     18-2751-cr
     United States v. Choudhry

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
     PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
     (WITH THE NOTATION “SUMMARY ORDER”).       A PARTY CITING TO A
     SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 11th day of May, two thousand twenty.
 4
 5          PRESENT: RAYMOND J. LOHIER, JR.,
 6                           JOSEPH F. BIANCO,
 7                           MICHAEL H. PARK,
 8                                   Circuit Judges.
 9          ------------------------------------------------------------------
10          UNITED STATES OF AMERICA,
11
12                          Appellee,
13
14                    v.                                                         No. 18-2751-cr
15
16          MOHAMMAD AJMAL CHOUDHRY,
17
18                           Defendant-Appellant.
19          ------------------------------------------------------------------
20          FOR DEFENDANT-APPELLANT:                                  JOSHUA L. DRATEL, Joshua L.
21                                                                    Dratel, P.C., New York, NY.
22
1          FOR APPELLEE:                                   MARGARET E. GANDY,
2                                                          Assistant United States
3                                                          Attorney (Amy Busa, Richard
4                                                          M. Tucker, Assistant United
5                                                          States Attorneys, on the brief),
6                                                          for Richard P. Donoghue,
7                                                          United States Attorney for the
8                                                          Eastern District of New York,
9                                                          Brooklyn, NY.

10         Appeal from an order of the United States District Court for the Eastern

11   District of New York (William F. Kuntz, II, Judge).

12         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

13   AND DECREED that the order of the District Court is AFFIRMED.

14         Mohammad Ajmal Choudhry appeals from an order of the District Court

15   (Kuntz, J.) denying his motion for a new trial pursuant to Rule 33 of the Federal

16   Rules of Criminal Procedure. In 2015 the District Court entered a judgment

17   convicting Choudhry, following a jury trial, of conspiracy to commit murder in a

18   foreign country, in violation of 18 U.S.C. § 956(a)(1) and (a)(2)(A); fraud and

19   misuse of a petition for alien relative, in violation of 18 U.S.C. § 1546(a); and

20   transmission of threats to injure, in violation of 18 U.S.C. § 875(c). After this

21   Court affirmed Choudhry’s convictions on direct appeal, see United States v.



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 1   Choudhry, 649 F. App’x 60 (2d Cir. 2016), Choudhry moved for a new trial based

 2   on what he characterized as newly discovered evidence. The District Court

 3   denied Choudhry’s motion, concluding that much of the evidence that he

4    submitted was not newly discovered and that the evidence was not likely to have

5    resulted in an acquittal had it been presented at trial. On appeal, Choudhry

6    challenges both conclusions and argues that the District Court erred in denying

7    his motion for a new trial. We assume the parties’ familiarity with the

8    underlying facts and the record of prior proceedings, to which we refer only as

9    necessary to explain our decision to affirm.

10         “We review for abuse of discretion a district court’s denial of a Rule 33

11   motion for a new trial.” United States v. Forbes, 790 F.3d 403, 406 (2d Cir. 2015).

12   The standard for obtaining relief under Rule 33 is well established. See id. at

13   406–07. We have explained that “[i]n deciding a Rule 33 motion, [t]he test is

14   whether it would be a manifest injustice to let the guilty verdict stand.” United

15   States v. James, 712 F.3d 79, 107 (2d Cir. 2013) (quotation marks omitted).

16         Choudhry pointed the District Court principally to two sources of

17   evidence that he argued warranted a new trial: (1) “information disclosed at


                                              3
 1   trials conducted in Pakistan . . . after Mr. Choudhry’s U.S. trial had concluded”;

 2   and (2) “a Declaration by Amina Ajmal, an indispensable prosecution witness . . .

 3   [that] identifies false testimony by” two other prosecution witnesses.

 4   Appellant’s Br. 8. Even assuming that Choudhry could not have obtained this

 5   evidence prior to trial by exercising due diligence, we agree with the District

 6   Court that this evidence, which was largely cumulative of evidence presented in

 7   Choudhry’s defense at trial, was not likely to have resulted in an acquittal given

 8   the “overwhelming evidence of [Choudhry’s] guilt.” Special App’x 24. For

 9   example, the Government adduced evidence at trial showing that in the weeks

10   leading up to the murder of Shujat Abbas’s father and sister, Choudhry told

11   members of Shujat’s family that he would kill them and repeatedly admitted in

12   recorded conversations with Amina that he was “going to kill [Shujat’s] whole

13   family.” App’x 445. Choudhry also called Amina on the day of the murders

14   and vowed to “not leave a single member of [Shujat’s] family alive.” Id. at 1190.

15   In addition, the Government adduced evidence that Choudhry had frequent

16   contact with his alleged co-conspirators in Pakistan on the days of the murders

17   and an earlier shooting, and that Choudhry’s co-conspirators were at the scene of


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 1   the murders armed with weapons. Finally, the jury also heard Choudhry’s

 2   inculpatory post-arrest statements. This overwhelming evidence of Choudhry’s

 3   guilt persuades us that no “manifest injustice” occurred here. James, 712 F.3d at

4    107.

 5          For these reasons, the District Court did not abuse its discretion in denying

 6   Choudhry’s Rule 33 motion for a new trial. We have considered Choudhry’s

 7   remaining arguments and conclude that they are without merit. For the

 8   foregoing reasons, the order of the District Court is AFFIRMED.

 9                                          FOR THE COURT:
10                                          Catherine O’Hagan Wolfe, Clerk of Court




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