COUNSEL:  Mary Jo White, United States Attorney for the Southern District of New York, New York, New York, Robin L. Baker, Joseph F. Bianco, Assistant United States Attorneys, for the United States of America, of counsel.

 

Daniel J. Ollen, New York, New York, for the Defendant.

 

OPINION and ORDER

 

JUDGE:  KEENAN, J.

 

Background and Facts

 

[*1]  Defendant Mokhtar Haouari (“Haouari”) moves, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, for a new trial. Haouari has previously moved, since his conviction on July 13, 2001, (1) pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for a judgment of acquittal on Count One, which charged him with conspiring to provide material support to a terrorist act; (2) pursuant to Rule 29, for a judgment of acquittal on Counts Three through Six, the fraud conspiracy and substantive fraud charges; and (3) pursuant to Rule 33, for a new trial because of the alleged incredibility of cooperating witnesses, Ahmed Ressam (“Ressam”) and Abdelghani Meskini (“Meskini”). That motion was denied. United States v. Haouari, No. S4 00 Cr. 15(JFK), 2001 WL 1154714 (S.D.N.Y. Sept. 28, 2001).

 

After the denial of the first post-trial motions, the Government, on October 17, 2001, sent Haouari’s attorney a letter that stated:

 

Please be advised that, since the conclusion of Mokhtar Haouari’s trial, cooperating witness Ahmed Ressam has provided more specific information regarding his plan to raise money for his terrorist operation by committing robberies in Montreal, Quebec, Canada. As reflected in the 3500 material and the trial testimony, Ressam had previously stated that he had a plan to rob a currency exchange in Montreal; that the plan was the reason he sought weapons, and received a 9 millimeter pistol from Samir Ait Mohamed; and that Ressam conducted surveillance of a currency exchange that he planned to rob. (E.g., Tr. 569, 634, 649, 656).

 

Since Haouari’s trial, Ressam added for the first time that, in about August 1999, he actually attempted to rob a currency exchange on Sherbrooke in Montreal. In the attempt (which Ressam committed alone), he disguised himself with a baseball cap, sunglasses, and a goatee, entered the currency exchange, pulled out the pistol from Mohamed, and said, “Don’t move.” Someone then grabbed Ressam’s arm, and he broke free and escaped without firing the pistol or getting any money.

 

In the present application, Haouari argues that the Court should grant him a new trial because of this newly discovered evidence. He claims that this evidence establishes that Ressam perjured himself at Haouari’s trial. At trial, Ressam disclosed that he planned to commit robberies, sought weapons and obtained a gun in order to commit the robberies, and conducted surveillance in preparation for the robberies, but he never mentioned this August 1999 attempt. It should be noted that Ressam was not asked at trial whether he had ever attempted an armed robbery, and never denied such an attempt. Ressam was not asked at trial to describe everything he did in furtherance of his robbery plans.

 

Before Ressam testified at Haouari’s trial, the Government provided Haouari’s attorney with 3500 and Giglio material regarding Ressam. That material included FBI reports of interviews in which Ressam stated, among other things, that: he planned to commit armed robberies in Montreal to finance his terrorist attack; he discussed his plan with co-conspirators; one co-conspirator advised him to disguise himself for such a robbery, to leave evidence at the scene that would make it appear that someone else had committed the robbery, and to try to avoid killing anyone during the robbery; Ressam attempted to obtain a pistol with a silencer and hand grenades; he and his co-conspirators chose a particular currency exchange as a target; he decided which co-conspirators would commit that robbery with him and when; and he and one co-conspirator conducted surveillance at the target location. (E.g ., GX 3560-H at 18; GX 3560-O at 2-3, 7). [FN1]

 

FN1. “GX” refers to a Government exhibit marked for or admitted at trial.

 

[*2]  Ressam was convicted at his own trial of nine counts, relating to terrorism, transporting explosives, and other matters, and thus faces a maximum sentence of 130 years’ imprisonment. (Tr. 531-32). [FN2] He entered into a cooperation agreement with the Government only after his own conviction, on June 23, 2001. This was three days before Haouari’s trial began. He decided to cooperate in the hope of obtaining a reduced sentence. (Tr. 533-35, 698-702).

 

FN2. “Tr.” refers to the trial transcript.

 

At Haouari’s trial, Ressam testified that he attended terrorist training camps in Afghanistan, where he received training in handguns, machine guns, and rocket launchers. He was trained as to how to make and use explosive devices. He learned about sabotage, the selection of targets, urban warfare tactics, assassinations, security, and the use of poisons and poisonous gas. (Tr. 552- 55, 620-22, 624-26, 694-96). He then returned to Canada (Tr. 557, 559) where he developed and prepared for his plan to detonate an explosive device at Los Angeles International Airport in late December 1999. (Tr. 559-62, 568-79, 582- 84, 591-97, 601-08, 614-19; GX 26, 40, 44, 46, 48, 333, 333-A). Ressam acknowledged that such an attack would have resulted in the deaths of many civilians. (Tr. 574).

