                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-2006

USA v. Cimera
Precedential or Non-Precedential: Precedential

Docket No. 05-2360




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                                            PRECEDENTIAL

   IN THE UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                   Case No: 05-2360

           UNITED STATES OF AMERICA,

                            Appellant

                             v.


                    KEITH CIMERA,

                           Appellee
                 ___________________

      On Appeal from the United States District Court
                for the District of New Jersey
             District Court No.: 03-CR-00529-3
District Judge: The Honorable John W. Bissell, Chief Judge
                   ___________________

                  Argued July 13, 2006

   Before: SMITH, WEIS, and ROTH, Circuit Judges

                (Filed: August 24, 2006 )
                 ___________________
George S. Leone
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

Glenn J. Moramarco (ARGUED)
Office of the United States Attorney
Camden Federal Building & Courthouse
401 Market Street
P.O. Box 2098, 4 th Floor
Camden, NJ 08101
       Counsel for Appellant

Cathy L. Waldor (ARGUED)
Waldor & Carlesimo
2517 Highway 35
Building L, Suite 101
Manasquan, NJ 08736
       Counsel for Appellee




                OPINION OF THE COURT


SMITH, Circuit Judge.

      Appellee-Defendant Keith Cimera, the former manager
of a check cashing store in Montclair, New Jersey, was


                              2
convicted by a jury for his participation in an illegal check
cashing scheme involving fourteen fraudulent checks. Several
months after his conviction, Cimera moved for a new trial under
Federal Rule of Criminal Procedure 33 based on “newly
discovered evidence.” That evidence, he claims, are deposit
account numbers on the back of five of the fraudulent checks
which are different from the deposit account numbers on the
others, indicating that the checks were cashed in a branch of the
check cashing business other than the one in which he worked.
The District Court granted Cimera’s motion based on its
conclusion that the “discrepancy” in the account numbers
constituted “newly discovered evidence.”

        We conclude that the District Court erred in granting
Cimera’s motion for a new trial. First, Cimera failed to identify
any evidence that had not been admitted at trial. Second, even
if he had identified new evidence which would prove that the
checks were endorsed at another branch, he has failed to
establish that he was subjectively unaware of such evidence or
that it could not have been discovered with the exercise of
reasonable diligence before the trial. Accordingly, we will
reverse the order granting Cimera’s motion for a new trial.

                               I.

      Cimera was the general manager of Montclair Check
Cashing in Montclair, New Jersey. He was indicted and charged
with one count of conspiracy to transport stolen property

                               3
interstate and six counts of transporting stolen securities and
money in violation of 18 U.S.C. §§ 2314 and 2312. He pled not
guilty. At his trial, the Government presented evidence that
Cimera had conspired with Michael Ferrante and Frank Palmer
to cash checks that Palmer had stolen from his employer.1

      Ferrante was a New Jersey bookie. He worked for
Mimmo Marzullo,2 a loanshark who ran a gambling operation in
Montclair. When Ferrante’s clients were unable to pay their
gambling debts, Ferrante would arrange for them to obtain loans
from Marzullo. Marzullo charged interest at a rate of three
percent per week and made borrowers aware that, if necessary,
he would use violent means to collect any outstanding debt.


       1
           The Government entered numerous exhibits into
evidence–including the fourteen fraudulent checks–and called
six witnesses: (1) Larry Bastoky, the Director of Special
Investigations at Ernst & Young, (2) Cimera’s co-defendant,
Frank Palmer, (3) Cimera’s co-defendant, Michael Ferrante, (4)
Nadia Ali, an assistant vice-president in the check cashing
department of J.P. Morgan Chase Bank, (5) Tom Wilson, the
owner of Montclair Check Cashing, and (6) Matty Dolan,
Cimera’s co-worker at Montclair Check Cashing. Cimera did
not testify. The following factual account is drawn from the
evidence presented at trial.
       2
         In the record, the spelling of Marzullo’s first name is
unclear. He is sometimes referred to as “Nimo,” and, at other
times, as “Mimmo.”

