United States v. Bishop

UNITED STATES OF AMERICA, v. ANTHONY BISHOP, Defendant.

12-CR-101-A

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

January 14, 2020

DECISION AND ORDER

The defendant, Anthony Bishop, has moved pursuant to Fed. R. Crim. P. 33 to vacate a jury verdict finding him guilty of participating in a multi-kilogram cocaine distribution conspiracy in violation of 21 U.S.C. § 846. Defendant Bishop seeks a new trial on the ground that his trial counsel was constitutionally ineffective in failing to negotiate a plea agreement to a lesser term of imprisonment than the defendant now faces. For the reasons that follow, the Court denies the defendant's motion.

BACKGROUND

Defendant Bishop was found guilty by a jury of conspiracy to possess with intent to distribute and to distribute five kilograms or more of a mixture or substance containing cocaine in violation of 21 U.S.C. § 846. The trial evidence showed that, during an approximate nine-month period from July 2011, through March 2012, the defendant led a conspiracy among individuals that received and distributed approximately 40 kilograms of cocaine a month in the Buffalo, New York area. The defendant does not claim he is innocent of the conspiracy charge of which he stands convicted, however.

The United States entered pretrial notice pursuant to 21 U.S.C. § 851 approximately a year before defendant Bishop's trial indicating that increased punishment may apply to the defendant because he has a prior criminal conviction for a serious drug felony. As a result, the defendant may now face a mandatory-minimum term of imprisonment of 20 years and a maximum of life imprisonment. It appears that he faces a range of imprisonment under advisory sentencing guidelines of 360 months to life.

Defendant Bishop's relationship with his trial counsel deteriorated after the guilty verdict, and the Court assigned different counsel to represent the defendant. The defendant's replacement counsel was relieved due to a conflict of interest a few months later, and the Court assigned his present counsel.

After numerous adjournments, and more than three years after the guilty verdict, defendant Bishop moved pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial on the ground that his original counsel had been constitutionally ineffective by not conveying to him a plea offer from the United States. Specifically, the defendant alleges that a plea offer providing for 12 years imprisonment was not conveyed to him by his trial counsel, and that he would have accepted the offer and entered a guilty plea if he had been informed of the offer. Dkt. No. 284, ¶ 5.

The United States contends to the contrary that no formal plea offer was ever extended to defendant Bishop. The United States also contends that any offer that the United States would have extended to the defendant would have required him toaccept a sentence of at least 20 years imprisonment because of the defendant's central role in the conspiracy, and that the claim the defendant was given a 12-year offer is therefore not credible. The United States also contends the defendant's motion is untimely.

DISCUSSION

Rule 33(a) of the Federal Rules of Criminal Procedure provides, in part, 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." In general, the Rule "confers broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). But "[t]o grant [a Rule 33] motion, '[t]here must be a real concern that an innocent person may have been convicted.' " United States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 1997) (alteration omitted).

A motion for a new trial ordinarily must be filed within 14 days of the verdict. Fed. R. Crim. P. 33(b)(2). The 14-day time period can be extended pursuant to Rule 45 of the Federal Rules of Criminal Procedure, even after the 14 days have run, on the ground of excusable neglect. Fed. R. Crim. P. 45(b)(1); see e.g., United States v. Velazquez, 197 F.Supp.3d 481, 508 (E.D.N.Y. 2016).

If a Rule 33 motion for a new trial is based upon newly-discovered evidence, it can be filed within three years of the guilty verdict. Fed. R. Crim. P. 33(b)(2). Nevertheless, such a motion can be granted in "only the most extraordinarycircumstances." United States v. Imran, 964 F.2d 1313, 1318 (2d Cir. 1992). And the burden that a defendant must carry is to show that:

(1) the evidence be newly discovered after trial; (2) facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching; and (5) the evidence would likely result in an acquittal.

United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007). A showing of due diligence is necessary even if a defendant seeks a new trial based upon newly-discovered evidence. See e.g., United States v. Brown, 623 F.3d 104, 113, n.5 (2d Cir. 2010).

Defendant Bishop's Rule 33 Motion is Untimely.

