United States v. Pelker, 1:16-cr-00240-01

UNITED STATES OF AMERICA v. DEREK PELKER, Defendant

No. 1:16-cr-00240-01

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

May 17, 2019

(Judge Kane)

MEMORANDUM

Before the Court is Defendant Derek Pelker ("Defendant")'s "post-trial motions" (Doc. No. 463) raising seven (7) grounds on which Defendant asserts he is entitled to a new trial in the above-captioned action, which the Court construes as a motion for a new trial. For the reasons stated herein, the Court will deny Defendant's motion.

I. BACKGROUND

On May 18, 2018, a jury found Defendant guilty of offenses related to various armed bank robberies (Doc. Nos. 369, 370, 381), as charged in a second superseding indictment dated November 29, 2017 (Doc. No. 203), including: conspiracy to commit armed bank robbery; use of a firearm in relation to a crime of violence; and possession of a firearm by a previously convicted felon. After receiving several extensions of time to do so, Defendant filed the instant motion on January 7, 2019 (Doc. No. 463), to which the Government filed a response on January 22, 2019 (Doc. No. 468). Because the time period for Defendant to file any reply has expired, Defendant's motion is fully briefed and, therefore, ripe for disposition.

II. LEGAL STANDARD

Federal Rule of Criminal Procedure 33 authorizes post-trial relief in the form of a motion for a new trial. See Fed. R. Crim. P. 33. In pertinent part, Rule 33 provides that "[u]pon the defendant's motion, the [C]ourt may vacate any judgment and grant a new trial if the interest of justice so requires." See id. "[T]he decision whether to grant a new trial . . . rests in the district court's discretion." United States v. Noel, 905 F.3d 258, 270 (3d Cir. 2018) (citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984)). "The [d]istrict [c]ourt may grant a new trial 'if the interest of justice so requires,' and will do so 'only if it believes that there is a serious danger that a miscarriage of justice has occurred - that is, that an innocent person has been convicted.'" United States v. Catarro, 746 F. App'x 110, 115 (3d Cir. 2018) (citing Fed. R. Crim. P. 33(a); United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002)). "A court should only grant a motion for new trial based on errors at trial where the 'error . . . had a substantial influence on the verdict.'" United States v. Norris, 753 F. Supp. 2d 492, 517 (3d Cir. 2010) (quoting United States v. Malik, No. 08-614, 2009 WL 4641706, at *3 (E.D. Pa. Dec. 7, 2009)). "A court may grant a motion for a new trial if it finds errors occurred during the trial and these errors 'when combined, so infected the jury's deliberations that they had a substantial influence on the outcome of the trial.'" United States v. MacInnes, 23 F. Supp. 3d 536, 542 (E.D. Pa. 2014) (quoting United States v. Thornton, 1 F.3d 149, 156 (3d Cir. 1993)). "Harmless errors that do not deprive a defendant of a fair trial provide no basis for granting a defendant's Rule 33 motion." (Id.) (citing Thornton, 1 F.3d at 156). "Motions for a new trial are disfavored and 'only granted with great caution and at the discretion of the trial court.'" Id. (quoting United States v. Martinez, 69 F. App'x 513, 516 (3d Cir. 2003)).

III. DISCUSSION

Defendant argues that he is entitled to a new trial based on the following seven (7) contentions: (1) the Court abused its discretion when it denied his request for a continuance of trial; (2) "the Court committed a reversible error by refusing to impeach Ryan Miller"; (3) "Ryan Miller's plea agreement contained information on bad acts against [] Defendant"; (4) hisconditions of confinement at the Dauphin County Prison during the course of his trial proceedings violated his due process rights; (5) counsel for the Government committed prosecutorial misconduct by making certain statements during the rebuttal phase of its closing argument at trial; (6) certain witnesses for the Government "exposed prejudicial evidence against Defendant"; and (7) "the Court committed a reversible error" when it admitted certain evidence of a prison phone call involving Defendant at trial. (Doc. No. 463 at 2, 6, 7, 9, 11, 13, 15.) The Court examines each asserted basis for relief in turn.

A. The Court's Denial of Defendant's Request for a Continuance of Trial

Defendant asserts that he is entitled to a new trial because "the Court abused its discretion when it denied his request for a continuance of a trial prior to [the trial] commencing." (Id. at 2.) Defendant refers to the Court's denial of his request for a continuance on the morning of his first day of trial immediately prior to the beginning of jury selection. The relevant portion of the trial transcript reads as follows:

THE COURT: Okay. Go ahead, do you have a question?