                               4
        Palmer was Ferrante’s former high school classmate. In
the fall of 2001, Palmer was down on his luck and $3000 in debt
to another bookie. Ferrante helped him obtain one of Marzullo’s
loans. Palmer, however, continued to gamble and became
increasingly indebted to Marzullo. In order to avoid the
“repercussions” of defaulting on his loans–and upon Ferrante’s
recommendation 3 –Palmer began stealing checks from his
employer, Ernst & Young, in Lyndhurst, New Jersey. Between
December of 2001 and January of 2002, Palmer stole three
checks in the amounts of $1300.55, $678.56, and $690.00,
respectively. Ferrante took the checks to Cimera, explained that
he had a friend that worked at Ernst & Young, and told Cimera
that “no one would ever find out about it.” App. at 367. Cimera
cashed the checks, but told Ferrante that if they were returned,
Ferrante would be responsible for reimbursing him.



       3
          Ferrante was no stranger to the fraudulent check
cashing business. In 2001, Ferrante began stealing checks from
his then-employer, Nextel Communications. He cashed the
checks–which totaled $8578.54–with Cimera, who told him, “If
this comes back fraudulent, you’re responsible for the payment.”
 App. at 357-63. In exchange for his assistance, Ferrante gave
Cimera a few hundred dollars to “ke[ep] him happy.” Id. at 363.
In November of 2001, Cimera received notice from Nadia Ali
at Chase Manhattan Bank that the Nextel checks were
fraudulent. He relayed that information to Ferrante, and
Ferrante agreed to “make good” on the entire amount. Id.


                               5
       In January of 2001, Palmer contacted Ferrante and told
him that he had “something big coming up” and asked if
Ferrante could arrange to have a check for more than $60,000
cashed. Id. at 371. Ferrante said, “Let me reach out to someone
and I’ll get back to you.” Id. He then contacted Cimera.
Cimera declined to discuss the matter over the phone, but
invited Ferrante to his house.4 They met later that day, and
Cimera agreed to cash the check.

       Until that time, Cimera and Palmer had never met.
Because of the value of the check, however, the three men
decided to meet the following day in the parking lot of a
clothing store to discuss how Palmer had obtained the check and
when Cimera would be able to deliver the money. Although
there was no discussion regarding how the money would be
divided, Ferrante testified that he understood that the amount
would be split three ways. Ferrante delivered the check to
Cimera the following day. The check was cashed on January 17,
2002. Thereafter, Palmer stole four more checks from Ernst &
Young in Lyndhurst, which totaled $24,719.54. He gave these
checks to Ferrante, who in turn gave them to Cimera to cash.5


       4
        Ferrante testified that he had been to Cimera’s house
more than fifty times before this meeting.
       5
         At Cimera’s trial, Matty Dolan and Tom Wilson
described the check cashing procedures at Montclair Check
Cashing during the time when the fraudulent checks were

                              6
        In April of 2002, Palmer was promoted to become the
accounts payable manager in the general counsel’s office of
Ernst & Young’s Manhattan-based headquarters. In his new
position, Palmer was authorized to issue checks to outside
counsel. During his first three months of employment, he
falsified six checks totaling $166,212.64. Consistent with the
prior scheme, Palmer gave these checks to Ferrante, who passed
them on to Cimera to cash.

        In June of 2002, an accounting director at Ernst & Young
identified three checks that had been falsely endorsed. The
suspected fraud was reported to Ernst & Young’s Director of
Security, Larry Bastoky. Bastoky discovered that the checks had
been deposited into an account for MATT, Inc. at a Chase


cashed. When a new customer came to the store, he or she
would fill out an informational card, which the store kept on
file. When the customer handed a check to an employee, a
Regiscope camera would take a photograph of the check and the
customer’s ID, as well as the employee cashing the check.
Regiscope would store the photograph under a five-digit number
and the check itself would be stamped manually, with the same
five-digit number. For purposes of calculating and documenting
the stores profits, the employee would then enter the date and
the amount of the check on a so-called “Monroe tape.”
       Dolan testified that none of the fourteen fraudulent
checks contained Regiscope numbers. He also explained that
four of the fourteen checks could not be located on the Monroe
tapes from Montclair Check Cashing.

