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					Case: 11-5442   Document: 46   Page: 1   08/13/2012    690322     38




      11-5442(L)
  12-389(CON)
                                              To Be Argued By:
                                              MARCIA S. COHEN




        United States Court of Appeals
                   FOR THE SECOND CIRCUIT

           Docket Nos. 11-5442(L), 12-389(CON)


                   UNITED STATES OF AMERICA,
                                                      Appellee,
                               —v.—

                      CHRISTIAN T. VIERTEL,
                                          Defendant-Appellant.

       ON APPEAL   FROM THE UNITED STATES DISTRICT COURT
            FOR THE   SOUTHERN DISTRICT OF NEW YORK


      BRIEF FOR THE UNITED STATES OF AMERICA


                                 PREET BHARARA,
                                 United States Attorney for the
                                 Southern District of New York,
                                 Attorney for the United States
                                             of America.
  MARCIA S. COHEN,
  KATHERINE POLK FAILLA,
   Assistant United States Attorneys,
               Of Counsel.
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                            TABLE OF CONTENTS
                                                                              PAGE

        Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . 1
        Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
           A. The Pretrial Procedural History. . . . . . . . . . . . . . 6
           B. The Trial Against Viertel. . . . . . . . . . . . . . . . . . . 7
                1. The Government’s Case. . . . . . . . . . . . . . . . . 7
                    a. The Fraudulent Scheme.. . . . . . . . . . . . . . 7
                    b. The Use of the Mails and the
                       Wires to Further the Scheme. . . . . . . . . . 11
                2. The Defense Case. . . . . . . . . . . . . . . . . . . . . 11
                3. The Defendant’s Rule 29 Motion. . . . . . . . . 12
           C. Viertel’s Sentencing. . . . . . . . . . . . . . . . . . . . . . 14
           D. Viertel’s Direct Appeal and Crosby Remand.. . 15
           E. Viertel’s Post-Conviction Litigation and
              Second Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . 15
                1. Viertel’s First Motion for a New Trial. . . . . 15
                2. Viertel’s Motion for Resentencing. . . . . . . . 18
                3. Viertel’s Second Appeal. . . . . . . . . . . . . . . . 19
           F. Viertel’s Second Motion for a New Trial and
              Third Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
                1. The Brady Claim.. . . . . . . . . . . . . . . . . . . . . 20
                2. The Restitution Claim. . . . . . . . . . . . . . . . . . 23
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                                               ii
                                                                                 PAGE

        ARGUMENT:
        The District Court Properly Denied Viertel’s Second
          Motion for a New Trial. . . . . . . . . . . . . . . . . . . . . . 24
           A. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . 25
                1. Suppression and Materiality Under
                   Brady.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
                2. Fed. R. Crim P. 33. . . . . . . . . . . . . . . . . . . . 27
           B. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
        CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

                          TABLE OF AUTHORITIES
        Cases:
        Brady v. Maryland,
           373 U.S. 83 (1963).. . . . . . . . . . . . . . . . . . . . . . . . 25
        Giglio v. United States,
           405 U.S. 150 (1972).. . . . . . . . . . . . . . . . . . . . . . . 25
        Kyles v. Whitley,
           514 U.S. 419 (1995).. . . . . . . . . . . . . . . . . . . . . . . 26
        Leka v. Portuondo,
           257 F.3d 89 (2d Cir. 2001).. . . . . . . . . . . . . . . . . . 27
        Strickler v. Greene,
            527 U.S. 263 (1999).. . . . . . . . . . . . . . . . . . . . . . . 27
        United States v. Bagley,
           473 U.S. 667 (1985).. . . . . . . . . . . . . . . . . . . . . . . 26
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                                         iii
                                                                       PAGE

        United States v. Coppa,
           267 F.3d 132 (2d Cir. 2001).. . . . . . . . . . . . . . . . . 26
        United States v. Douglas,
           525 F.3d 225 (2d Cir. 2008).. . . . . . . . . . . . . . . . . 27
        United States v. Middlemiss,
           217 F.3d 112 (2d Cir. 2000).. . . . . . . . . . . . . . . . . 26
        United States v. Orena,
           145 F.3d 551 (2d Cir. 1998).. . . . . . . . . . . . . . 27, 30
        United States v. Payne,
           63 F.3d 1200 (2d Cir. 1995).. . . . . . . . . . . . . . . . . 27
        United States v. Rigas,
           583 F.3d 108 (2d Cir. 2009).. . . . . . . . . . . . . . . . . 28
        United States v. Rivas,
           377 F.3d 195 (2d Cir. 2004).. . . . . . . . . . . . . . . . . 26
        United States v. Sasso,
           59 F.3d 341 (2d Cir. 1995).. . . . . . . . . . . . . . . . . . 28
        United States v. Spinelli,
           551 F.3d 159 (2d Cir. 2008).. . . . . . . . . . . . . . . . . 26
        United States v. Stewart,
           433 F.3d 273 (2d Cir. 2006).. . . . . . . . . . . . . . . . . 28
        United States v. Viertel,
           98 Fed. Appx. 68 (2d Cir. 2004). . . . . . . . . . . . 2, 15
        United States v. Viertel,
           242 Fed. Appx. 779 (2d Cir. 2007).. . . . . . . . . 3, 19
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                                              iv
                                                                                PAGE

        United States v. Viertel,
           No. 01 Cr. 572, 2005 WL 1053434
           (S.D.N.Y. May 5, 2005).. . . . . . . . . . . . . . . . . . . . . 3
        United States v. Viertel,
           No. 01 Cr. 572, 2005 WL 1844774
           (S.D.N.Y. Aug. 3, 2005). . . . . . . . . . . . . . . . . . . . . 3
        Viertel v. United States,
           No. 08 Civ. 7512, 2009 WL 22863
           (S.D.N.Y. Jan. 5, 2009). . . . . . . . . . . . . . . . . . . . . . 4
        Viertel v. United States,
           No. 09-0926-pr.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
        Viertel v. United States,
           No. 12-231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
        Viertel v. United States,
           No. 12-2560. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
        Statutes, Rules & Other Authorities:
        Fed. R. Crim P. 33. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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                   FOR THE SECOND CIRCUIT

            Docket Nos. 11-5442(L), 12-389(CON)


                      UNITED STATES OF AMERICA,
                                                          Appellee,
                                    -v.-

                         CHRISTIAN T. VIERTEL,
                                             Defendant-Appellant.


