United States v. Orusa

686 F.Supp.3d 719

UNITED STATES of America v. Samson ORUSA

No. 3:18-cr-00342

United States District Court, M.D. Tennessee, Nashville Division

Filed August 10, 2023

Stephanie N. Toussaint, Miller Bushong, Assistant U.S. Attorneys, James Matthew Blackburn, U.S. Attorney's Office, Nashville, TN, for United States of America.

Peter J. Strianse, Tune, Entrekin & White, P.C., Nashville, TN, Paul J. Bruno, Barrett Johnston Martin & Garrison, LLC, Nashville, TN, Beau B. Brindley, Law Offices of Beau B. Brindley, Chicago, IL, for Samson Orusa.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Two years ago, on August 13, 2021, after an eight day trial, a jury found Samson Orusa guilty of (1) maintaining a drug-involved premises (Count One); (2) thirteen counts of unlawful distribution of a controlled substance (Counts Two to Four, Seven to Nine, Thirteen, Fifteen, Seventeen, Eighteen, and Twenty to Twenty-Two); (3) twelve counts of health care fraud (Counts Twenty-Four to Thirty-Six); and (4) nine counts of money laundering (Counts Thirty-Seven through Forty-Five). A little over a month later, on September 24, 2021, the jury returned special verdicts finding that certain bank accounts were the product of Defendant maintaining a drug-involved premises and unlawfully distributing controlled substances, and that some of those bank accounts and a Mercedes-Benz S550 were traceable to his money laundering scheme. Despite the number and gravity of the crimes for which he was convicted, Defendant has remained free pending sentencing.

A sentencing hearing was set for July 29, 2022. However, four days before that date, new counsel was granted permission to appear pro hac vice. That same day, July 25, 2022, counsel filed a Motion for New Trial (Doc. No. 290) based upon the Supreme Court's decision in Ruan v. United States, 597 U.S. 450, 142 S. Ct. 2370, 213 L.Ed.2d 706 (2022), which was decided on June 27, 2022. Defendant also filed a request for a continuance of the sentencing, but that request was held under advisement pending a status conference that was held at the time originally set for sentencing. (Doc. Nos. 291, 293).

Because Defendant's motion for a new trial was filed on the eve of sentencing and far outside the general deadline for such requests, extensive briefing and argument by the parties on the issue of excusable neglect followed. (Doc. Nos. 312, 327, 338, 345). This culminated in hearings on June 21, July 6, and July 28, 2023.

For the reasons stated below, the Court finds that counsel for Defendant intentionally engaged in gamesmanship in order to delay sentencing. Nevertheless, the Court will partially grant the Motion for New Trial because there was "Ruan error" in the instructions given to the jury on the unlawful distribution of controlled substances counts. Further, because those counts are inextricably intertwined with the maintaining a drug-involved premises count and the money laundering counts, a new trial will be granted on those as well. No new trial is warranted on the healthcare fraud counts, however, because they are self-contained and were not infected by any "Ruan error."

I.

Rule 33 of the Federal Rules of Criminal Procedure governs motions for a new trial. The rule provides 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." Fed. R. Crim. P. 33(a). It also provides that "[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty." Id. (b)(2).

"However, Rule 33 must be read in conjunction with Federal Rule of Criminal Procedure 45, which provides that '[w]hen an act must or may be done within a specified period, the court . . . may extend the time . . . on a party's motion made . . . after the time expires if the party failed to act because of excusable neglect.' Fed. R.Crim.P. 45(b)." United States v. Munoz, 605 F.3d 359, 367 (6th Cir. 2010) (citing Advisory Comm. Notes to 2005 Amendments of Rule 33). In other words, "even if the defendant moves for a new trial outside the fourteen days and without new evidence, the district court can grant the motion if it finds 'excusable neglect.' " United States v. Hall, 979 F.3d 1107, 1123 (6th Cir. 2020).

"Excusable neglect" is an "elastic concept" and the determination of whether a party's neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Based upon the Supreme Court's decision in Pioneer, the Sixth Circuit has instructed a court to look to several factors in determining "excusable neglect":

(1) the danger of prejudice to the nonmoving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, (4) whether the delay was within the reasonable control of the moving party, and (5) whether the late-filing party acted in good faith.

Hall, 979 F.3d at 1123 (quoting Munoz, 605 F.3d at 368). These factors "do not carry equal weight; the excuse given for the late filing must have the greatest import. While [the others] might have more relevance in a closer case, the reason-for-delay factor will always be critical to the inquiry." Munoz, 605 F.3d at 372-3 (quoting Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000)).

