United States v. Gupta , 426 F. App'x 12 ( 2011 )

09-4738-cr
United States v. Gupta
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 17th day
of June, two thousand eleven.
Present:
JOHN M. WALKER, JR.,
BARRINGTON D. PARKER,
PETER W. HALL,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 09-4738-cr
RAGHUBIR K. GUPTA,
Defendant-Appellant.
________________________________________________
FOR APPELLANT: JEFFREY HOFFMAN (Susan C. Wolfe, on the brief), Hoffman &
Pollok L.L.P., New York, New York, for Defendant-Appellant.
FOR APPELLEE: LEE RENZIN, Assistant United States Attorney (Jesse M. Furman,
Assistant United States Attorney, on the brief), for Preet Bharara,
United States Attorney for the Southern District of New York, for
Appellee.
Appeal from the United States District Court for the Southern District of New York
(Batts, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the District Court be and hereby is AFFIRMED.1
Defendant-Appellant Raghubir K. Gupta appeals from a judgment entered by the district
court (Batts, J.), sentencing him principally to 51 months’ imprisonment on one count of
immigration fraud, a violation of 18 U.S.C. § 1546(a). Nearly a year after the jury returned its
verdict, but before sentencing, Gupta moved for a new trial under Fed. R. Crim. P. 33 on grounds
of newly discovered evidence, alleging that Lap Yan Wong, one of the Government’s witnesses,
testified falsely at trial about the number of amnesty applications he had adjudicated from
Gupta’s clients. The district court denied Gupta’s motion, finding that there was no new
evidence to warrant a new trial. Gupta challenges the district court’s denial of his motion for a
new trial. He also asserts that the district court applied the incorrect Sentencing Guideline in
calculating his Guidelines range. We assume the parties’ familiarity with the underlying facts
and procedural history of the case.
We review a lower court’s denial of a Rule 33 motion for abuse of discretion, see United
States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009), bearing in mind that “even where newly
discovered evidence indicates perjury, motions for new trials ‘should be granted with great
caution and in the most extraordinary circumstances,’” United States v. Stewart, 433 F.3d 273,
296 (2d Cir. 2006) (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)). To
prevail on a Rule 33 motion, a defendant must show: (1) the newly discovered evidence could
1
We dispose of Gupta’s Sixth Amendment challenge to his conviction in a separate
published opinion filed today.
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not with due diligence have been discovered before or during trial; (2) the evidence demonstrates
that the witness in fact committed perjury; (3) the newly discovered evidence is material; and (4)
the newly discovered evidence is not cumulative. United States v. White, 972 F.2d 16, 20-21 (2d
Cir. 1992); accord Stewart, 433 F.3d at 297-300. Ultimately, “the trial court’s discretion to
decide whether newly discovered evidence warrants a new trial is broad because its vantage
point as to the determinative factor—whether newly discovered evidence would have influenced
the jury—has been informed by the trial over which it presided.” Stewart, 433 F.3d at 296.
Like the district court, we have considerable doubts that the evidence Gupta identified
was in fact “newly discovered.” He argued in support of his Rule 33 motion that while Wong
testified at trial that he had adjudicated over 100 of Gupta’s client’s amnesty applications, review
of the 576 applications submitted by the Government into evidence showed that Wong
personally adjudicated no more than ten of Gupta’s client’s applications. Gupta concedes, as he
must, that the Government produced the 576 applications prior to trial, but asserts that even if he
had diligently reviewed these records, he could not have discovered the evidence with which to
impeach Wong because he could not have predicted the content of Wong’s testimony. We have
routinely rejected this type of argument, however. See, e.g., United States v. Owen, 500 F.3d 83,
89-90 (2d Cir. 2007) (“One does not ‘discover’ evidence after trial that one was aware of prior to
trial. To hold otherwise stretches the meaning of the word ‘discover’ beyond its common
understanding.”). Indeed, under analogous circumstances, we held that the “assertion that [the
defendant] had no reason to procure [the allegedly newly discovered] evidence for trial because
he had not anticipated certain government tactics and arguments is unconvincing. The evidence
in question all pertained to matters that [the defendant] knew would be in issue at trial, even if he
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did not know the government’s exact position on these matters.” United States v. Canova, 412
F.3d 331, 349 (2d Cir. 2005). Moreover, Gupta cannot demonstrate that Wong “in fact
committed perjury,” White, 972 F.2d at 20, as the record confirms that Wong’s inaccurate
testimony was far more likely the result of faulty memory than purposeful falsity. Gupta
maintains that Wong’s “inaccuracy” suggests “at least a conscience avoidance of truth.” Even
assuming that the evidence Gupta identified was “newly discovered” and that Wong in fact
committed perjury—assumptions for which there is little if any basis—Gupta cannot show that
Wong’s testimony was material to the jury’s verdict. The evidence against Gupta was
overwhelming; indeed, the crux of the Government’s case was not Wong’s testimony or the 576
amnesty applications, but rather the tape-recorded conversations by the confidential informants
and the testimony of Gupta’s former clients. We find, therefore, that the district court acted well
within its discretion in denying Gupta’s Rule 33 motion.
As to Gupta’s Guidelines challenge, we review de novo whether the sentencing court
applied the correct Guideline. See United States v. Guang, 511 F.3d 110, 122 (2d Cir. 2007).
Gupta maintains that because he was convicted of violating 18 U.S.C. § 1546(a), the district
court should have applied U.S.S.G. § 2L2.2 to determine his base offense level, not U.S.S.G. §
2L2.1. We disagree. Appendix A of the Sentencing Guidelines provides that either § 2L2.1 or §
2L2.2 may be applied to a violation of 18 U.S.C. § 1546(a), and we have held that where a
statute corresponds to two possible Guidelines, the sentencing court should “apply the guideline
that is most appropriate for the defendant’s offense conduct.” United States v. Malki, 609 F.3d
503, 508 (2d Cir. 2010) (internal quotations and citations omitted). We have previously upheld a
sentencing court’s application of § 2L2.1 in circumstances analogous to Gupta’s, and we see no
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reason to reach a different conclusion here. See, e.g., United States v. Walker, 191 F.3d 326, 339
(2d Cir. 1999); United States v. Abrar, 58 F.3d 43, 44-45 (2d Cir. 1995).
The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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