Arson, conspiracy, insurance and creditor fraud

Federal District Court Opinions

U.S. v. SCHLESINGER, (E.D.N.Y. 2006) UNITED STATES OF
AMERICA, v. NAT SCHLESINGER, also known as “Naftule
Schlesinger” and “Zvi Pollack,” HERMAN NIEDERMAN, and
GOODMARK INDUSTRIES, INC., Defendants. Cr. No. 02-485
(ADS) (ARL). United States District Court, E.D. New York.
July 17, 2006

ROSLYNN R. MAUSKOPF, UNITED STATES ATTORNEY EASTERN
DISTRICT OF NEW YORK, Central Islip, New York, By: Lawrence
Philip Ferazani, Cynthia M. Monaco Richard Lunger,
Assistant U.S. Attorneys.

LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY & CAMBRIA, LLP,
Co-counsel for the defendants Nat Schlesinger and Goodmark
Industries, Inc., New York, NY, By: Herald Price Fahringer,
Esq., Of Counsel.

JEREMY L GUTMAN, ESQ., Co-counsel for the defendants Nat
Schlesinger and Goodmark Industries, Inc., New York, NY.

MICHAEL L. SOSHNICK, ESQ., Co-counsel for the defendant
Nat Schlesinger, Mineola, NY.

ADRIAN L. DILUZIO, ESQ., Co-counsel for the defendant Nat
Schlesinger Mineola, NY. Page 2

MEMORANDUM OF DECISION AND ORDER

ARTHUR SPATT, District Judge

In this motion pursuant to Rule 33 of the Federal Rules of
Criminal Procedure (“Fed.R.Crim.P.”) the defendant Nat
Schlesinger (“the defendant”) seeks a new trial on his
conviction following a trial by a jury, of thirty various
counts of arson, conspiracy, insurance fraud, creditor
fraud, and money laundering, on the basis of newly
discovered evidence. The motion calls into question the
veracity of two witnesses, primarily with the use of a
surreptitiously recorded witness recantation. In addition,
the defendant also alleges that the government not only
withheld information useful for impeachment, but knowingly
permitted false testimony concerning such information.
Although the testimony at issue, and all of the alleged
newly discovered evidence, relate only to the arson counts,
the defendant seeks dismissal of the entire conviction on
the theories of prosecutorial misconduct and prejudicial
spillover. The Court begins with a table of contents.

CONTENTS

I. BACKGROUND

A. The Indictment

B. The Trial Page 3

1. The Fraudulent Scheme

2. The Arson

i. Testimony of the Firefighters

ii. Testimony of Thomas J. Russo and James Pryor

iii. Testimony of David Steinberg

iv. Testimony of Fire Marshal Bernard Santangelo

v. Testimony of Abraham Weiser

vi. Testimony of Victor Schlesinger

vii. Testimony of Israel Schwimmer

viii. Additional Evidence of Arson

3. The Defense

4. Verdict

C. The Post Trial Motions

1. The Rule 29 Motion for a Judgment of Acquittal

2. The First Rule 33 Motion for a New Trial

3. The Second Rule 33 Motion for a New Trial

i. The Alleged Newly Discovered Evidence

(a) Israel Schwimmer’s Recantation

(b) Signed Statement of David Ganz Page 4

(c) Ruling by Rabbi Gruber on behalf of the Rabbinical
Court Beis Din Tzedek)

(d) Affidavits from Certain Members of Israel Schwimmer’s
Family

(e) Signed Statements of Members of the Community
Regarding Victor Schlesinger’s Testimony

(f) Affidavit of Private Investigator Warren Flagg

(g) Additional Evidence of the Minnesota Investigation

ii. The Government’s Response

D. Post Trial Evidentiary Hearing

1. Testimony of Israel Schwimmer

2. Testimony of Abraham Lichtenstein

3. Testimony of Susan Necheles, Esq.

4. Testimony of Doran Zanani, Esq.

5. Testimony of Government Agents in the Minnesota
Investigation

II. DISCUSSION

A. The Legal Standard in a Motion for a New Trial

B. As to Israel Schwimmer’s Recantation

1. The Scope and Materiality of the False Testimony

2. The Repudiation of the Recantation Page 5

3. As to the Alleged Falsity of the Schwimmer Trial
Testimony

C. As to the Alleged Perjury of Trial Witnesses

D. As to the Government’s Alleged Failure to Disclosure
Impeachment Evidence

III. CONCLUSION

I. BACKGROUND

A. The Indictment

On October 1, 2003, a grand jury entered a 34 count
Superseding Indictment (“Indictment”) against defendants
Nat Schlesinger, Herman Niederman, and Goodmark Industries,
Inc., charging arson, conspiracy, insurance fraud, creditor
fraud, and money laundering, arising out of, among other
acts, a series of five fires dating back to 1987 that
occurred at a clothing factory in the Williamsburg section
of Brooklyn. The Indictment alleged that Nat Schlesinger
owned and maintained the factory with his brother, Jack
Schlesinger, in a building that had various addresses due
to the fact that the building occupied an entire city block
and had multiple entrances.

The Indictment alleged that Nat Schlesinger and his
brother masked their ownership of the numerous clothing
manufacturing companies that occupied this location from
the time they purchased the building in the early 1980’s in
order to conceal certain fraudulent schemes. One scheme
involved defrauding insurance companies by submitting
fraudulent claims for losses resulting from a series of
five Page 6 separate fires that occurred at the Premises
from 1987 to 1999. The second scheme involved using various
companies as vehicles to defraud creditors.

The Indictment also charged Nat Schlesinger with one count
of arson and one count of use of fire to commit a felony
in connection with the fire that occurred at the factory on
December 31, 1998. The indictment charged that Nat
Schlesinger deliberately caused a fire in the factory on
the night of December 31, 1998 for the purpose of
submitting a false and inflated insurance claim totaling
approximately $4,590,000.

B. The Trial

On April 11, 2005, a jury trial was commenced on the
charges in the indictment.

1. The Fraudulent Schemes

At the trial the government offered overwhelming evidence
of the two fraudulent schemes alleged in the indictment.
In connection with the scheme to fraudulently inflate
insurance claims on the five fires that occurred at the
factory, through witnesses and numerous documents, the
government showed that the defendant, through his various
clothing businesses, unlawfully obtained money in the sum
of $4,510,629.41 from insurance companies by bribing
employees and adjusters, and submitting false documentation
in support of fraudulent insurance claims. This amount was
received by the defendant’s businesses from insurance
companies in Page 7 payment of fraudulently inflated
claims for the fires that occurred at the clothing factory.
In addition, the government also established that this same
sum of $4,510,629.41 in fraudulent insurance payments was
laundered when it was deposited into and transferred
through the various business accounts of the defendant and
his businesses.

The government also submitted ample evidence proving the
second complex creditor fraud scheme. This scheme involved
the use of the defendant’s companies Pous Apparel, Inc.,
Private Brands, Inc., and Goodmark Industries, Inc., as
vehicles to defraud various creditors by masking the true
ownership of the companies. This was accomplished by the
use of nominees and shell corporations, and ultimately
succeeded in carrying out what was, in effect, two self
organized bankruptcies. Specifically, one of the fraudulent
acts that the government proved at the trial was that Nat
Schlesinger foreclosed on Goodmark Industries’ machinery
and equipment by using a company he controlled known as
Western Industries, Inc., leaving the creditors of Goodmark
without any recourse against Goodmark’s assets. The
evidence also showed that Nat Schlesinger masked his
ownership of Western Industries through a series of
nominees and transactions with shell corporations. After
foreclosing on the Goodmark assets, Western Industries then
sold the equipment at auction for the sum of $72,525. Page
8

2. The Arson

In comparison to the overwhelming direct evidence offered
with regard to the two fraudulent schemes, the government’s
case on the arson counts consisted of circumstantial
evidence. The government called several witnesses to
testify about the fire including: (1) firefighters who were
at the scene; (2) a cause and origin expert; (3) an
electrical engineer who examined the wiring at the fire
scene; (4) a sewing machine repairman; (5) the New York
City Fire Marshal who investigated the fire; (6) the
manager of the third floor of the factory where the fire
occurred; and (7) two employees who were at the factory and
overheard conversations that the defendant had before and
after the fire. These last two witnesses are the subject of
the defendant’s current motion for a new trial.

i. Testimony of the Firefighters

Peter Casey, a retired New York City Fire captain, and
Kevin Williams, a retired New York City Fire lieutenant,
both testified that on December 31, 1998, they were
assigned to Ladder Company 104 in the Williamsburg section
of Brooklyn. While on duty that night, at about 10:30 pm,
the New York City Fire Department received reports of a
fire at the clothing factory in Williamsburg. Several fire
companies, including Ladder 104, were dispatched and
confirmed that there was visible fire coming from the third
floor of the factory. All of the entrances to the factory
were locked and secure when the fire department arrived.
The firefighters Page 9 forced entry into the factory and
ascended the stairs to the third floor. At the top of the
stairs they found that the entrance to the third floor was
also locked and they had to break down that door. Inside
the third floor there was a smokey fire that was difficult
to find. One of the firefighters became lost while
searching for the fire and sent out a “mayday.” The
firefighter was quickly rescued and was unharmed.

The fire was eventually found to be located underneath a
mezzanine that was constructed above the third floor. Under
the mezzanine, clothes were hung from rows of racks. Above
the mezzanine boxed goods were stored. Firefighters
testified that in order to extinguish the fire they had to
proceed through each of the rows of clothes under the
mezzanine. Part of the mezzanine eventually collapsed due
to the fire.

ii. Testimony of Thomas J. Russo and James Pryor

The primary investigation with regard to the December 31,
1998 fire was conducted by Thomas J. Russo of Russo
Consultants, a cause and origin expert hired by Atlantic
Mutual Insurance Co. (“Atlantic Mutual”). This company was
retained to investigate and ascertain the origin and cause
of the fire that occurred at the defendant’s factory on
December 31, 1998. Russo had 24 years of prior experience
both as a New York City Firefighter and Fire Marshal. On
January 7, 1999, Russo first went to the scene of the fire
at the factory to investigate, at which time he conducted a
physical inspection of the premises. Russo determined that
the origin of the fire was in the shipping area on the
third floor. Page 10

Russo then investigated the cause of the fire. The on site
inspection revealed that there were no appliances, candles,
machinery, chemicals, smoking material, or heating units in
the area of origin. He also determined that the entire
building was secured when the fire department arrived in
that all of the locks on the entrances to the factory were
forced open by the fire department, and by reviewing the
reports of the fire department indicating the use of force
to gain entry to the building.

In order to assist his investigation, Russo hired James
Pryor, an electrical engineer, to review the electrical
system in the area of origin. The electrical engineer
testified that he determined that there were no electrical
faults which could have caused the fire. Pryor testified
that he inspected the circuit breaker panel which provided
service to the area of the fire, as well as the wiring and
lighting in the area of the fire. Pryor ruled out
electrical causes for this fire.

Russo also conducted witness interviews of Abraham Weiser
and Jack Schlesinger. Weiser told him that he personally
did not smoke and he did not observe anyone smoking on the
third floor on December 31, 1998. He stated there were no
candles, incense, oily rags, or cleaning agents in the
area. Weiser stated that he did not notice anything unusual
prior to departing and securing the area. Jack Schlesinger
told Russo that a delivery man may have been on the third
floor around 11:00 a.m. on December 31, 1998. He also
stated that he, his brother Nat Schlesinger, and one other
person were the only people with keys to the entire
building. Page 11

As a result of his investigation, Russo concluded that the
fire was intentionally set. Russo arrived at this
conclusion by excluding all electrical and accidental
causes. He was able to exclude cigarette smoking as a
possible source of ignition for the following reasons: (1)
there was no evidence that personnel smoked on the third
floor; (2) there was no evidence of cigarettes on the third
floor; and (3) the time between the last person exiting the
building and the report of the fire was too long to support
the inference that a kindling cigarette could have started
the fire. Russo also excluded an act of God after research
indicated that there were no earthquakes or thunderstorms.
Russo further excluded the possibility that the roof
mounted heater caused the fire upon examination of the
unit, which showed no evidence of flame impingement or any
other heat source coming from the unit. After excluding all
accidental causes, Russo concluded that the December 31,
1998 fire was intentionally set.

iii. Testimony of David Steinberg

Testimony and other evidence was offered by the government
to show that not only did Atlantic Mutual’s investigation
label the fire as intentionally set, but that the insurance
claim the defendant submitted to Atlantic Mutual with
regard to the 1998 fire was fraudulent. David Steinberg, a
self-employed sewing machine repairman, testified under a
grant of immunity that in January 1999 he assessed the
damage to the machines at the factory. Steinberg stated
that he either merely applied a coat of oil to the machines
or advised Schlesinger to do the same. For these services,
Steinberg Page 12 faxed an estimate to the defendant for
$58,000. After the first estimate, the defendant or his
brother called Steinberg and asked for a second estimate.
The second estimate was for $85,860. Steinberg then sent an
invoice for $85,860 for the repair of the machines, even
though he never did the work on the machines. Gov’t Ex.
98-43. Steinberg testified that he lied to insurance
company employees and claimed to have performed the work
reflected on the invoice, even though he never did any
work. Trial Tr. at 1225.

