United States District Court, N.D. Iowa, Eastern Division
Williams United States District Judge
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).
March 25, 2019, defendant filed a motion to proceed pro se.
(Doc. 102).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.
The Legal Standard
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)).
Timing of Motion
government argues that the Court should deny defendant's
motions because they are untimely. (Doc. 136, at
Motions for new trial “must be filed within 14 days
after the verdict or finding of guilty.” Fed. R. Crim.
P. 33(b)(2). 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
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).
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.
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.
Brady Violation Claim
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 ...