09-4738-cr
United States v. Gupta


                               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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 17th day
of June, two thousand eleven.

Present:
            JOHN M. WALKER, JR.,
            BARRINGTON D. PARKER,
            PETER W. HALL,
                              Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                   Appellee,

                   v.                                                  No. 09-4738-cr

RAGHUBIR K. GUPTA,

            Defendant-Appellant.
________________________________________________

FOR APPELLANT:                   JEFFREY HOFFMAN (Susan C. Wolfe, on the brief), Hoffman &
                                 Pollok L.L.P., New York, New York, for Defendant-Appellant.

FOR APPELLEE:                    LEE RENZIN, Assistant United States Attorney (Jesse M. Furman,
                                 Assistant United States Attorney, on the brief), for Preet Bharara,
                                 United States Attorney for the Southern District of New York, for
                                 Appellee.
       Appeal from the United States District Court for the Southern District of New York

(Batts, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the District Court be and hereby is AFFIRMED.1

       Defendant-Appellant Raghubir K. Gupta appeals from a judgment entered by the district

court (Batts, J.), sentencing him principally to 51 months’ imprisonment on one count of

immigration fraud, a violation of 18 U.S.C. § 1546(a). Nearly a year after the jury returned its

verdict, but before sentencing, Gupta moved for a new trial under Fed. R. Crim. P. 33 on grounds

of newly discovered evidence, alleging that Lap Yan Wong, one of the Government’s witnesses,

testified falsely at trial about the number of amnesty applications he had adjudicated from

Gupta’s clients. The district court denied Gupta’s motion, finding that there was no new

evidence to warrant a new trial. Gupta challenges the district court’s denial of his motion for a

new trial. He also asserts that the district court applied the incorrect Sentencing Guideline in

calculating his Guidelines range. We assume the parties’ familiarity with the underlying facts

and procedural history of the case.

       We review a lower court’s denial of a Rule 33 motion for abuse of discretion, see United

States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009), bearing in mind that “even where newly

discovered evidence indicates perjury, motions for new trials ‘should be granted with great

caution and in the most extraordinary circumstances,’” United States v. Stewart, 433 F.3d 273,

296 (2d Cir. 2006) (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)). To

prevail on a Rule 33 motion, a defendant must show: (1) the newly discovered evidence could



       1
        We dispose of Gupta’s Sixth Amendment challenge to his conviction in a separate
published opinion filed today.

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not with due diligence have been discovered before or during trial; (2) the evidence demonstrates

that the witness in fact committed perjury; (3) the newly discovered evidence is material; and (4)

the newly discovered evidence is not cumulative. United States v. White, 972 F.2d 16, 20-21 (2d

Cir. 1992); accord Stewart, 433 F.3d at 297-300. Ultimately, “the trial court’s discretion to

decide whether newly discovered evidence warrants a new trial is broad because its vantage

point as to the determinative factor—whether newly discovered evidence would have influenced

the jury—has been informed by the trial over which it presided.” Stewart, 433 F.3d at 296.

       Like the district court, we have considerable doubts that the evidence Gupta identified

was in fact “newly discovered.” He argued in support of his Rule 33 motion that while Wong

testified at trial that he had adjudicated over 100 of Gupta’s client’s amnesty applications, review

of the 576 applications submitted by the Government into evidence showed that Wong

personally adjudicated no more than ten of Gupta’s client’s applications. Gupta concedes, as he

must, that the Government produced the 576 applications prior to trial, but asserts that even if he

had diligently reviewed these records, he could not have discovered the evidence with which to

impeach Wong because he could not have predicted the content of Wong’s testimony. We have

routinely rejected this type of argument, however. See, e.g., United States v. Owen, 500 F.3d 83,

89-90 (2d Cir. 2007) (“One does not ‘discover’ evidence after trial that one was aware of prior to

trial. To hold otherwise stretches the meaning of the word ‘discover’ beyond its common

understanding.”). Indeed, under analogous circumstances, we held that the “assertion that [the

defendant] had no reason to procure [the allegedly newly discovered] evidence for trial because

he had not anticipated certain government tactics and arguments is unconvincing. The evidence

in question all pertained to matters that [the defendant] knew would be in issue at trial, even if he


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did not know the government’s exact position on these matters.” United States v. Canova, 412

F.3d 331, 349 (2d Cir. 2005). Moreover, Gupta cannot demonstrate that Wong “in fact

committed perjury,” White, 972 F.2d at 20, as the record confirms that Wong’s inaccurate

testimony was far more likely the result of faulty memory than purposeful falsity. Gupta

maintains that Wong’s “inaccuracy” suggests “at least a conscience avoidance of truth.” Even

assuming that the evidence Gupta identified was “newly discovered” and that Wong in fact

committed perjury—assumptions for which there is little if any basis—Gupta cannot show that

Wong’s testimony was material to the jury’s verdict. The evidence against Gupta was

overwhelming; indeed, the crux of the Government’s case was not Wong’s testimony or the 576

amnesty applications, but rather the tape-recorded conversations by the confidential informants

and the testimony of Gupta’s former clients. We find, therefore, that the district court acted well

within its discretion in denying Gupta’s Rule 33 motion.

       As to Gupta’s Guidelines challenge, we review de novo whether the sentencing court

applied the correct Guideline. See United States v. Guang, 511 F.3d 110, 122 (2d Cir. 2007).

Gupta maintains that because he was convicted of violating 18 U.S.C. § 1546(a), the district

court should have applied U.S.S.G. § 2L2.2 to determine his base offense level, not U.S.S.G. §

2L2.1. We disagree. Appendix A of the Sentencing Guidelines provides that either § 2L2.1 or §

2L2.2 may be applied to a violation of 18 U.S.C. § 1546(a), and we have held that where a

statute corresponds to two possible Guidelines, the sentencing court should “apply the guideline

that is most appropriate for the defendant’s offense conduct.” United States v. Malki, 609 F.3d

503, 508 (2d Cir. 2010) (internal quotations and citations omitted). We have previously upheld a

sentencing court’s application of § 2L2.1 in circumstances analogous to Gupta’s, and we see no


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reason to reach a different conclusion here. See, e.g., United States v. Walker, 191 F.3d 326, 339

(2d Cir. 1999); United States v. Abrar, 58 F.3d 43, 44-45 (2d Cir. 1995).

        The judgment of the district court is AFFIRMED.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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