Viertel v. USA

Filing 28

MEMORANDUM OPINION AND ORDER: The Motion for de Novo Consideration and the Motion for Mandatory Judicial Notice are denied. The Clerk is directed to close all pending motions. (Signed by Judge John G. Koeltl on 11/1/2013) (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
CHRISTIAN VIERTEL,
08 Civ. 7512 (JGK)
01 Cr. 0571 (JGK)

Petitioner,
- against –

MEMORANDUM OPINION
AND ORDER

UNITED STATES OF AMERICA,
Respondent.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The Court has received Petitioner Viertel’s “Consideration
de Novo Motion for Deliberate Failure to Impartially Address
§ 1341’s Jurisdictional Prong on CA2 Remand.”
dated October 30, 2013.

The motion is

Together with the motion is a

“Mandatory Judicial Notice of Defendant’s Affidavit in Support
of Vacatur Proceedings,” certified on October 27, 2013.

The

Motion for de Novo Consideration asks this Court to reconsider
its October 4, 2013 Memorandum Opinion and Order, which denied
the petitioner’s motions, including his motion under the All
Writs Act, 28 U.S.C. § 1651, to vacate his conviction to the
extent that it depended on a violation of the mail fraud
statute, 18 U.S.C. § 1341.

Judgment was entered pursuant to the

October 4, 2013 Memorandum Opinion and Order on October 7, 2013.

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“Reconsideration of a previous order by the court is an
extraordinary remedy to be employed sparingly . . . .”

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Anwar

v. Fairfield Greenwich Ltd., 800 F. Supp. 2d 571, 572 (S.D.N.Y.
2011) (internal citation and quotation marks omitted).

“The

major grounds justifying reconsideration are an intervening
change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest
injustice.”

Virgin Atlantic Airways, Ltd. v. Nat’l Mediation

Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal citation and
quotation marks omitted).

The petitioner has failed to indicate

any facts or provisions of law that the Court overlooked or
misapprehended in its October 4, 2013 Memorandum Opinion and
Order.
With respect to the Affidavit, the Affidavit does not
support reconsideration of the denial of the petitioner’s motion
under the All Writs Act.

The Affidavit was not submitted to the

Court in support of the original motion, and therefore could not
have been overlooked.

See Davidson v. Scully, 172 F. Supp. 2d

1

The petitioner does not specify the authority under which he
brings his motion for reconsideration. However, it is not
necessary to decide whether this is a motion for reconsideration
pursuant to Local Rule 6.3, a motion to alter or amend the
Judgment pursuant to Rule 59 of the Federal Rules of Civil
Procedure, or a motion to vacate the Judgment pursuant to Rule
60 of the Federal Rules of Civil Procedure, because for present
purposes the standards under all three provisions are
effectively the same. See, e.g., R.F.M.A.S., Inc. v. Mimi So,
640 F. Supp. 2d 506, 508-09, 512-13 (S.D.N.Y. 2009).
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458, 463-64 (S.D.N.Y. 2001) (“[T]he motion [for reconsideration]
does not afford the losing party the right to submit new
evidence to bolster relief . . . .” (second alteration in
original) (citation omitted)).

In any event, to the extent that

the petitioner attempts to rely on new factual allegations with
respect to Apex Air Freight, the petitioner has not shown why
that evidence could not have been presented at an earlier date
in connection with the numerous prior applications that the
petitioner has made on this subject.

Indeed, some of the

allegations have been made in the past and rejected, such as the
allegation that an invoice was not committed to Apex Air Freight
for shipment to Germany, but was in fact carried to Germany.
See Affidavit ¶¶ 29-30.

The Affidavit also attempts to dispute

the trial testimony without explaining why any such contentions
could not have been raised before.

A petition for a writ of

error coram nobis under the All Writs Act should only be granted
when there are sound reasons for failure to seek the relief
earlier.

See Fleming v. United States, 146 F.3d 88, 90 (2d Cir.

1998) (per curiam).

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CONCLUSION
The Motion for de Novo Consideration and the Motion for
Mandatory Judicial Notice are denied.

The Clerk is directed to

close all pending motions.
SO ORDERED.
Dated:

New York, New York
November 1, 2013

____________/s/_____________
John G. Koeltl
United States District Judge

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