 

Ressam testified that Haouari assisted with Ressam’s planned terrorist attack by helping Ressam get a credit card with a false identity, giving him $3,000, recruiting Meskini to assist him, providing him with a fake Quebec driver’s license to create another false identity, and agreeing to provide him with a fake Algerian passport. (Tr. 561-62, 577-79, 582-84, 591-92, 593-97, 607-08, 610-11, 613-14, 617-19, 632, 678-79, 683, 684, 685, 705-06; GX 55, 56, 63, 71, 345).

 

Ressam gave substantial trial testimony about his plan to commit robberies. While still in Afghanistan, he met with the other members of his cell and they agreed that they would meet in Canada and raise money through bank robberies, and then carry out a terrorist operation in the United States. (Tr. 554, 556). Later, in Canada, he asked Samit Ait Mohamed (“Mohamed”) to get him a gun with a silencer, which he intended to use to rob currency exchanges. (Tr. 569, 643). [FN3] Ressam also asked another co-conspirator to get him a gun with a silencer, and that co-conspirator gave Ressam ideas on how to rob a currency exchange, including that he should be disguised and that he should leave a syringe at the scene of the robbery so that investigators would think that a drug addict had committed the robbery. (Tr. 649-50). A third co-conspirator helped Ressam plan a robbery, conducted surveillance with him, and was also asked to find Ressam a gun with a silencer. (Tr. 656). Ressam asked Mohamed and the third co-conspirator to get him hand grenades, which Ressam would throw at the police if that was necessary for him to get away. (Tr. 657). At trial, Ressam was never directly asked whether he had ever attempted an armed robbery.

 

FN3. Ressam testified that he did not at first tell the Government that he intended to use the gun to commit robbery. (Tr. 569-70, 634, 688).

 

Ressam’s testimony at Haouari’s trial also included much other information relevant to his own credibility. He told how he had lived in France illegally for about two years (Tr. 536, 588), and made false statements to French immigration authorities. (Tr. 589). He entered Canada on a fake French passport and sought political asylum in Canada based on a false story (Tr. 536-37, 633) and remained in Canada illegally after his claim for asylum was rejected. (Tr. 560-61). During his first four years in Canada, he supported himself through welfare and stealing from tourists. (Tr. 538, 634-35, 636, 639). He stole computers (Tr. 588-89), provided stolen identification, stolen bank cards, and a fake Canadian passport to Haouari (Tr. 540-41, 631-32) and at Haouari’s request and that of other co-conspirators (Said Araar and Samir Ait Mohamed), he used his false identity to open a store so he could obtain credit and debit card information to commit fraud. (Tr. 562, 563-64, 600, 608). He further stated that he “lied a few times” after he agreed to cooperate with the Government. (Tr. 687-88, 710-11).

 

[*3]  There was ample corroboration concerning Haouari’s commission of identification document fraud, credit card fraud, and bank fraud (Counts Three through Six). Regarding the conspiracy to provide support to Ressam’s terrorist act (Count One), Meskini testified that Haouari recruited him to go to Seattle to assist “Reda,” who Haouari later confirmed was Ressam. (Tr. 132, 318-61; GX 100, 100-T). Based on Haouari’s statements, Meskini realized that Haouari had asked him to assist with a violent terrorist act. (Tr. 332-337).

 

In his summation, Mr. Haouari’s attorney, Daniel J. Ollen, Esq., vigorously and forcefully attacked Ressam’s credibility. (Tr. 928-62). He began: “I can say with a great deal of confidence, without fear of contradiction that we could search the entire planet and we would never find two men less worthy of belief than Abdelghani Meskini and Ahmed Ressam.” (Tr. 928). Mr. Ollen showed no mercy in his verbal assault on Ressam:

 

There is no doubt that Ressam would take a pistol, he would attach a silencer to it, he would put it to the back of your head and he would blow your brains out just because your beliefs do not coincide with his.

 

To this day, he would blow up this building with all of us in it … if he thought he could get away with it…. He is civilized society’s worst nightmare come to life.

 

(Tr. 929); (“[I]f Ressam would kill you, then he would certainly lie to you”). (Tr. 951). Mr. Ollen further argued that Ressam’s potential sentence of 130 years’ imprisonment gave him a motive to lie, and that his cooperation agreement would not deter him, and had not deterred him, from lying because the Government had shown that it would not enforce the agreement. (Tr. 934-36). He urged that Ressam lied after he entered into his cooperation agreement, including about what he planned to do with the gun and silencer. (Tr. 942, 951). He claimed that the fact that Ressam’s testimony was consistent with other evidence in the case was not because the testimony was true, but only because it was given after Ressam had seen and heard the other evidence. (Tr. 949). He argued that Ressam’s demeanor demonstrated that he was not telling the truth in his testimony (Tr. 951-52); and that Ressam “told a ridiculous story that does not make sense” (Tr. 951), when he testified that he trusted Haouari and Meskini, rather than “his jihad brothers in Canada” (Tr. 955), to help him with his terrorist operation. (Tr. 955-57).