                               7
Manhattan Bank Branch in Montclair, New Jersey. He also
learned that MATT, Inc. was owned by Tom Wilson and that it
served as the corporate name of two check cashing businesses:
Montclair Check Cashing and West Orange Check Cashing.6 As
part of his investigation, Bastoky called Montclair Check
Cashing in an effort to reach Wilson. Employee Matt Dolan
answered the phone and told Bastoky that he should speak to the
store manager, Keith Cimera. Although Bastoky left his name
and telephone number, Cimera never returned his call. Bastoky
called again and Dolan told him that he had left the message for
Cimera. Finally, on July 17, 2002, Bastoky reached Cimera
directly.

       During their telephone conversation, Bastoky explained
to Cimera that he was conducting an investigation regarding
three fraudulently endorsed checks that had been cashed at
Montclair Check Cashing and deposited into a MATT, Inc.
account. Upon Bastoky’s request, Cimera agreed to review the
business records in an attempt to discover who was responsible
for cashing the checks. Cimera indicated that the store received
hundreds of checks every day, suggesting, according to Bastoky,


       6
          Wilson actually owned three check cashing businesses:
Montclair Check Cashing, West Orange Check Cashing, and All
Checks Cashed in Parsippany. MATT, Inc. is the corporate
name for the Montclair and West Orange businesses; Wilson
testified that for “licensing purposes,” the Parsipanny location
is separately incorporated. App. at 637.

                               8
that it would be “quite a project” for him to review the records.
Id. at 88. Bastoky faxed copies of the three stolen checks to
Cimera.

       Bastoky tried to reach Cimera several times after he
faxed the checks to follow up. He finally reached him on July
25 or 26. Although Cimera did not indicate that he had made
progress in identifying the individual who had cashed the stolen
checks, he did ask if Bastoky had a suspect in mind. Bastoky
indicated that he suspected Frank Palmer, and agreed to fax a
photo of Palmer to Cimera. Federal agents subsequently found
a copy of that fax during a search of Michael Ferrante’s house.

        Based on the evidence that he had collected, Bastoky
decided to interview Palmer at Ernst & Young’s office in
Manhattan. During the interview, Bastoky told Palmer that the
evidence suggested that Palmer had been stealing company
checks and that he believed Palmer might have a gambling
problem. Palmer denied the allegations. Bastoky placed Palmer
on a paid leave of absence, retrieved his access card,
identification, and keys, instructed him to contact his supervisor
the following day, and had him escorted out of the building.
Palmer testified that after the interview with Bastoky, he called
Michael Ferrante. Ferrante instructed him to deny everything
and said that he would contact Keith Cimera.

      The following day, Palmer contacted his supervisor and
Bastoky by telephone. He admitted that he had stolen the three

                                9
checks then under investigation–as well as several other
checks–when he was working in the Lyndhurst office. He
explained that, after he was promoted to the general counsel’s
office, he began creating fictitious invoices from law firms and
other businesses. He would send the fictitious invoice to the
Dallas accounting center, and request that a check be sent
directly to his attention so that it could be hand-delivered. When
Bastoky realized the breadth of Palmer’s check fraud scheme, he
contacted the FBI.

        Several days later, Bastoky contacted Palmer, who agreed
to meet him at the Meadowlands Sheraton Hotel. When Palmer
arrived, several FBI agents were present. The agents offered
him the opportunity to cooperate. He subsequently agreed to
assist in the investigation. In all, the Government discovered
that Palmer had stolen fourteen checks between January and
June of 2002. Eight checks were stolen during Palmer’s
employment at the Lyndhurst office; six were stolen during his
employment in the Manhattan office. The combined value of
the checks was $261,942.38. Initially, Palmer admitted only that
he had stolen twelve checks; he failed to disclose that he had
stolen the two remaining checks until after he entered his guilty
plea.

