United States v. Durham

UNITED STATES OF AMERICA, Plaintiff, v. MATTHEW LANE DURHAM, Defendant.

CR-14-231-R

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

January 26, 2016

ORDER

Defendant has filed a Motion for New Trial pursuant to Federal Rule of Criminal Procedure 33 (Doc. No. 371), to which the United States has filed a response (Doc. No. 381) and Defendant has filed a reply (Doc. No. 403). Thereafter, on October 27, 2015, Defendant filed a Supplement to his Rule 33 motion (Doc. No. 420). Plaintiff responded in opposition thereto (Doc. No. 425) and Defendant filed a reply in support of his supplement (Doc. No. 428). Accordingly, the motion and its supplement are ripe for consideration by the Court. Having considered the parties' submissions, the Court finds as follows.

On August 5, 2014, a federal grand jury returned an indictment against Defendant charging him with violation of 18 U.S.C. § 2423(b), 18 U.S.C. § 2423(c) and 18 U.S.C. § 2241(c).¹ Following the filing of a superseding and then a second superseding indictment, Defendant proceeded to jury trial in June 2015, whereupon he was acquitted on Counts 1 through 9 and Count 12 and convicted on Counts 10-11 and 13-17, each of which chargeda violation of 18 U.S.C. § 2423(c) with a separate victim. Defendant thereafter filed the instant motion as well as a Motion for Judgment of Acquittal and a Motion for Arrest of Judgment.

In considering a motion for new trial, the court has broad discretion. United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.1987) (citation omitted). The standards for granting a new trial are not as strict as the standards for granting judgment of acquittal. Federal Rule of Criminal P rocedure 33 provides that a court may grant a new trial "if the interest of justice so requires." Additionally, any error that would require reversal may justify a new trial. United States v. Walters, 89 F.Supp.2d 1206, 1213 (D.Kan.2000) (citation and quotation marks omitted). The court may weigh the evidence and assess witness credibility. United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir.1999) (citation omitted). A new trial is warranted if, "after weighing the evidence and the credibility of the witnesses, the court determines that 'the verdict is contrary to the weight of the evidence such that a miscarriage of justice may have occurred.'" United States v. Gabaldon, 91 F.3d 91, 93-94 (10th Cir.1996) (quoting United States v. Evans, 42 F.3d 586, 593 (10th Cir.1994)). But courts disfavor new trials, United States v. Gleeson, 411 F.2d 1091, 1093 (10th Cir.1969) (citation omitted), and exercise great caution in granting them, United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir.1997) (citation omitted).

United States v. Hohn, No. 12-20003-03-CM, 2013 WL 6796428, at *2 (D. Kan. Dec. 20, 2013) aff'd, 606 F.App'x 902 (10th Cir. 2015) and aff'd sub nom. United States v. Redifer, --- Fed.Appx. ---, 2015 WL 7075923 (10th Cir. 2015).²

Defendant raises the following arguments in support of his motion: (1) he was deprived of an opportunity to meaningfully investigate, prepare and present a defense; (2) unfair and prejudicial evidence was presented at trial over Defendant's objection and inviolation of the Court's prior ruling on a motion in limine; (3) evidence presented in support of the counts on which Defendant was acquitted prejudiced him with regard to other counts for which he was convicted; (4) the verdict is contrary to the weight of the evidence; and (5) prosecutorial misconduct in withholding evidence prior to trial and improper comments during closing argument undermines confidence in the jury's verdict. Defendant's supplement raised additional issues regarding prosecutorial misconduct, specifically alleging Brady-type violations by the government.

Defendant was arrested on July 17, 2014 on a Criminal Complaint based on alleged criminal activity that occurred in Juja, Kenya, a town approximately 30 kilometers from Nairobi. On July 18, 2014, Defendant made his initial appearance, waived a detention hearing and consented to detention pending further proceedings. Counsel, who had appeared at the July 18, 2014 hearing on Defendant's behalf, entered an appearance on July 31, 2014, the day before a Magistrate Judge conducted a preliminary examination. On August 5, 2014, the grand jury returned the original indictment. The matter was set for trial on the Court's September 2014 docket.

