     13-0443-cr (L)
     United States v. Malachowski

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 9th day of September, two thousand fifteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                JOHN M. WALKER, JR.,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                        13-0443 (Lead)
16                                                                14-0226 (Con)
17       MARCEL MALACHOWSKI,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        ROBIN C. SMITH, LAW OFFICE OF
22                                             ROBIN C. SMITH, San Rafael,
23                                             California.
24
25       FOR APPELLEE:                         PAUL D. SILVER (with Carl G.
26                                             Eurenius on the brief), for
27                                             Richard S. Hartunian, United
28                                             States Attorney for the Northern

                                                  1
 1                              District of New York, Albany,
 2                              New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Northern District of New York (Hurd, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Marcel Malachowski appeals from the judgment of the
12   United States District Court for the Northern District of
13   New York (Hurd, J.), denying his motions for a new trial
14   pursuant to Rule 33 of the Federal Rules of Criminal
15   Procedure.1 We assume the parties’ familiarity with the
16   underlying facts, the procedural history, and the issues
17   presented for review.
18
19        Malachowski’s underlying convictions are for possession
20   of machine guns, possession of firearm silencers, illegal
21   entry and reentry, and being an illegal alien in possession
22   of firearms. See United States v. Malachowski, 415 F. App’x
23   307, 309 (2d Cir. 2011). Malachowski raises four grounds
24   for appeal: (i) the district court erred in finding that his
25   Rule 33 submissions were untimely; (ii) the district court
26   misapplied Brady v. Maryland, 373 U.S. 83 (1963) and Giglio
27   v. United States, 405 U.S. 150 (1972) to relevant evidence;
28   (iii) the district court incorrectly held that testimony
29   elicited by the government was not perjurious; and (iv)
30   Malachowski’s status as an American Indian born in Canada
31   precludes his conviction on counts three, four, five and
32   six. We review “challenges to a district court’s denial of
33   a Rule 33 motion for an abuse of discretion and accept the
34   district court’s factual findings unless they are clearly
35   erroneous.” United States v. McCourty, 562 F.3d 458, 475
36   (2d Cir. 2009) (internal quotation marks omitted).
37
38
39


         1
           Malachowski separately appealed the sentence he
     recieved based on the role he played in a continuing
     criminal enterprise to import and distribute marijuana.
     Oral argument with respect to this appeal, United States v.
     Cook et al., No. 14-0203, was heard in tandem with the
     present case.
                                  2
 1       Timeliness.
 2
 3        Malachowksi’s Rule 33 motions alleging newly discovered
 4   evidence were filed more than three years after the entry of
 5   a guilty verdict against him.2 The late filing was not
 6   excused by routine mistakes his counsel made. See Pioneer
 7   Inv. Serv’s Co. v. Brunswick Ass’s Ltd. P’Ship, 507 U.S.
 8   380, 397 (1993) (“[T]he Court of Appeals in this case erred
 9   in not attributing to respondents the fault of their
10   counsel”); Silivanch v. Celebrity Cruises, Inc., 333 F.3d
11   355, 369 (2d Cir. 2003) (“The excusable neglect standard can
12   never be met by a showing of inability or refusal to read
13   and comprehend the plain language of the federal rules . . .
14   . Counsel’s lack of familiarity with federal procedure is
15   not an acceptable excuse.”) (internal quotation marks
16   omitted). The district court therefore did not abuse its
17   discretion in deeming Malachowski’s Rule 33 motions
18   untimely.
19
20        Malachowski argues that the district court was required
21   to sua sponte construe Malachowksi’s Rule 33 motions as
22   motions brought pursuant to 28 U.S.C. § 2255. This argument
23   attempts an end-run around the time bar in Rule 33. See
24   Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998)
25   (“[D]istrict courts should not recharacterize a motion
26   purportedly made under some other rule as a motion made
27   under § 2255 unless . . . the court finds that . . . the
28   motion should be considered as made under § 2255 because of
29   the nature of the relief sought, and offers the movant the
30   opportunity to withdraw the motion rather than have it so
31   recharacterized.”). Untimeliness, by itself, is a
32   sufficient basis for affirming the district court’s
33   judgment.
34
35       Brady & Giglio Claims.
36
37        The district court did not abuse its discretion in
38   concluding that any allegedly withheld evidence pertaining
39   to government witness Hank Cook was cumulative of
40   impeachment evidence that was presented at trial.
41   Government Appendix (“G.A.”) 99-104, 119, 137. Moreover, it


