13-1149

United States v. Suri

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH

THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New

York, on the 30th day of January, two thousand fifteen.

PRESENT:

PIERRE N. LEVAL,

ROSEMARY S. POOLER,

DENNY CHIN,

Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 

13-1149 (L);

13-3223 (Con)

BILL SURI,

Defendant-Appellant.

_____________________________________

FOR DEFENDANT-APPELLANT: Bill Suri, pro se, Butner, N.C.
FOR APPELLEE: Justin Anderson, Max Nicholas, Assistant U.S.

Attorneys for the Southern District of New York

(Preet Bharara, United States Attorney, on the

brief), New York, N.Y.

Appeals from orders of the United States District Court for the Southern District of New

York (Stein, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the orders of the district court are AFFIRMED. 

Bill Suri appeals from (1) the January 11, 2013 order of the United States District Court

for the Southern District of New York (Stein, J.) denying his motion to dismiss the allegedly

defective indictment pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure;

and (2) the August 9, 2013 order of the same court denying his motion for a new trial pursuant to

Federal Rule of Criminal Procedure Rule 33. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

This Court reviews the denial of a motion for a new trial under Rule 33 for abuse of

discretion. See United States v. James, 712 F.3d 79, 107 (2d Cir. 2013). To obtain Rule 33 relief

based on newly discovered evidence a defendant must show:

(1) that the evidence is newly discovered after trial; (2) that facts

are alleged from which the court can infer due diligence on the part

of the movant to obtain the evidence; (3) that the evidence is

material; (4) that the evidence is not merely cumulative or

impeaching; and (5) that “the evidence would likely result in an

acquittal.

Id. (internal quotation marks omitted).

Rule 12(b)(3)(B) requires a motion alleging “a defect in the indictment” to be made prior

to trial, but it allows a defendant to argue at any time during the pendency of the appeal that the

indictment fails to state an offense or that the court lacks jurisdiction. Fed. R. Crim. P.
12(b)(3)(B). “The sufficiency of the indictment is a matter of law that is reviewed de novo.”

United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000). To state an offense, an indictment need

only track the language of a criminal statute and apprise the defendant of the nature of the

accusation against him. United States v. Frias, 521 F.3d 229, 235 (2d Cir. 2008) (internal

quotation marks omitted).

We affirm for substantially the same reasons set forth by the district court in its well-reasoned

orders. See United States v. Suri, No. 9-CR-1190 (S.D.N.Y. Jan. 11, 2013) (ECF Docket No.

114); United States v. Suri, No. 9-CR-1190 (S.D.N.Y. Aug. 9, 2013) (ECF Docket No. 135). We

decline to consider Suri’s claim, raised for the first time on appeal, that the evidence of Dustin

Suri’s perjury was not available to him until after trial. See Greene v. United States, 13 F.3d 577,

586 (2d Cir. 1994). In any event, the allegation does not change the district court’s conclusion

that Suri failed to allege any facts showing that due diligence before trial failed to uncover the

evidence in question. 

We have considered Suri’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the orders of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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