In addition, the insurance claim that the defendant
submitted contained a fraudulent estimate from a company
known as G.I.I. Engineering. This was a fictitious company
created by the defendant for the purpose of submitting a
fraudulent insurance claim.

iv. Testimony of Fire Marshal Bernard Santangelo

New York City Fire Marshal Bernard Santangelo testified
that he opened an investigation regarding the fire in March
1999, approximately three months after it occurred. The New
York City Fire Marshal was initially requested to
investigate the suspicious fire the night of the fire, but
was unable to respond until the following Monday due to the
New Year’s holiday. When the Fire Marshal responded, a
quick investigation was conducted and it was determined
that the cause of the fire was “not ascertained.” Due to
lack of resources, the investigator at the time was unable
to search under the partially collapsed mezzanine, and thus
labeled the location of the fire Page 13 as the third
floor, origin unknown. Fire Marshal Santangelo re-opened
the investigation several months later when he was
contacted by Charles Radtke from Russo Consultants with
regard to the suspicious fire.

After commencing the investigation, Fire Marshal
Santangelo requested documents from the insurance company
regarding its investigation and he attempted to interview
both Jack Schlesinger and Nat Schlesinger. He testified
that the defendant repeatedly changed the date of the
interview and delayed his appointment on several occasions.
When the defendant finally met with Fire Marshal
Santangelo, the defendant tape recorded the meeting without
Fire Marshal Santangelo’s knowledge. In the interview, Nat
Schlesinger told Fire Marshal Santangelo that he was the
“Manager of financial operations” and held no official
position in the company or on the board of directors. The
defendant also refused to answer several questions and
seemed irritated. Also, the defendant responded to several
questions by asking questions such as “who are you?” The
defendant told Fire Marshal Santangelo that he had a
complete set of keys to the building and left the building
around 6 or 7 p.m. the night of the fire. When asked about
the claim history of the building, the defendant stated
that he could only recall one other fire which occurred in
1991 when the factory was operating as Private Brands. The
defendant also denied any involvement in Private Brands.

Fire Marshal Santangelo’s investigation also considered
the insurance claim submitted by Goodmark Industries. He
determined that the defendant submitted a Page 14
fraudulent estimate of repair to the machinery. The estimate
was drafted by a company he later found to be fictitious
named G.I.I. Engineering. In his report, he also included
the Russo report and the report from James Pryor the
electrical expert. Fire Marshal Santangelo interviewed the
firefighters that responded to the scene as well as
witnesses who were at the Defendant’s building, including
Abraham Weiser, Victor Schlesinger, and Israel Schwimmer.

Fire Marshal Santangelo also testified that on August 3,
1999, another fire broke out at the building. This fire was
also later determined to be intentionally set because it
had four distinct and separate points of origin.

Based upon all the interviews, reports, photographs, and
his investigation, Fire Marshal Santangelo concluded that
the 1998 fire was an arson and that it was ignited by the
intentional application of an open flame. Fire Marshal
Santangelo also concluded that the only persons who had
keys to the entire building on that night were Jack and Nat
Schlesinger and that the buildings were secure upon arrival
of the fire department.

v. Testimony of Abraham Weiser

Abraham Weiser was called as a witness by the government.
He had worked for the Defendant for approximately twelve
years until the clothing business closed in 2000. At the
time of the fire, Abraham Weiser was the supervisor of the
shipping department located on the third floor. He was
responsible for packing the Page 15 manufactured garments
in boxes to ship by UPS or in bags to be delivered by their
own truck. Weiser testified that no other employees worked
with him in the shipping area in December 1998. One of his
responsibilities was to secure the two entrances to the
third-floor shipping area and turn off the lights by
closing the circuit breaker each night before he left. In
fact, Abraham Weiser testified that it was his practice to
secure both doors and turn off the circuit breaker at the
end of the day and that the only other people with keys to
that floor were Jack and Nat Schlesinger. However, Abraham
Weiser stated that he did not have keys to the exterior
entrances of the factory.

Weiser testified that on December 31, 1998, he was the
only person on the third floor during the day. He testified
that he did not smoke; that smoking was not permitted in
the building; and he did not observe anyone smoking on the
third floor on the day of the fire. Weiser stated that he
“wouldn’t let them smoke” because he “can’t take the
smoke.” Trial Tr. at 616. Weiser further testified that
there were no flammable liquids, thinners, dyes, linseed
oils or the smell of smoke or any other unusual odor before
he left on December 31, 1998. Weiser stated that
occasionally a small cleaning gun was used on the third
floor to remove stains from the finished garments. Weiser
testified that on December 31, 1998, at about 4:00 p.m., he
locked up the third floor and turned off the circuit
breaker providing electricity to the third floor, locked
both doors, and left the building. Page 16

vi. Testimony of Victor Schlesinger

Victor Schlesinger, who is Jack Schlesinger’s son,
testified that at the time of the fire he had maintained an
office in the factory on the second floor. Victor stated
that he would typically visit the factory and his father
Jack daily at the end of the day. He stated that he did not
have keys to the factory but that the security guard would
let him in. On the day of the fire, Victor went to his
father’s office and found his father with Nat. While in the
office, Victor told his father that he wanted to come back
to the building later that evening to get some work done.
The defendant overheard this request and told Victor, “No,
you are not coming back here.” Trial Tr. at 1490. Jack told
Victor that he should listen to Nat and not return to the
building. While this conversation was occurring, Victor
observed Abraham Weiser enter the office and tell the
Defendant and Jack that he was closing the third floor.
Victor testified that the Defendant told Weiser, “No, don’t
close up the third floor, I’m going to close it.” Trial Tr.
at 1491.

Victor Schlesinger did not return to the factory until the
Monday following the fire. He testified that he observed
substantial damage in the building and described it as a
“whole mess.” Trial Tr. at 1493. When Victor went to see
his father Jack in the second floor office that day, he
found the defendant with him. The defendant was telling
Jack Schlesinger to go slow in starting up the business
because adjusters needed to come down and assess the
damage. While they were in the office, the defendant’s
Page 17 son David Schlesinger entered the room and stated
“job well done.” Trial Tr. at 1500. Victor testified that
the statement was made with bravado as a “happy thing,”
despite the fact that he was standing in the midst of the
damage resulting from the fire. The Court notes that the
testimony was erroneously transcribed as “bragado [sic],
happy things,” instead of “bravado.” Trial Tr. at 1500.

Counsel for the defendant rigorously cross examined Victor
Schlesinger, often questioning his responses until, on
occasion, he changed his testimony. For example, Victor
Schlesinger first testified that he did not have much of a
relationship with the defendant and was not involved in any
litigation with him. However, after several questions,
Victor Schlesinger readily admitted that he had a “bitter
relationship” with the defendant and they were involved in
ongoing civil litigation. Victor Schlesinger also admitted
that he contacted Atlantic Mutual and first told them about
the insurance fraud scheme because he was angry and had his
suspicions about the fire, and because Nat Schlesinger was
transferring a lot of “things that my father supposedly
had.” Trial Tr. at 1512.

Victor Schlesinger was further questioned about the family
dispute with Nat Schlesinger. He testified that Nat
Schlesinger had cancelled Jack Schlesinger’s medical
insurance and forced Jack’s daughter Miriam Schwimmer, who
is also Israel Schwimmer’s wife, out of the family
residence, which made Jack Schlesinger’s wife and the rest
of her family very upset. Victor Schlesinger admitted that
he and Miriam Page 18 Schwimmer had a “bitter, bitter,
bitter, family feud . . .” beginning after Jack Schlesinger
passed away and lasting up until the present with the
defendant and his family. Trial Tr. at 1522.

Finally, counsel for the defendant questioned whether
Victor Schlesinger “w[as] in business in Minnesota.” Trial
Tr. at 1513. Victor Schlesinger responded “Never.” He was
also asked about Gary Schlesinger and Michael Schlesinger,
who he identified as being the same person, namely, his
younger brother. Victor Schlesinger further stated that he
was not aware of any legal problems facing Gary
Schlesinger.

vii. Testimony of Israel Schwimmer

Israel Schwimmer, who is Jack Schlesinger’s son-in-law,
worked at Goodmark Industries for several years. The Court
notes that Schwimmer’s responses to all of the questions
during both direct and cross examination in his trial
testimony were generally short, and were often only one
word answers. He testified that on the day of or a day
prior to the December 31, 1998 fire he observed the
defendant and his son David Schlesinger removing about four
or five bags of papers from the defendant’s file cabinets.
Schwimmer testified that before he left on the day of the
fire he stopped in to see Jack Schlesinger in the main
office. While in the office he overheard a conversation
between Abraham Weiser and the defendant. Weiser told the
defendant that he was going to lock up the third floor for
the day. The defendant told Weiser that he would take care
of locking up the third floor that day. Israel Schwimmer
testified Page 19 that he left the building at about 5:00
pm that day and went to his home in Monroe, New York.
Schwimmer noted that Jack and Nat Schlesinger remained at
the factory in the second floor office.

Israel Schwimmer then testified with regard to the events
that took place the Monday following the fire, which was
the first day the owners were allowed back into the
factory. Israel Schwimmer testified that he went to the
main office where he saw the defendant with Jack
Schlesinger, Milton Jacobi, Abraham Weiser, and the
defendant’s son, Sam Schlesinger. There, Schwimmer
overheard a conversation between Nat Schlesinger and his son
Sam Schlesinger, who was an insurance claims adjuster. The
defendant told him to “put together a nice claim” and to
“put everything, new fabric, old fabric, whatever he could
put in the claim.” Trial Tr. at 508-09. Israel Schwimmer
also testified that later he was outside the second floor
office when David Schlesinger entered proclaiming “a job
well done.” Trial Tr. at 510. Schwimmer testified that the
defendant replied to that statement by saying, “[w]e will
wait for the claim that is going to go through.” Trial Tr.
at 510.

Schwimmer was also subjected to a thorough
cross-examination by defense counsel. During cross
examination Schwimmer reluctantly testified about the
animosity that existed between Jack Schlesinger’s family
and Nat Schlesinger and his family. Schwimmer admitted to a
violent altercation between him and the defendant’s Page
20 son, David Schlesinger, which resulted in Schwimmer’s
arrest, and also about the pending civil litigation between
the two families.

viii. Additional Evidence of Arson

The government introduced documentation of the fraudulent
insurance claim submitted at the direction of the defendant
following the 1998 fire that was drafted by David Steinberg.
This fraudulent claim also included an estimate from the
defendant’s fictitious company, G.I.I. Engineering. To show
that the company was fictitious, the government introduced
the defendant’s statement given in an examination under
oath to Atlantic Mutual, in which he admitted that he
created G.I.I. Engineering. Finally, the government also
introduced evidence showing that the fire was confined to
the third floor, where the clothing stock was stored, but
where there was no valuable machinery to damage.

3. The Defense

The defendant presented evidence of a bitter family
dispute between him and the family of his brother Jack, who
passed away in 2001, including Jack’s son Victor
Schlesinger. The defendant recalled Abraham Weiser to the
stand to refute the allegations made by Victor Schlesinger
and Israel Schwimmer. Weiser testified that Nat Schlesinger
never told him not to lock the third floor the night of the
fire. In fact, he did not even speak to him before he left.
In addition, he stated that Victor Schlesinger had an
office in the building at one point in time but in December
1998 Page 21 that office had been converted into another
office. Weiser also testified that the guard that Victor
stated had let him in at night when the factory was locked
had died in 1995 and that no replacement was ever hired.
Weiser also stated that in addition to finished garments
there were many old religious books that the Defendant had
stored on the third floor. Further, he stated that he
approached some of the witnesses that testified at the
trial about lying on the stand and “they just say they want
to fix Nat.” Trial Tr. at 2451, 2458.