      As part of his agreement with the Government, Palmer
consented to have his conversations with Ferrante and Cimera
recorded. Between August 21 and September 12, 2002, Palmer
engaged in thirteen recorded conversations with Ferrante. He

                               10
also left two recorded messages on Cimera’s answering
machine. Although there is no evidence that Palmer ever
actually spoke to Cimera directly, telephone records reflect that
Ferrante and Cimera spoke almost every day, and often,
numerous times per day, during this period.

        In the recorded conversations, Palmer told Ferrante that
Ernst & Young had discovered three of the fourteen stolen
checks, but that they had agreed not to press charges against him
if he reimbursed the company for the $4000 value of those
checks. He told Ferrante that he did not have the money and
asked if Cimera would pay it. Ferrante repeatedly told Palmer
that he was unable to reach Cimera or that Cimera did not want
to discuss the matter. Ferrante testified, however, that he spoke
with Cimera “every day” and that Cimera had refused to give
Palmer any money.

       On October 25, 2002, the FBI searched Ferrante’s house.
They seized loansharking documents, gambling records, a copy
of Frank Palmer’s picture that Cimera received by fax from
Bastoky, the Chase Manhattan bank memo from Nadia Ali, the
stolen Nextel checks, two BB guns, an antique gun, and some
personal checks. They also seized Ferrante’s wallet, which
contained a fake identification card (with Frank Palmer’s
information and Ferrante’s picture) and a casino card in Mimmo
Marzullo’s name.

       On July 17, 2003, a grand jury returned a 15-count

                               11
indictment against Marzullo, Ferrante, and Cimera. On October
7, 2003, Ferrante pled guilty to one count of illegal gambling,
one count of extending credit by extortion, and one count of
conspiracy to defraud the United States. At the time of trial,
Ferrante had not yet been sentenced. On February 9, 2004,
Marzullo pled guilty to one count of illegal gambling and one
count of extending credit by extortion. He was sentenced to a
29-month term of imprisonment.

       On April 1, 2004, the grand jury returned a seven-count
superseding indictment against Cimera. He was tried by a jury
in the District of New Jersey and was convicted on all seven
counts on July 26, 2004. Following the trial, Cimera filed a
Rule 29 motion for judgment of acquittal and a Rule 33 motion
for a new trial. The District Court held a hearing on these
motions on September 27, 2004, and entered an order denying
the motions on October 8, 2004.

       On January 18, 2005, Cimera filed a notice of
substitution of counsel. His new attorney filed a motion for a
new trial on a claim of “newly discovered” evidence on
February 25, 2005. The District Court held a hearing on
Cimera’s second motion for a new trial on March 29, 2005.

      In his motion, Cimera claimed that, after the trial, he had
discovered that five of the fourteen checks bore endorsement
stamps with bank deposit account numbers that differed from
the numbers on the other nine checks. The discrepancy between

                               12
the account numbers, Cimera argued, made clear that there were
two separate MATT, Inc. accounts: one for Montclair Check
Cashing and one for West Orange Check Cashing. Although the
checks themselves were admitted into evidence, the account
numbers were illegible on four of the five checks at issue.7


       7
         According to the parties, the Montclair account number
was 533500135965 and the West Orange account number was
533500135865. In other words, the parties represent that there
was only a one digit difference between the two different
accounts. See Appellant’s Br. at 19; Appellee’s Br. at 14.
Based on our review of the one legible “West Orange” check,
App. at 1126, however–and as we pointed out at oral
argument–the account number appears to be 533500245865 and
to differ by three digits.

       We also note for the record that, contrary to the parties’
representations that there were two different endorsement
stamps used in connection with the various checks, there
actually appear to be three different stamps in use:

(1)    The Montclair Stamp or, as the Government refers to it,
       the “965 Account.” It does not have a border and reads:

                PAY TO THE ORDER OF
            THE CHASE MANHATTAN BANK
                 MONTCLAIR, NJ 07042

               [DATE–DIFFERS BY CHECK]


                               13
                        021202337
                   FOR DEPOSIT ONLY
                       MATT, INC.
                      533500135965

See App. at 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125,
and 1159. The account number is legible on most, but not all,
of the checks bearing the Montclair Stamp.

