U.S. v. Cimera

• Decision Date: 24 August 2006
• Docket Number: No. 05-2360.,05-2360.
• Citation: 459 F.3d 452
• Parties: UNITED STATES of America, Appellant v. Keith CIMERA, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

459 F.3d 452 UNITED STATES of America, Appellant
v.
Keith CIMERA, Appellee. No. 05-2360. United States Court of Appeals, Third Circuit. Argued July 13, 2006. Filed August 24, 2006.

Page 453

George S. Leone, Office of the United States Attorney, Newark, NJ, Glenn J. Moramarco (Argued), Office of the United States Attorney, Camden, NJ, Counsel for Appellant.

Cathy L. Waldor (Argued), Waldor & Carlesimo, Manasquan, NJ, Counsel for Appellee.

Before SMITH, WEIS, and ROTH, Circuit Judges.

OPINION OF THE COURT

SMITH, Circuit Judge.

Appellee-Defendant Keith Cimera, the former manager of a check cashing store in Montclair, New Jersey, was convicted by a jury for his participation in an illegal check cashing scheme involving fourteen fraudulent checks. Several months after his conviction, Cimera moved for a new trial under Federal Rule of Criminal Procedure 33 based on "newly discovered evidence." That evidence, he claims, are deposit account numbers on the back of five of the fraudulent checks which are different from the deposit account numbers on the others, indicating that the checks were cashed in a branch of the check cashing business other than the one in which he worked. The District Court granted Cimera's motion based on its conclusion that the "discrepancy" in the account numbers constituted "newly discovered evidence."

We conclude that the District Court erred in granting Cimera's motion for a new trial. First, Cimera failed to identify any evidence that had not been admitted at trial. Second, even if he had identified new evidence which would prove that the checks were endorsed at another branch, he has failed to establish that he was subjectively unaware of such evidence or that it could not have been discovered with the exercise of reasonable diligence before the trial. Accordingly, we will reverse the order granting Cimera's motion for a new trial.

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I.

Cimera was the general manager of Montclair Check Cashing in Montclair, New Jersey. He was indicted and charged with one count of conspiracy to transport stolen property interstate and six counts of transporting stolen securities and money in violation of 18 U.S.C. §§ 2314 and 2312. He pled not guilty. At his trial, the Government presented evidence that Cimera had conspired with Michael Ferrante and Frank Palmer to cash checks that Palmer had stolen from his employer.¹

Ferrante was a New Jersey bookie. He worked for Mimmo Marzullo,² a loanshark who ran a gambling operation in Montclair. When Ferrante's clients were unable to pay their gambling debts, Ferrante would arrange for them to obtain loans from Marzullo. Marzullo charged interest at a rate of three percent per week and made borrowers aware that, if necessary, he would use violent means to collect any outstanding debt.

Palmer was Ferrante's former high school classmate. In the fall of 2001, Palmer was down on his luck and $3000 in debt to another bookie. Ferrante helped him obtain one of Marzullo's loans. Palmer, however, continued to gamble and became increasingly indebted to Marzullo. In order to avoid the "repercussions" of defaulting on his loans—and upon Ferrante's recommendation³—Palmer began stealing checks from his employer, Ernst & Young, in Lyndhurst, New Jersey. Between December of 2001 and January of 2002, Palmer stole three checks in the amounts of $1300.55, $678.56, and $690.00, respectively. Ferrante took the checks to Cimera, explained that he had a friend that worked at Ernst & Young, and told Cimera that "no one would ever find out about it." App. at 367. Cimera cashed the checks, but told Ferrante that if they were returned, Ferrante would be responsible for reimbursing him.

In January of 2001, Palmer contacted Ferrante and told him that he had "something big coming up" and asked if Ferrante could arrange to have a check for more than $60,000 cashed. Id. at 371. Ferrante said, "Let me reach out to someone and I'll get back to you." Id. He then contacted Cimera. Cimera declined to discuss the matter over the phone, but invited Ferrante to his house.⁴ They met later

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that day, and Cimera agreed to cash the check.