         2
           In relevant part, Rule 33 of the Federal Rules of
     Criminal Procedure states: “Any motion for a new trial
     grounded on newly discovered evidence must be filed within 3
     years after the verdict or finding of guilty.”
                                  3
 1   is unlikely that the requested evidence would have affected
 2   the result. See United States v. Spinelli, 551 F.3d 159,
 3   164 (2d Cir. 2008) (“[U]ndisclosed information is deemed
 4   material so as to justify a retrial only if there is a
 5   reasonable probability that, had [it] been disclosed to the
 6   defense, the result of the proceeding would have been
 7   different.”) (internal quotation marks omitted). To the
 8   extent the government withheld statements by Cook outside
 9   the scope of his impeachment, they were immaterial to the
10   conviction at issue in this appeal and cannot form the basis
11   for either a Brady or Giglio violation. A. 373 (report
12   detailing conversations between Cook and Malachowski
13   concerning Malachowski’s involvement in “smuggl[ing] loads
14   of [m]arijuana”). Malachowski’s contentions in his
15   supplemental pro se brief that statements from Patrick
16   Johnson and Owen Peters should have been provided to him in
17   advance of trial are similarly meritless, as neither
18   individual had information relevant to Malachowski’s gun-
19   related charges. See United States v. Malachowski, No.
20   5:08-cr-701 (Apr. 23, 2009) (Doc. 140).
21
22       Perjury.
23
24        Malachowski has provided no basis to disturb the
25   district court’s holding that a supervisory dismissal of the
26   indictment was not warranted. Our previous decision in
27   Malachowski, 415 F. App’x at 310-11, forecloses
28   Malachowski’s arguments that the trial evidence did not
29   support a possession charge, and there is no other ground in
30   the record for concluding that false testimony was provided
31   to the grand jury or during trial. A. 44. Malachowski has
32   therefore clearly fallen short of satisfying his
33   considerable burden. See United States v. Bari, 750 F.2d
34   1169, 1176 (2d Cir. 1984) (“[D]ismissal is warranted only
35   where the prosecutor’s conduct amounts to a knowing or
36   reckless misleading of the grand jury as to an essential
37   fact.”). And the district court acted well within its
38   discretion in refusing to appoint a forensic audio expert
39   sua sponte in response to Malachowski’s motions, because all
40   of the relevant recordings were available to Malachowski at
41   the time of his trial, or could have been uncovered had
42   Malachowski exercised due diligence. See United States v.
43   Morse, 166 F.3d 1202, 1998 WL 907008 at *1 (2d Cir. 1998)
44   (noting that the defendant “did not meet his burden of
45   proving that the expert was reasonably necessary”) (internal
46   quotation marks omitted).
47

                                  4
 1
 2
 3       Native American Status.
 4
 5        Malachowski invokes 8 U.S.C. § 1359, which allows
 6   American Indians born in Canada to freely cross the borders
 7   of the United States, and contends that he was wrongfully
 8   convicted of counts three, four, five, and six. The statute
 9   extends only “to persons who possess at least 50 per centum
10   of blood of the American Indian race,” and we previously
11   expressed skepticism that Malachowksi satisfied his burden
12   of proof on this point. See Malachowski, 415 F. App’x at
13   313 (noting the “dearth of evidence respecting
14   [Malachowski’s] ancestry”). Neither the immigration officer
15   assigned to Malachowksi’s case nor the ATF agent
16   investigating Malachowksi unearthed evidence of his American
17   Indian heritage. G.A. 58, 146-47. And when Malachowski was
18   arrested by a border patrol agent and asked “Do you claim
19   any legal status in the United States?” Malachowski answered
20   “No.” G.A. 54. During this encounter, Malachowski also did
21   not “claim any other citizenship or nationality.” Id.
22   Malachowksi has accordingly fallen short of prevailing on
23   this claim.3
24
25




         3
           Malachowski bore the burden of proof on this issue.
     See United States v. Curnew, 788 F.2d 1335, 1338 (8th Cir.
     1986) (“[T]o establish a defense under section 1359, an
     individual must present some combination of evidence from
     which the finder of fact can reasonably conclude that the
     individual in fact possesses 50 per centum or more American
     Indian blood. Proof only that an individual possesses some
     unidentifiable degree of Indian blood without more will be
     insufficient.”). The affidavit Malachowski obtained from
     his grandmother cannot be considered because Malachowski
     first proffered the affidavit on appeal after the United
     States filed its opening brief. See Puglisi v. Underhill
     Park Taxpayers Ass’n, 125 F.3d 844, 1997 WL 609212 at *2 (2d
     Cir. 1997) (“On appeal, Puglisi has submitted new documents
     and affidavits to bolster his claims. This evidence was
     not, however, presented to the district court, and we
     therefore may not consider it for the first time on
     appeal.”).
                                   5
1        For the foregoing reasons, and finding no merit in
2   Malachowski’s other arguments, we hereby AFFIRM the judgment
3   of the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7
8




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