United States v. Berry

United States of America, v. Ralph Berry, Defendant.

No. 20-cr-84 (AJN)

United States District Court, S.D. New York

November 1, 2022

ORDER

ALISON J. NATHAN, UNITED STATES CIRCUIT JUDGE

The Court has received the attached letter from Defendant Ralph Berry, filed pro se, dated October 25, 2022, in further support of his supplemental post-trial motions. As the Court indicated in its orders dated September 27, 2022, and October 6, 2022, because Mr. Berry continues to be represented by counsel, his filings with the Court must be submitted through counsel. Dkt. Nos. 175, 179. Accordingly, the Court will not consider the attached letter. Mr. Berry's reply in support of his supplemental motion, to be filed by counsel remains due on November 3, 2022. Dkt. No. 179.

The Clerk of Court is respectfully directed to mail a copy of this Order to Mr. Berry at MDC Brooklyn and to note the mailing on the docket.

SO ORDERED.

Comes now Ralph Berry pro se respectfully moves the court to supplement his rule 29/33 motion as previously filed.

Preliminary Statement

Berry filed a Supplemental Rule 29/33 motion pertaining to breach of plea of his 2009 plea agreement. This letter motion is in response to the government's opposition brief.

Background

On 8/19/2021 Ralph Berry (Berry") was charged in a superseding indictment (82 20cr.84)(AJN) with ordering a shooting that caused the death of Caprice Jones on or about June 21,2000. The indictment charged (count 1) U.S.C. 18 924(J); (count 2) U.S.C. 21 848 (e)(1)(A); (counts) 1959(a)(1). Berry was found guilty of all,3 counts on Sept 28 2021. At the close of the government's evidence Berry moved pursuant to Rule 29/33 for a judgment of acquittal or a new trial.. On Feb. 28 2022 the Court heard oral arguments on a year and a day rule raised by defense. At the oral argument Berry's counsel informed the court that Berry believed that his 2009 Plea Agreement had been breached in the filing of the charges in the instant indictment. Counsel let the court know .that Berry had made him aware of this issue a while ago. The Court stated that it was the first time hearing this matter and asked counsel if he planned to address the issue, he would have to allow the government a chance to respond. Counsel informed the court that he would pay Berry a visit in a week and then proceed with the matter (Tr. Feb 28, 2022 Oral Argument). Defense counsel's visit never transpired and Berry proceeded to file the supplemental motion in front of the court, arguing a breach of his 2009 plea agreement.

A. Timeliness of Motion

Applicable Law- Motions for a judgement of acquittal / new trial

Motions for a judgement of acquittal must be filed within 14 days of the jury's verdict, see Fed. R. CRIM.P. 29.The Court can extend t file must do so retroactively upon a finding of excusable neglect."supplemental.45(b)(1)(B). Rule 33 must be read in conjunction with Fed.R.Crim.P. 45 which provides that "[w]hen an act must or may be done within a specific period, the Court ...may extend the time ...an a party's motion made...after the time expires if the party failed to act because of excusable neglect Fed. R Cr. P. 45(b) See advisory committee notes 2005 Amendments of Rule 33("[u]nder Rule 45 (b0(10(B) if for some reason the defendant fails to file the underlying motion for new trial within the specified time the court may nonetheless consider that untimely underlying motion if the court determines that failure to file it on time was the result of excusable neglect"); United States v. Robinson, 430 F.3D 537,541 (2d cir.2005)('The time limitations specified in Rule 33 are read in conjunction with Rule 45,which establishes how to compute and extend time”)

In Pioneer Inv. Sev. Co. v. Brunswick Assocs. Ltd.. Partnership, 507 U.S. 380, 1138.Ct. 1849,123 Led.2d 74(1993), the SUPREME court construed the phrase (excusable neglect" as it is used in Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure:

The ordinary meaning of "neglect" is "to give little attention or respect" to a matter, or, closer to the point for our purposes, to leave undone or unattended especially] through carelessness". The word therefore encompasses both simple, faultless omission to act and, more commonly, omissions caused by carelessness...Hence forth empowering the court to accept the late filings "where the failure to act was the result of excusable neglect," Congress plainly contemplated that the courts would be permitted .where appropriate, to accept late filings" caused by inadvertence, mistake, or carelessness, as well as intervening circumstances beyond the party's control, see United States v. Richard Munoz 605 F.3d 359 (Thus .the district court did not not abuse its discretion in concluding that defendant's delay in filing was the result of excusable neglect) quoting Pioneer Inv. Co. v. Brunswick Assocs. Ltd. P'ship 507 U.S 380, 395 113 s.Ct. 1489,123 Led.2d 74 (1993).

