United States District Court, W.D. Pennsylvania
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
J. Schwab United States District Judge
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).
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.
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.
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.
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.
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. 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.
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.
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.
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.
to Defendant's cited case law for guidance, this Court
reiterates the following ...