On August 28, 2014, Defendant sought continuation of the trial and the attendant pre-trial deadlines. The Court granted the motion on August 29, 2014, continuing the trial from the September 2014 docket to the Court's March 10, 2015 docket. On November 24, 2014, Defendant filed a Motion to Continue Pretrial Motions Deadline, which the Court granted, extending his deadline for filing motions until December 7, 2014. Thereafter Defendant filed motions asserting a privilege with regard to communications with Kim Kimberling, Ph.D.and a motion to suppress statements he made to Eunice Menja that he contended were involuntary and thus inadmissible.

On January 20, 2015, the grand jury returned a Superseding Indictment against Defendant. The Superseding Indictment increased the number of counts from 3 to 24, charging eight counts each for violation of 18 U.S.C. §§ 2241(c), 2423(b), and 2423(c). Defendant was charged with violating each of the statutes as to each of the eight alleged victims.

On February 4, 2015, the Court conducted a hearing on the myriad of outstanding motions filed by both parties. The Court granted Defendant's motion to continue the trial, moving the setting to June 2015, and extended the time for disclosures and additional pretrial filings. On April 7, 2015, the Second Superseding Indictment was returned by the grand jury, removing certain counts but retaining seventeen counts under each of the same statutes. As noted, Defendant was convicted on seven counts of the Second Superseding Indictment, leading to the filing of this and other post-trial motions.

Defendant contends he is entitled to a new trial because his ability to conduct adequate pretrial investigation was hampered by the fact that most of the witnesses and evidence were located in Kenya. Because Kenya is not a party to any treaty that would result in legal assistance for Defendant with regard to investigating this case, 'Defendant was forced to rely on an impractical letters rogatory process. The letters rogatory process is lengthy, taking at least a year to complete." Doc. No. 371, p. 3.

The Court notes that the parties and the Court were aware of the issues related to the extra-territorial nature of this case. The Court granted Defendant's first motion for continuance on August 29, 2014. The motion stated: "[t]hat Defendant needs additional time to prepare for trial due to the logistical complexities of traveling to Kenya to conduct a thorough investigation of the alleged crimes." Doc. No. 30. The Court granted the request.

On January 15, 2015, Defendant filed a Second Motion to Continue, stating therein:

To further complicate matters, Counsel does not have subpoena power in Kenya. Counsel is forced to rely on the procedures provided by the State Department. It is a long circuitous route to acquire documents and discovery. Unfortunately, Counsel has learned that letters rogatory are traditionally delayed. In an attempt to avoid this route, Counsel has sought, and will continue to seek, discovery from the Government, but has not acquired all of the necessary discovery. Accordingly, Counsel will be filing motions for subpoenas within the coming days, which will invariably use State Department channels. Counsel does not expect responses to be received through State Department channels under after March 2015, or, at best, on the eve of trial.

Doc. 78. At a February 9, 2015 hearing, the Court placed the matter on the June trial docket after Defendant's counsel represented that attorneys for Defendant would be traveling to Kenya and acknowledged the need for letters rogatory. Doc. No. 119, Tr. 125. On May 21, 2015, less than one month before the schedule start of the trial, Defendant filed a Motion for Order for Letters Rogatory. (Doc. No. 218).

Defendant does not anticipate that these letters rogatory will result in any delay of trial as they are largely tailored to witnesses that the Government has already identified as willing to submit to this Court's jurisdiction and to Kenyan Government agencies that have already been assisting the United States.

Doc. No. 218. Defendant now contends that letters rogatory would have taken at least one year to have completed. Delaying until May 21, 2105 his request that the Court issue letters, prevented determination of how long the process would actually take, because trial was scheduled to begin within three weeks of his request. Furthermore, defense counsel represented to the Court that they traveled to Kenya and conducted an investigation while there, and that Defendant had retained Kenyan counsel, who was permitted to sit with and assist Defendant's primary counsel during the trial. Defendant has failed to proffer or explain what type of evidence he sought but was unable to obtain due to the extraterritorial nature of the prosecution. In light of the above, the Court concludes that Defendant is not entitled to a new trial based on alleged difficulties created by prosecution of the crimes that occurred in Kenya in this jurisdiction.

Defendant also contends the government stonewalled his counsel's investigation and discovery, asserting, in part, that the government attorneys publicly demonized defense counsel. The Court disagrees with Defendant's characterization of the demonization of defense counsel. The discovery issues have been thoroughly addressed throughout this case, and the fact that the government objected to certain of Defendant's requests is not tantamount to obfuscation. Defendant presents no evidence that any person with whom his counsel...