         BRIEF FOR THE UNITED STATES OF AMERICA


                       Preliminary Statement
            Christian T. Viertel appeals from two orders entered in
        the United States District Court for the Southern District
        of New York by the Honorable John G. Koeltl, United
        States District Judge. In the first order, entered on May 1,
        2008, the District Court denied Viertel’s motion for a new
        trial pursuant to Rule 33 of the Federal Rules of Criminal
        Procedure; in the second order, entered on January 9,
        2012, the Court denied Viertel’s request for an order
        vacating, nunc pro tunc, various adjudications the Court
        had previously made concerning loss and restitution.
           Indictment S2 01 Cr. 571 (JGK) (the “S2 Indictment”)
        was filed on June 6, 2002, in eight counts, of which three
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        pertained to Viertel. Count One charged that Viertel
        participated in a conspiracy to commit mail and wire
        fraud, in violation of Title 18, United States Code, Section
        371. Count Seven charged that Viertel committed the
        substantive offense of wire fraud, in violation of Title 18,
        United States Code, Sections 1343, 1346, and 2. Count
        Eight charged that Viertel committed the substantive
        offense of mail fraud, in violation of Title 18, United
        States Code, Sections 1341, 1346, and 2.
            Trial commenced on September 12, 2002, and ended
        on October 12, 2002, when Viertel was convicted on all
        three counts of the S2 Indictment. On June 23, 2003,
        Judge Koeltl sentenced Viertel to concurrent terms of 21
        months’ imprisonment, which he ordered to be followed
        by concurrent terms of three years’ supervised release.
        Judge Koeltl also imposed restitution in the amount of
        $345,673.96, and a $300 mandatory special assessment.
            Viertel appealed from his conviction. On May 28,
        2004, this Court affirmed Viertel’s conviction by summary
        order. See United States v. Viertel, 98 Fed. Appx. 68 (2d
        Cir. 2004). Viertel filed a petition for rehearing on June
        14, 2004, which petition was denied by this Court on June
        21, 2004. Notwithstanding this decision, the Court did not
        immediately issue a mandate.
           On September 12, 2004, Viertel filed a motion in the
        District Court for a new trial, pursuant to Federal Rule of
        Criminal Procedure 33, citing purportedly newly discov-
        ered evidence. While that motion was pending, on April
        13, 2005, this Court remanded the case to the District
        Court to consider whether to resentence Viertel pursuant
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        to the procedures established in United States v. Crosby,
        397 F.3d 103 (2d Cir. 2005).
            On May 4, 2005, the District Court denied Viertel’s
        new trial motion. See United States v. Viertel, No. 01 Cr.
        572, 2005 WL 1053434 (S.D.N.Y. May 5, 2005). On May
        13, 2005, Viertel completed his sentence of imprisonment.
        Shortly thereafter, Viertel was deported from the United
        States to Germany. On August 3, 2005, the District Court
        denied Viertel’s motion for resentencing. See United
        States v. Viertel, No. 01 Cr. 572, 2005 WL 1844774
        (S.D.N.Y. Aug. 3, 2005).
           Viertel appealed from the District Court’s denial of his
        motions for a new trial and for resentencing. On Septem-
        ber 26, 2007, this Court affirmed both decisions of the
        District Court by summary order. See United States v.
        Viertel, 242 Fed. Appx. 779 (2d Cir. 2007).
            On October 2, 2007, Viertel filed a second motion for
        a new trial in the District Court, this time claiming that the
        Government had withheld material exculpatory evidence
        in violation of its obligations under Brady v. Maryland,
        373 U.S. 83 (1963); in the same motion, Viertel requested
        cancellation of all of his restitution obligations. On April
        29, 2008, the District Court denied Viertel’s motion for a
        new trial and referred to a Magistrate Judge the determina-
        tion of the amount of restitution that remained outstanding.
        Viertel appealed from the District Court’s decision
        denying his new trial motion.*


           *
              This appeal, initially docketed in this Court as 08-
        3039-cr, was later renumbered as 11-5442. The Court
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            On December 23, 2011, the Government advised the
        District Court that the Government had no objection to the
        Court deeming the balance of Viertel’s restitution obliga-
        tion satisfied. Accordingly, the Court entered an order to
        that effect. On December 27, 2011, Viertel filed a “Motion
        for VACATUR nunc pro tunc of a catalogue of erroneous
        adjudications concerning ‘Loss’ Restitution issues by
        phantom victims and bogus lien recordings grounded upon
        the government’s extremely unpunctual admission that
        restitution was satisfied” (the “Vacatur Motion”). The
        District Court denied this motion by order dated January
        6, 2012. Following the entry of this order, Viertel filed
        another notice of appeal, which this Court docketed as 12-
        389.*


        appointed counsel for Viertel, who requested that the
        appeal be held in abeyance until the District Court re-
        solved the issue of restitution. This Court granted this
        request, and the appeal was later consolidated with the
        appeal docketed as 12-389.
           *
                The defendant has had and continues to have
        appeals in this Court stemming from his continued
        efforts — in spite of obvious procedural bars — to obtain
        vacatur of his conviction. On April 15, 2008, Viertel filed
        a motion to vacate, set aside, or correct his sentence,
        pursuant to Title 28, United States Code, Section 2255;
        Viertel also styled the motion as a request for a writ of
        error coram nobis. On January 5, 2009, the District Court
        denied Viertel’s motion and declined to issue a certificate
        of appealability. See Viertel v. United States, No. 08 Civ.
        7512, 2009 WL 22863 (S.D.N.Y. Jan. 5, 2009). On
        November 4, 2009, this Court denied Viertel’s motion for
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         a certificate of appealability from the District Court’s
         order. See Viertel v. United States, No. 09-0926-pr.
                 On December 31, 2011, Viertel filed a motion in
         the District Court styled as “Vacatur of Judgement of
         Conviction grounded upon ab ovo deficit of interstate
         [1341] jurisdiction over international deliverances [via air
         cargo export], divesting Federal Courts of adjudicatory
         powers [ex parte].” The District Court construed this
         motion as a second or successive motion pursuant to
         Section 2255, and, by order dated January 9, 2012, trans-
         ferred the case to this Court for a determination of whether
         the defendant could proceed with his motion. Viertel filed
         a motion challenging the District Court’s transfer order.
         See Viertel v. United States, No. 12-231. On April 2, 2012,
         this Court issued an Order (1) deferring a decision on
         Viertel’s motion pending resolution of the instant appeal,
         and (2) directing the Government to address “whether
         Viertel satisfies § 2255’s ‘in custody’ requirement in
         connection with his 2003 conviction for mail fraud, wire
         fraud, and conspiracy to commit mail and wire fraud.” The
         Government responded by filing opposition papers to
         Viertel’s motion on April 26, 2012.
                On April 20, 2012, Viertel moved in the District
         Court “for an expedited writ of Vacatur and Missio of a
         Judgment of Conviction,” again claiming purported
         jurisdictional defects in his counts of conviction. On May
         8, 2012, the District Court issued an opinion denying
         Viertel’s motion, and on May 22, 2012, it denied Viertel’s
         motion for reconsideration of its prior decision. Viertel
         appealed from the District Court’s decision, and his appeal
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                           Statement of Facts
         A. The Pretrial Procedural History
            Indictment 01 Cr. 571 (JGK), filed on June 14, 2001,
         charged Viertel and two co-defendants, Fritz Blumenberg
         and John Lee, in three counts. (A. 3, Docket Entry 1).*
         Count One alleged that Blumenberg, Lee, and Viertel
         conspired to commit mail and wire fraud in connection
         with the submission of false invoices to Burda Media, Inc.
         (“Burda Media”). Counts Two and Three charged Blumen-
         berg, Lee, and Viertel with the substantive crimes of mail
         and wire fraud in connection with the false invoice
         scheme.
             Superseding Indictment S1 01 Cr. 571 (JGK) (the “S1
         Indictment”) was filed on February 14, 2002. In addition
         to the three counts charged in the underlying indictment,
         the S1 Indictment charged Blumenberg with two counts of
         tax evasion. (A. 6, Docket Entry 25). On April 5, 2002,
         Blumenberg pled guilty to the charges in the S1 Indict-
         ment.