A substantial portion of the defense’s summation to the
jury was spent attacking the credibility of Victor
Schlesinger. Counsel described Victor Schlesinger as a
person who “has every motivation in the world to fabricate
and implicate his uncle who he hates to the core. . . .”
Counsel argued that there was ample evidence to show that
he tipped the insurance company due to the bitter dispute
he and his family had with Nat Schlesinger, and further
argued that he testified for the government for the same
reason. Counsel urged the jury to believe that Victor
Schlesinger lied to them for “[t]hree reasons: Revenge,
hatred and greed . . . he wants his uncle out of the way.”
Trial Tr. at 2701.

4. Verdict

On May 19, 2005, after a four week jury trial, and three
days of deliberation, the jury returned a verdict of guilty
on thirty of thirty-one counts. Nat Schlesinger was
convicted of one count of arson and one count of use of
fire to commit a felony in Page 22 connection with the
December 31, 1998 fire. In addition, Schlesinger was
convicted of one count of conspiracy to commit mail and
wire fraud with regard to insurance claims, thirteen counts
of mail fraud, and two counts of wire fraud on the
insurance claims, and one count of conspiracy to engage in
monetary transactions with insurance fraud proceeds in
connection with the scheme to fraudulently inflate
insurance claims on the losses suffered as a result of the
1998 fire and four other fires that occurred at the
factory. Nat Schlesinger was also convicted of one count of
conspiracy, four counts of mail fraud, and three counts of
engaging in monetary transactions with fraudulent proceeds
resulting from a second scheme to defraud the creditors of
the clothing manufacturing businesses that he controlled.

C. The Post Trial Motions

1. The Rule 29 Motion for a Judgment of Acquittal

After the trial, the defendant moved pursuant to
Fed.R.Crim.Proc. 29 for a judgment of acquittal arguing that
the verdict was based upon mere speculation and surmise.
The defendant further moved to strike, as inadmissable
hearsay, the testimony of Victor Schlesinger as to the
statement “job well done” made by David Schlesinger in the
days following the fire. The defendant also contended that
notwithstanding the admissibility of that statement, there
was no proof that the defendant aided, abetted, or
participated in setting the 1998 fire. Page 23

On June 8, 2005, the Court denied the defendant’s motion
for a judgment of acquittal. See United States v.
Schlesinger, 372 F. Supp. 2d 711 (E.D.N.Y. 2005). As to the
evidentiary issue, the Court found that the statement “job
well done” along with the circumstances in which it was
made satisfied the requirements to be admitted into
evidence under Rule 801(d)(2)(E) of the Federal Rules of
Evidence (“Fed.R.Evid.”). In addition, the Court found that
the statement “job well done” could also be admissible
under Fed.R.Evid. 803(1) as a present sense impression
exception to the hearsay rule. Id. at 721.

The Court also analyzed the sufficiency of the
government’s evidence supporting the arson conviction and
the use of fire to commit a felony conviction and found
that “the circumstantial evidence the Government offered
tended to show that Schlesinger had the motive, means, and
opportunity to commit the crime, as well as consciousness
of guilt.” Id. at 723. Although the Court had initially
commented at the trial that the evidence appeared weak,
upon further review the Court found that the circumstantial
indices of guilt were supported by ample evidence to show
that the fire was intentionally set; that the defendant had
a motive to set the blaze in order to recover insurance
proceeds; and that he had the opportunity to commit the
crime. The Court also noted that the jury had a right to
consider the defendant’s suspicious behavior after the fire
in his interaction with Fire Marshal Santangelo as a
display of consciousness of guilt. Id. at 724. Page 24

As to the two witnesses that are called into question in
the instant motion for a new trial, the Court found that
“[t]estimony from both Israel Schwimmer and Victor
Schlesinger showed that the Defendant impliedly
acknowledged the criminal act and substantiated the motive
for the arson.” Id. The statements they overheard about
putting together a “nice claim” and to take it slow in
restarting the business could be viewed as part of the
circumstantial evidence in support of the arson verdict. In
addition, they overheard the defendant’s son David exclaim
“job well done” and the defendant reply that, “[w]e will
wait for the claim that is going to go through.” These
statements were part of the evidence that permitted the
jury to find that the defendant had knowledge and
involvement in aiding and abetting or causing the fire.

Ultimately, the Court concluded that “all of the evidence
presented was more than sufficient, when taken together, to
establish, beyond a reasonable doubt, that Schlesinger
either participated in or aided and abetted in the arson
involving the 1998 New Year’s Eve Fire in his building in
order to submit a fraudulent insurance claim.” Id. at
724-25.

2. The First Rule 33 Motion for a New Trial

The Defendant then moved for a new trial under
Fed.R.Crim.P. 33, advancing similar arguments. The
defendant argued that the only evidence linking him to the
arson counts was adduced through the testimony of Victor
Schlesinger and Page 25 Israel Schwimmer, whose testimony,
he contended, was patently incredible and constituted
inadmissible hearsay.

The Court denied that motion, ruling that the testimony of
the two witnesses could not be considered incredible as a
matter of law because it was not patently incredible nor
did it defy physical realities. United States v.
Schlesinger, Cr. No. 02-485, Slip Op. at 3-5 (E.D.N.Y. Oct.
7, 2005).

3. The Second Rule 33 Motion for a New Trial

On, February 3, 2006, the defendant filed the instant
motion for a new trial pursuant to Rule 33 of the Federal
Rules of Criminal Procedure. The motion seeks a new trial
on the basis of newly discovered evidence with regard to
the arson counts of the indictment and dismissal of the
remaining counts of the indictment on the basis of
prosecutorial misconduct that violated defendant’s due
process rights and other rights secured by the
Constitution.

The defendant claims that the newly discovered evidence
set forth in this latest motion shows that Israel Schwimmer
and Victor Schlesinger committed perjury when they
testified as to Nat Schlesinger’s involvement in the 1998
fire. In addition, the defendant alleges that newly
discovered evidence reveals that Schwimmer and Victor
received promises of leniency from the government in return
for their cooperation, and that this information was
withheld from the defense. Further, the defendant claims
Page 26 that the government withheld information about the
involvement of Victor Schlesinger in a business located in
Minnesota that was under a government investigation.

i. The Alleged Newly Discovered Evidence

(a) Israel Schwimmer’s Recantation

In support of this motion, the defendant submitted several
compact discs containing audio recordings, along with a
transcript (“Def. Ex. A to the Rule 33 Mtn.”), of an
interview that his new counsel, Michael L. Soshnick, Esq.,
conducted with Israel Schwimmer on September 9, 2005. The
interview was conducted in Soshnick’s law office and was
recorded without Schwimmer’s knowledge. Israel Schwimmer
came to the interview accompanied by Abraham Lichtenstein,
who the defendant characterizes as Schwimmer’s
“confidante.” Also present at the meeting were Soshnick’s
investigator John Dabrowsky, and defendant’s co-counsel
Adrian L. DiLuzio, Esq.

The meeting lasted more than two hours and mostly involved
a wide-ranging discussion of the history of the disputes
between the Nat Schlesinger and the Jack Schlesinger
families. The manner in which Israel Schwimmer discussed
the dispute between the families was substantially
different from his testimony on the stand at the trial. His
answers were lengthy, at times detailed, and at times
rambling and irrelevant. Schwimmer was extremely talkative
and sounded anxious to speak, often Page 27 cutting off
the other participants in the interview, or changing the
subject of the conversation unexpectedly.

Schwimmer described at length why the two sides of the
family essentially hated each other over disputes that in
large part arose after Jack Schlesinger died. The claim of
Jack’s family members was that Nat Schlesinger was trying
to cheat them out of millions of dollars. As a result,
Schwimmer stated that they were involved in intense
litigation to get their perceived fair share. Some of the
litigation involved disputes over personal residences.

Schwimmer stated that his brother-in-law Victor
Schlesinger called Atlantic Mutual after the 1998 fire
“because we were fighting about my house, we were fighting
about the [estate of Jack Schlesinger], the money, and we
saw we couldn’t get out anyway.” Def. Ex. A to the Rule 33
Mtn. at 28. Schwimmer continued on to state that the call
that Victor made contained “a lot of lies” to Atlantic
Mutual when he informed them that Nat Schlesinger caused
the fire and that Nat called it a “job well done.”

Schwimmer stated that he had pressure from his
mother-in-law, his wife, and his brother-in-law to back the
lies that Victor told to Atlantic Mutual. Once Victor made
statements to the government, Schwimmer stated that he was
brought into the lie “in order to make this look a hundred
percent . . .” and was told what to lie about and what to
say. Def. Ex. A to the Rule 33 Mtn. at 31-32. Page 28

In response to a question of whether Schwimmer received “a
secret promise” from the government to testify, Schwimmer
responded: “I never got anything.” Def. Ex. A to the Rule 33
Mtn. at 34-35. Soshnick persisted, by asking, “What I’m
hearing from you is that it was your understanding that if
you testified against Nat, no harm would come to you or
your family members.” Schwimmer responded, “To tell you the
truth, no, no written, no written promise, no nothing, no
written promise, no nothing.” Def. Ex. A to the Rule 33
Mtn. at 34-35.

The interview continues with Schwimmer explaining why he
decided to change his testimony. Schwimmer explains: “The
Torah, the Jewish law, . . . the law says over there, even
Nat, even somebody bother you he threaten you — I’m
not talking about killing — you’re not allowed to go
testify against another Jew.” Def. Ex. A to the Rule 33
Mtn. at 44.

In response to Soshnick’s questioning, Schwimmer easily
responds that he “was lying by the Grand Jury and by the
trial.” Def. Ex. A to the Rule 33 Mtn. at 56. However, when
pressed by Soshnick and Diluzio for details, Schwimmer only
admitted to lying about two parts of his testimony, and
actually reaffirmed most of the remaining part of his trial
testimony. When asked whether he saw Nat Schlesinger
removing papers from the building prior to the fire,
Schwimmer stated, “That’s a problem. That’s true. Because
you know why? . . . My wife saw that too.” Def. Ex. A to
the Rule 33 Mtn. at 57. Schwimmer explains, in more detail
than he testified to Page 29 at the trial, that he saw Nat
moving about four shopping bags of paperwork. When he saw
this he called his wife on the telephone and said, Nat is
moving paperwork. She watched from the window of her home
and also saw him taking out the paperwork.

When asked about his testimony about overhearing the
statement “job well done,” Schwimmer responded that this
was “Baloney” and a “real, real, lie.” Def. Ex. A to the
Rule 33 Mtn. at 59. He also describes this testimony as
“Bullshit,” and “It’s a lie.” Def. Ex. A to the Rule 33
Mtn. at 90-91. When asked about whether he heard Abraham
Weiser state that he was going to lock up the third floor,
Schwimmer responded, “Bullshit.” Def. Ex. A to the Rule 33
Mtn. at 87-88. However, when pressed for details, Schwimmer
indicates that he really could not recall what he testified
to at the trial, but insists that whatever it was, it is a
lie. For example, Dabrowsky asks if he recalled the
conversation between Weiser and Nat Schlesinger, Schwimmer
responds “That what — what? . . . What I keep
forgetting, it’s a lie.” Def. Ex. A to the Rule 33 Mtn. at
95.

During the interview Soshnick tells Schwimmer that
Dabrowsky is going to prepare an affidavit for him to sign
that would state that he recants his prior testimony.
However, upon completion of the interview, Israel Schwimmer
advised the other participants that, before swearing to and
signing an affidavit embodying the essence of the
conversation, he wished to speak with his own attorney. He
wanted to do this because he had been advised that neither
Soshnick nor DiLuzio could serve as his Page 30 attorney.
Schwimmer asked for a week to consider the request to sign
and swear to an affidavit. Counsel for the defendant did
not further hear from him. Schwimmer never signed an
affidavit or otherwise confirmed his statement about the
interview, under oath.

(b) Signed Statement of David Ganz

In addition to the taped interview, the defendant
submitted numerous statements from persons who purport to
know Israel Schwimmer in order to corroborate his
recantation. David Ganz, described as a seventy year old
father of five who knew the defendant and his brother Jack
from as far back as 1957, signed a statement prepared by
the defendant’s investigator. In the statement, he claims
to have met Israel Schwimmer at the Schlesinger business
some two and one-half years ago. He states that he spoke to
Schwimmer about resolving the money dispute between the
families that also involved Schwimmer’s house. Schwimmer’s
response was: “I will do whatever I can to bury Nat alive.”
Def. Ex. C to the Rule 33 Mtn.

