United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN, DISTRICT JUDGE.
March 6, 2007, the government indicted International
Outsourcing Services (“IOS”), a coupon
clearinghouse, its CEO, Thomas C. Balsiger, and others on
wire fraud offenses. The indictment alleged that the
defendants devised and participated in a scheme to defraud
manufacturers that issued coupons for consumer products,
large retailers, and others by knowingly submitting
fraudulent coupons to manufacturers for reimbursement. In a
superseding indictment returned on December 5, 2007, the
grand jury charged defendant Balsiger with 25 counts of wire
fraud (counts 1-25), conspiracy to commit wire fraud (count
26), and conspiracy to obstruct justice (count 27).
extensive pre-trial proceedings, defendant Balsiger
proceeded, pro se, to a court trial before Judge Clevert,
which lasted from October 5, 2016, to November 7, 2016. On
December 5, 2016, Judge Clevert rendered his verdict, finding
defendant not guilty as to counts 1-15 and guilty as to
counts 16-27. On March 6, 2017, Judge Clevert sentenced
defendant to a total of 120 months in prison. The judgment
issued on March 24, 2017.
April 4, 2017, defendant filed a motion for a new trial
pursuant to Fed. R. Crim. P. 33 based on “newly
discovered evidence.” The case was reassigned to me due
to Judge Clevert's retirement, and I ordered the
government to respond. In that response, the government
argued, inter alia, that the evidence upon which
defendant relied was not “new, ” as it had been
produced in discovery in the case. On May 5, 2017, defendant
filed a motion for leave to file a second motion for a new
trial, this time relying on the “interest of
justice.” The government opposed leave, arguing that
the motion was untimely.
both motions. The government conclusively shows that the
contract upon which defendant relies in his first motion is
not new, and defendant fails to show that his failure to
timely file the second motion was based on excusable neglect.
district court “may vacate any judgment and grant a new
trial if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). Motions based on “newly discovered
evidence must be filed within 3 years after the verdict or
finding of guilty.” Fed. R. Crim. P. 33(b)(1). Motions
“grounded on any reason other than newly discovered
evidence must be filed within 14 days after the verdict or
finding of guilty.” Fed. R. Crim. P. 33(b)(2). The
court may extend the 14-day period after its expiration
“if the party failed to act because of excusable
neglect.” Fed. R. Crim. P. 45(b)(1)(B).
district court may not grant a new trial while an appeal is
pending. However, the court may entertain the motion and
either deny it or, if inclined to grant a new trial, so
certify to the court of appeals. United States v.
Blankenship, 970 F.2d 283, 285 (7th Cir.
DEFENDANT'S FIRST MOTION (NEWLY DISCOVERED
order to obtain a new trial based on newly discovered
evidence, the defendant must show that the evidence (1) came
to his knowledge only after trial; (2) could not have been
discovered any sooner using due diligence; (3) is material
and not merely impeaching or cumulative; and (4) probably
would lead to an acquittal in the event of a new trial.
United States v. Eads, 729 F.3d 769, 780
(7th Cir. 2013); United States v. Hodges,
315 F.3d 794, 801 (7th Cir. 2003). Defendant
cannot satisfy the first element of this test.
contends that at the March 6, 2017 sentencing hearing,
specifically during the parties' argument concerning loss
amount, he realized for the first time that the court relied
on a 1996 contract in finding him guilty. He contends that
the 1996 contract upon which the court relied was superseded
by a 2001 agreement, which contains different terms and which
had not been introduced into evidence at trial. After the
hearing, he located a copy of the 2001 agreement, which, he
contends, constitutes newly discovered evidence.
problem with defendant's argument is that he did not
discover the 2001 agreement after trial. As the government
shows, defendant executed this agreement on behalf of IOS in
April 2001 (R. 1001 Ex. B at 18); he authorized its
production to the government during the investigation (R.
1025 Ex. A, B, C); and he received copies of it as part of
the discovery once the case was charged (R. 1025 at 9-10).
Further, while the 2001 agreement was apparently not
introduced as an exhibit at trial, it was referenced in
admitted exhibits (Trial Ex. 236, 237, 238); defendant
questioned witnesses about the “one-step”
procedure it created (Trial Tr. at 1124-25, 1275-76, 1535-36,
1540, 1554-55); and he discussed the April 2001 contract
during his own testimony (Trial Tr. at 2550-51). Indeed, at
sentencing, defendant's counsel noted that during his
trial testimony defendant testified that the 1996 contract
was superseded by the one- step agreement. (Sen. Tr. at 87.)
disputes none of these facts. Instead, he argues that at the
time of trial he did not understand the significance of the
2001 agreement. However, the Seventh Circuit has consistently
held that a defendant cannot obtain relief under Rule 33
where the facts underlying his claim were known at the time
of trial, even though he may not have then understood their
legal significance. United States v. Gootee, 34 F.3d
475, 480-81 (7th Cir. 1994) (citing United
States v. Ellison, 557 F.2d 128, 133 (7th
Cir. 1977); Roach v. Stastny, 104 F.2d 559, 562
(7thCir.1939)). Defendant attempts to avoid this
rule by noting the complexity of the case, the volume of
discovery, the delay in getting the case to trial, his health
issues, and his pro se status at trial. However, he cites no
authority in support of his claim that a different rule
should apply under these circumstances.
defendant was aware of the evidence upon which he now relies
prior to and at trial, he cannot satisfy the first prong of
the test and his motion must be denied. I accordingly ...