         is pending before this Court. See Viertel v. United States,
         No. 12-2560.
            *
                “A.” refers to the appendix filed with the defen-
         dant’s brief on appeal; “Br.” refers to the defendant’s brief
         on appeal; “Tr.” refers to the trial transcript; “GX” refers
         to a Government exhibits introduced at trial; and “[Date]
         Tr.” refers to the transcript of proceedings occurring on
         the specified date in the District Court.
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                                     7

             On June 6, 2002, Indictment S2 01 Cr. 571 (JGK) was
         filed in eight counts, of which three pertained to Viertel.
         (A. 35-50). Count One charged that Viertel participated in
         a conspiracy to commit mail and wire fraud. (A. 35-42).
         Counts Seven and Eight charged that Viertel committed
         the substantive offenses of mail and wire fraud. (A. 48-
         50).* On July 3, 2002, the Government entered a nolle
         prosequi as to co-defendant Lee. On September 12, 2002,
         trial commenced against Viertel alone.
         B. The Trial Against Viertel**
                1. The Government’s Case
                 a. The Fraudulent Scheme
             The Government’s evidence at trial conclusively
         established that between 1992 and 1996, Blumenberg and
         Viertel perpetrated a massive fraud on Blumenberg’s
         employer, Burda Media, and on Burda Media’s German
         parent corporation, Burda Holding. During the relevant
         time period, Blumenberg was the President of Burda
         Media; Viertel, unaffiliated with Burda Media, was
         Blumenberg’s longtime friend.


            *
               At trial, Count Seven was renumbered as Count
         Two and Count Eight was renumbered as Count Three.
            **
                A more detailed summary of the evidence at trial is
         contained in the Government’s briefs on appeal in United
         States v. Lee (Viertel), No. 03-1364 (filed March 24,
         2004), and United States v. Viertel, No. 05-5012 (filed
         August 18, 2006), to which this Court is respectfully
         referred.
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             The fraud — which capitalized on the manner in which
         Burda Media and Burda Holding reimbursed outside
         vendors — involved Blumenberg submitting to Burda
         Media hundreds of fraudulent invoices for services
         purportedly performed by various sham companies. Burda
         Media paid the bogus invoices, sometimes by issuing
         checks payable to cash, and other times by issuing checks
         payable to the supposed vendors. Blumenberg had the
         checks payable to cash cashed, and then pocketed the
         funds. The checks payable to the bogus vendors were
         deposited into bank accounts controlled by Viertel, who
         kicked back a portion of the funds to Blumenberg and
         retained the balance for himself.
             By way of background, Burda Holding is a German
         magazine and newspaper publisher. (Tr. 89-90). Burda
         Media served as the New York press office for Burda
         Holding, and provided support to the parent company in
         that regard. (Tr. 89-90). Burda Media frequently hired
         outside vendors to perform services for the ultimate
         benefit of Burda Holding. Upon completion of the ser-
         vices, the vendors would submit invoices to Burda Media.
         Burda Media would then issue checks from its bank
         account in New York to pay the vendors. Burda Media
         either issued checks payable to the vendors or issued
         checks for cash and gave the cash to the vendors. At the
         end of each month, Burda Media sent the invoices submit-
         ted by the vendors to Burda Holding in Germany via air
         freight. (Tr. 94-101, 205, 302-03). Approximately twice
         each month, whenever Burda Media’s bank accounts fell
         below a certain level due to the payment of such invoices,
         Burda Holding would replenish Burda Media’s accounts
         by causing a sum of money to be wired from Burda Hold-
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                                     9

         ing’s bank account in Germany to Burda Media’s bank
         account in New York. (Tr. 310, 319).
             In furtherance of their scheme, Blumenberg and Viertel
         created 287 phony invoices from a series of companies —
         including Transvideo, TV Broadcast Center, Eurocast,
         Telcopa, and Agate Reality (collectively, the “Nominee
         Companies”) — and submitted these invoices to Burda
         Media for payment. The evidence at trial confirmed that
         the invoices issued by the Nominee Companies — and,
         indeed, the companies themselves — were entirely bogus.
         (Tr. 1316-24, 1344-52; GX 1020-25, 1030, 1031, 1207,
         1208). As a result of the phony invoices, Burda Media
         paid almost a million dollars for work that was never
         performed. (Tr. 1447-55; GX 900A).
             Burda Media paid the phony invoices by checks written
         to “Cash” or to the respective Nominee Companies.
         (Tr. 328-29). The checks made payable to the companies,
         which totaled approximately $345,000,* were deposited
         into bank accounts that Viertel controlled as follows:
            •   Checks totaling $114,000 made payable to
                Transvideo and TV Broadcast Center were
                deposited into an account maintained at BNP
                Paribas that was opened under the name “Chris-


