UNITED STATES of America, Appellee, v. Asllan MUJA, also known as Oz, also known as Ozy, Defendant-Appellant, 365 F. App'x 245

SUMMARY ORDER Defendant-appellant Asilan Muja appeals from a September 16, 2008 Order of the United States District Court for the Eastern District of New York (Garaufis, J.) denying Muja’s motion for a new trial pursuant to Federal Rule of Criminal Procedure S3. We assume the parties’ familiarity with the underlying facts, procedural history of this case, and the specification of issues on appeal. Rule S3 permits a district court to “vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R.Crim.P. 33.

Where, as here, a defendant moves for a new trial based on newly discovered evidence, a defendant must show “that the evidence could not with due diligence have been discovered before or during trial, that the evidence is material, not cumulative, and that admission of the evidence would probably lead to an acquittal.” United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980). District courts “must exercise the Rule 33 authority sparingly and in the most extraordinary circumstances,” United States v.

Ferguson, 246 F.3d 129, 134 (2d Cir.2001) (quotation marks omitted), and we review a district court’s decision to exercise that authority for abuse of discretion. United States v. Polouizzi, 564 F.3d 142, 159 (2d Cir.2009). The “newly discovered evidence” that forms the basis of Muja’s motion for a new trial consists of an affidavit submitted by co-conspirator Taulant Hysko, averring that he (Hysko) met Muja for the first time in June 2002 at the Federal Correctional Institution in Otisville, New York.

Muja argues that this evidence compels a new trial, because it contradicts a testifying witness’s testimony and undermines the government’s overall theory of the case. As the district court held, however, this evidence cannot be considered “newly discovered” evidence within the meaning of Rule 33 because Muja had the “same awareness” as Hysko that the two had never met. Indeed, it is now well settled that “[o]ne does not ‘discover’ evidence after trial that one was aware of prior to trial.” United States v. Owen, 500 F.3d 83, 89-90 (2d Cir.2007) (emphasis in original).

Thus, where, as here, “a defendant knew or should have known that his code-fendant could offer material testimony as to the defendant’s role in the charged crime, his inability to procure that testimony before or during trial should not be redressed by granting the defendant a new trial when the codefendant asserts his willingness to exculpate the defendant after the original trial is over.” Id. at 92.

Although Muja argues that there is no basis upon which to conclude that Hysko’s statement was available before or during Muja’s trial, Muja plainly was aware (or should have been aware) that Hysko was an indicted co-conspirator, and that he (Muja) did not know Hysko during the pendency of the charged conspiracy, thus demonstrating that the facts contained in Hysko’s affidavit were not in any way “newly discovered.” Muja also contends that because Hysko was represented by counsel and detained in a separate facility, neither Muja nor his attorney could have obtained Hysko’s statement with due diligence.

It is well established, however, that a co-defendant’s mere unavailability cannot transform evidence that “existed all along” into “newly discovered” evidence. United States v. Jacobs, 475 F.2d 270, 286 n. 33 (2d Cir.1973) (Friendly, J.); see Owen, 500 F.3d at 89. Nor has Muja demonstrated that the evidence in question is material, non-cumulative, and would likely result in an acquittal. United States v. Gallego, 191 F.3d 156, 161 (2d Cir.1999), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

To the contrary, Hysko’s affidavit does not affirmatively exculpate Muja, but instead merely avers that the two did not meet until June 2002. This fact has little (if any) bearing on the conspiracy charges, because the government was not required to “prove that the defendant knew the identities of all of the other conspirators.” United States v. Huezo, 546 F.3d 174, 180 (2d Cir.2008). Muja’s relationship (or lack thereof) with Hysko likewise bears little relevance to the substantive charges brought against him.

Moreover, although Muja contends that Hysko’s statement calls into question the reliability and truthfulness of one of the government’s testifying witnesses, at best, such evidence merely would have given defense counsel an additional ground for impeachment. Because “new impeachment evidence is not material, and thus a new trial is not required when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable,” United States v.

Wong, 78 F.3d 73, 79 (2d Cir.1996) (emphasis in original) (quotation marks omitted), Hysko’s statement cannot form a valid basis for the grant of a new trial under Rule 33. In short, because the evidence in question here was not “newly discovered” within the meaning of Rule 33, and because, in any event, Muja has failed to demonstrate that the evidence is material, not cumulative, and that admission of the evidence would likely lead to acquittal, we affirm the district court’s denial of Muja’s motion.

We have considered all of Muja’s remaining arguments, including those made in his pro se submission, and find them to be without merit. Accordingly, for the foregoing reasons, the order of the district court is hereby AFFIRMED.