The United States Attorney's office in New York City has filed a memorandum of law in opposition of the Rule 33 motion, filed by defendant Richard Chichakli, seeking a new trial, on the grounds of newly discovered evidence. The Government is asserting that no such grounds exist that would support the granting of a new trial by the Court, under existing Federal case law.
Mr. Chichakli's position:
(1) That witness Henry Gayer, who was involved in the abortive purchase of aircraft by Chichakli, perjured himself at trial. He alleges that Gayer knew, in advance, that Chichakli was on the OFAC Specially Designated Nationals (SDN), meaning that any transaction was illegal, and subject to being blocked.
(2) That Gayer knew about Chichakli's status from a visit to his website.
(3) That Gayer lied about when he learned this fact, when he testified on the witness stand, at Chichakli's Federal criminal trial.
The Government, in its brief, after first establishing that the law specifies that perjured testimony can only result in a new trial, under the grounds of newly-discovered evidence, under the most extraordinary circumstances, went on to show that trial testimony indicated that the witness only learned of Chichakli's OFAC sanctions later, and had no prior knowledge. Exhibits were appended to the memorandum to substantiate the US position, including interviews of the witness by government agents.
It also stated that documents the defendant claims prove up his assertion were made available to him prior to trial, notwithstanding his allegation that he failed to discover them until after trial. Additionally, potentially inconsistent statements of the witness, regarding a prior transaction with the defendant concerning an Indonesian transaction, were insufficient grounds for the granting of a new trial. It does not rise to the level required for a new trial.
On its face, it appears that Chichakli's motion has no merit at law, but it is up the trial judge to decide. Some observers believe that the flurry of motions filed since the trial is intended to give the defendant more grounds to assign as error on appeal.
Only after all the pending post-trial motions are disposed of, including the Court's ruling on a recent psychiatric evaluation of the defendant, can he be sentenced.