            *
                Burda Media paid the remaining approximately
         $650,000 in checks payable to cash. The evidence estab-
         lished that Blumenberg himself received the cash from
         these checks directly from another Burda employee
         (Tr. 329, 1458; GX 901); at sentencing, Viertel was not
         held accountable for those funds.
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                tian Viertel DBA TV Broadcast Center.”
                (GX 78A, 79A, 80A, 81A, 82A, 82B, 82C,
                82D, 82E, 83A, 84A, 89A, 1101, 1104-09;
                Tr. 1374-83).
            •   Checks totaling $57,000 made payable to Euro-
                cast were deposited into a different account at
                BNP Paribas that Viertel controlled and that
                was listed in the name of Viertel’s wife.
                (GX 1301-02; Tr. 1383-85).
            •   Checks totaling $165,000 made payable to
                Telcopa were deposited with the Banque Fran-
                caise de L’Orient (“BFO”), in an account con-
                trolled by Viertel. (Tr. 1417-23).
            •   Finally, a check issued by Burda Media for
                $8,120 to Agate Reality Media Services (“Ag-
                ate Reality”) was deposited into an account
                Viertel maintained at Chase Manhattan Bank
                under the name “Agate Realty.” (Tr. 1374-84,
                1398-1427, 1433-37).*
         After Viertel collected the money from the phony invoices,
         he paid Blumenberg over $180,000 in kickbacks, in the
         form of checks or direct payment of Blumenberg’s bills.
         (GX 900A, 901, 902; Tr. 1447-1522).


            *
                This fifth fraudulent company, Agate Reality,
         figured prominently at trial because the mailing of an
         Agate Reality invoice (GX 501) provided the basis for the
         substantive mail fraud count, and the replenishment funds
         wired from Germany to New York after submission of this
         invoice provided the basis for the wire fraud count.
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                  b. The Use of the Mails and the Wires
                     to Further the Scheme
            As noted, Burda Media, the direct victim of the fraud,
         had no revenue of its own, but rather served as the New
         York press office for Burda Holding. (Tr. 89-90). Burda
         Holding funded Burda Media by wiring money from
         Germany to Burda Media’s New York bank account
         whenever that account fell below a certain level. (Tr. 310,
         319). To document its expenses, Burda Media on a
         monthly basis transmitted by air freight its paid invoices
         from New York to Germany. (Tr. 94-101, 205, 302-03).
            Fraudulent invoices created by Viertel and Blumenberg
         were, on a monthly basis, sent by interstate carrier from
         New York to Germany. Similarly, regular interstate wires
         from Germany to New York funded the payments Burda
         Media made to Viertel and Blumenberg. (Tr. 94-101, 205,
         302-03, 310, 319). The scheme could not have continued
         and succeeded without these wirings and mailings; Burda
         Media lacked the funds to pay the phony invoices but for
         the wires from Germany (Tr. 92), and Burda Holding
         would not have continued to replenish Burda Media’s
         accounts had it not received the regular mailings contain-
         ing the invoices documenting Burda Media’s spending.
             2. The Defense Case
             Viertel did not testify at trial and the defense called no
         witnesses. During his opening statement and cross-exami-
         nation of Government witnesses, Viertel’s trial counsel
         floated several competing defense theories. At various
         times, defense counsel suggested that Blumenberg created
         the false invoices unbeknownst to Viertel; that some of the
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                                     12

         invoices reflected work Viertel actually performed (or,
         relatedly, that the Government could not disprove that the
         work reflected in the invoice had been performed); and
         that some of the money Burda paid to Viertel reflected
         Blumenberg’s repayment of money owed he owed to
         Viertel.
             3. The Defendant’s Rule 29 Motion
             At the conclusion of the Government’s case, Viertel
         moved, pursuant to Rule 29 of the Federal Rules of
         Criminal Procedure, for dismissal of the charges and entry
         of a judgment of acquittal. With respect to the mail fraud
         and wire fraud charges, Viertel contended that the Govern-
         ment had failed to prove that the specific mailing and wire
         transfer charged in the S2 Indictment had occurred in
         furtherance of the scheme to defraud. As to the former,
         Viertel claimed that he had received the payment for the
         Agate Reality invoice before the mailing occurred; that the
         mailing had occurred after “Burda knew about the
         scheme” (Tr. 1807); and that Viertel “could not have cared
         less whether Burda got the invoices or didn’t get the
         invoices” (Tr. 1808). With respect to the latter, Viertel
         argued that the evidence established that there were many
         checks paid; that “[Burda Media treasurer Ellen] Kiefer
         was unable to say that this check had anything to do with
         triggering a wire”’; and that Burda “knew what was going
         on” at the time the wire transfer occurred. (Tr. 1808).
         Viertel also moved for dismissal of the conspiracy charge,
         claiming there was no evidence that Viertel saw the actual
         invoices or knew that the checks deposited into his
         account were obtained by fraudulent means. (Tr. 1809).
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             The District Court denied Viertel’s Rule 29 motion. In
         rejecting Viertel’s contentions with respect to the mail
         fraud and wire fraud charges, Judge Koeltl stated:
                Viewing the evidence in the light most
                favorable to the government, the jury could
                find that, with respect to the use of the mails
                and the wires, those uses were in further-
                ance of a scheme to defraud, because the
                use of the mails and the wires was essential
                to the fraud, which was not simply a fraud
                by which a payment was made but a scheme
                whereby the funds to obtain the money for
                the payment would be obtained from Burda
                in Germany such that, pursuant to the
                scheme, an invoice would be sent to Ger-
                many, where it would be kept, and that the
                funds of Burda in New York would be
                replenished by wires from Burda in Ger-
                many such that Burda in New York would
                have sufficient ongoing funds. This was not,
                as in either [United States v. Maze, 414 U.S.
                395 (1974)] or [Kann v. United States, 323
                U.S. 88 (1944)], a case in which the scheme
                to defraud was complete before the mailing
                or the use of the wires was effected.
         (Tr. 1817-18). With respect to the conspiracy charge,
         Judge Koeltl found that “there is sufficient evidence from
         which the jury could find that there was an agreement
         between the defendant and Mr. Blumenberg to engage in
         a scheme to defraud and that the scheme to defraud was a
         scheme which had as its objects mail fraud and wire
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                                      14

         fraud.” (Tr. 1818). On October 2, 2002, a jury returned a
         verdict finding Viertel guilty on all three counts.
         C. Viertel’s Sentencing
            On May 29 and June 9, 2003, the parties appeared for
         sentencing. After extensive argument concerning the
         appropriate loss figure, the District Court found:
                It is plain that Burda was, in fact, defrauded
                by over $900,000 in false invoices that it
                paid out on the basis of false invoices from
                the various Viertel companies. The evidence
                supported the fact that work was not per-
                formed as indicated on the invoices and the
                invoices themselves were fraudulently
                prepared. They included items such as false
                phone numbers and addresses in addition to
                the listing of false services that were not, in
                fact, performed.
         (6/9/2003 Tr. 11). Judge Koeltl found, however, “an
         absence of evidence” that Viertel “actually prepared the
         fraudulent invoices for the cash,” or that Blumenberg’s
         activities in connection with his “pocket[ing]” of the cash
         proceeds were reasonably foreseeable to Viertel — as
         “opposed to the payments into accounts for Mr. Viertel,”
         as to which Judge Koeltl found “there was ample evidence
         of the knowledge of Mr. Viertel.” (6/9/2003 Tr. 12).
         Accordingly, the District Court held Viertel responsible
         for $345,673.96, the amount of “the checks made out to
         the various Viertel companies that were actually deposited
         into accounts for which the evidence at trial showed the
         accounts were controlled by Mr. Viertel and were in the
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                                      15