(2)   The Legible “West Orange” Stamp. This stamp has an
      external rectangular border and an internal rectangular
      border around the date. It does not, however, include the
      corporate name, MATT, INC. It reads:

               PAY TO THE ORDER OF
           THE CHASE MANHATTAN BANK
                MONTCLAIR, NJ 07042

                       APR 30, 2002

                        021202337
                   FOR DEPOSIT ONLY
                      533500245865

See App. at 1126 (emphasis added).


(3)   The Illegible “West Orange” Stamp. Like the Legible
      “West Orange” Stamp, it has an internal and external

                             14
Cimera argued that if this information had been presented to the
jury, it would have cast doubt on the Government’s case and
likely would have resulted in an acquittal, at least with respect
to some of the counts. The District Court agreed and, in an oral
ruling, granted Cimera’s motion for a new trial.             The
Government filed this timely appeal.

                               II.

       The District Court exercised jurisdiction over this
criminal case pursuant to 18 U.S.C. § 3231. We have
jurisdiction over an appeal from an order granting a motion for
a new trial pursuant to 18 U.S.C. § 3731. The decision to grant
or deny a motion for a new trial under Federal Rule of Criminal
Procedure 33 is committed to the sound discretion of the District
Court. Gov’t of the Virgin Islands v. Lima, 774 F.2d 1245, 1250
(3d Cir. 1985). Accordingly, on appeal, our review is for abuse
of discretion. Id.




       border, but unlike the Legible “West Orange” Stamp, it
       includes the corporate name MATT, INC. The account
       number at the bottom is not fully legible on any of the
       checks bearing the Illegible “West Orange” Stamp. See
       1133, 1138, 1147, and 1164.




                               15
                              III.

        Federal Rule of Criminal Procedure 33 provides that
“[u]pon the defendant’s motion, the court may vacate any
judgment and grant a new trial if the interest of justice so
requires.” In interpreting Rule 33, this Court has held that a
district court may grant a new trial on the basis of “newly
discovered evidence” if five requirements are met:

       (a) the evidence must be in fact, newly
       discovered, i.e., discovered since the trial; (b)
       facts must be alleged from which the court may
       infer diligence on the part of the movant; (c) the
       evidence relied on, must not be merely cumulative
       or impeaching; (d) it must be material to the
       issues involved; and (e) it must be such, and of
       such nature, as that, on a new trial, the newly
       discovered evidence would probably produce an
       acquittal.

United States v. Ianelli, 528 F.2d 1290, 1292 (3d Cir. 1976); see
also Gov’t of the Virgin Islands v. Lima, 774 F.2d 1245, 1250
(3d Cir. 1985); United States v. Saada, 212 F.3d 210, 216 (3d
Cir. 2000). Although the decision to grant or deny a motion for
a new trial lies within the discretion of the district court, the
movant has a “heavy burden” of proving each of these
requirements. See Saada, 212 F.3d at 216.



                               16
        In this case, the District Court reviewed each of the five
requirements and concluded that they had all been satisfied.
Although the Court acknowledged that the checks themselves
were admitted into evidence, it nonetheless concluded that the
evidence–“namely, the discrepancy in the serial numbers”–was
“indeed newly discovered.” Id. at 24. The failure to discover
that discrepancy, the Court held, was not the result of a lack of
diligence by any of the parties. Id. at 25. To the contrary, the
Court explained, “it frankly was the exercise of truly
extraordinary diligence by [substitute defense counsel] in
coming into this case that generated what really is newly
discovered evidence.” Id. Furthermore, the Court determined
that the “new” evidence was material and that it was not merely
cumulative or impeaching. Finally, the Court explained:

       [The newly discovered evidence] must be of such
       a nature that on new trial, [it] would probably
       produce an acquittal. In this Court’s view[,]
       while I am not asked to look into a crystal ball or
       even a magnifying glass to make that
       determination, what this does indicate to me is
       that at least if these particular counts remain
       drafted and charged as they are, (essentially that
       the checks were transmitted to and processed at
       Montclair Check Cashing) this evidence would, in
       all likelihood, produce an acquittal on such a
       charge as drafted.