MR. PELKER: Yes, Your Honor. I actually have some preliminary matters I would like to discuss with the court before we start the jury selection. One, I would like to state a request for a continuance of this trial on the basis that due to me being incarcerated in Dauphin County, I have endured some setbacks in the defense, naturally, being there. I just recently obtained a pencil in Dauphin County Prison. That was as of Wednesday, I believe.

THE COURT: I'm sorry, you obtained a what?

MR. PELKER: A pencil, a writing utensil to finally start writing stuff down. Also, the law library was only being provided on Wednesday, Thursday, Friday, and Saturday for an hour, approximately.

Also, no fault of Mr. Abom, there is an abundant amount of discovery still needing to be reviewed and discovery that was already reviewed that needs to be reviewed a second time because there are extensive interviews with these co-defendants and cooperating witnesses.

It just - me and Mr. Abom have not had enough time to mark our exhibits and - to mark my exhibits and to properly review this to present an adequate defense. And I believe that in the current course, it may impede upon my right to a fair trial in this regard.

Also, given that, the housing at DCP will affect me during this trial. DCP feeds breakfast at approximately 3:30 in the morning. I will be getting woken up for 6:30 to be prepared for this court. There will be no time during the night that I would be able to obtain a six-hour uninterrupted sleep. That means I will be coming to this trial with sleep deprivation, while the government enjoys the benefit of sleeping a full night's rest to come to trial fully prepared.

. . .

THE COURT: All right. Mr. Abom.

MR. ABOM: Yes, Your Honor.

THE COURT: I know that you've spent a good deal of time assisting Mr. Pelker in preparation for trial. Do you have a sense of his ability to go forward?

MR. ABOM: Well, Your Honor, I spent Wednesday, Thursday, Friday, and Saturday with him for large amounts of time at the Dauphin County Prison. I've had with me the discovery that had previously been provided to him. In addition, there are, I think, some videos that he could not have while in prison, so we spent time together watching them, listening to them. Mr. Pelker has been logging them. I have done my best to print out certain documents he did not have access to. One of them was a 2,000-page phone extraction report. He now has a copy of that. So in answer to the question, I don't know what specifically Mr. Pelker needs more time to review in general. I mean, I'm not - I don't want to be in conflict with him.

THE COURT: Right.

MR. ABOM: But perhaps he could articulate those items for which he needs more time. I was available. I left on Saturday after spending about three or four hours Saturday. It seemed like we were at a conclusion, and maybe Mr. Pelker didn't think at the time to ask me to come back because he wanted a few more things to review. I don't know.

THE COURT: Okay. Mr. Pelker, you filed a number of motions with the court, and I thought - a number of motions you filed specific requests for voir dire, you filed requests for jury instructions. I reviewed your materials, and I thought they were exceptionally well done for someone in your circumstances who doesn'thave legal training and a full opportunity for some of the advantages that a lawyer might have in your case.

Obviously a motion to continue could have been filed prior to today, and this is really untimely in the worst way. We have 40 jurors waiting to come up and participate in jury selection in your case. Does the government wish to be heard?

MR. FORD: We do, Your Honor. Your Honor, the government would like to point out that initial discovery in this case was provided to the defendant's first attorney, Dan Myshin, on September 16th, 2016. As the court is well aware, the defendant then had a second attorney, Mr. Jeff Conrad, and on January 10th, 2017, all of those same materials were also provided to Mr. Conrad. We were prepared to go to trial last year. I believe the trial date was on May 9th. And prior to that May 9th date - that was a Tuesday - that Friday, the government had given all Giglio and Jencks materials to Mr. Conrad. All of that information was provided. The defendant had it, had access to it through his attorney, and we were prepared to go to trial this time last year. Now, there have been two superseding indictments that have added two additional bank robberies. Having said that, Your Honor, the witness list from today versus the witness list from last year, I believe there's a total of four bank employees that were added and one cooperator. So the defendant had access to all of that material through his attorneys for almost two years now.

Additionally, the defendant, at his own request, was released to the state so he could begin serving his state time and was being housed at SCI Mercer up until last Friday. So he had full - and throughout that time the government heard no complaints about access to a law library or the materials. So the defendant had all of that and he had access to that law library right up until last Friday, whenever we had our motions hearing. Based

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