Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Armstrong

June 29, 2006

UNITED STATES OF AMERICA
v.
GREGORY ARMSTRONG



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER OF COURT

Presently pending before the Court is the MOTION FOR NEW TRIAL filed by Defendant, Gregory Armstrong, and the government's response in opposition. After due consideration of the filings of the parties, the arguments of counsel, the Rules of Federal Criminal Procedure, and the applicable case law, the Motion for New Trial will be granted in part.

FACTS AND PROCEDURAL BACKGROUND

Defendant, Gregory Armstrong ("Armstrong"), and his co-defendant, James Jones, were indicted by a Grand Jury on December 14, 2004, and each charged with one count of conspiracy to distribute and possess with intent to distribute five (5) kilograms or more of cocaine from on or about December 3, 2004 to December 6, 2004, in violation of Title 21, United States Code, section 846; and one count of attempt to possess with intent to distribute five (5) kilograms or more of cocaine on or about December 6, 2004, in violation of Title 21, United States Code, section 846. Co-Defendant James Jones was also charged in a separate count with possession with intent to distribute less than 500 grams of cocaine on or about December 6, 2004, in violation of Title 21, United States Code, sections 841(a)(1) and 841(b)(1)(C).

On August 12, 2005, James Jones pleaded guilty to Count Two of the Indictment which charged him with attempt to possess with intent to distribute five (5) kilograms or more of cocaine on or about December 6, 2004, in violation of Title 21, United States Code, section 846.

On October 13 and 14, 2005, the Court held a non-jury trial on the pending charges against Armstrong. On February 8, 2006, the Court issued an extensive Memorandum Opinion and Order of Court in which, after reflecting upon all the evidence and testimony presented at the non-jury trial, the Court found and ruled that Armstrong was guilty as charged in the indictment of one count of conspiracy to distribute and possess with intent to distribute five (5) kilograms or more of cocaine, in violation of Title 21, United States Code, section 846; and one count of attempt to possess with intent to distribute five (5) kilograms or more of cocaine, in violation of Title 21, United States Code, section 846.*fn1

On February 14, 2006, in open Court, with Armstrong present with counsel, the Court read the guilty verdict into the record. On that same date, Armstrong filed, and the Court granted, an extension of time until March 15, 2006, for Armstrong to file a Motion for New Trial.

On March 15, 2006, Armstrong filed the instant Motion For A New Trial pursuant to Federal Rule of Criminal Procedure 33, in which he requests, inter alia, that the Court vacate the judgment of February 14, 2006, and "take additional testimony on the issue of the defendant's assertion that he was arrested without probable cause and his cell phone, money and documents were seized in violation of his rights as guaranteed by the Fourth Amendment to the United States Constitution." Mot. at 1. Distilled to its essence, Armstrong, through his attorney, argues that his attorney "failed to raise an obvious Fourth Amendment issue which is a violation of the defendant's Sixth Amendment right to effective assistance of counsel." Id. at ¶ 3. Additionally, Armstrong contends that because this case was tried without a jury, Federal Rule of Criminal Procedure 33 allows the Court to "take additional testimony and decide the Fourth Amendment issue and if decided in the defendant's favor re-evaluate the trial evidence and enter a new judgment." Id. at ¶ 4.

The government strongly opposes the Motion and argues that the motion is "both procedurally defective and . . . the interests of justice would not be served by granting this Motion." Govt's Resp. at 1. The government argues that the Court should not grant a new trial for a number of reasons, to wit:

(i) that although the motion is termed a "Motion for a New Trial," it is in substance a motion to suppress, and such a motion is waived because Armstrong failed to file same before trial under Rule 12; (ii) that Armstrong has not made the requisite showing required for the granting of a new trial in the "interests of justice;" (iii) that this Court should be "extremely reluctant" to reopen the record; and (iv) that the potential prejudice to the government if suppression is addressed at this late date is significant.

Govt's Resp. at 5-6.

On April 20, 2006, the Court heard oral argument on the Motion for New Trial. Both parties were represented by counsel who argued the issues skillfully and effectively. The matter is now ripe for disposition.

DISCUSSION

A. Federal Rule of Criminal Procedure 33 ("Rule 33")

Rule 33 provides 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. If the case was tried without a jury, the court may take additional testimony and enter a new judgment." Fed. R. Crim. P. 33(a). A Rule 33 motion can be made on the grounds of newly discovered ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.