A.

The fourteen-day period under Rule 33 for filing a new trial motion serves the salutary purpose of retrying cases in a timely fashion. After all, memories tend to fade with time, and this can prejudice the Government when it primarily relies on witnesses to present its case. Moreover, "prompt filing of these motions allows for the presiding judge to rule on them while the evidence is still fresh in her [or his] mind." United States v. Elenniss, 729 F. App'x 422, 428 (6th Cir. 2018).

The Sixth Circuit recognized as much in Munoz, but also noted that "six months is not a sufficient period of time to create significant prejudice[.]" 605 F.3d at 371. Here, in contrast, the delay between the return of the verdict and the motion for a new trial was closer to a year, more precisely 11.5 months or 347 days. By any calculation, this delay was inordinate, at least in the abstract. It is even more so when one considers that, between the jury verdict and the Motion for a New Trial, the following occurred:

• September 24, 2021 - Forfeiture trial held, verdict returned, and probation directed to prepare a PSR

• January 25, 2022 - PSR disclosed to the parties

• February 14, 2022 - Government responds to PSR

• April 7, 2022 - Second draft of PSR provided to the parties

• April 15, 2022 - Third draft of PSR disclosed to parties

• April 19, 2022 - Government moves to set a sentencing hearing date

• May 16, 2022 - Status Conference held; court informed that Chicago attorney Beau Brindley may enter appearance; sentencing reset for June 29, 2022

• June 13, 2022 - Fourth revised draft of PSR disclosed and Defendant responds

• June 14, 2022 - Final PSR and Addendum disclosed to parties

• June 15, 2022 - Government and Defendant file their Position Statements regarding the final PSR

• June 20, 2022 - Defendant files Character/Witness List

• June 27, 2022 - Ruan opinion issued

• July 18, 2022 - Brindley moves for pro hac vice admission

• July 20, 2022 - Parties file their 3553(a) Sentencing Memoranda; Defendant files additional Good Character Letters

• July 25, 2022 - New trial motion filed

(Doc. Nos. 233, 258, 268, 269, 273, 274, 279, 280, 281, 284, 290, 298). Also within this time period, Orusa hired Brindley in April or May of 2022, and provided him a "modest retainer to look into the case." (Doc. No. 351, Brindley Aff. ¶ 1¹).

Obviously, Defendant cannot be faulted for the bulk of this delay. Ruan - which gave him a solid and definitive basis for moving for a new trial - was decided less than a month before he filed his motion for new trial. This remains so, even though the possibility of Ruan changing the law was well-understood by the defense bar. Indeed, it would have been impossible to make a Ruan argument before the case was actually decided.

In rejecting a similar argument after the Supreme Court in Skilling v. United States, 561 U.S. 358, 130 S. Ct. 2896, 177 L.Ed.2d 619 (2010) narrowed the reach of the term "honest services fraud" under 18 U.S.C. § 1346, one court observed:

The United States counters that the defendants were aware that the case was pending before the Supreme Court and, therefore, they could have filed timely motions for acquittal or a new trial based on "the Skilling argument." Without the benefit of the Supreme Court's opinion, however, any argument based on Skilling would have been purely speculative. The defendants had no way of knowing the outcome in advance.

United States v. Maricle, No. CRIM.A. 6: 09-16-S, 2010 WL 3927570, at *3 (E.D. Ky. Oct. 4, 2010) (citation to record omitted). The failure to know Ruan's outcome, of course, did not preclude Defendant from moving for a stay in anticipation of Ruan, nor does it excuse counsel's machinations discussed below.

B.

In enacting statutes that recognize excusable neglect "Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings" based upon "intervening circumstances beyond the party's control." Pioneer, 507 U.S. at 388, 113 S.Ct. 1489. A new rule of law, by definition, can be such a circumstance particularly where, as here, no final judgment has been entered, nor an appeal taken. See United States v. Nordlicht, No. 16-CR-00640 (BMC), 2023 WL 4490615, at *6 (E.D.N.Y. July 12, 2023); United States v. Chujoy, 207 F. Supp. 3d 660, 666 (W.D. Va. 2016); Maricle, 2010 WL 3927570, at *3 (E.D. Ky. Oct. 4, 2010), Indeed, "an intervening change in [the] law that could render a conviction unconstitutional [is]...