         name of Mr. Viertel or [Viertel’s wife].” (6/9/2003
         Tr. 13).* The Court ultimately determined that Viertel’s
         Guidelines range was 21 to 27 months’ imprisonment, and
         sentenced him principally to concurrent terms of imprison-
         ment at the low end of that range.
         D. Viertel’s Direct Appeal and Crosby Remand
             On appeal, Viertel challenged the sufficiency of the
         evidence at trial and the propriety of certain statements
         made by the Government in summation. On May 28, 2004,
         this Court affirmed Viertel’s conviction by summary order.
         See United States v. Viertel, 98 Fed. Appx. 68. Viertel
         filed a petition for rehearing on June 14, 2004, which was
         denied by Order of this Court dated June 21, 2004. The
         Court withheld the mandate, however, pending issuance of
         the Supreme Court’s decision in United States v. Booker,
         543 U.S. 220 (2005).
         E. Viertel’s Post-Conviction Litigation and
            Second Appeal
                1. Viertel’s First Motion for a New Trial
             On September 12, 2004, Viertel filed a pro se motion
         in the District Court for a new trial pursuant to Rule 33.
         (A. 149-92). Viertel alleged that five categories of ostensi-
         bly “newly discovered” evidence merited either an eviden-


            *
                In so ruling, Judge Koeltl rejected Viertel’s conten-
         tion that he believed the checks issued by Burda Media
         and deposited in his accounts represented Blumenberg’s
         repayment of personal debts that Blumenberg purportedly
         owed to Viertel. (6/9/2003 Tr. 13-14).
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                                      16

         tiary hearing or a new trial: (1) documents that Viertel
         claimed came from a 1996 audit report of Burda Media
         (the “1996 Audit”); (2) documents that Viertel described
         as transcripts of German police interviews of Wolfgang
         Maginot, a Group Controller of Burda Holding; (3) a
         document that Viertel maintained was an Agate Reality
         invoice allegedly hand-carried by Maginot to Germany
         from New York; (4) a document that Viertel maintained
         was a waybill issued by Lufthansa at Newark International
         Airport on or about June 28, 1996; and (5) unspecified
         evidence that Fritz Blumenberg once used the address
         listed on a fraudulent Telcopa invoice as Telcopa’s place
         of business.
             Of particular significance to the instant appeal were
         documents that Viertel claimed to be the “1996 Audited
         Financials” of Burda Media. (A. 150). Viertel attached
         several pages of these “audited financials” to his motion,
         and offered his own translations of the German statements
         on those pages. Viertel claimed that the documents “would
         have fatally damaged the prosecution . . . if [they] only had
         been made available.” (A. 150). Specifically, he claimed
         that the audited financials made clear that Burda Media
         was a “self-sustaining independent company” (A. 188),
         which had sufficient revenues that it did not require funds
         from Burda Holding; from this, he argued that the Govern-
         ment’s replenishment theory underlying the mail and wire
         fraud charges was flawed (A. 152, 188-89; see also A. 211
         (reply brief)).
             The Government opposed Viertel’s motion in its
         entirety. With particular focus on the 1996 Audit, the
         Government noted that Viertel had not indicated the
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                                      17

         source of the audit papers, and, more to the point, had not
         demonstrated that the Government had suppressed these
         papers before trial. (A. 194). As for the merits of the
         defendant’s claim, the Government argued that Viertel
         strained to find materiality in the oblique term “self-
         sustaining,” and failed to deal with the auditors’ statement
         that “equity, financial status and profitability [do] not fall
         within the scope of our analysis.” (A. 199; see A. 165-66).
         Finally, the Government recounted for the District Court
         the trial evidence establishing that Burda Holding in
         Germany wired money to Burda Media’s New York bank
         account whenever Burda Media’s account fell below a
         certain level, and that Burda Media sent the paid invoices
         from New York to Germany on a monthly basis to docu-
         ment its expenses. (See A. 199 (citing Tr. 310-19); see
         also Tr. 94-101, 205, 302-03).
             In a comprehensive opinion dated May 4, 2005, the
         District Court denied Viertel’s motion for a new trial
         without convening a hearing. (A. 220-46). Reviewing
         separately each of the categories of “newly discovered”
         evidence, Judge Koeltl concluded that each category was
         “not new evidence that could not, with the exercise of due
         diligence, have been discovered sooner,” as required by
         Rule 33. Moreover, Judge Koeltl found that the evidence
         was not “material,” that is, it would not have “probably
         produced a different verdict.” (See, e.g., A. 241). With
         particular respect to the 1996 Audit, Judge Koeltl con-
         cluded:
                The 1996 audit of Burda Media does not
                warrant a new trial pursuant to Rule 33. The
                defendant has made no showing that either
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                                     18

                the 1996 audit or a similar purported state-
                ment by Maginot are so material that they
                would probably lead to a different verdict.
                The defendant alleges that the 1996 audit
                states that “since 1 January the corporation
                is [self-sustaining].” The meaning of this
                statement is unclear, although, in context, it
                suggests only that Burda Media was orga-
                nized as a separate company. That Burda
                Media was organized as a separate company
                does nothing to undermine the clear evi-
                dence that invoices were sent by Burda
                Media in New York to Burda Holding in
                Germany and Burda Holding wire trans-
                ferred funds to Burda Media. The scheme in
                this case worked because fraudulent in-
                voices were air freighted from New York
                and because funds were wired from Ger-
                many. Whenever the bank account of Burda
                Media dropped below a certain level due to
                the payment of these invoices, Burda Hold-
                ing wired money to replenish Burda Me-
                dia’s bank account in New York. The funds
                were fraudulently obtained by Viertel and
                Blumenberg and the 1996 audit does not
                provide any evidence that would probably
                change the verdict.
         (A. 241-42 (record citations omitted)).
             2. Viertel’s Motion for Resentencing
            On April 13, 2005, the Court remanded the case to the
         District Court for further proceedings in conformity with
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                                      19

