETER W. HALL,
8 Circuit Judges.
9 JANE A. RESTANI,*
10 Judge.
11
12
13 - - - - - - - - - - - - - - - - - - - -X
14 UNITED STATES OF AMERICA,
15 Appellee,
16
17 -v.- 15-366
18
19 WINIFRED JIAU, a/k/a Wini, DONALD
20 LONGUEUIL,
21 Defendants-Appellants,
22
23
*
The Honorable Jane A. Restani, Judge for the
United States Court of International Trade, sitting by
designation.
1
1 SON NGOC NGUYEN, a/k/a Sonny, STANLEY
2 NG,
3 Defendants.
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5
6 FOR APPELLANT: Xavier R. Donaldson, New York,
7 New York.
8
9 FOR APPELLEES: Richard A. Cooper (Anna M.
10 Skotko on the brief) Assistant
11 United States Attorneys, for
12 Preet Bharara, United States
13 Attorney for the Southern
14 District of New York.
15
16 Appeal from an order of the United States District
17 Court for the Southern District of New York (Rakoff, J.).
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the order of the district court be
21 AFFIRMED.
22
23 Defendant Winifred Jiau appeals from an order of the
24 United States District Court for the Southern District of
25 New York (Rakoff, J.), denying Jiau’s motion for a new trial
26 pursuant to Federal Rule of Criminal Procedure 33. We
27 assume the parties’ familiarity with the underlying facts,
28 the procedural history, and the issues presented for review.
29
30 A motion for a new trial based on newly discovered
31 evidence “must be filed within 3 years after the verdict or
32 finding of guilty.” Fed. R. Crim. P. 33(b)(1). A motion
33 for a new trial on any other grounds must be filed within 14
34 days. Fed R. Crim. P. 33(b)(2). Where a motion for a new
35 trial is based on a claim of newly discovered evidence, the
36 defendant bears the burden to establish (1) the evidence is
37 genuinely “new,” i.e., it was discovered after trial; (2)
38 the evidence could not, with the exercise of due diligence,
39 have been discovered before or during trial; and (3) the
40 evidence is “so material and noncumulative that its
41 admission ‘would probably lead to an acquittal.’” United
42 States v. Zagari, 111 F.3d 307, 322 (2d Cir. 1997) (quoting
43 United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir.
44 1992)).
45
2
1 Jiau moved for a new trial on the basis that her
2 counsel had a conflict of interest. The allegedly “newly
3 discovered” evidence consists of printouts of the online
4 biographies of several attorneys involved in the case and
5 excerpts from email communications between Jiau and her
6 prior counsel from November and December 2011. As the
7 district court recognized, the documents provide no support
8 for her claims: they are not “evidence” under Rule 33; and
9 the information (consisting of either emails that Jiau sent
10 or received, or printouts from Internet searches that were
11 readily available at the time of the jury’s verdict) was not
12 “newly discovered.” Because the motion was not based on
13 newly discovered evidence, and because it was filed eleven
14 months after the verdict, it was properly denied as
15 untimely.
16
17 Furthermore, Jiau has demonstrated no circumstances of
18 “excusable neglect” for the failure to file her motion on
19 time. See Fed. R. Crim. P. 33 advisory committee’s note to
20 2005 amendments (“the court may nonetheless consider that
21 untimely underlying motion if the court determines that the
22 failure to file it on time was the result of excusable
23 neglect.”). Accordingly, the district court did not abuse
24 its discretion in denying Jiau’s motion for a new trial.
25
26 For the foregoing reasons, and finding no merit in
27 Jiau’s other arguments, we hereby AFFIRM the order of the
28 district court.
29
30 FOR THE COURT:
31 CATHERINE O’HAGAN WOLFE, CLERK
32
3