UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

ROBERT ILONIA, a/k/a David Blake,
                                                                       No. 96-4210
a/k/a William Walsh, a/k/a
Christopher Maple, a/k/a Robert N.
Illoanya,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-95-374-A)

Submitted: January 31, 1997

Decided: October 15, 1997

Before WIDENER, WILKINS, and NIEMEYER, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Konstantinos Alexakis, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Gerald J. Smagala, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Robert Ilonia was convicted by a jury of conspiracy to commit
access device fraud, 18 U.S.C. §§ 1029(b)(2), 2 (1994), and fraudu-
lent possession of more than fifteen unauthorized access devices, 18
U.S.C. §§ 1029(a)(3), 2 (1994). Ilonia appeals his conviction, alleging
that his indictment was obtained with perjured testimony in denial of
due process and that the district court erred in failing to dismiss the
indictment after he filed a post-trial motion seeking acquittal or a new
trial. He also appeals his 24-month sentence. We affirm the convic-
tion but vacate the sentence and remand for resentencing.

Ilonia was one of several men who negotiated with a confidential
informant to buy stolen credit cards in northern Virginia in the spring
of 1995. The informant arranged to sell credit cards which were sup-
posedly stolen from the mail but in fact had been specially issued by
three banks in fictitious names. Initially, the informant knew Ilonia
only as "Robert." On May 4, 1995, Ilonia called the informant to say
that he was on his way to the informant's apartment to buy credit
cards, as previously arranged. He left his pager number. Federal
agents from the United States Postal Inspection Service later subpoe-
naed the records of the pager company and thus learned Ilonia's name
and address.

When Ilonia and co-defendant Mark Johnson arrived at the infor-
mant's apartment, they were recorded on videotape (though the tape
was not of high quality) and audiotape. The apartment was also moni-
tored visually by agents stationed in an adjoining apartment. Ilonia
and Johnson bought about thirty credit cards which were still in enve-
lopes. Before they left, a person who was a suspect in a separate
investigation arrived to buy credit cards from the informant.

Ilonia and Johnson left the apartment building and got into a grey
four-door sedan. To avoid alerting the other suspect, the agents

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attempted to arrest Ilonia and Johnson a few blocks away from the
apartment building. However, Ilonia escaped after a high-speed chase
during which the envelopes containing the credit cards were thrown
from the passenger side of the sedan, and one of the agents' vehicles
collided with the sedan. Ilonia's fingerprints were found on two of the
envelopes thrown from the car. The same evening, one of the agents
involved in the chase told Postal Inspector Joseph Costello (the agent
in charge) that the vehicle driven by the suspects appeared to be a
Volkswagen Jetta.

On July 10, 1995, the informant contacted Costello to give him the
license number of Ilonia's car. Costello traced the car, which turned
out to be a 1984 Peugeot registered to Ilonia on May 25, 1995. In late
July, Ilonia was arrested by state authorities for a traffic offense and
his car was impounded. Costello inspected the Peugeot on July 27 and
found no evidence of collision damage.

When Costello testified before a grand jury in August, he said that
he identified Ilonia through his pager records. He also said that on
May 4, 1995, Ilonia was driving a 1984 Peugeot registered to him.
When asked how Ilonia was positively identified, Costello said Ilonia
had been arrested and fingerprinted on the Fairfax County traffic war-
rant, and that his fingerprints matched those found on two of the
envelopes thrown from the car.

At trial, the prosecutor asked Costello about his previous testimony
that he knew the type of car driven by Ilonia on May 4, 1995. Costello
explained that he did not learn that a 1984 Peugeot was registered in
Ilonia's name until later but that, when he did, he assumed it was the
car he saw on May 4. Ilonia was positively identified as the person
who bought credit cards from the informant on May 4 by Costello and
the informant. The video and audio tapes were played for the jury.

In his cross-examination of Costello, defense counsel asked about
his statement to the grand jury that Ilonia was driving a Peugeot on
May 4. Costello said he had wrongly assumed that the car he saw on
May 4 was the Peugeot, thinking that the car might have carried a dif-
ferent license plate on May 4 and that the damage might have been
fixed before he inspected Ilonia's car in July. Defense counsel then
tried to suggest that Costello had mistakenly connected Ilonia to the

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May 4 transaction through the Peugeot. However, Costello reaffirmed
that he had first identified Ilonia through his pager number.

After Ilonia was convicted, he moved for a judgment of acquittal
or a new trial under Federal Rules of Criminal Procedure 29(c), 12(f)
and 33, alleging that Costello had given material perjured testimony
before the grand jury when he said Ilonia was driving a Peugeot on
May 4. He argued that the government had an obligation to seek a
new indictment on untainted testimony when it learned of the perjury.
The district court denied the motion.

At sentencing, the district court awarded Ilonia a 2-level enhance-
ment for more than minimal planning under USSG § 2F1.1(b)(2).
Ilonia also received a 4-level enhancement under USSG § 2F1.1(b)
(4)(A); the court found that the offense involved the conscious or
reckless risk of serious bodily injury. Ilonia's argument on this issue
focused on whether the government had proved that he was in the car
that was pursued by the agents on May 4, 1995.