(c) Ruling by Rabbi Gruber on behalf of the Rabbinical
Court (Beis Din Tzedek)

Prior to the meeting with Soshnick, Israel Schwimmer
allegedly went to Rabbi Y. Gruber to seek guidance. The
defendant claims that Schwimmer told Rabbi Gruber that he
was under duress from his wife’s family, and that such
duress caused him to testify falsely against the defendant
at the trial. Schwimmer allegedly further advised Page 31
Rabbi Gruber that he wanted to correct his wrongdoing even
though he understood that, as a result of doing so, he
could be legally punished for his false testimony. Rabbi
Gruber advised him that he must do everything he could to
recant his testimony.

After Schwimmer met with Soshnick, Rabbi Gruber believed
that Schwimmer had not done the “utmost” to recant, but
that he had merely attended the meeting with Soshnick. As a
consequence, on September 29, 2005 Rabbi Gruber, on behalf
of the Rabbinical Court, issued a Beis Din Tzedek,
declaring that: “anyone who has influence with Mr.
Schwimmer is obligated to convince him that he should not
evade from what is incumbent on him to do for the sake of
truth and justice.” Def. Ex. D to the Rule 33 Mtn.

(d) Affidavits from Certain Members of Israel Schwimmer’s
Family

In the defendant’s reply to the government’s opposition to
the motion for a new trial, the defendant submitted
additional affidavits of persons related to Israel
Schwimmer commenting on his trial testimony, including
Israel’s father Joseph Schwimmer (Ex. K); Israel’s
brother-in-law Morris Gelbstein (Ex. L); Israel’s brother
Berish Schwimmer, (Ex. M); and Israel’s sister Sarah
Rosenfeld (Ex. N).

Joseph Schwimmer’s affidavit states that his son
“personally informed me that he did not testify truthfully
at the trial of Nat Schlesinger.” In addition, “[h]e
further Page 32 told me that he was under tremendous
pressure from his wife’s family because they wanted revenge
against Nat Schlesinger.” Joseph Schwimmer also states that
Israel told him that he felt sorry for what he had done.
Joseph also opined that Israel is in psychiatric care “as a
result of the tremendous pressures put on him by his wife’s
family.” Def. Ex. K to the Reply to the Rule 33 Mtn.

Morris Gelbstein states in his affidavit that he had a
conversation with Israel Schwimmer in the Fall of 2005, in
which Schwimmer told him that “people could not understand
how much pressure he was under from his wife and her
family, and that his actions would be seen differently if
they could only understand what he was going through.” At
one point, Gelbstein states that he told Israel that Nat
thought he could win at the trial, to which Israel replied:
“He didn’t know that he was fighting against my wife.” Def.
Ex. L to the Reply to the Rule 33 Mtn.

Berish Schwimmer states in his affidavit that he spoke to
his brother many times before and after the trial. He
states that before the trial, Israel “told me that his
wife’s family planned to teach Nat Schlesinger a lesson.”
After the trial, Israel was upset that he had given false
testimony, but felt he had no choice because of pressure
from his wife and the government. Israel told him that he
was threatened by the government to be put in jail if he
backed out of testifying at the trial by claiming a loss of
recollection. Berish Schwimmer also claims that he has
“been witness to the abuse of my brother by his wife.” She
allegedly ridiculed Israel in front of him, “calling him
Page 33 `useless’ and `a coward who can’t sleep at night’
because he was afraid of giving testimony in court.” Berish
also claims that Miriam Schwimmer took away Israel’s mobile
phone.

Berish Schwimmer also refuted the notion that Israel was
under adverse community pressure because he testified at
the trial. “At no point has there been any organized
community pressure against my brother. On the contrary,
although certain individual members of the community may be
angry with him, the rabbis and community leaders have
expressed their sympathy and concern for him.” Berish also
noted that “[m]y brother has told me on numerous occasions
that he lives in terror of his wife and her family.” Def.
Ex. M to the Reply to the Rule 33 Mtn.

Sarah Rosenfeld claimed in her affidavit to have witnessed
Israel being “abused” by his wife. She claimed that his wife
on prior occasions had taken his glasses, driver’s license,
and mobile phone, hit him, and threw him out of the family
home. Def. Ex. N to the Reply to the Rule 33 Mtn.

(e) Signed Statements of Members of the Community
Regarding Victor Schlesinger’s Testimony

The defendant annexed four signed statements provided to
defense investigators stating that Victor Schlesinger had
lied to the government and at the trial. David Ganz signed
a statement describing a conversation he had with Victor at
or near Passover, 2005. Ganz claims that Victor Schlesinger
told him he was making up Page 34 stories about Nat
setting the fire in question. Ganz advised him “not to
commit such a capital crime as to make up a lie about Nat
Schlesinger.” In the discussion that ensued, Victor grew
increasingly angry and yelled that “he would do and say
anything and whatever it takes to bury Nat for life.” He
admitted that he would lie to get revenge for his mother
and acknowledged that he could lie about the “fire case.”
Def. Ex. C to the Rule 33 Mtn.

Moshe Kestenbaum, described as a forty-seven year old
Brooklyn resident, provided a signed statement in which he
revealed conversations with Victor Schlesinger regarding
the monetary dispute between the families. Victor told him
that, if he could not get the money, he would put Nat in
jail, and that he would tell the government a few things
and they would believe him because the defendant was a
convicted felon. He further told Kestenbaum that the
allegations he made didn’t have to be true, and that he was
capable of making up a good story that would put Nat in
jail. After Nat’s indictment, Kestenbaum declared that
Victor crowed: “Now do you believe me what I told you a long
time ago.” Def. Ex. E to the Rule 33 Mtn.

Moses Friedman, described as a fifty-seven year old father
of eight, provided a signed statement describing how, at
Jack Schlesinger’s shiva, he endeavored to reconcile the
family dispute. Victor told him it was his desire to get
Nat and that he could get a watermelon indicted. Def. Ex. F
to the Rule 33 Mtn. Page 35

Luzer Endzwerg, stated that he prayed at the same schul as
Victor Schlesinger and was aware that he was fighting over
money with his uncle Nat. He claims that “other people who
prayed there expressed doubt that [Victor] would ever get
his money.” Victor assured them he would because “I will
put him in jail.” Def. Ex. G to the Rule 33 Mtn.

(f) Affidavit of Private Investigator Warren Flagg

In support of his claim that the government failed to
reveal promises of leniency and impeachment evidence of
which it was aware regarding Victor Schlesinger prior to
the trial, the defendant attached an affidavit from private
investigator Warren Flagg. In the affidavit, Flagg claims
that he contacted Keith Hoheimer, the Special Agent in
charge of investigations for the Chicago office of the
Small Business Administration (“SBA”) regarding a prior
investigation by the SBA into bank fraud allegations
against Foodland Industries. Foodland Industries is a rice
cake manufacturing business located in Brooklyn, New York,
that was co-owned by Victor and Michael Schlesinger.
According to the investigation, Foodland Industries
fraudulently attempted to obtain an SBA loan from the
Security State Bank. Def. Ex. H to the Rule 33 Mtn.

Hoheimer allegedly told Flagg that Victor and Michael
Schlesinger were “subjects of the investigation for bank
fraud” and that the case was “a slam dunk.” Hoheimer
further described the strength of the government’s case as
follows: “I have Page 36 never had a stronger false
identity bank fraud case presented to the United States
Attorney’s office in Minnesota.” According to Flagg,
Hoheimer was so certain that arrest warrants would be
forthcoming that he telephoned the New York office of the
FBI for assistance in making the arrests of Victor and
Michael Schlesinger. However, the case never proceeded
because the United States Attorney’s office declined
prosecution in June, 2004.

Flagg states that Hoheimer was frustrated and wrote a
report to the SBA in Washington, D.C., with the hope of
having the prosecution reinstated. Counsel for the
defendant attempted to obtain the details of reports
concerning this investigation, and the reason for its
closure, under the Freedom of Information Act. The request
was denied on the ground that defense counsel had no
standing to request such disclosure.

(g) Additional Evidence of the Minnesota Investigation

In the defendant’s reply to the government’s opposition to
the motion for a new trial, the defendant submitted
additional evidence concerning the Minnesota investigation.
This includes affidavits from David Hasskamp, the landlord
for Foodland Minnesota; Dennis Baumann, the production
manager of Foodland Minnesota; Keith Bjella, the general
manager of Foodland Minnesota; Jacob Schwartz, the
accountant for Foodland in both New York and Minnesota; and
Doron Zanani, Esq., the attorney who at one time
represented both corporations. These affidavits provide
many details about the alleged fraud. For example, the
affidavits include Page 37 pictures of Victor and Michael
Schlesinger and statements from the affiants who live in
Minnesota identifying these individuals as persons who were
in business in Minnesota.

ii. The Government’s Response

The government opposed the defendant’s motion for a new
trial after conducting an investigation into the
allegations. The government attached affirmations by the
agents involved in the investigation and the attorneys
involved in the prosecution, stating that there were never
any promises of leniency in regard to any alleged criminal
conduct by Israel Schwimmer.

The government also attached an affirmation of Miriam
Schwimmer, Israel Schwimmer’s wife, which states the
Schwimmer began to experience intense community pressure
prior to his testimony at the trial and during his
testimony by packing the courtroom with Nat Schlesinger
supporters. Prior to testifying, Schwimmer was warned that
if he testified against the defendant “he would be labeled
a `mosser’ (traitor); [his] children would be expelled from
the private school they attended and he would be ostracized
by the Williamsburg community.” Aff. of Miriam Schwimmer at
1.

The affirmation also states that the community pressure did
not end with Nat Schlesinger’s conviction. In fact, the
community pressure increased as the defendant’s family and
friends began distributing copies of Israel Schwimmer’s
grand jury Page 38 testimony and created leaflets advising
Schwimmer to leave Williamsburg for his own safety.
Schwimmer’s children were also allegedly targeted as a
result of their father testifying against the defendant.
For example, Miriam Schwimmer claims that her son was told
he would not be permitted to read from the Torah at his Bar
Mitzvah.

The government submitted an affirmation of Victor
Schlesinger, reaffirming that his testimony in the grand
jury and at trial was accurate. It also states that Victor
Schlesinger never met with Schwimmer to create testimony or
to create lies to use against the defendant.

In response to the allegations of prosecutorial misconduct,
the government conducted an investigation into the
Minnesota fraud case. Special Agent Hoheimer reported that
the Minnesota Case was premised almost entirely upon
information provided by a confidential informant named
Samuel Schlesinger, who is Nat Schlesinger’s son. In
addition, Victor Schlesinger’s name did not appear anywhere
on any document connected with the subject loan. Further,
the SBA never interviewed anyone other than Sam Schlesinger
in furtherance of the investigation nor did they contact
either target or otherwise notify them of the pending
investigation. Special Agent Hoheimer stated that there was
no contact about the Minnesota investigation with anyone
from the United States Attorneys Office for the Eastern
District of New York or any of the agents or government
agencies assigned to investigate the Schlesinger case.
Page 39

Assistant United States Attorney Frank McGill was the AUSA
responsible for declining the prosecution of the Minnesota
Case. He was interviewed and stated that the United States
Attorneys Office for the District of Minnesota declined the
case for several reasons, including the age of the loan and
the fact that the SBA failed to identify the recipients of
the loan proceeds. The United States Attorneys Office for
the District of Minnesota took no further action after
declining the prosecution. AUSA McGill further stated that
he never spoke with any representative of the United States
Attorneys Office for the Eastern District of New York, or
any of the agents or government agencies assigned to
investigate the Schlesinger case.

D. Post Trial Evidentiary Hearing

On April 21, 2006, the Court issued an order scheduling an
evidentiary hearing on the claims of prosecutorial
misconduct to resolve the disputed facts and to develop the
record on the materiality of the alleged Giglio material,
as well as the government’s actual or constructive
knowledge of such information. As to the Schwimmer
recantation, the Court stated that although an evidentiary
hearing was not required under United States v. DiPaolo,
835 F.2d 46, 50 (2d Cir. 1987), a hearing would be “helpful
in evaluating the credibility and materiality of
Schwimmer’s alleged recantation that was neither sworn to
nor taken under oath.” Order dated Apr. 21, 2006 at 7.
Further, the Court set the parameters for this part of the
hearing by stating that it would hear “testimony from
Israel Schwimmer for, among other matters, Page 40
testimony as to the alleged recantation of his former
testimony during the grand jury and the trial . . .,” and
“any additional relevant evidence.” Id.

