United States v. Caraballo

UNITED STATES OF AMERICA v. FRANK CARABALLO

Case No. 5:12-cr-105

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

Dated: July 16, 2014

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR

RECONSIDERATION OF THE COURT'S MARCH 6, 2014 OPINION AND

ORDER AND DENYING DEFENDANT'S MOTIONS

FOR JUDGMENT OF ACQUITTAL

(Doc. 203; Docs. 180 & 194)

Defendant Frank Caraballo requests that the court reconsider its March 6, 2014 Opinion and Order denying his previous motions for judgment of acquittal in light of the Supreme Court's recent decision in Rosemond v. United States, 134 S. Ct. 1240 (2014). (Doc. 203.) Defendant contends Rosemond is an intervening change in the law on aiding and abetting and that in light of the jury instructions given during his trial, he could have been convicted under "an inappropriate standard" if the jury determined that he aided and abetted Melissa Barratt's death. Id. at 4. In his motion, Defendant cites Rosemond as grounds for acquittal on his 18 U.S.C. § 924(j) conviction.

Defendant further seeks the court's "clarification" in light of what Defendant characterizes as a "possible error" if the court "determined" that his previous motions for judgment of acquittal did not challenge the sufficiency of the evidence to sustain his conviction under § 924(j) for causing Ms. Barratt's death. Id. at 1-2.

The government objects to Defendant's motion because it is untimely and because Defendant cannot seek a judgment of acquittal based on alleged errors in the jury instructions under Fed. R. Crim. P. 29(c). The government further contends Defendant's challenges to the jury instructions were not preserved. If the court decides to reconsider its jury instructions, the government urges the court to find Rosemond inapplicablebecause Rosemond addressed an aiding and abetting challenge to an 18 U.S.C. § 924(c) charge, which is not at issue here, and because Rosemond actually lightened the prosecution's burden in the Second Circuit to prove an individual had the intent to aid and abet the commission of a § 924(c) offense. The government argues that the court did not err in failing to address Defendant's alleged prior challenge to the sufficiency of the evidence supporting his § 924(j) conviction because no such challenge was raised.

The government is represented by Assistant United States Attorney Paul J. Van de Graaf and Assistant United States Attorney Joseph R. Perella. Defendant is represented by Mark A. Kaplan, Esq. and Natasha Sen, Esq.

I. Factual and Procedural Background.

A. Second Superseding Indictment.

Defendant was charged in a four count Second Superseding Indictment (the "Indictment"). Count One alleged Defendant participated in a conspiracy to distribute mixtures or substances containing a detectable amount of cocaine base, cocaine powder, and heroin, as part of a conspiracy involving 280 grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A), 846.

Count Two alleged Defendant used or carried a firearm during or in relation to, or possessed a firearm in furtherance of, the drug trafficking crime charged in Count One, with the allegations that Defendant discharged the firearm and caused the death of Melissa Barratt by murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), (j)(1).

Count Three alleged Defendant used or carried a firearm during or in relation to, or possessed a firearm in furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

Count Four alleged Defendant was a felon in possession of a firearm, with an allegation that Defendant had been convicted of four prior drug trafficking felonies, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e)(1). The court ordered the bifurcation of the trial of Count Four from the trial of Counts One through Three. See United States v. Caraballo, 2013 WL 4647787, at *5-6 (D. Vt. Aug. 29, 2013).

B. The Trial.

The trial on Counts One through Three commenced on September 16, 2013. After eleven days of trial, the jury found Defendant guilty of conspiracy to distribute cocaine base, cocaine powder, and heroin, involving 28 grams or more but less than 280 grams of cocaine base (Count One); guilty of using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, the drug trafficking crime charged in Count One and of causing the death of Melissa Barratt by murder (Count Two); and guilty of using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a drug trafficking crime (Count Three). The jury found Defendant not guilty of discharging the firearm that killed Ms. Barratt, as alleged in Count Two. After the jury rendered its verdict, Defendant stipulated to a prior felony conviction, waived his right to a jury trial, and pled guilty to being a felon in possession of a firearm (Count Four).