Berry points out that there is excusable neglect sufficient to grant the supplemental rule 29/33 in front of the court. Counsel's carelessness in handling the breach of plea issue raised by Berry and not addressing the the issue and leaving it undone left Berry to file supplemental motion on his own. With the intervening circumstances of the prison here at M.D.C. Brooklyn with all the lockdowns and Covid restrictions and (quarantines) left Berry with the inability to to put forth the motion in a timely manner and was beyond his control. When Berry questioned counsel as to what was the reason for not addressing the matter and amending the Rule 29/33 motion he simply replied" I do not know why? As stated above on Feb. 28th 2022 counsel made the court aware that Berry had mentioned the breach issue 'a while ago' Berry then went forward and filed the motion pro se.

Defendant's sentence is currently adjourned on the basis of this motion and because a judgement has not been entered in defendent's case, there is little prejudice to the government and no adverse impact on the court's proceeding if the defendant's belatedly filed motions considered. (see) United States v. Frank Caraballo 2014 U.S. Diet. Lexis 96325 (see also) United States v. Frederick, 868 F.Supp.2d 32,44-45(E.D.N.Y. 2012) finding excusable neglect despite two-year delay in filing Rule 33 motion for a new trial because of "the lack of prejudice to the government, "the minimal disruption of prejudgment proceedings," and the fact that adjudication of defendant's...claim at this juncture would be the most efficient resolution of defendant's claim"). Courts in the Second Circuit have previously granted Supplemental Rule 29/33 motions for defendants who have previously filed these motions and even after denial, and with there having no motion in front of the court .have still addressed Supplemental Rule 29/33 motions. United States v, Antonio Guerrero, 52 F.Supp.3d 643 ("..on April 2, 2012 Guerrero who had no Rule 29/33 motion pending at the time, filed another supplemental Rule 29/33 motion ...after holding an evidentiary hearing and reviewing submissions.,.) Id.

The government argues that there would be unwarranted delay in prompt resolution of [the] case and would cause undue prejudice to the victim's family . Berry respectfully points out that his conviction stems from a shooting which the government was well aware of at least 15 yrs. before filing of the indictment. Now, the government would have the court believe that taking time out to reconsider the motion would cause undue prejudice to victim's family. The court has stated in there Order that after the motion is ruled on, sentencing if necessary, will proceed immediately. Petitioner humbly states that he is not trying to cause any undue prejudice but in fact is asking for judicial fairness on his behalf.

Breach of Plea Agreements

Applicable Law- The Second Circuit Court of Appeals review of a plea agreement is not limited to its four corners . (United States v. Graves 374 F.3d 80, 84(2d. Cir..2004) and it construes them strictly against the government, (United States v. Vaval, 404 F..3d 144, 152 (2d.cir. 2004). Conduct in negotiating plea agreements must comport to the highest level of standards and fairness. Because such agreements involve waivers of such constitutional rights prosecutors are held to meticulous standards of performance . When a plea rests on any significant degree on a promise or agreement of the prosecutor so that it can be said to be part of inducement or consideration, such a promise must be fulfilled, Santabelio v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 Led.2d 427 (1971) see also United States v. Carbone 739 F.2d 45,46 2d. Cir.,1984(once a plea actually is entered and was induced by a prosecutor's promise ... that promise must be fulfilled. "The prosecutor's Office is an entity and as such it is the spokesman for the government. A promise by one attorney must be attributed... to the government". Giglio v. United States, 405, U.S. 150, 154,92 S.CT. 763, 31 Led 2d 104(1972)(citing Restatement (second) of Agency 272).The Office, like all prosecutor's offices carried the burden of ''insuring] communication of all relevant information an each case to every lawyer who deals with it". id.

Berry points out to the court that in 2009 he entered into a plea agreement with the S.D.N.Y, The agreement was based on Berry's entering a plea of guilt in exchange for a promise of the government "not to further prosecute ...for his participation in a conspiracy from 1995-2007. This agreement was entered days before trial in accordance with the disposition of the matter. The agreement was understood by Berry, the court, defense counsel to mean that Berry was immunized for his conduct pertaining to his involvement in the alleged conspiracy. A day...