         United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).
         Following the submission of briefs by the parties, the
         District Court, on August 3, 2005, denied Viertel’s motion
         for resentencing, finding: “The Court has carefully
         reviewed the submissions of the parties and has concluded
         that, fully aware that the Sentencing Guidelines are only
         advisory and that the Court is to consider all of the factors
         in 18 U.S.C. § 3553(a), the Court would not have sen-
         tenced the defendant to a different sentence.” (A. 21-22,
         Docket Entry 151).
             3. Viertel’s Second Appeal
             Viertel appealed the District Court’s denials of his
         motions for a new trial and for resentencing. On Septem-
         ber 26, 2007, by summary order, this Court affirmed both
         decisions of the District Court. See United States v.
         Viertel, 242 Fed. Appx. 779. The Court concluded that:
                Viertel’s arguments with respect to the
                District Court’s denial of his motion for a
                new trial are without merit. . . . For substan-
                tially the same reasons articulated in the
                District Court’s Opinion and Order of May
                4, 2005, 2005 WL 1053434, and its Memo-
                randum Opinion and Order of August 2,
                2005, 2005 WL 1844774, the judgment of
                the District Court is AFFIRMED.
         242 Fed. Appx. at 780.
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                                     20

         F. Viertel’s Second Motion for a New Trial
            and Third Appeal
             1. The Brady Claim
             One week after this Court’s decision, on October 2,
         2007, Viertel filed another motion for a new trial in the
         District Court. This motion repeated Viertel’s claim that
         newly discovered evidence undermined the Government’s
         theory that Burda Holding transferred funds to Burda
         Media in response to Blumenberg’s fraudulent invoices.
         Viertel now claimed, however, that the materials that
         exculpated him were “balance sheet books,” and, further,
         that the Government had withheld the books from him.
         Specifically, Viertel contended that the Government
         “directly obtained, on August 7 and 8, 2002, four weeks
         before trial, ‘balance sheet book’ originals of Burda
         Media (Inc.) for the years 1985-1998,” and that “[t]hese
         books show Burda Media Inc.[’s] huge income and the ‘96
         book is [an] integral part of the ‘1995/6 audit’ submitted
         by petitioner as newly discovered and as materially
         exculpatory evidence.” (A. 248 (bolding and underscor-
         ing in original)).
             In support of his motion, Viertel provided the District
         Court with a transmittal letter, dated August 7, 2002, from
         Burda Media’s outside counsel to the Government; the
         letter indicated that counsel was providing the Govern-
         ment with, among other things, “an original Burda Media
         ‘balance sheet book’ for 1996 through 1998.” (A. 249).
         Viertel first claimed that the transmittal letter “was just
         obtained from German judicial files,” but later claimed
         that the letter had in fact been located in “German legal
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                                     21

         files” in the summer of 2007. (Compare A. 248 (bolding
         and underscoring in original) with A. 265 n.12).
            The Government responded that Viertel had offered no
         evidence to support his contention that any balance sheet
         books obtained by the Government from Burda had not
         been disclosed to defense counsel prior to trial. (A. 257).
         To the contrary, the Government stated that it had a policy
         of disclosing all information of that type to the defense
         promptly upon receipt from third parties, and that it had no
         reason to believe that this policy had not been followed
         with respect to the balance sheet books. (A. 257).* The


            *
                 The defense seeks to make much of the Govern-
         ment’s purported change in position regarding its disclo-
         sure obligations in its responses to the defendant’s first
         and second new trial motions. (See, e.g., Br. 29-30). There
         is, in fact, no inconsistency. Viertel’s first motion was
         predicated on what Viertel claimed was a 1996 audit
         report for Burda Media. (A. 150). As it advised the District
         Court, the Government has no reason to believe it pos-
         sessed the audit report prior to receiving excerpts of that
         report in Viertel’s motion, and Viertel has not demon-
         strated otherwise. (A. 194). Viertel’s second motion — at
         least as it was presented to the District Court — pertains
         not to that audit report, but to “balance sheet books” that
         were forwarded by Burda Media’s counsel to the Govern-
         ment. (A. 248). As to those materials, as it advised the
         District Court, the Government has no reason to believe
         that the materials it received from Burda Media’s counsel
         were not promptly disclosed to the defense before trial.
         (A. 257).
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         Government also underscored that Viertel had offered
         nothing to substantiate his contention that the balance
         books revealed “huge” profits attributed to Burda Media
         and, even if they had, documents created in connection
         with accounting principles for accounting purposes did not
         shed light on Burda’s day-to-day actual operations. Rather,
         the Government noted, the trial testimony established that
         Burda Media did not generate its own income, but rather
         received money from Burda Holding with which to
         operate. (A. 257).
             On April 30, 2008, the District Court denied Viertel’s
         motion for a new trial. (A. 269-74). Judge Koeltl soundly
         rejected Viertel’s Brady claim, finding:
                As an initial matter, the defendant has failed
                to substantiate his allegation that the Gov-
                ernment possessed the balance sheet books
                and failed to disclose them to defense coun-
                sel prior to the trial. “As a threshold matter,
                the defendant must show that the Govern-
                ment actually suppressed evidence.” United
                States v. Esposito, 834 F.2d 272, 275 (2d
                Cir.1987). The defendant has failed to pro-
                vide evidence to support his allegations that
                the Government failed to disclose balance
                sheet books that it had, and therefore his
                Brady claim should be denied as specula-
                tive. See Skinner v. Duncan, No. 01 Civ.
                6656, 2003 WL 21386032, at *25 and n.39
                (collecting cases). In any event, the defen-
                dant has made no showing that the balance
                sheet books are so material that there is a
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                                      23

                realistic likelihood that their disclosure
                would have resulted in a different verdict or
                undermined confidence in the outcome of
                the case, which provides an alternative basis
                to deny the defendant’s claim of withheld
                Brady material.
         (A. 271).
             2. The Restitution Claim
              Viertel’s second new trial motion also contained
         various claims regarding Viertel’s outstanding restitution
         obligation. (See, e.g., A. 250-52, 254-55, 259-68). When
         the District Court denied Viertel’s motion for a new trial,
         it referred to a Magistrate Judge the determination of the
         amount of restitution that remained outstanding. (A. 273-
         74).
             On December 23, 2011, the Government advised the
         District Court that, after consultation with Burda Media,
         the Government had no objection to the Court deeming
         Viertel’s restitution obligation to be satisfied. Accordingly,
         the Court entered a memorandum endorsement to that
         effect. (A. 276). On December 27, 2011, Viertel filed the
         Vacatur Motion, asking, the District Court to undo a series
         of prior orders concerning restitution that had been entered
         in the case. (A. 32, Docket Entry 269). The District Court
         denied this motion by order dated January 6, 2012, finding
         that
                the fact that the victim in this case is pre-
                pared to say that restitution has now been
                satisfied in no way undermines or affects
                any of the Court’s previous rulings concern-
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                                      24