                               17
Id. at 27. Based on these findings and conclusions, the Court
granted Cimera’s motion for a new trial. Id. at 29.

        On appeal, the Government argues that, contrary to the
District Court’s holding, Cimera failed to satisfy four of the five
Ianelli requirements. Specifically, the Government contends
that: (1) Cimera failed to prove that the discrepancy between the
account numbers was “newly discovered”–in other words, that
it was unknown to him before the close of trial; (2) even if
Cimera was unaware of the discrepancy, he could have
discovered it by exercising reasonable diligence prior to the
conclusion of the trial; (3) the evidence was not material to the
outcome of the case; and (4) presentation of the evidence would
not likely have produced an acquittal.

       Insofar as the checks–including the physical markings on
the backs of those checks–were admitted at trial, we conclude
that Cimera has failed to identify any new evidence.
Furthermore, even if Cimera had identified new evidence, we
agree with the Government that Cimera failed to satisfy the first
two prongs of the Ianelli test. Accordingly, we will reverse the
District Court’s order granting his motion for a new trial.8


       8
         In United States v. Jasin, 280 F.3d 355, 365 n.9 (3d Cir.
2002), we explained that “if a court determines as a matter of
law that evidence is not newly discovered, then no matter what
the court’s conclusions are as to the other Ianelli factors, it must
deny the defendant’s Rule 33 motion . . . .” Because we

                                18
                                IV.

        At the outset, it is important to identify the “evidence” at
issue. In this case, Cimera makes two separate, but related,
arguments. First, he claims that the digits in the account
numbers on the checks at issue are “newly discovered” because,
as a result of their size and illegibility, he was unaware of them
at the time of trial and could not have identified them with the
exercise of reasonable diligence. Second, he claims that the
discrepancy between the account numbers, which reflected that
the checks had been cashed in different accounts, was “newly
discovered.”

      The relevant physical markings–which represent the
account numbers–constitute evidence.9     By contrast, an
observation or a conclusion–or, in the words of the District
Court, an “appreciation of the significance”–about those



conclude that the evidence at issue in this case is not “newly
discovered,” we do not reach the other Ianelli factors.
       9
          “Evidence” is “[a]ny species of proof, or probative
matter, legally presented at the trial of an issue [or for these
purposes, capable of being presented at trial], by the act of
witnesses, records, documents, concrete objects, etc., for the
purpose of inducing belief in the minds of the court or jury as to
their contention.” Black’s Law Dictionary 656 (4th ed. 1951).


                                19
physical markings is not evidence.10 The physical markings, in
this case, include legible numbers, illegible marks, and blank
spaces. Those markings are of such a size as to be clearly
visible without the aid of a magnifying glass.11


       10
             Several other circuits have held that where the
defendant had possession of the evidence at the time of trial, his
failure to realize its relevance will not render that evidence
“newly discovered.” See, e.g., United States v. Olender, 338
F.3d 629, 635-36 (6th Cir. 2003) (concluding that new legal
theories or interpretations of the significance of evidence does
not constitute “newly discovered evidence”); United States v.
Rodriguez-Marrero, 390 F.3d 1, 29 (1st Cir. 2004) (holding that
police report in defense counsel’s possession was not “newly
discovered”); United States v. Jaramillo, 42 F.3d 920, 925 (5th
Cir. 1995) (holding that translation of transcript already in
evidence was not “newly discovered” and explaining that
“evidence is not considered ‘newly discovered’ where a
defendant is in possession of evidence before trial but does not
realize its relevance”). We agree that this is the correct rule.