C. Post-Trial Motions and the Court's Opinion and Order.

After the jury's verdict, Defendant timely moved for a judgment of acquittal on Counts Two and Three of the jury's verdict. (Docs. 180, 194.) With regard to his conviction on Count Two, Defendant argued that the jury's verdict that he caused Ms. Barratt's death was inconsistent with the jury's verdict, finding him not guilty of discharging the firearm that killed her, particularly because the government's theory at trial was that Defendant, himself, discharged the firearm. Defendant further argued that the evidence was insufficient for the jury to find that Defendant murdered Ms. Barratt in the course of violating § 924(c) and in the course of the underlying conspiracy. Defendant also sought acquittal on his convictions on Counts Two and Three for possession of a firearm in furtherance of a drug trafficking crime. He argued that the evidence presented during his trial—that he traded drugs for at least two different firearms—was insufficient as a matter of law to support his convictions under § 924(c)(1)(A).

On March 6, 2014, the court denied Defendant's motions for judgment of acquittal. (Doc. 202.) On March 5, 2014, the Supreme Court decided Rosemond. Neither party addressed Rosemond in briefing Defendant's original post-trial motions.

II. Conclusions of Law and Analysis.

A. Whether Defendant's Motion Is Timely.

The government contends that Defendant's Rosemond claim should be viewed as a new and untimely argument because Fed. R. Crim. P. 29(c)(1) provides that a motion for judgment of acquittal must be made "within 14 days after a guilty verdict or after the court discharges the jury, whichever is later." Pursuant to Fed. R. Crim. P. 45(b)(1)(B), however, the court "may extend the time, or for good cause may do so on a party's motion made . . . after the time expires if the party failed to act because of excusable neglect." While Rule 45(b)(2) formerly prohibited a court from extending the time to file motions under Rules 29 and 33 of the Federal Rules of Criminal Procedure, Rule 45(b)(2) was recently amended to exclude Rules 29 and 33 from this prohibition. The Advisory Committee Notes to the 2005 Amendments confirm that, by amending Rule 45(b)(2), "[t]he defendant is still required to file motions under Rules 29, 33, and 34 within the . . . period specified in those rules"; however, "under Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion within the specified time, the court may nonetheless consider that untimely motion if the court determines that the failure to file it on time was the result of excusable neglect." Cf. United States v. Brown, 623 F.3d 104, 113 n.5 (2d Cir. 2010) (recognizing "that under Rule 33 a defendant must bring a motion for new trial within 14 days of the verdict or finding of guilt, unless the [district] court finds that the late filing was the product of 'excusable neglect'"); see also United States v. Sherman, 2009 WL 1097906, at *3-4 (D. Conn. Apr. 22, 2009) (applying Rule 45(b)(1)(B) to belatedly-filed Rule 29 and 33 motions and finding excusable neglect warranting consideration of the motions on the merits).

"The Supreme Court [has] adopted a liberal test for assessing what neglect is excusable, emphasizing that 'the determination is at bottom an equitable one, taking account of all relevant circumstances[.]'" Williams v. KFC Nat'l Mgmt. Co., 391 F.3d411, 415 (2d Cir. 2004) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). Factors to consider include: (1) the danger of prejudice to the non-moving party, (2) the length of delay and impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the moving party, and (4) whether the moving party acted in good faith. See Williams, 391 F.3d at 415. "Excusable neglect's parameters are informed by, and roughly congruent with, the interests of justice." United States v. Ramos, 2012 WL 6708191, at *7 (D. Vt. Dec. 26, 2012) (internal quotation marks omitted).

While the government objects to Defendant's motion as untimely, the government identifies no prejudice it will suffer if the court reconsiders its prior Opinion and Order in light of Rosemond. Because Defendant's sentencing is currently set for September 8, 2014 and because a judgment has not yet been entered in Defendant's case, there is little prejudice to the government and no adverse impact on the court's proceedings if Defendant's belatedly-filed motion is considered. See United States v. Frederick, 868 F. Supp. 2d 32, 44-45 (E.D.N.Y. 2012) (finding excusable neglect, despite over 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 pre-judgment proceedings," and "the fact that adjudication of defendant's . . . claim at this juncture of the case would be the most efficient resolution of defendant's claim"); United States v. Stein, 440 F. Supp. 2d 315, 325-26 (S.D.N.Y. 2006) (finding...