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United States v. Leroy

United States District Court, W.D. Pennsylvania

July 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES MARK LEROY, Defendant.

          MEMORANDUM ORDER DENYING MOTIONS FOR NEW TRIAL, FOR LEAVE TO FILE THIS MOTION OUT OF TIME, FOR LEAVE TO SUPPLEMENT, AND FOR CONTINUANCE OF SENTENCING

          Arthur J. Schwab United States District Judge

          I. Introduction

          On November 9, 2016, Defendant was charged in a four-count Indictment with two counts of travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. §§ 2423(b) and (e), and two counts of transportation with intent to engage in criminal sexual activity in violation of 18 U.S.C. §§ 2423(a) and (e) relating to two Minors (Minors A and B).

         Because Defendant insisted on a prompt trial, at the first status conference in this matter, the Court scheduled the trial for January 30, 2017. Doc. 27. The jury trial occurred on January 30, 2017, as scheduled, and on February 1, 2017, the jury returned a verdict of guilty on all counts. Doc. 118. The Court scheduled a sentencing hearing for June 5, 2017, doc. 120; however, upon Motion to Continue this matter (over the objection of the Government on the basis that the child victims had a right to seek closure of this matter on June 5, 2017) (see doc. 132 and doc. 134), the Court granted the Motion to Continue the Sentencing to July 11, 2017. Doc. 136.

         The Court notes that the newly retained defense counsel entered his appearance on the record on May 9, 2017. Doc. 128. Now, on June 30, 2017, approximately 5 business days before the rescheduled July 11, 2017 Sentencing, and a month and a half after new defense counsel entered his appearance, Defendant now seeks sweeping remedies in this case, including that the trial of this matter and the jury verdict of guilty be nullified, and that the Court consider his numerous allegations of trial counsel's ineffectiveness. In light of the procedural posture of this case, and after considering the merits of the Motion(s), the Court will not countenance Defendant's requests.

         In the opening lines of Defendant's multifaceted Motion, Defendant seeks the following pursuant to Fed.R.Crim.P. 33(a) and 45(b)(1)(B): (1) a new trial, (2) leave to file this motion out of time, (3) leave to supplement the instant motion with additional declarations within seven (7) days of filing excluding July 4, and (4) pending the Court's ruling on the motion for a new trial, a continuance in sentencing, which is currently scheduled for July 11, 2017. Doc. 169.

         The Court will DENY all of Defendant's Motions as untimely, without merit, and because most of the arguments raised by Defendant go to ineffectiveness of trial counsel, which have no place given the procedural posture of this case, and are otherwise without merit.

         II. Discussion

         Motion for New Trial is Untimely

          Federal Rule of Criminal Procedure 33(a) provides that upon Motion by Defendant, a court may vacate any judgment and grant a new trial if justice so requires; however, such a motion must be filed within 14 daysafter the verdict.[1] Newly retained defense counsel attempts to cast doubt on whether trial counsel should have filed such a motion, but does not go so far as to address whether Defendant himself asked his trial counsel to do so.

         In any event, Defendant claims that his Motion should be granted under Federal Rule of Criminal Procedure 45(b)(1)(B) on the basis that the Court may grant on its own, or for good cause, upon a party's motion if the party failed to act because of “excusable neglect.” In support, Defendant cites United States v. Figueroa, 2007 WL 2345283 *3 (E.D. Pa. 2007), for the proposition that the court may allow an out-of-time motion for a new trial based upon excusable neglect. However, unlike the present case, the Figueroa case involved an assertion that there was newly discovered evidence that compelled a new trial.

         The Government counters, and this Court agrees, this Motion should be denied for the following procedural reasons: (1) Defendant filed his Motion for New Trial well outside of the 14-day time limit in Rule 33(b), and (2) Defendant cannot establish excusable neglect under Rule 45(b) because he waited until less than two weeks before his sentencing for the filing of such a motion.

         Simply put, Defendant's Motion is most certainly untimely; and, to the extent Defendant seeks that the untimeliness of his filing is due to “excusable neglect, ” the Court sees no reason to exercise its equitable powers to permit such an out of time filing. A brief review of Defendant's cited reasons for a new trial reveals that it is based almost exclusively on claims of ineffectiveness which are not appropriate for consideration at this procedural juncture, and in any event, even accepted as true, do not come close to evidencing ineffectiveness that likely would have changed the outcome of the trial.

         Looking to Defendant's cited case law for guidance, this Court reiterates the following ...


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