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United States v. Harriman

United States District Court, N.D. Iowa, Eastern Division

July 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JASON TROY HARRIMAN, Defendant.

          ORDER

          C. J. Williams United States District Judge

         I. INTRODUCTION

         On January 29, 2019, a jury found defendant guilty of two counts of murder for hire, in violation of Title 18, United States Code, Section 1958 (Doc. 90), rejecting defendant's claim that a federal agent entrapped him into hiring the agent to kill defendant's ex-wife, D.H., and her new boyfriend, A.W. Defendant was represented by counsel during the trial. The Court denied defendant's motions for judgment of acquittal made at the close of the government's case and renewed at the close of all of the evidence. (Doc. 86). On February 12, 2019, defendant (still represented by counsel) filed a timely Motion for Judgment of Acquittal and New Trial. (Doc. 95). On March 13, 2019, the Court denied defendant's Motion for Judgment of Acquittal and New Trial. (Doc. 101).

         On March 25, 2019, defendant filed a motion to proceed pro se. (Doc. 102).[1]On April 4, 2019, the Court granted defendant's motion to proceed pro se. (Doc. 106). On July 3, 2019, defendant filed a pro se motion for a new trial asserting a Brady violation. (Doc. 133). On July 10, 2019, defendant filed a pro se supplement to his motion for a new trial and a second pro se motion for a new trial, this one based on alleged ineffective assistance of counsel. (Docs. 134 & 135). (Doc. 135). On July 11, 2019, the government filed a timely resistance to defendant's first pro se motion for new trial. (Doc. 136). For the reasons that follow, the Court denies defendant's motions for a new trial.

         II.ANALYSIS

         A. The Legal Standard

         Federal Rule of Criminal Procedure 33 governs defendant's motions for a new trial. Rule 33(a) provides: “Upon 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). A court has broad discretion in considering a motion for new trial. See United States v. Garcia, 569 F.3d 885, 889 (8th Cir. 2009); United States v. Peters, 462 F.3d 953, 957 (8th Cir. 2006). A court may “weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict.” United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002) (quoting White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992)); see also United States v. Starr, 533 F.3d 985, 999 (8th Cir. 2008). Nevertheless, district courts “must exercise the Rule 33 authority ‘sparingly and with caution.'” Campos, 306 F.3d at 579 (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)).

         B. Timing of Motion

         The government argues that the Court should deny defendant's motions because they are untimely. (Doc. 136, at 5).[2] Motions for new trial “must be filed within 14 days after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2).[3] The fourteen-day filing deadline runs from the time of the jury verdict, not the entry of judgment. Fed. R. Crim. P. 33 advisory committee's note to 1998 amendments (“It is the intent of the Committee to remove th[e] element of inconsistency [in the running of the deadline] by using the trial court's verdict or finding of guilty as the triggering event.”). A court may extend the deadline “if the movant failed to act because of excusable neglect.” United States v. Boesen, 599 F.3d 874, 879 (8th Cir. 2010) (citing Fed. R. Crim. P. 45(b)(1)(B)). The decision whether to grant an extension is within a court's discretion. See United States v. Owen, 559 F.3d 82, 84 (2d Cir. 2009) (“We conclude that, under these circumstances, where the Rule 33 motion is still pending before the District Court, the District Court is in the best position to decide, in the exercise of its informed discretion, whether [defendant's] pro se motion was timely under Rule 33 and Rule 45(b).”).

         Here, the jury found defendant guilty on January 29, 2019. To be timely, defendant needed to file a motion for a new trial by February 12, 2019. Defendant filed his first pro se motion for a new trial on July 3, 2019, which is more than five months after the deadline passed. Defendant filed his second pro se motion for a new trial a week later. Thus, defendant's motions were untimely. See United States v. Foster, 623 F.3d 605, 608 (8th Cir. 2010) (holding defendant's motion for new trial untimely when defendant filed motion six months after verdict).

         The Court does not find excusable neglect justifying extending the deadline. Although defendant claims his appointed attorney was ineffective in failing to pursue the Brady issue raised in the first pro se motion for a new trial, the record is undeveloped. Thus, the Court cannot make any finding at this time regarding defendant's ineffective assistance of counsel claim. If there is any merit to that claim, defendant may seek relief in a post-conviction petition when there will be an opportunity to develop the record. Regardless, even after defendant began to represent himself, he did not act diligently in filing his motions for a new trial. The government provided discovery to defendant in his pro se capacity on May 15, 2019, including copies of all recorded calls in the government's possession. (Docs. 120; 136, at 2). On June 11, 2019, the government informed defendant that he had been provided all of the recorded phone calls in its possession. (Doc. 136, at 2-3). Nevertheless, defendant did not file the instant motion for a new trial until July 3, 2019, three weeks after he became aware of the allegedly missing recordings. Defendant filed his second pro se motion for a new trial a month after becoming aware of the allegedly missing recordings.

         Thus, the Court denies defendant's motions for a new trial as untimely. Nevertheless, the Court will address defendant's motions on their merits as well, finding that denial would be appropriate even if the motions were timely.

         C. Brady Violation Claim

         In his first pro se motion for a new trial, defendant argues that he is entitled to a new trial because the government committed a Brady violation when it failed to obtain “numerous telephone recordings” and emails from the Bureau of Prisons. (Doc. 134, at 1). Defendant asserts that the missing phone calls occurred in January 2018. Defendant claims that in January he made a number of phone calls to his ex-wife from prison, recordings of which were not included in his discovery file. Defendant also asserts recordings of certain phone calls with Bill Baker and Ira Sojka and copies of email with Ira Sojka were missing from the discovery file. Defendant relates, based on his memory apparently, the alleged contents of these alleged missing phone calls ...


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