                ing the amount of restitution that was owed
                as a result of the defendant’s criminal con-
                viction that was affirmed on appeal.
         (A. 277-78).
            Viertel filed a notice of appeal from this decision,
         which was docketed by this Court as 12-389 and consoli-
         dated with Viertel’s challenge to the District Court’s
         denial of his Brady claim. In his brief on appeal, Viertel
         makes clear that he no longer challenges the District
         Court’s order regarding restitution. (Br. 41-42).
                            ARGUMENT
          The District Court Properly Denied Viertel’s
                Second Motion for a New Trial
             The District Court properly rejected the defendant’s
         Brady claim because Viertel demonstrated neither materi-
         ality nor suppression. Viertel failed to demonstrate that the
         balance sheet books had been suppressed by the Govern-
         ment. Perhaps more importantly, Viertel made no effort to
         identify what in the balance sheet books was exculpa-
         tory — indeed, he did not include a single page from the
         balance sheet books in his motion. Instead, Viertel merely
         intoned that the “[t]hese books show Burda Media Inc.[’s]
         huge income and the ‘96 book is [an] integral part of the
         ‘1995/6 audit’” (A. 248) — the precise audit report that
         both Judge Koeltl and this Court had previously concluded
         was not material.
             On appeal, Viertel changes tack. Specifically, Viertel
         abandons his claim that the balance sheet books were “an
         integral part” of the 1996 Audit, and now claims for the
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                                     25

         first time that the books included the 1996 Audit. Working
         backwards from this newly-minted premise, Viertel asks
         this Court to revisit its prior decision concerning the 1996
         Audit, this time using the less stringent standard of review
         applicable to new trial motions predicated on a Brady
         violation. (See Br. 24 (“Although this Court previously
         affirmed an order denying a Rule 33 appeal concerning the
         same audit evidence, defendant’s appeal here falls under
         the more lenient standard applicable to Brady material and
         only requires a loss of confidence in the verdict, not a
         conclusion of acquittal.”)). This recast claim should be
         rejected. As an initial matter, it was not the claim pre-
         sented to the District Court. In any event, even were this
         Court to consider Viertel’s claims concerning the 1996
         Audit under the less stringent standard of review, the
         claims would fail. This Court properly adopted Judge
         Koeltl’s factual findings that fleeting, out-of-context
         references to the “self-sustaining” nature of Burda Media
         in the 1996 Audit cast no doubt on the surfeit of evidence
         admitted at trial concerning the dependence of the U.S.
         subsidiary on its German parent, and, more importantly, on
         Viertel’s guilt of the offenses of conviction.
         A. Applicable Law
             1. Suppression and Materiality Under
                Brady
            The Government has an obligation under the Due
         Process Clause to disclose to the defendant material
         exculpatory and impeaching evidence. See Brady v.
         Maryland, 373 U.S. 83 (1963); Giglio v. United States,
         405 U.S. 150 (1972). To warrant a new trial based on a
         violation of this obligation, “a defendant must show that:
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                                      26

         (1) the Government, either willfully or inadvertently,
         suppressed evidence; (2) the evidence at issue is favorable
         to the defendant; and (3) the failure to disclose this
         evidence resulted in prejudice.” United States v. Coppa,
         267 F.3d 132, 140 (2d Cir. 2001). Thus, it is not enough to
         show that the Government failed to turn over any favor-
         able evidence. A Brady or Giglio violation will result in a
         new trial only “if the undisclosed information is ‘material,’
         within the exacting standard of materiality established by
         the governing case law.” United States v. Spinelli, 551
         F.3d 159, 164 (2d Cir. 2008); accord United States v.
         Rivas, 377 F.3d 195, 199 (2d Cir. 2004); United States v.
         Middlemiss, 217 F.3d 112, 123 (2d Cir. 2000).
            Where the proffered basis for a new trial is the Govern-
         ment’s failure to disclose exculpatory evidence, the
         Supreme Court has concluded that:
                [The] touchstone of materiality is a reason-
                able probability of a different result, and the
                adjective is important. The question is not
                whether the defendant would more likely
                than not have received a different verdict
                with the evidence, but whether in its ab-
                sence he received a fair trial, understood as
                a trial resulting in a verdict worthy of confi-
                dence. A reasonable probability of a differ-
                ent result is accordingly shown when the
                government’s evidentiary suppression un-
                dermines confidence in the outcome of the
                trial.
         Kyles v. Whitley, 514 U.S. 419, 34 (1995); accord United
         States v. Bagley, 473 U.S. 667, 682 (1985) (suppressed
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                                      27

         evidence is “material only if there is a reasonable probabil-
         ity that, had the evidence been disclosed to the defense, the
         result of the proceeding would have been different”);
         Strickler v. Greene, 527 U.S. 263, 281 (1999) (“there is
         never a real ‘Brady violation’ unless the nondisclosure was
         so serious that there is a reasonable probability that the
         suppressed evidence would have produced a different
         verdict”); United States v. Douglas, 525 F.3d 225, 245 (2d
         Cir. 2008); United States v. Payne, 63 F.3d 1200, 1209 (2d
         Cir. 1995) (“[U]ndisclosed evidence will be deemed
         material only if it ‘could reasonably be taken to put the
         whole case in such a different light as to undermine
         confidence in the verdict.’” (quoting Kyles v. Whitley, 514
         U.S. at 435)).
             This Court has instructed district courts to consider the
         evidence presented at trial in making the materiality
         determination. See, e.g., United States v. Orena, 145 F.3d
         551, 559 (2d Cir. 1998) (reversing district court’s grant of
         new trial motion based on failure to disclose impeachment
         evidence; noting that independent evidence of guilt
         “increases the degree of significance that would need to be
         ascribed to the withheld impeachment evidence in order
         for it reasonably to undermine confidence in the verdict”);
         accord Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir.
         2001).
             2. Fed. R. Crim P. 33
             Federal Rule of Criminal 33 provides, in relevant part,
         that “[u]pon the defendant’s motion, the court may vacate
         any judgment and grant a new trial if the interest of justice
         so requires.” Fed. R. Crim. P. 33(a). This Court will
         “review motions for a new trial under an abuse-of-discre-
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                                      28