 

In my charge, I told the members of the jury that they were “the sole judges of the credibility of the witnesses” (Tr. 1000), and instructed them on how to carry out that role. (Tr. 1000-04). I also gave a full instruction about evaluating the credibility of accomplice witnesses. (Tr. 1052-55).

 

Discussion

 

Rule 33 of the Federal Rules of Criminal Procedure “authorizes a district court to grant a new trial ‘if required in the interest of justice.’ ” United States v. Locascio, 6 F.3d 924, 949 (2d Cir.1993) (quoting Fed.R.Crim.P. 33). New trial motions “are disfavored and should be granted only with great caution in exceptional circumstances.” United States v. Germosa, No. 95 Cr. 486, 1998 WL 152571, at *8 (S.D.N.Y. Apr. 2, 1998) (citing United States v. Costello, 255 F.2d 876, 879 (2d Cir.1958)); accord Locascio, 6 F.3d at 949; United States v. Spencer, 4 F.3d 115, 118 (2d Cir.1993); Sanders v. Sullivan, 863 F.2d 218, 225 (2d Cir.1988) (only “ ‘in the most extraordinary circumstances’ ”) (quoting United States v. DiPaolo, 835 F.2d 46, 49 (2d Cir.1987)). In determining whether to grant a motion for a new trial, a court must examine the totality of the evidence. The motion should be granted if there is “a real concern that an innocent person may have been convicted.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992). This is not the case here; there is no such concern. Further, the defendant bears the burden of showing that a new trial is warranted. United States v. Sasso, 59 F.3d 341, 350 (2d Cir.1995). Haouari has not met his burden.

 

[*4]  A new trial motion is “committed to the trial court’s discretion.” United States v. Torres, 128 F.3d 38, 48 (2d Cir.1997). A “trial court’s rulings are given great deference on these issues because it presided over the trial and is better able to determine the effect the new materials would have had.” United States v. Petrillo, 821 F.2d 85, 88 (2d Cir.1987). To grant a new trial here on the grounds urged would be a serious abuse of my discretion.

 

Where the motion charges that newly discovered evidence shows that a Government witness committed perjury at trial, “a threshold inquiry is whether the evidence demonstrates that the witness in fact committed perjury.” United States v. White, 972 F.2d 16, 20 (2d Cir.1992). If that inquiry is answered in the affirmative, the decision on the motion turns “ ‘on the materiality of the perjury to the jury’s verdict and the extent to which the prosecution was aware of the perjury.’ ” United States v. Gallego, 191 F.3d 156, 162 (2d Cir.1999), cert. denied, 528 U .S. 1127 (2000) (quoting United States v. Wallach, 935 F.2d 445, 456 (2d Cir.1991)). If the Government was unaware of the witness’s perjury, “ ‘a new trial is warranted only if the testimony was material and the court [is left] with a firm belief that but for the perjured testimony, the defendant most likely would not have been convicted.’ ” United States v. Moreno, 181 F.3d 206, 213 (2d Cir .), cert. denied, 528 U.S. 977 (1999) (quoting United States v. Wong, 78 F.3d 73, 81 (2d Cir.1996)). On the other hand, if “the prosecution knew or should have known of the perjury, a new trial is warranted if ‘there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” Wong, 78 F.3d at 81 (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).

 

The prosecution makes a strong argument that the new disclosure does not prove that Ressam perjured himself at trial. Ressam was not asked whether he had ever attempted an armed robbery and never denied making such an attempt.

 

The defense contends, at page 6 of its brief on this motion, that Ressam perjured himself in giving the following answer to the following question:

 

Q. Now, other than withholding that information regarding some of your friends, and the purpose of the gun, did you make any other false statements to the government during those proffers?

 

….

 

A. No, as far as I can remember, no. (Tr. 711).

 

In view of all the Ressam testimony regarding his robbery plot and his other nefarious conduct, there is no reason to conclude that the failure to disclose was intentional. But, even if it were intentional, there is not a bit of evidence that the Government knew of the non-disclosure. The advice to Mr. Ollen in the October 17, 2001 letter shows beyond any question that the prosecution completely lived-up to its ethical and professional duty and responsibility here. The omitted testimony was not of sufficient substance for the Court to believe that had the jury heard it “the defendant would most likely not have been convicted.” Moreno, 181 F.3d at 213; Wong, 78 F.3d at 81.

 

[*5]  This case is distinguishable from United States v. Wallach, 935 F.2d 445 (2d Cir.1991), and in the Court’s view stronger, as to conviction, than United States v. Gallego, 191 F.3d 156 (2d Cir.1999).

 

Ressam engaged in far more serious criminal conduct than attempted robbery. He testified about that conduct, was extensively cross-examined about it and Mr. Ollen discussed it in his summation in great detail. All we have here is cumulative information which would not have affected the jury’s verdict in any way.

 

The motion is denied. Sentence will go forward on December 17, 2001 at 9:30 A.M., as scheduled.

 

SO ORDERED.