Until that time, Cimera and Palmer had never met. Because of the value of the check, however, the three men decided to meet the following day in the parking lot of a clothing store to discuss how Palmer had obtained the check and when Cimera would be able to deliver the money. Although there was no discussion regarding how the money would be divided, Ferrante testified that he understood that the amount would be split three ways. Ferrante delivered the check to Cimera the following day. The check was cashed on January 17, 2002. Thereafter, Palmer stole four more checks from Ernst & Young in Lyndhurst, which totaled $24,719.54. He gave these checks to Ferrante, who in turn gave them to Cimera to cash.⁵

In April of 2002, Palmer was promoted to become the accounts payable manager in the general counsel's office of Ernst & Young's Manhattan-based headquarters. In his new position, Palmer was authorized to issue checks to outside counsel. During his first three months of employment, he falsified six checks totaling $166,212.64. Consistent with the prior scheme, Palmer gave these checks to Ferrante, who passed them on to Cimera to cash.

In June of 2002, an accounting director at Ernst & Young identified three checks that had been falsely endorsed. The suspected fraud was reported to Ernst & Young's Director of Security, Larry Bastoky. Bastoky discovered that the checks had been deposited into an account for MATT, Inc. at a Chase Manhattan Bank Branch in Montclair, New Jersey. He also learned that MATT, Inc. was owned by Tom Wilson and that it served as the corporate name of two check cashing businesses: Montclair Check Cashing and West Orange Check Cashing.⁶ As part of his investigation, Bastoky called Montclair Check Cashing in an effort to reach Wilson. Employee Matt Dolan answered the phone and told Bastoky that he should speak to the store manager, Keith Cimera. Although Bastoky left his name and telephone number, Cimera never returned his call. Bastoky called again and Dolan told him that he had left the message for Cimera. Finally, on July 17, 2002, Bastoky reached Cimera directly.

During their telephone conversation, Bastoky explained to Cimera that he was conducting an investigation regarding three fraudulently endorsed checks that had been cashed at Montclair Check Cashing and deposited into a MATT, Inc. account. Upon Bastoky's request, Cimera

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agreed to review the business records in an attempt to discover who was responsible for cashing the checks. Cimera indicated that the store received hundreds of checks every day, suggesting, according to Bastoky, that it would be "quite a project" for him to review the records. Id. at 88. Bastoky faxed copies of the three stolen checks to Cimera.

Bastoky tried to reach Cimera several times after he faxed the checks to follow up. He finally reached him on July 25 or 26. Although Cimera did not indicate that he had made progress in identifying the individual who had cashed the stolen checks, he did ask if Bastoky had a suspect in mind. Bastoky indicated that he suspected Frank Palmer, and agreed to fax a photo of Palmer to Cimera. Federal agents subsequently found a copy of that fax during a search of Michael Ferrante's house.

Based on the evidence that he had collected, Bastoky decided to interview Palmer at Ernst & Young's office in Manhattan. During the interview, Bastoky told Palmer that the evidence suggested that Palmer had been stealing company checks and that he believed Palmer might have a gambling problem. Palmer denied the allegations. Bastoky placed Palmer on a paid leave of absence, retrieved his access card, identification, and keys, instructed him to contact his supervisor the following day, and had him escorted out of the building. Palmer testified that after the interview with Bastoky, he called Michael Ferrante. Ferrante instructed him to deny everything and said that he would contact Keith Cimera.

The following day, Palmer contacted his supervisor and Bastoky by telephone. He admitted that he had stolen the three checks then under investigation—as well as several other checks—when he was working in the Lyndhurst office. He explained that, after he was promoted to the general counsel's office, he began creating fictitious invoices from law firms and other businesses. He would send the fictitious invoice to the Dallas accounting center, and request that a check be sent directly to his attention so that it could be hand-delivered. When Bastoky realized the breadth of Palmer's check fraud scheme, he contacted the FBI.

Several days later, Bastoky contacted Palmer, who agreed to meet him at the Meadowlands Sheraton Hotel. When Palmer arrived, several FBI agents were present. The agents offered him the opportunity to cooperate. He subsequently agreed to assist in the investigation. In all, the Government discovered that Palmer had stolen fourteen checks between January and June of 2002. Eight checks were stolen during Palmer's employment at the Lyndhurst office; six were stolen during his employment in the Manhattan office. The combined value of the checks was $261,942.38. Initially, Palmer admitted only that he had stolen twelve checks; he failed to disclose that he had stolen the two remaining checks until after he entered his guilty plea.

As part of his agreement with the Government, Palmer consented to have his conversations with Ferrante and Cimera recorded. Between August 21 and September 12, 2002, Palmer engaged in thirteen recorded conversations with Ferrante. He also left two recorded messages on Cimera's answering machine. Although there is no evidence that Palmer ever actually spoke to Cimera directly, telephone records reflect that Ferrante and Cimera spoke almost every day, and often, numerous times per day, during this period.

In the recorded...