On appeal, Ilonia first argues that the district court should have dis-
missed the indictment because of Costello's perjured testimony before
the grand jury. While Ilonia did not specifically ask the district court
to dismiss the indictment in his post-trial motion for acquittal or a
new trial, he did rely on United States v. Basurto, 497 F.2d 781, 785
(9th Cir. 1974), which found error in the denial of a pretrial motion
to dismiss an indictment obtained with material perjured testimony.

An indictment returned by a legally constituted grand jury may not
be challenged on the ground of inadequate or incompetent evidence,
Costello v. United States, 350 U.S. 359, 363 (1956), and may not be
dismissed for errors in the grand jury proceedings* which do not prej-
udice the defendant. Bank of Nova Scotia v. United States, 487 U.S.
250, 257 (1988). However, an indictment may be challenged on the
grounds of constitutional error and prosecutorial misconduct. United
States v. Mills, 995 F.2d 480, 486 (4th Cir. 1993).
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*An exception is an allegation that the indictment fails to show juris-
diction or to charge an offense. Fed. R. Crim. P. 12(b)(2).

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The government argues that Ilonia has waived this issue by failing
to raise it in a pretrial motion. See Fed. R. Crim. P. 12(b)(2), (f).
However, an exception exists for a defendant who shows cause for his
failure to timely raise a defense or objection based on a defect in the
indictment and also shows that he has been prejudiced by the alleged
defect. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 362-63
(1963). The decision to grant relief from the waiver provision is
within the discretion of the district court. United States v. Williams,
544 F.2d 1215, 1217 (4th Cir. 1976). Thus, Ilonia was not absolutely
precluded from challenging his indictment after trial on the ground
that it was obtained with perjured testimony if, as alleged, he did not
know until the trial that Costello would admit under oath that his testi-
mony before the grand jury was not accurate.

Nevertheless, even assuming that Ilonia had cause for raising the
issue after trial, he was not prejudiced by Costello's erroneous grand
jury testimony that on May 4, 1995, the suspects arrived at the infor-
mant's apartment and left in a 1984 Peugeot. This testimony was not
material to a finding of probable cause to indict Ilonia. Costello told
the grand jury that Ilonia was identified through his pager number and
his fingerprints, which were on two of the envelopes thrown from the
car during the chase. Moreover, Ilonia has not shown that Costello
perjured himself. Therefore, the district court did not abuse its discre-
tion in denying Ilonia's motion under Rule 12(f).

A new trial may be granted on the basis of newly discovered evi-
dence under Rule 33 if (1) the evidence is newly discovered; (2) the
defendant has exercised due diligence; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material; and (5) the
evidence would probably result in an acquittal at a new trial. All five
requirements must be met. United States v. Custis, 988 F.2d 1355,
1359 (4th Cir. 1993), aff'd, 510 U.S. 485 (1994). A new trial should
be granted only when the evidence weighs so heavily against the ver-
dict that it would be unjust to enter judgment. United States v.
Arrington, 757 F.2d 1484, 1485-86 (4th Cir. 1985). Ilonia's newly
discovered evidence (that Costello gave inaccurate testimony before
the grand jury) was not material and would not have resulted in an
acquittal at a new trial. Therefore, the district court did not err in
denying a new trial.

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Again citing Basurto, Ilonia asks this court to reverse his convic-
tion because there may be a possibility that Costello's inaccurate
grand jury testimony contributed to his conviction. There is no merit
in his claim because the petit jury was informed of the discrepancy
between Costello's grand jury testimony and his trial testimony dur-
ing his direct examination by the government attorney. Defense coun-
sel also explored the matter extensively in cross-examination. The
jury was not misled at trial by any false or mistaken testimony given
by Postal Inspector Costello.

Ilonia also contests his sentencing enhancements. Because the gov-
ernment concedes that the 4-level enhancement for risk of bodily
injury under USSG § 2F1.1(b)(4)(A) was error and requests resen-
tencing, suggesting that a 2-level adjustment under USSG § 3C1.2 for
reckless endangerment would have been appropriate, we vacate this
portion of the sentence and remand for the district court to consider
whether an adjustment under USSG § 3C1.2 is warranted. We express
no opinion concerning the adjustment or the propriety of a departure.
The district court's finding that Ilonia engaged in more than minimal
planning is not clearly erroneous. The 2-level enhancement under
USSG § 2F1.1(b)(2) is therefore affirmed.

Accordingly, we affirm Ilonia's conviction and the district court's
order denying him a new trial. We affirm the sentence in part but
remand for resentencing without the enhancement under USSG
§ 2F1.1(b)(4)(A). We express no opinion on the propriety of an
enhancement under USSG § 3C1.2 or a departure. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

         AFFIRMED IN PART, VACATED
         IN PART, AND REMANDED

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