       11
          Though we need not address the issue in this case, we
do observe that evidence discovered before or during trial may
have latent attributes that are not discovered until after trial. In
such a case, evidence to establish the existence of those latent
attributes may be considered “newly discovered.” For example,
if a blood sample were admitted at trial and subsequent
technological advances made it possible to identify precise DNA
characteristics of that sample, the test results and/or relevant

                                20
       After the trial, Cimera offered several observations and
conclusions regarding the backs of the checks which he claims
constitute new evidence. He observed that the digits in the
account number markings are illegible on four of the five
relevant checks. He also observed that the digits on the other
relevant check are legible and claims that those digits are
533500135865.12 Based on these observations, Cimera appears
to conclude that: (1) the account numbers on the four illegible
checks would also have read “533500135865”; (2) this account


expert testimony may be “newly discovered” evidence.
        Our decision in Ianelli provides an apt example. In that
case, the appellant presented evidence in the form of a
handwriting expert’s analysis that the Attorney General’s initials
had been forged on a document authorizing electronic
surveillance. Although the document was already in evidence,
the expert’s conclusion regarding the forged nature of the
initials–a latent attribute–was “new evidence.” Because this
evidence could have been discovered with the exercise of
reasonable diligence, however, we held that the appellant had
not satisfied the five-part test. 528 F.2d at 1293.
        In this case, there are no latent attributes in the markings
on the backs of the checks. In particular, based on our review,
the markings are visible with the naked eye, and Cimera has
presented no evidence that the use of a magnifying glass
revealed any new information.


       12
           Again, we note that the account number actually
appears to be 533500245865.

                                21
number is materially different than those on the remaining nine
checks; and (3), on the basis of evidence not in the record, all
five of these checks were endorsed at the West Orange branch.
None of these observations or conclusions are evidence.

       Of course, Cimera potentially could have identified new
evidence that would support these observations and conclusions.
For example, an associated deposit slip could have provided
evidence of what the illegible numbers should have been.
Likewise, the testimony of a bank employee could have
established that the account number on the legible check was
used exclusively for checks cashed at the West Orange branch.
Because Cimera has not identified any evidence which was not
admitted at trial, however, his motion should have been denied.

                              V.

       Even if Cimera had identified evidence to prove that the
checks were endorsed at the West Orange branch, he
nevertheless failed to establish that such evidence would be
“newly discovered” under the Ianelli test. The test to determine
whether evidence is “newly discovered” is both objective and
subjective: Evidence is not “newly discovered” if it “was
[actually] known or could have been known by the diligence of
the defendant or his counsel.” See United States v. Bujese, 371
F.2d 120, 125 (3d Cir. 1967). In the words of Ianelli, “the
evidence must be in fact, newly discovered, i.e., discovered
since the trial” and “facts must be alleged from which the court

                              22
may infer diligence on the part of the movant.” 528 F.2d at
1292.




                               A.

       There is nothing in the record–either in the form of
affidavits or testimony–to establish that Cimera and his trial
counsel were subjectively unaware of evidence which would
prove that the checks had been stamped with a different account
number. The burden, however, was on Cimera and his trial
counsel to make this showing. See Saada, 212 F.3d at 216
(“[T]he movant has a ‘heavy burden’ in meeting these
requirements.”) Cimera merely argues that “[c]ommon sense
dictates that had he been able to see the variance in bank
account numbers, he obviously would have presented the
variance to the jury as it is clearly exculpatory.” Id. at 9.
Despite this “common sense” argument, however, it is not
“obvious”–at least to us–that counsel would have pointed out the
discrepancy between the numbers. There may have been a
variety of tactical or strategic reasons that the defendant would
not want to prove definitively that the checks were cashed in a
particular branch. In the absence of further proof, the District
Court’s conclusion that Cimera could not have been aware of
the account numbers because counsel would have flagged the
discrepancy for the jury is simply speculation.