1. Testimony of Israel Schwimmer

On April 21, 2006, the same day the Court ordered an
evidentiary hearing, the government produced Israel
Schwimmer for the purpose of testifying as to his alleged
recantation. At the hearing, Schwimmer essentially
repudiated his recantation. Schwimmer explained on direct
examination by the government that due to the community
pressure he was subjected to after testifying at the trial,
he had made certain out-of-court statements that were
untruthful. Schwimmer also testified that his trial
testimony was the result of a trial subpoena and not in
exchange for any promises of leniency from the government.
Schwimmer explained that following his testimony at the
trial, he was subjected to threats and intimidation from
supporters of the defendant in the Williamsburg community.
The threats and intimidation tactic employed by supporters
of the defendant included berating Schwimmer on the street
and in temple; threatening to expel Schwimmer’s children
from their private religious school; and disseminating
transcripts of Schwimmer’s grand jury and trial testimony
throughout the community.

Schwimmer also testified that he observed numerous
leaflets “all over the streets and synagogues” of his
neighborhood in Brooklyn advising that people should not
speak with him and he should not be allowed in synagogues
to pray. One Page 41 of the leaflets was particularly
harsh, “warning” members of the community, and vilifying
Israel Schwimmer and Victor Schlesinger. The leaflet was
translated from Hebrew to English at the hearing, as
follows:

Warning!

Everybody knows that the two named informants are sinners
of Israel, the known bad and cruel persons, are Victor
Schlesinger, may his name be erased, together with his
brother-in-law who has at the same time, who have together
informed almost about almost ten Jewish people who had
committed no sin. This is the bad person Israel Elimelech
Schwimmer. May his name be erased.

They went with unheard cruelty and informed about their
uncle with lies and inventions Naftali Zvi Schlesinger.
And they caused that he should be sitting and suffering in
a heavy jail, suffering both in his body and in his soul.
And he’s expecting a heavy sentence from the judge towards
a life-long imprisonment. May the Lord have pity on him.

The Lord will not allow it. And it this was not enough,
and in the last few days that when the Judge is getting
ready to render his sentence Jews are watching and praying
to the Lord for a lighter sentence.

He went their mother, their mother, the bad women
Fareidel Schlesinger, who hides herself behind the persona
of innocent and broken widow and they submitted damaging
information and, together with lies and falsehoods, as is
their way, in order to add fuel and secure that the[ir]
will be no room for commiseration from the judge.

Warning. Those dark sinners have still not taken into
consideration Zvi as how the Jewish blood is being spilled
from Naftali Zvi, Ben Hirifka.

Dear Jews: How can we stand by with indifference? How can
we say that our hands have not spilled that blood? Let us
spit them out from the community of Israel.

There also must be a roaring scheme that they are not
pure, the two dark sinners and criminal who try all the
time to hide behind the one that is sending them to speed
evil and this is the bad person Scmuel Yona Schlesinger
and his brother, the known person and enemy, the usurper,
Gershon Schlesinger, who run around all the time
threatening whoever is standing in their way. Remember, it
is the time for judge and judgment. Page 42

Gov’t Ex. 1, Hr’g Tr. 327-29. After this was read in Court,
Israel Schwimmer appeared visibly upset and in obvious
distress.

The defendant’s counsel conducted an excruciatingly
thorough cross-examination of Schwimmer that, according to
the government, lasted for more than 11 hours over the
course of three days. During the course of his testimony on
cross-examination Schwimmer was evasive and non-responsive.
Schwimmer often asked for the question to be repeated and
responded time and time again that he could not recall
anything from the interview conducted by Soshnick where he
recanted his trial testimony, due to the enormous community
pressure he was under. Defense counsel read portions of the
transcript and played numerous sound recordings in an
attempt to refresh Schwimmer’s recollection. Although
Schwimmer reluctantly acknowledged that it was his voice on
the recording and that he was in Soshnick’s office at the
time, the plethora of attempts at refreshing his
recollection as to the substance of the interview were all
unsuccessful. After reading the transcript of the interview
Schwimmer stated, “I read some portion of the transcript,
and I see it and I don’t know how I said it. It can’t be,
because I testified truthfully at the trial.” Hr’g Tr. at
170.

Faced with a blistering cross-examination, Schwimmer
apparently resorted to admitting to a series of unlikely
questions that were repeated by defense Page 43 counsel
throughout the lengthy examination. For example, upon
questioning from defense counsel, he admitted he was
“drugged” by Abe Lichtenstein on their way to Soshnick’s
office, and that Lichtenstein told him to “drink, drink,
drink” from two “colorful” bottles on the dashboard of his
car. Hr’g Tr. at 78-81, 83-84. He claimed that, as a result
of the drugging, he was “dizzy,” “sweating all over,” and
was not in his “full mind.” Hr’g Tr. at 71, 77, 82. He
additionally asserted that he was forced to remain at this
meeting because he was “trapped” by people stationed at the
door who prevented him from leaving the office. Hr’g Tr. at
75, 80-81.

However and significantly, during the cross-examination
Schwimmer continually re-affirmed that he had provided
truthful testimony during the trial of Nat Schlesinger. For
example, Schwimmer stated “I never lied at the trial or in
the grand jury.” Hr’g Tr. at 146. “Again, whatever I
testified at the grand jury and the trial, that’s the
truth.” Hr’g Tr. at 148. “The trial was true. The grand
jury was true.” Hr’g Tr. at 171. “I told you the truth
before, that I never lied on the trial, so what do you want
now?” Hr’g Tr. at 217. “I never lied.” Hr’g Tr. at 282. “I
said I never lied in the grand jury.” Hr’g Tr. at 287. “I
did not perjure myself.” Hr’g Tr. at 311.

When questioned by the Court, Schwimmer also confirmed that
his trial testimony was truthful and that he went to
Soshnick’s Office only to relieve the adverse community
pressure.

THE COURT: He is asking you, when you came to his office
and you said it was for the purpose of taking off the
pressure as Mr. Lichtenstein said he would do, right?
Page 44

THE WITNESS: Yes.

THE COURT: When you told these things to Mr. Soshnick in
his office, were you telling the truth?

THE WITNESS: I didn’t, no.

THE COURT: You didn’t say the truth?

THE WITNESS: At his office, no.

THE COURT: Pardon?

THE WITNESS: At his office I didn’t say the truth.

THE COURT: You did not say the truth?

THE WITNESS: In his office, no.

Hr’g Tr. at 168.

2. Testimony of Abraham Lichtenstein

Abraham Lichtenstein accompanied Israel Schwimmer to the
meeting with Soshnick. Lichtenstein described himself as an
active and official community liaison in the Williamsburg
community. Hr’g Tr. at 450. Lichtenstein testified that
Schwimmer approached him in the beginning of August 2005
and asked him to help him because he had told lies before
the grand jury and at the trial. In response, Lichtenstein
offered to take him to see Nat Schlesinger’s attorney, and
Schwimmer told him that he would go anywhere “as long as I
can come in and say the truth.” Hr’g Tr at 441. Schwimmer
revealed to Lichtenstein that he was hesitant to cooperate
with Page 45 him, saying that his wife would “kill” him.
Hr’g Tr. at 441. Lichtenstein stated that on the day he
picked him up to go to Soshnick’s office, Schwimmer threw
himself on the floor of the car so that he would not be
seen until he had left his neighborhood.

On cross-examination, Lichtenstein admitted that he had
known the defendant Nat Schlesinger for approximately 15
years and that one of the reasons that Schwimmer contacted
him “was that he knew [Lichtenstein] was friends with the
defendant Nat Schlesinger.” Hr’g Tr. at 458, 465.
Lichtenstein also testified that Schwimmer asked him “to
tell the defendant to stop his children from putting
pressure in the community.” Hr’g Tr. at 468. In addition,
Lichtenstein admitted that in the past he had sold materials
to Victor Schlesinger and that the business relationship
between the two had ended in litigation.

3. Testimony of Susan Necheles, Esq.

Susan Necheles, Esq., a criminal defense attorney,
testified that she was contacted by individuals from the
Satmar Hasidic community and asked if she could represent
Israel Schwimmer. Necheles was unable to recall who first
contacted her about representing Schwimmer, but in response
she set up a preliminary meeting. Necheles testified that
the preliminary meeting was not attended by Schwimmer but
by four or five men who she could not identify except for
saying that she thought they were members of the Satmar
Hasidic community. In the meeting she stated she Page 46
needed to meet with Schwimmer in order to represent him in
a matter. This meeting was eventually arranged.

Prior to meeting with Schwimmer, Necheles stated that she
was confronted by Schwimmer’s wife while at work in her law
office. Necheles testified that Mrs. Schwimmer barged into
a meeting she was conducting in her office and told her not
to meet with her husband. Mrs. Schwimmer told her that her
husband had been kidnaped and that if he did meet with her
it was not of his own free will.

Necheles eventually did meet with Schwimmer on March 5,
2006, under unusual circumstances. Schwimmer was brought to
Necheles’ home by “two or three other men . . . all named
Schwimmer.” Hr’g Tr. at 630. Necheles inquired about
whether Schwimmer was attending of his own free will and he
told her that he was. Schwimmer stated that he had been
beaten by his wife and that she had taken his glasses and
medication away from him. Necheles then proceeded to speak
to Schwimmer and the unidentified individuals about lying
at the trial, and agreed to represent him if he paid a
$25,000 retainer. Part of this retainer, in the amount of
$10,000, was eventually paid by someone who she could not
identify.

During the meeting Schwimmer told Necheles that he had a
meeting with Soshnick at which he said that he lied at the
trial. Schwimmer further stated that he had been pushed to
testifying at the trial by his wife’s family and that such
testimony violated his religious beliefs. As to specific
testimony, Necheles stated that Page 47 Schwimmer told
her that at the trial he had lied about: (1) the statement
“good job;” (2) knowing the content of the documents that
were removed from the building; and (3) the statement
“don’t lock the doors.” Hr’g Tr. at 634.

Necheles also testified that Schwimmer discussed the
religious edict that was issued by Rabbi Gruber declaring
that he needed to tell the truth about lying at the trial.
Necheles explained that there exists a Jewish teaching
known as “maseera,” which prohibits Jews from going to
civil authorities to bring disputes with other Jews.
Instead, they should bring those disputes to the religious
authorities in the religious court known as Beis Din Tzedek.
She further explained that a “mooser” is somebody who goes
to authorities and tells about other people in the
community. Necheles stated that Schwimmer told her that the
religious edict issued about him involved “maseera.”

One or two days after the meeting Necheles received a
letter purporting to be from Schwimmer, requesting that she
be discharged as his counsel and return the retainer.
Necheles stated that she did nothing in response to the
letter, but understood that her services had been
terminated. She did not return the $10,000 retainer or
attempt to collect the remaining $15,000. Page 48

4. Testimony of Doran Zanani, Esq.

Doran Zanani, Esq., testified about his representation of
Foodland Industries, the rice cake manufacturing business
located in Brooklyn, New York, that was co-owned by Victor
and Michael Schlesinger. He stated that he was retained by
Foodland Industries in order to create a second Foodland
entity in Minnesota. Zanani testified that to the best of
his knowledge Victor Schlesinger was not a record owner or
shareholder of the Minnesota-based Foodland Industries
entity. Zanani’s dealings in connection with the
Minnesota-based Foodland entity were principally with Gary
Schlesinger whom he believes is the record owner of the
entity and who filed a bankruptcy petition on its behalf.
Zanani testified that he had conversations with an
individual named Victor Schlesinger who told him that he
had provided “funding” for the Minnesota-based Foodland
Industries entity. Zanani believed Victor Schlesinger had a
financial interest in the company and that he was exerting
influence over the corporation through his brother Michael
Schlesinger.

5. Testimony of Government Agents in the Minnesota
Investigation

Keith Hoheimer of the SBA’s Office of the Inspector General
was the supervising agent in the Minnesota investigation.
The investigation was assigned to Special Agent Tom
Heinzer. Hoheimer testified that he initiated the
investigation into Michael and Victor Schlesinger in
February 2002 after receiving a tip from Sam Schlesinger,
the defendant’s son. The investigative matter concluded
when the United Page 49 States Attorney’s Office in
Minnesota declined to prosecute the case on the grounds
that the loan was old and the information developed was not
sufficiently material to develop a prosecution.