The jury verdict finding defendant Bishop guilty of participating in the cocaine distribution conspiracy involving five or more kilograms of cocaine in violation of 21 U.S.C. § 846 was returned on October 22, 2013. Minute entry 10/22/2013. The 14-day deadline for a Rule 33 motion, absent an extension of the deadline, was November 6, 2013. The defendant neither filed a Rule 33 motion, nor sought an extension of time to file one, within the allowed 14 days.

Defendant Bishop's trial counsel was relieved and replaced on December 20, 2013. The attorney-client relationship had irretrievably broken down over defendant's complaints that trial counsel had not negotiated a guilty-plea disposition before trial. Minute entry 12/20/2013; see Dkt. No. 288, p. 2. The defendant's replacement counsel did not file, or seek leave to file, a late Rule 33 motion basedupon the defendant's claim to have suffered ineffective assistance of counsel due to his trial counsel's failure to negotiate the plea disposition.

When a conflict of interest for defendant Bishop's replacement counsel was identified, defendant's current counsel was assigned on April 14, 2014. Minute entry 4/15/2014. More than three years after the October 22, 2013 jury verdict, and after approximately 13 adjournments of the sentencing proceedings at the defendant's request primarily to permit post-verdict investigation, on May 17, 2017, the defendant moved pursuant to Rule 33 to vacate his conviction. Dkt. No. 284. The defendant did not seek leave to file the motion outside the 14-day time limit in Rule 33(b).

As noted previously, the grounds defendant Bishop raises in support of his motion — that his trial counsel was constitutionally ineffective because counsel did not negotiate a favorable plea agreement — were known to the defendant before trial counsel was relieved. For example, during a status conference on December 16, 2013, trial counsel reported meeting with the defendant to discuss the defendant's dissatisfaction that counsel did not negotiate a plea agreement. Dkt. No. 288, p. 2. In a letter to the Court dated the same date, the defendant complained that his trial counsel: "came to me a few days before trial and said their [sic] offering me 20 yrs, so if that was a plea then I guess 20 yrs to life is extra." Dkt. No. 289, Ex. B.

The United States argues that the Court lacks jurisdiction to hear defendant Bishop's Rule 33 motion to vacate because the motion was not filed within 14 daysafter the guilty verdict was returned. Dkt. No. 289, pp. 4-5. However, while Rule 33 is an "inflexible claim-processing rule," it is not "jurisdictional" and is therefore subject to the extension-of-time provisions of Rule 45(b) of the Federal Rules of Criminal Procedure. Eberhart v. United States, 546 U.S. 12 (2005) (per curiam); see also 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."). As explained in the Advisory Committee's Note to Rule 33, "if for some reason the defendant fails to file the underlying motion for a new trial within the specified time, the court may nonetheless consider that untimely underlying motion if the court determines that the failure to file it on time was the result of excusable neglect." Fed. R. Crim. P. 33 advisory committee's note to 2005 amendments.

Nevertheless, the United States is obviously correct that defendant Bishop's Rule 33 motion was filed outside the 14-day time limit, and the defendant has not sought leave pursuant to Rule 45 to file his motion late. Moreover, the defendant points to no circumstances that would justify an extension of time for filing the motion until May 17, 2017, despite the passage of the time limit in Rule 33(b)(2).

The alternative time limit for a Rule 33 motion for a new trial based upon newly-discovered evidence is three years. Fed. R. Crim. P. 33(b)(1). But when the alleged newly-discovered evidence is ineffective assistance of counsel, such motions are sometimes summarily denied upon the ground that the claims do not concern evidence of guilt or innocence. See e.g., United States v. Cammacho, 462Fed. Appx. 81, 83 (2d Cir. 2012); DiMattina v. United States, 949 F. Supp. 2d 387, 41011 (E.D.N.Y. 2013). Here, the defendant proffers no newly-discovered evidence concerning his innocence in support of his motion, and he does not even claim he is innocent of the offense of which he has been convicted.

Even if the Court assumes that defendant Bishop's claim of ineffective assistance of counsel could be brought as newly-discovered evidence, see e.g., United States v. Brown, 623 F.3d 104, 113, n.5 (2d Cir. 2010), his replacement counsel and his current counse...