                               23
                               B.

       Moreover, even if Cimera had established that he and his
trial counsel were subjectively unaware of evidence which
would prove that the checks had been stamped with a different
account number because of their illegibility, we nevertheless
conclude that–as an objective matter–such evidence could have
been discovered before the close of trial with the exercise of
reasonable diligence. To determine whether the movant
exercised “reasonable diligence,” we must carefully consider the
factual circumstances of the case. See, e.g., 44 A.L.R. Fed. 13
(“[O]rdinary diligence . . . is a relative term and depends on the
circumstances of the case[.]”); see also Ianelli, 528 F.2d at 1293
(holding that a handwriting expert’s testimony that the Attorney
General’s initials were forged on a memorandum authorizing
electronic surveillance of the defendant was not “newly
discovered” evidence for Rule 33 purpose where the
authorization was “warmly contested”).

       This case is about stolen checks. At trial, the defense
advanced two theories: (1) that Cimera was not the person who
cashed the checks and (2) if he did, he did not know that they
were stolen. Because the identity of the individual who cashed
the checks was a contested issue, the checks–and any
information about where they were cashed–would be
particularly important. Accordingly, we would expect a
reasonably diligent attorney in a case of this type to carefully
inspect the checks themselves. Here, it appears that Cimera’s

                               24
attorney did scrutinize the checks, and more specifically, the
endorsement stamps on the backs of those checks. In fact,
during his summation, Cimera’s trial counsel argued that, based
on the appearance of the endorsement stamps, the checks may
have been cashed in a location other than the Montclair branch.
Specifically, he argued:

       I want you to look at something the Government
       never looked at carefully. I want you to look at
       the back of every single check in this case, and I
       want you to notice something that stands out like
       a sore thumb, that the deposit stamp used to
       deposit the checks is different on the backs of
       certain of the checks because those checks may
       have been diverted by Mr. Ferrante to some other
       Matt, Inc. check cashing. So I want you to
       remember this.

                               ...

       [T]ake every check and turn it over. You will see
       several of the checks have a stamp with no square
       ring around it and no small square in the middle.
       Those checks were put into some other account of
       Matt, Inc. Was it West Orange, and never
       Montclair? Look at it. I will talk to you about it
       later.



                              25
Id. at 925-27. Counsel also pointed out that the checks that were
not on the Monroe tapes from Montclair Check Cashing seemed
to be the ones that had different stamps. He said:

       Now, we find out that one, two, three, four,
       five–sorry–one, two, three, four, look at the
       deposit slips. Look at the back of the checks. It’s
       obvious that some of these checks never went to
       the Montclair Matt, Inc. Maybe they went to–and
       this is pure speculation–but maybe they went to
       Matt, Inc. West Orange, which is the same
       corporation under the name of Tom Wilson’s
       children because the one in Parsippany isn’t Matt,
       Inc.

Id. at 961. These statements during defense summation indicate
that Cimera and his counsel were in fact on notice of the
potential discrepancies in the checks submitted by the
Government.

       In summary, we conclude that: (1) the identity of the
individual who cashed the checks was a contested issue; (2) the
account number was illegible on four of the five checks; (3) the
account number was legible on at least one check and that
number was different from the remaining nine; and (4) Cimera
had notice of the facial difference in the endorsement stamps.
In light of these facts, we hold that Cimera could have
discovered evidence to support the conclusion that the five

                               26
relevant checks were cashed at the West Orange branch before
or at the time of the trial through the exercise of reasonable
diligence. Because Cimera offers no reason or excuse for his
failure to exercise such diligence, he has not met the second
prong of the Ianelli test.

                               VI.

        Pursuant to Federal Rule of Criminal Procedure 33, the
District Court may grant a motion for a new trial based on the
discovery of new evidence. Cimera’s conclusion that there was
a “discrepancy” between the account numbers on the back of the
fraudulent checks is not evidence and, accordingly, is an
insufficient basis upon which to grant a Rule 33 motion.
Moreover, even if Cimera had identified evidence which would
prove that the fraudulent checks were endorsed at another
branch, he nevertheless has failed to establish that he was
subjectively unaware of such evidence or that it could not have
been discovered with the exercise of reasonable diligence before
or at the time of the trial. Accordingly, we will reverse the order
granting Cimera’s motion for a new trial.