Hoheimer stated that he had no contact with anyone from
the United States Attorney’s Office for the Eastern
District of New York regarding the Minnesota investigation.
Hoheimer testified that the only contact he had with any
government agents located in New York was with Special
Agent Charles Walkowiak of the Federal Bureau of
Investigations in New York and with Postal Inspector Rich
Delisio of the United States Postal Inspection Service in
New York. Hoheimer contacted Walkowiak to request help with
the investigation in New York. Delisio assisted Hoheimer in
inquiring about a bankruptcy filing made by Gary
Schlesinger.

Heinzer also testified that he had no contact with anyone
from the United States Attorney’s Office for the Eastern
District of New York regarding the Minnesota investigation.
Heinzer testified that the only additional contact he had
with New York agents involved a request in an unrelated
matter to provide assistance with a photo lineup of
subjects in an investigation.

The two New York based agents that were contacted about
the Minnesota investigation also testified. Special Agent
Charles Walkowiak of the FBI testified that he received a
telephone call from Hoheimer, concerning an alleged fraud
perpetrated by a man named “Schlesinger.” Agent Walkowiak
testified that he received some Page 50 paperwork from
Hoheimer summarizing the investigation of Foodland
Industries, and that he merely reviewed FBI indices because
he recalled a reference to Foodland in an earlier
investigation he had conducted. Agent Walkowiak testified
that he took no action in the investigation because he did
not know how he could “help on a case with a violation that
allegedly occurred in Minnesota. . . .” Hr’g Tr. at 494.
Agent Walkowiak confirmed that he did not contact anyone at
the United States Attorney’s Office for the Eastern
District of New York in connection with the matter because
he “had nothing to present.” Hr’g Tr. at 497-98.

Postal Inspector Delisio also testified that he had no
contact with anyone from the United States Attorney’s
Office for the Eastern District of New York regarding the
Minnesota investigation.

II. DISCUSSION

A. The Legal Standard in a Motion for a New Trial

Rule 33 permits a defendant to seek a new trial based on
newly discovered evidence within three years of the
verdict. The rule states that “the court may vacate any
judgment and grant a new trial if the interest of justice
so requires.” Fed.R.Crim.P. 33. This standard gives the
trial court “broad discretion to set aside a jury verdict
and order a new trial to avert a perceived miscarriage of
justice.” United States v. Ferguson, 246 F.3d 129, 133, 134
(2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d
1409, 1413 (2d Cir. 1992)). In deciding the motion the
district court must Page 51 examine the entire case and
may weigh the evidence and the credibility of witnesses,
but it must be careful not to “wholly usurp” the role of
the jury. United States v. Autuori, 212 F.3d 105, 120 (2d
Cir. 2000). Rule 33 authority should only be used
“sparingly” and in “the most extraordinary circumstances.”
Sanchez, 969 F.2d at 1414.

The Second Circuit has frequently and repeatedly held
that, “even where newly discovered evidence indicates
perjury, motions for new trials `should be granted only
with great caution and in the most extraordinary
circumstances.'” United States v. Stewart, 433 F.3d 273,
296 (2d Cir. 2006); United States v. Spencer, 4 F.3d 115,
118 (2d Cir. 1993); Sanchez, 969 F.2d at 1414 (2d Cir.
1992); DiPaolo, 835 F.2d at 49; United States v. Stofsky,
527 F.2d 237, 243 (2d Cir. 1975); United States v.
Costello, 255 F.2d 876, 879 (2d Cir. 1958).

Generally, in a motion for a new trial based on newly
discovered evidence the defendant must initially make the
threshold demonstration that the proffered new evidence:
(1) could not have been discovered with due diligence
before or during the trial; (2) is material; and (3) is not
cumulative. See United States v. Canova, 412 F.3d 331, 349
(2d Cir. 2005); United States v. Middlemiss, 217 F.3d 112,
122 (2d Cir. 2000); 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); United States v. Page 52 Siddiqi, 959 F.2d
1167, 1173 (2d Cir. 1992); United States v. Alessi, 638
F.2d 466, 479 (2d Cir. 1980). It is within this general
framework that the Court will wade through the great amount
of alleged new evidence that the defendant has submitted in
support of his motion for a new trial.

B. As to Israel Schwimmer’s Recantation

The most substantial item of newly discovered evidence
submitted in this motion for a new trial is the
surreptitiously recorded recantation of Israel Schwimmer.
Courts have long been “particularly reluctant” to grant a
motion for a new trial “where the newly discovered evidence
consists of a witness recantation as such recantations are
`looked upon with the utmost suspicion.'” DiPaolo, 835 F.2d
at 49 (quoting United States v. Troche, 213 F.2d 401, 403
(2d Cir. 1954)); see Gallego, 191 F.3d at 165; Bagby v.
Kuhlman, 932 F.2d 131, 136 (2d Cir. 1991) (“[T]here is
overwhelming reason to question the statements’
genuineness.”); United States ex rel. Sostre v. Festa, 513
F.2d 1313, 1318 (1975); Harrison v. United States, 7 F.2d
259, 262 (2d Cir. 1925).

When the proffered new evidence consists solely of a
recantation, in order to succeed on a motion for a new trial
the defendant must prove: (1) the testimony recanted was
both false and material; (2) without the false testimony
the jury probably would have acquitted the defendant; and
(3) that the party seeking the new trial was taken by
surprise when the false testimony was given and could not
address that falsity until after the trial. DiPaolo, 835
F.2d at 49; Stofsky, 527 F.2d at 246); United States Page
53 v. Lespier, No. 398CR102AHN, 2006 WL 533792, at *7 (D.
Conn. March 1, 2006). The defendant bears the burden of
satisfying each of the elements in the three-part test.
Id.; DiPaolo, 835 F.2d at 49 (citing United States v.
Brown, 582 F.2d 197, 202 (2d Cir. 1978)). Schwimmer’s taped
recantation falls far short of proving either of the first
two prongs.

1. The Scope and Materiality of the False Testimony

Initially turning to the second element, the Court does
not find that without the recanted testimony the jury may
have reached a different verdict. Although the attorneys
for the defendant consistently argue throughout all phases
of the motion in broad and sweeping language that Schwimmer
lied to the grand jury and at the trial, a closer
examination of the two hour taped interview reveals that
Schwimmer only recanted two specific items of his trial
testimony. In particular, Schwimmer recanted his testimony
that he overheard the statement “job well done,” and that
he heard a conversation in which Abraham Weiser stated that
he was going to lock up the third floor.

The Court finds that Israel Schwimmer’s recantation of
these two items of evidence would have little impact on the
totality of the evidence that was presented on the arson
counts. Other more credible evidence established both of
these items with greater detail at the trial. The Court
recalls that at the trial Israel Schwimmer’s entire
testimony was short, restrained, vague, undetailed and
could be viewed as somewhat Page 54 unpersuasive. In
contrast, more detailed and compelling evidence was
presented that corroborated these two items. Victor
Schlesinger testified at length about the circumstances,
the declarant, and the tone of the statement “job well
done.” There was also evidence that regardless of whether
Abraham Weiser stated he was going to lock up the third
floor, the firefighters found that the third floor was
locked the night of the fire along with the exterior
entrances of the building, and that only the defendant and
his brother had keys to the entire building. Even if the
jury were to reject Israel Schwimmer’s testimony as to
these two items, other more credible evidence existed to
sustain the verdict of guilty on the arson counts.
Accordingly, the Court finds at the outset that the
recanted evidence is insufficient to disturb the outcome of
the trial.

Notably, Schwimmer did not recant with regard to other key
evidence that he testified to at the trial. Indeed, during
the interview Schwimmer reaffirmed portions of his trial
testimony with even greater specificity than he had
previously. At the trial, consistent with his restrained
and somewhat evasive testimony, Schwimmer provided little
details about observing, on the day of or a day prior to
the fire, the defendant and his son David Schlesinger
removing about four or five bags of papers from the
defendant’s file cabinets. However, in the interview with
Soshnick, Schwimmer confidently states several times that
not only did he see Nat Schlesinger removing papers from
the building prior to the fire, but that he called his wife
and she observed it as well. Page 55

2. The Repudiation of the Recantation

On April 21, 2006, Israel Schwimmer testified at the
evidentiary hearing, and essentially repudiated his
recantation. A recantation that is repudiated is not only
factually significant, but under the law, the character of
the alleged “new evidence” undergoes a critical change. A
recantation by a material witness is necessary to establish
the first prong of the DiPaolo test, that is, “the falsity
of the trial testimony.” Id. at 50. If ultimately
successful, the recantation stands as substantive evidence
that may be used at the defendant’s new trial if one is
granted. See id.

On the other hand, a repudiated recantation, such as is
present in this case, is not useful in establishing the
falsity of the trial testimony. Rather, the repudiated
recantation merely suggests that the witness is “completely
irresponsible. . . .” See Moore’s Federal Practice —
Criminal Procedure § 633.05 (2006); see also United
States v. Santiago, 837 F.2d 1545, 1550 (11th Cir. 1988)
(stating that a retracted recantation can hardly be
considered “new evidence”); Lespier, 2006 WL 533792 at *7.
Indeed, witness recantations are looked upon with such
suspicion that the mere “failure of a defendant to produce
or explain the absence of an affidavit of a recanting
witness may be sufficient grounds for denying a motion for
a new trial.” DiPaolo, 835 F.2d at 50 (quoting United
States v. Ward, 544 F.2d 975, 976 n. 2 (8th Cir. 1976).

The recantation, once it is repudiated, is no longer
substantive evidence that may be used at a new trial, but
can only be used as impeachment evidence for the Page 56
purpose of cross-examining the witness. United States v.
Glantz, 884 F.2d 1483, 1486 (1st Cir. 1989) (“A repudiated
recantation is not substantial evidence, and can be used at
a new trial only to cross-examine the witness.”); Lindsey
v. United States, 368 F.2d 633, 636 (9th Cir. 1967);
Lespier, 2006 WL 533792 at *7; see also Wright & Miller, 3
Fed. Prac. & Proc. Crim.3d § 557.1 (2006).
Impeachment evidence that bears only on credibility is
generally not a sufficient basis for obtaining a new trial.
See United States v. Reyes, 49 F.3d 63, 68 (2d Cir. 1995)
(citing Mesarosh v. United States, 352 U.S. 1, 9, 77 S. Ct.
1, 5, 1 L. Ed. 2d 1 (1956) and Spencer, 4 F.3d at 119).

Although, at the evidentiary hearing, most of Schwimmer’s
testimony on cross examination was evasive, unforthcoming,
and unenthusiastic, two key themes in his testimony were
consistently confident, contrite, and said with conviction.
First, Schwimmer testified several times that at the end of
the interview with Soshnick he was given an affidavit to
sign, and he refused to sign it because it was not the
truth. Hr’g Tr. at 290. Second, Schwimmer continually
re-affirmed no less than ten times that he had provided
truthful testimony during the trial of Nat Schlesinger.
Hr’g Tr. at 61, 75, 80, 148, 164, 168, 171, 173, 217, 287
and 311. For example, Schwimmer firmly responded to defense
counsel on several occasions that, “I never lied at the
trial or in the grand jury.” Hr’g Tr. at 146. In response
to repeated accusations of falsifying his testimony,
Schwimmer replied, “I told you the truth before, that I
never lied on the trial, so what do you want now?” Hr’g Tr.
at 217. Page 57

3. As to the Alleged Falsity of the Schwimmer Trial
Testimony

Even if Schwimmer did not repudiate his recantation, the
taped interview is unpersuasive in establishing the first
prong of the DiPaolo test, that is, the falsity of
Schwimmer’s prior testimony. “[T]raditionally the
recantation of testimony given on trial is looked upon with
the utmost suspicion.” Sanders v. Sullivan, 863 F.2d 218,
225 (2d Cir. 1988) (citations and quotations omitted).
Disbelief of a recantation made outside of court is often a
reasonable reaction. “[T]he formality of a court, the
presence of the litigants, and the gaze of a judge induce
witnesses to hew more closely to the truth than they do
when speaking in private and attempting to appease the
losing side’s advocate.” Mendiola v. Schomig, 224 F.3d 589,
593 (7th Cir. 2000). “Some witnesses fall prey to
influences — perhaps the persuasive influence of a
skilled advocate asking leading questions, perhaps the less
wholesome influence of the defendant’s friends.” Id.

Schwimmer’s recantation is fraught with all of these
improper influences. The interview is filled with leading
questions that suggested an answer. For example, in the
following exchange counsel for the defendant is questioning
Schwimmer about alleged promises of leniency from the
government:

Mike: Was that ever actually told to you, were you given
a promise by the prosecutor that if you —
(inaudible) — that with your testimony that neither
you nor anybody of your family members would be prosecuted
for anything? Page 58

Israel: They didn’t say it out, but — (Yiddish)
— this was it.