         tion standard.” United States v. Rigas, 583 F.3d 108, 125
         (2d Cir. 2009) (internal quotation marks omitted); see also
         United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995)
         (“We will not reverse the denial of a new-trial motion or
         the refusal to conduct an evidentiary hearing absent an
         abuse of discretion.”). Findings of fact made by the district
         court in connection with a Rule 33 motion will be over-
         turned only if clearly erroneous. United States v. Stewart,
         433 F.3d 273, 295 (2d Cir. 2006).
         B. Discussion
              Responding to Viertel’s claims on appeal is compli-
         cated by the shifting nature of his materiality argument.
         Before the District Court, Viertel maintained that the
         balance sheet books reflected “huge income” attributable
         to Burda Media. (A. 248). However, Viertel produced
         nothing to substantiate this allegation. As the Government
         noted, even if the company’s balance sheet books had
         reflected profits, these accounting documents shed no light
         on — and therefore did not undermine the extensive trial
         testimony concerning — Burda Media’s actual operations.
         (A. 257). This testimony established beyond credible
         dispute that Burda Media in New York did not generate its
         own income, but rather received money from Burda
         Holding in Germany. (See Tr. 94-101, 205, 302-03, 310,
         315). On this record, the District Court did not abuse its
         discretion in concluding that the purportedly withheld
         evidence cited by Viertel in his second new trial motion —
         the balance sheet books from which Viertel did not cite a
         single page — would not have resulted in a different
         verdict or undermined confidence in the outcome of the
         case. (A. 271).
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                                     29

              On appeal, Viertel maintains that his second new trial
         motion, like his first, involved the Government’s pur-
         ported nondisclosure of the 1996 Audit. (Br. 24, 29-30). It
         did not. Viertel contended before the District Court that
         one of the purportedly withheld balance sheet books “is
         [an] integral part of the ‘1995/6 audit’ submitted by
         petitioner as newly discovered and as materially exculpa-
         tory evidence” (A. 248), but he never contended that the
         balance sheet books included the 1996 Audit. Precisely
         because Viertel’s motion was not predicated on the
         withholding of the 1996 Audit, the Government did not
         address that report in its response, nor did the District
         Court address it in its decision. Viertel should not be
         permitted to present a wholly different theory of material-
         ity to this Court.
             In any event, even were this Court to reconsider
         Viertel’s first new trial motion under the less stringent
         standard, Viertel’s appeal cannot succeed, because he
         cannot show that the disclosure of the 1996 Audit would
         have undermined confidence in the outcome of the trial.
         The report’s description of Burda Media as “self-sustain-
         ing” and its attribution of profits to Burda Media simply
         does not undermine the findings of the District Court,
         which were adopted by this Court in the previous appeal:
                  The scheme in this case worked because
                  fraudulent invoices were air freighted
                  from New York and because funds were
                  wired from Germany. Whenever the
                  bank account of Burda Media dropped
                  below a certain level due to the payment
                  of these invoices, Burda Holding wired
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                                     30

                  money to replenish Burda Media’s bank
                  account in New York. The funds were
                  fraudulently obtained by Viertel and
                  Blumenberg and the 1996 audit does not
                  provide any evidence that would proba-
                  bly change the verdict.
         (A. 241-42 (record citations omitted)). See United States
         v. Orena, 145 F.3d at 559 (concluding that no new trial
         was warranted where the record reflected independent
         evidence of the defendant’s guilt).*
             Separately and independently, Viertel’s appeal fails
         because he cannot establish that the District Court abused
         its discretion in determining that Viertel had “failed to
         provide evidence to support his allegations that the
         Government failed to disclose balance sheet books that it
         had, and therefore his Brady claim should be denied as


            *
                 Viertel’s contention that “[a]n additional flaw
         exposed by the audit that undermines the ‘replenishment’
         theory is the revelation that the corporate entity subcon-
         tractually receiving the invoices was not Burda Holding
         the alleged replenisher of monthly expenses” (Br. 40),
         confounds logic. The fact that the audit does not identify
         invoices submitted between 1992 and 1996 does not, of
         course, mean that invoices were not submitted and paid.
         Moreover, the audit’s apparent allocation of profits and
         losses to various Burda publications and entities utilizing
         services provided by Burda Media in no way contradicts
         the testimony at trial concerning the day-to-day operations
         of Burda Media and the relationship between Burda Media
         and Burda Holding.
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                                     31

         speculative.” (A. 271). Viertel offered no evidence that the
         Government, either willfully or inadvertently, failed to
         disclose the balance sheet books. His reliance on the
         “transmittal letter from counsel for Burda Media NY to the
         government enclosing ‘balance sheet books’ for the
         company for the relevant period of 1996 through 1998” is
         unwarranted. (Br. 30). While the transmittal letter indi-
         cates that the Government received various items from
         Burda Media prior to trial, it does not establish that the
         Government failed to disclose these items to Viertel. The
         Government proffered below that its practice was to
         disclose such information to the defense promptly upon
         receipt and that it had no reason to believe such practice
         was not followed with respect to this information.
         (A. 257). Given the lack of evidence in the record that the
         Government failed to disclose the items received from
         Burda Media, Judge Koeltl did not err in finding that “the
         defendant has failed to substantiate his allegation that the
         Government possessed the balance sheet books and failed
         to disclose them to defense counsel prior to the trial.”
         (A. 271).
             This Court should reject Viertel’s efforts to obtain a
         “do-over” of his earlier new trial motion. Given Viertel’s
         failures below to meet the suppression and materiality
         prongs of Brady, the District Court properly denied Vier-
         tel’s motion and this Court should affirm.
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                                   32

                            CONCLUSION
             The District Court’s orders entered on May
         1, 2008, and on January 9, 2012, should be
         affirmed.
         Dated: New York, New York
                August 13, 2012


                                Respectfully submitted,

                                PREET BHARARA,
                                United States Attorney for the
                                Southern District of New York,
                                Attorney for the United States
                                      of America.


         MARCIA S. COHEN,
         KATHERINE POLK FAILLA,
         Assistant United States Attorneys,
            Of Counsel.
Case: 11-5442   Document: 46     Page: 38     08/13/2012     690322   38


                  CERTIFICATE OF COMPLIANCE

             Pursuant to Rule 32(a)(7)(C) of the Federal Rules of
         Appellate Procedure, the undersigned counsel hereby
         certifies that this brief complies with the type-volume
         limitation of Rule 32(a)(7)(B). As measured by the word-
         processing system used to prepare this brief, there are
         7,287 words in this brief.

                                PREET BHARARA,
                                United States Attorney for the
                                Southern District of New York


                          By:   KATHERINE POLK FAILLA,
                                Assistant United States Attorney

				
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