United States v. Bui

Citation: 70 F. App'x 14Docket: No. 02-1562

Court: Court of Appeals for the Second Circuit; June 23, 2003; Federal Appellate Court

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Defendant-Appellant Tri H. Bui challenges the District of Connecticut's order denying his motion for a new trial after being convicted of conspiracy to commit wire fraud and interstate wire fraud. The fraudulent loan in question was obtained without the knowledge of his co-owners, Kevin Cheng and Lieu Kim Truong, for a property they jointly invested in. Following his conviction and a sentence of 24 months in prison, Bui sought a new trial based on an affidavit from prosecution witness Eng Truong, claiming her trial testimony was false. She initially testified that she made payments to Bui on behalf of Cheng and Lieu as part of a buyout agreement, but her affidavit contradicted this, stating the payments were for a loan Bui had given her.

At the hearing for the new trial, Eng invoked her Fifth Amendment rights and did not testify. The District Court denied Bui's motion, concluding that even if Eng had committed perjury, her testimony was not critical to the conviction, as there was sufficient independent evidence to support it. The court characterized Eng's testimony as 'peripheral' with minimal impact on the case's outcome.

Under Federal Rule of Criminal Procedure 33, a new trial may be granted if the interests of justice require it, but such motions are typically only approved in extraordinary circumstances. To succeed on claims of newly discovered evidence, a defendant must meet several criteria, including proving the evidence could not have been discovered earlier, that it demonstrates perjury, its materiality to the verdict, and that it is not cumulative of existing evidence. The court found no basis for concluding that Bui would not have been convicted without the potentially perjured testimony, reinforcing the necessity for a firm belief that the defendant would likely have been acquitted in its absence.

Eng's affidavit is questioned as 'newly discovered evidence' since both the affidavit and the attached letter were known to the appellant and his attorney prior to trial. The letter had been used by defense counsel to cross-examine Eng, aiming to undermine her credibility regarding payments she made to the appellant, which were claimed to be from Kevin Cheng and Lieu in exchange for the appellant's property interest. Defense counsel suggested to the jury that Eng was lying, asserting the payments were a loan repayment, a claim echoed in the post-trial affidavit and supported by the 2001 letter.

The court expressed skepticism that this evidence could not have been discovered earlier, given that defense counsel had the letter during the trial. Even if the affidavit were considered 'newly discovered evidence,' the appellant failed to demonstrate that Eng's trial testimony was perjurious, emphasizing that recantations should be scrutinized closely. Furthermore, the appellant did not prove that the recantation was material to the charged offenses, as the fraudulent transaction was substantiated by multiple witnesses, including a loan officer and an attorney. While the payments to the appellant might suggest an intention to benefit from the property's increased value, they were deemed irrelevant to the fraudulent loan transaction itself. Notably, these payments occurred after the completion of the fraudulent loan transaction. Consequently, the recanted testimony was not significant to the verdict, and the independent evidence sufficiently supported the conviction. The District Court's decision to deny the new trial motion was thus upheld, affirming the judgment.