Mike: What I’m hearing from you is that it was your
understanding that if you testified against Nat, no harm
would come to you or your family members.

Israel: They didn’t say it out. This was behind their
backs.

Mike: That’s what I’m asking you, was there some type of
unwritten —

Israel: To tell you the truth, no, no written, no written
promise, no nothing, no written promise, no nothing.

Def. Ex. A to the Rule 33 Mtn at 9.

Soshnick even tried to use metaphors to coax Schwimmer
into saying that he received unwritten promises from the
government, when he asked:

“What we’re trying to ascertain right now is whether the
government used the carrot and stick approach. You told us
that they used the stick approach to the extent that if
you don’t testify consistently with your Grand Jury
testimony you’re going to jail for perjury. . . . So now
we want to know, did they go in the other direction and
use the carrot and say, and of course if you do testify
consistently with your Grand Jury testimony you stand to
get millions of dollars?”

Def. Ex. A to the Rule 33 Mtn. at 75-76. Schwimmer responded
in a confused tone, and then clarified, “They didn’t tell
me that, no, no, they didn’t tell it from [sic] me because
I didn’t.” Def. Ex. A to the Rule 33 Mtn. at 76.

In addition, the hostile community pressure further leads
to the unreliability of the recantation. Schwimmer had
realistic reasons to fabricate his recantation. A review of
the recording indicates that he sounds nervous and
obviously was under Page 59 intense religious and
community pressure. Indeed, Schwimmer used the word
“pressure” many times during the interview. Schwimmer
stated, “We can not [sic] mention a word of pressure. I have
no pressure. I have pressure by law from the Torah. I’m not
going to heaven and I’m not allowed to lie. I don’t want to
mention the word pressure.” Def. Ex. A to the Rule 33 Mtn.
at 54.

Schwimmer eluded to the intense community pressure that he
has been confronted with after he testified at the trial.
He stated that many Rabbis in the community do not want him
to pray in their synagogues. He asked Soshnick to tell Nat
that he should speak to his kids and have them stop telling
the Rabbis in the community that he is working with the
government. Schwimmer explained, “See a lot of synagogues,
they don’t want to see me.” Def. Ex. A to the Rule 33 Mtn.
at 84. Schwimmer also stated “Let me tell you something,
[Nat]’s willing to kill my wife the way it is.” Def. Ex. A
to the Rule 33 Mtn. at 80.

At one point Schwimmer even tried to negotiate a general
release from Nat Schlesinger for all civil litigation. In
response, Soshnick told Schwimmer that in exchange for the
recantation he would recommend to Nat Schlesinger that he
not take any action against Schwimmer, but states “that
it’s up to Nat to decide what action if any he wants to
take against you, what action if any he wants his children
to take against you.” Def. Ex. A to the Rule 33 Mtn. at
127. Page 60

Towards the end of the interview the participants
apparently try to explain why Schwimmer came to the
attorney’s office that day. Dabrowsky suggested that
Schwimmer “reached out to the community that you wanted to
come here and talk through Abe.” Def. Ex. A to the Rule 33
Mtn. at 115. Diluzio further suggested:

There was a meeting that took place. Present at the
meeting were so and so. Here’s how he came to the office.

He came to the office because he was troubled, because he
was concerned, and he expressed that concern to the people
in the community. He was worried about what was going to
happen to his immortal soul. He had very grave concerns.

He was aware that he had lied. He was aware he was
pressured. He didn’t know how to relieve himself of that.
He spoke to Abe who said, Look [sic], the only way you can
relieve yourself of that is to go to Nat’s attorney.

Def. Ex. A to the Rule 33 Mtn. at 115-16.

The circumstances under which the interview was conducted
contribute to the Court’s view that the recantation was
unworthy of belief. In the meeting, Schwimmer was closeted
with two experienced criminal defense attorneys for the
defendant, a private investigator for the defendant, and
Abraham Lichtenstein, a close ally of the defendant. At
some point, it even appeared that Schwimmer believed that
he was attending a meeting with an independent attorney
that may represent him at some time in the future. Almost
half of the interview was conducted before Schwimmer first
finds out that Soshnick is representing Nat Schlesinger.
Once notified, Schwimmer’s demeanor noticeably changes.
Schwimmer states “I’m taking things even [sic] you’re Page
61 gonna take me or not gonna.” In response, Soshnick
explains “Well let me say this to you, so that it’s clear.
Our client is, is Nat. And we’re interested in, in trying
to see if we can help Nat, because he’s sitting in jail
right now.” Def. Ex. A to the Rule 33 Mtn. at 40-41.
Schwimmer immediately reacts with surprise, stating, “So
you are, you are a lawyer for Nat now.” Def. Ex. A to the
Rule 33 Mtn. at 40-41. Still unclear about the reason he
was being interviewed by Soshnick, Schwimmer states later
in the interview “you gonna [sic] be like my counsel . . .
[b]ut it is a problem because you’re the counsel for Nat.”
Def. Ex. A to the Rule 33 Mtn. at 79. Soshnick clarifies,
“Neither Adrian nor I represent you. Neither Adrian nor I
can represent you because we’re representing Nat in regard
to the preparation of this Rule 33 motion.” Def. Ex. A to
the Rule 33 Mtn. at 84-85.

Even though Soshnick informed Schwimmer that he could not
represent him, he proceeded to advise him that perjury
carries a base offense level of 12 and that his prior
criminal history is a category I under the United States
Sentencing Guidelines. Def. Ex. A to the Rule 33 Mtn. at
108, 121. Soshnick concludes, “that puts you in a
sentencing range of 10 to 16 months . . .,” but if
Schwimmer were to plead guilty, “you’re looking at 6 to 12
months.” Def. Ex. A to the Rule 33 Mtn. at 122.

Abraham Lichtenstein also had a role in the interview. He
is described by counsel for the defendant as Schwimmer’s
“confidant.” It is apparent from the interview that
Lichtenstein is not only aligned with Nat Schlesinger, but
is also well-versed Page 62 in the history of Nat
Schlesinger and of his criminal case. Lichtenstein
frequently speaks about the history of the Schlesinger
family fight and about the case. At one point Schwimmer
remarks about Lichtenstein’s knowledge, “Yeah, yeah, yeah,
yeah, yeah, yeah. He knows sometimes more better than me.”
Def. Ex. A to the Rule 33 Mtn. at 17-18. Lichtenstein later
admits his knowledge, and perhaps refers to his alliance
with Nat Schlesinger, stating, “I have little more
knowledge of the case than these gentlemen have. I’m sure
they looked into the case, but it’s something we threw into
their lap.” Def. Ex. A to the Rule 33 Mtn. at 48 (emphasis
added). When the interview turns to a discussion about
Victor Schlesinger, Lichtenstein remarks “I’m gonna kill
him.” Finally, Lichtenstein, although not an attorney,
demonstrates a knowledge of the law by remarking that “a
level 12 [under the guidelines] is 18 [months].” Def. Ex. A
to the Rule 33 Mtn. at 108. Thus, the Court finds that
Lichtenstein could not be viewed as Schwimmer’s “confidant”
or an unbiased disinterested witness in this case.

All of these one-sided influences in the interview must be
viewed in the light of the turbulent atmosphere of
community pressure depicted by the witnesses and the
evidence submitted to the Court. It is clear that Schwimmer
was under enormous pressure, from the community at large
and at this meeting. The personal and pecuniary interest
Schwimmer had against Schlesinger as a result of the
ongoing family dispute is well supported by the evidence,
and was advanced by the defendant at the trial. On Page 63
the other hand, Schwimmer was under tremendous pressure to
recant. Rabbis prohibited Schwimmer from praying at certain
Synagogues and vicious fliers were distributed throughout
the community denouncing and vilifying Schwimmer,
proclaiming “May his name be erased.” This Court cannot
place credence in out of court statements made in such a
hostile environment.

Scrutiny and skepticism of recantations is not only
sensible, but it serves the dual purposes of protecting
witnesses after the trial and promoting truthful testimony
during the trial. By disbelieving recantations, when
justified, judges protect witnesses such as Schwimmer, who,
because of their testimony in court, have been subjected to
scorn, fear, and intimidation. “Knowledge that obtaining a
recantation will not affect the outcome of the trial makes
it less likely that defendants and their friends will hound
witnesses after trial.” Mendiola, 224 F.3d at 593.

In sum, the recantation submitted by the defendant clearly
did not satisfy the first or second requirement for
granting a motion for a new trial under DiPaolo. The
interview neither established the falsity of Schwimmer’s
trial testimony nor did it convince the Court that the jury
would have reached a different verdict.

C. As to the Alleged Perjury of Trial Witnesses

The defendant also argues that both Schwimmer and Victor
Schlesinger committed perjury at the trial. “Where the
newly discovered evidence is the existence of allegedly
perjured testimony, the defendant must first demonstrate
that perjury was Page 64 in fact committed.” United States
v. Torres, 128 F.3d 38, 49 (2d Cir. 1997) (citing United
States v. White, 972 F.2d 16, 20 (2d Cir. 1992)); United
States v. Moore, 54 F.3d 92, 99 (2d Cir. 1995). A witness
commits perjury by willfully giving false testimony
concerning a material matter. United States v. Monteleone,
257 F.3d 210, 219 (2d Cir. 2001) (citing United States v.
Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 122 L. Ed. 2d
445 (1993)). Perjury is not demonstrated by showing that
testimony of a witness is inconsistent with the statements
of another witness. See Gallego, 191 F.3d at 162; United
States v. Gambino, 59 F.3d 353, 365 (2d Cir. 1995).
Incorrect testimony resulting from confusion, mistake, or
faulty memory, or simple inaccuracies or inconsistencies in
testimony likewise do not rise to the level of perjury. See
Monteleone, 257 F.3d at 219; Sanchez, 969 F.2d at 1414-15.

However, once perjury is demonstrated, a new trial is not
automatic. “Rather, when a trial has been tainted by false
testimony, th[e] [c]ourt is `called upon to strike a fair
balance between the need for both integrity and finality in
criminal prosecutions’ by determining whether false
testimony was prejudicial in the sense that it affected the
outcome of the trial.” Stewart, 433 F.3d at 297 (quoting
Stofsky, 527 F.2d at 239). In undertaking such review, the
court looks at the materiality of the perjury to the
verdict and applies one of two well-settled standards that
focus on the “extent of the government’s awareness of the
false testimony prior to the conclusion of the trial.” Id.
(citing United States v. Wallach, 935 F.2d 445, 456 (2d
Cir. 1991)). Page 65

“Where the prosecution knew or should have known of the
perjury, the conviction must be set aside if there is any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.” Wallach, 935 F.2d at
457. Indeed, the knowing introduction of false testimony by
the government will lead to “virtually automatic”
reversal. Stewart, 433 F.3d at 297 (quoting Wallach, 935
F.2d at 457). This relaxed standard “serves the dual
purposes of discouraging prosecutorial misconduct and
providing relief from an unfair conviction.” Id. (citing
United States v. Agurs, 427 U.S. 97, 104, 96 S. Ct. 2392,
49 L. Ed. 2d 342 (1976)); see also Perkins v. Le Fevre, 691
F.2d 616, 619 (2d Cir. 1982).

On the other hand, where the government has no knowledge or
is unaware of the 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 would most likely not have been convicted.”
Wallach, 935 F.2d at 457; see also Stewart, 433 F.3d at
297; Monteleone, 257 F.3d at 219.

The defendant argues that this Court should follow the
reasoning in Ortega v. Duncan, 333 F.3d 102 (2d Cir. 2003),
and grant a new trial if it can be shown that a witness is
a “demonstrated perjurer.” Not only does this argument
misconstrue the holding of Ortega, but the mere showing
that a witness is a “demonstrated perjurer” is not and has
never been the standard in the Second Circuit on a motion
for a new trial. Indeed, the rule that “[p]erjury in and of
itself is insufficient to justify relief under Rule Page
66 33 . . .” was recently affirmed in Stewart, 433 F.3d at
297, and has been well-established since Wallach. 935 F.2d
at 457; see also White, 972 F.2d at 22 (“[T]he mere fact
that [the witness] lied on the witness stand does not
automatically entitle [defendant] to a new trial.”).

This Court agrees, and is bound, by the holding in Ortega,
that “a determination that [a witness’s] recantation [is]
not credible is insufficient to establish that [the
witness’s] trial testimony was not perjured. . . . Rather,
the court must weigh all the evidence of perjury before it,
including but not limited to the recantation, before
reaching this conclusion.” Ortega, 333 F.3d at 107.
Accordingly, this Court has analyzed the additional
evidence of perjury that the defendant submitted with the
motion and during the evidentiary hearing, and finds it to
be plainly insufficient to demonstrate perjury.

The additional evidence presented by the defendant in this
case is very different from the type of additional evidence
in Ortega. Also, in Ortega the witness reaffirmed his
recantation at the evidentiary hearing on the motion for
new trial. Id. at 105. The additional evidence proffered in
support of the recantation was not hearsay, but admissible
evidence that substantiated the recantation. This evidence
included a statement from the mother of the witness, who
the witness had testified he was with when he observed the
crime, that she was not at the crime scene. Id. Further,
the defendant offered a recantation from the second, and
only other, corroborating witness Page 67 to the crime.
Id. at 107. Most notably, the defendant showed that the
witness had recanted his testimony in two prior unrelated
cases

The additional evidence of perjury in the instant motion
for a new trial pales in comparison to the evidence
presented in Ortega. In this motion the defendant offers a
multitude of out-of-court statements from members of the
Williamsburg community, and the testimony of Susan
Necheles, all of which claim that prior to or after the
trial Schwimmer admitted to them that he and Victor
Schlesinger lied at the trial due to a family dispute. In
addition, the defendant argues that Schwimmer’s incredible
responses during cross-examination at the evidentiary
hearing demonstrate his willingness and capacity to lie
under oath.

The defendant argues that this newly discovered evidence
shows that Schwimmer acknowledged conspiring with Victor
Schlesinger to provide false testimony. The defendant does
not assert that the government knew or should have known
about the alleged conspiracy. As such the Court could only
find that a new trial is warranted “if the testimony was
material and the court [is left] with a firm belief that
but for the perjured testimony, the defendant would most
likely not have been convicted.” Wallach, 935 F.2d at 457;
see also Stewart, 433 F.3d at 297; Monteleone, 257 F.3d at
219.

As the defendant “frankly” admits, “the contents of the
statements of these community members would not alone
suffice to establish the perjury of Schwimmer Page 68 and
[Victor] Schlesinger in any case.” Def. Mem. of Law in
Supp. of Rule 33 Mtn. at 6. Rather, the defendant contends
that they strongly support the veracity of Schwimmer’s
recantation and his statements concerning the fabrication
of testimony by Victor Schlesinger. The Court disagrees.

First, a number of the out-of-court statements provided to
the Court, such as the statement of David Ganz about a
conversation occurring near the 2005 Passover, detail
hearsay conversations that the affiants or declarants had
with Israel Schwimmer prior to or during the defendant’s
trial. As such, this evidence is not “newly discovered” and
does not meet the threshold requirements of this motion for
a new trial.

As to the statements that occurred after the trial, such as
the admission to Necheles, these hearsay statements largely
detail Schwimmer’s motivation for testifying at the trial,
that is, the bitter family feud between the family of Jack
Schlesinger and the defendant, a fact thoroughly explored
and argued by the defendant at trial, and ultimately
apparently rejected by the jury. Evidence of this nature
that is merely cumulative or impeaching is not an adequate
basis for the grant of a new trial. United States v. Diaz,
176 F.3d 52, 106 (2d Cir. 1999).

The parts of the hearsay statements that include
assertions that Schwimmer or Victor told them they “lied at
the trial,” are insufficient to establish that Schwimmer or
Victor willfully falsified their trial testimony. These
hearsay statements can either be Page 69 viewed as (1)
questionable hearsay evidence of perjury; (2) additional
evidence of Schwimmer’s unsworn recantation; or (3)
inadmissible extrinsic impeachment evidence of Schwimmer’s
repudiation of his recantation. All of the statements suffer
from the same evidentiary infirmity; they were not made
under oath. Instead, they were all made in the aura of
tremendous community pressure, and outside “the formality
of a court, the presence of the litigants, and the gaze of
a judge [that] induce witnesses to hew more closely to the
truth. . . .” Mendiola, 224 F.3d at 593. In striking
contrast, Schwimmer repudiated all of his statements of
recantation at the hearing while he was under oath and in
an open court.

Indeed, one hearsay statement advanced by the defendant is
particularly unreliable. The defendant argues that the
context of the statements Schwimmer made to attorney
Necheles is highly indicative of their reliability because
he was speaking to an attorney for the purpose of obtaining
“advice and guidance.” However, as the defendant argued
during the evidentiary hearing in support of admitting
Necheles’ testimony, in the face of the obvious privilege
barrier, the communications were not “made in confidence”
because individuals other than the attorney and client were
present. See Denny v. Jenkins & Gilchrist, 362 F. Supp. 2d
407, 412 (S.D.N.Y. 2004) (“It is well-established that the
attorney-client privilege is waived if the holder of the
privilege voluntarily discloses or consents to disclosure of
any significant part of the communication to a third party
or stranger to the attorney-client relationship”); 8 Page
70 Wigmore, Evidence § 2311 (“One of the
circumstances by which it is commonly apparent that the
communication is not confidential is the presence of a
third person who is not the agent of either client or
attorney”).

Here, not only were there other individuals present, which
led to a waiver of the privilege, but the circumstances of
the meeting with Necheles raise concerns about reliability.
Prior to meeting with Schwimmer, Necheles was confronted by
Schwimmer’s wife who alerted her that she should not meet
with her husband because he had been kidnaped. When
Necheles eventually did meet with Schwimmer he was brought
to her personal residence by “two or three other men . . .
all named Schwimmer.” Although Necheles inquired whether
Schwimmer was there of his own free will, she could not
even identify who the other individuals were or why they
needed to be present during her important first meeting
with her new client.

Putting the unusual circumstances aside, Necheles’
testimony substantiated the tremendous community pressure
that Schwimmer was under, possibly pushing him to give an
untruthful recantation even to her. Necheles testified that
Schwimmer told her he was prompted to recant by a desire to
clear his conscience and make amends for testifying against
another Jew, consistent with the principles of “Maseera”
proclaimed by the religious court Beis Din Tzedek. Necheles
further explained the definition of the term “mooser,” a
label that was branded on Schwimmer by certain members of
the community. She stated that a “mooser” is somebody who
goes to civil authorities and Page 71 tells about another
Jew in the community. With reasonable certainty, this form
of community ostracizing that Schwimmer was subjected to is
one of those out-of-court influences that could regrettably
lead a witness to give a false recantation.

The Court also finds that any alleged perjury was not
material to the verdict rendered. As detailed above,
independent evidence supported the defendant’s conviction
on the arson counts. Significantly, the jury was well-aware
at the trial of the bitter family dispute and of the
allegations that Victor Schlesinger and Israel Schwimmer
fabricated their testimony. Indeed, during the trial the
defendant recalled Abraham Weiser to the stand and he
stated that he was approached by some of the government
witnesses who testified at the trial and that they told him
they were lying on the stand “to fix Nat.” Trial Tr. at
2451, 2458. The jury heard and apparently rejected this
argument. Any additional “new” evidence of the fabrication
would be not only be cumulative impeachment, but also
immaterial. In other words, if the jurors had this
additional hearsay impeachment evidence alleging that
Schwimmer and Victor Schlesinger had lied under oath about
the statements they overheard, with reasonable certainty,
the verdict probably would not have been different.

Finally, the defendant argues that the newly discovered
evidence about Victor Schlesinger’s involvement in the
Foodland Minnesota fraud would have materially affected the
jury verdict on the arson counts. This argument is clearly
without merit. Impeachment evidence that bears only on
credibility is generally not a sufficient basis Page 72
for obtaining a new trial. See Reyes, 49 F.3d at 68 (citing
Mesarosh, 352 U.S. at 9, 77 S. Ct. 1, 1 L. Ed. 2d 1).
Although the defendant offered evidence to show that Victor
Schlesinger was most likely involved in the Minnesota
fraud, this would constitute cumulative impeachment
material because the attorney for the defendant
cross-examined Victor Schlesinger about whether he was ever
involved in a business in Minnesota. Diaz, 176 F.3d at 108;
Locascio, 6 F.3d 924, 949-50 (2d Cir. 1993) (affirming
denial of a new-trial motion where newly discovered
evidence would merely have been cumulative impeachment
material against a witness’ credibility). In addition, it
is questionable whether Victor’s involvement in an alleged
fraudulent loan in Minnesota was sufficient to show that
his responses at the trial constituted perjury. See United
States v. Petrillo 237 F.3d 119, 124 (2d Cir. 2000),
abrogated on other grounds by Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177(2004) (holding
that “misleading rather than demonstrably false” testimony
is not perjury).

D. As to The Government’s Alleged Failure to Disclosure
Impeachment Evidence

The Constitution requires the government to disclose to
the defendant any information in their possession that is
both favorable and material to his guilt or sentence. See
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L.
Ed. 2d 215 (1963). This obligation includes information
useful solely for impeaching the Page 73 credibility of a
government witness. Giglio v. United States, 405 U.S. 150,
153-55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). However,
while the government is required to disclose material
exculpatory evidence, it is not required to disclose
evidence that the defendant has sufficient access to or
knowledge of to permit him to take advantage of the
exculpatory evidence. See United States v. Zackson, 6 F.3d
911, 918 (2d Cir. 1993) (citing United States v. LeRoy, 687
F.2d 610, 619 (2d Cir. 1982)).

The Supreme Court has held that “the individual prosecutor
has a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case,
including the police.” Kyles v. Whitley, 514 U.S. 419, 437,
115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995); see also
Youngblood v. West Virginia, 126 S. Ct. 2188, 2190 (2006).
“Nonetheless, knowledge on the part of persons employed by
a different office of the government does not in all
instances warrant the imputation of knowledge to the
prosecutor, for the imposition of an unlimited duty on a
prosecutor to inquire of other offices not working with the
prosecutor’s office on the case in question would
inappropriately require us to adopt `a monolithic view of
government’ that would `condemn the prosecution of criminal
cases to a state of paralysis.'” United States v.
Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (citations
omitted). Thus, a prosecutor is only obliged to disclose
“any information held by those whose actions can be fairly
imputed to him ? those variously referred to as an
`arm of the prosecutor’ or part of the `prosecution team.'”
United States v. Bin Laden, 397 F. Supp. 2d 465, 481
(S.D.N.Y. Page 74 2005); see e.g., United States v.
Zagari, 111 F.3d 307, 320 n. 13 (2d Cir. 1997); United
States v. Chalmers, 410 F. Supp. 2d 278, 288-90 (S.D.N.Y.
2006).

In the defendant’s motion, he claims that the government
failed to disclose information concerning an investigation
commenced in 2002 by the Chicago office of the Small
Business Administration concerning an alleged fraudulent
loan obtained by Foodland Industries, which was allegedly
co-owned by Victor Schlesinger. The investigation ended in
June 2004. After an investigation, the United States
Attorney’s office for the District of Minnesota formally
declined to prosecute.

After conducting an evidentiary hearing at which numerous
government agents involved in the Minnesota investigation
testified, the defendant failed to demonstrate that any of
the investigators or prosecutors in the instant case had
access to or knowledge of any undisclosed impeachment
material concerning Victor Schlesinger. Indeed, the
evidence adduced at the hearing showed that it was the
defendant’s son Sam Schlesinger who prompted the SBA to
open an investigation into Gary Schlesinger’s business
activities in Minnesota. Accordingly, the Court finds that
government had no knowledge, actual or imputed, of the
Minnesota investigation.

Finally, the evidence shows that the defendant had
sufficient knowledge of the Minnesota investigation prior
to the trial. Victor Schlesinger was cross-examined at the
trial by the defendant’s counsel about whether he had any
business activities in Minnesota. “Where the challenged
false testimony was elicited by the defense, rather Page
75 than the prosecution, that circumstance tends to
establish the government’s unawareness of the perjury.”
United States v. Damblu, 134 F.3d 490, 493 (2d Cir. 1998)
(citing United States v. Wong, 78 F.3d 73, 81-82 (2d Cir.
1996)). Here, all the evidence indicates that the defendant
had knowledge of the alleged impeachment evidence prior to
the trial. Accordingly, the Court finds that the government
did not improperly suppress the subject information in
violation of Brady or Giglio.

III. CONCLUSION

For all the foregoing reasons, it is hereby

ORDERED, that the defendant’s motion for a new trial is
DENIED in all respects.

SO ORDERED. Page 1