The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL
Defendant, Gillman Roddy Long, moves the court to vacate his judgment of conviction and grant a new trial. Docket 273. Long claims that his convictions were unlawfully obtained, his trial counsel was ineffective, and the court should extend his time to request a new trial due to excusable neglect. The government resists this motion. Docket 278 & 281. The government claims that Long's constitutional rights were not violated and his trial counsel was not ineffective; therefore, Long has shown no excusable neglect that would justify an extension of his time to file a motion for new trial. For the following reasons, Long's motion is denied and his sentencing will proceed.
Long was arrested in July of 2009 and charged with three counts of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2). Docket 3. The case went to trial in July of 2011. During its case-in-chief the government called FBI Special Agent Sheri Rice to testify about her interview with Long prior to his arrest. At the start of the interview, Agent Rice told Long that he was not under arrest, she had no warrant, he would not be arrested that day, and the interview was voluntary so he could leave at any time. Docket 269 at 159. Defendant was not given Miranda warnings and was not taken into custody.
Agent Rice asked Long if there was any sexual contact between him and AP, who was the niece of Long's girlfriend, Brenda Brewer. Long said that there was an incident when he was at the computer at Brewer's house. AP came up behind him and rubbed her breasts against his back. Docket 269 at 160. Long said that he stood up and pushed AP away from him. Agent Rice testified that Long then stopped the interview and said, "I do not want to incriminate myself. I would like to stop talking." Docket 269 at 160. Agent Rice gave this testimony during direct examination. Long's trial counsel, Monica Colbath, did not object. Colbath specifically cross-examined Agent Rice about that statement and other portions of the interview. The government referenced Long's statement during its closing argument.
The jury returned a guilty verdict on two of the three charges, and Long was convicted of two counts of aggravated sexual abuse of a child. Docket 212. The court scheduled a sentencing hearing and the probation office began preparing a presentence report. Long did not move for a new trial under Federal Rule of Criminal Procedure 33(b)(2) within the mandatory 14 days as per the rule. Long requested new counsel, and the court granted that request on September 27, 2011. Docket 241. Long moved to continue sentencing so that his new attorney would have an opportunity to familiarize himself with the case and review the trial transcript. Docket 260. The sentencing hearing was scheduled for January 19, 2012.
Prior to his sentencing hearing, Long submitted a sentencing memorandum where he asked the court for a downward departure from the sentencing guidelines. Docket 264. For purposes of determining the length of his sentence, Long asked the court to consider an alleged Fifth Amendment violation at trial because of the introduction of his statement through Agent Rice's testimony. Docket 266. On the day of his sentencing hearing, Long filed a motion for a new trial and asked the court to extend the time to file his motion based on excusable neglect. Docket 273. The court heard argument on the issue of excusable neglect during the January 19, 2012, hearing and reserved ruling on that and the Fifth Amendment claim.
DISCUSSION I. Excusable Neglect
Before the court can examine whether there was a substantive violation of Long's rights, Long must make a showing that the reasoning behind his delay in filing his motion for a new trial satisfies the excusable neglect standard. Long states that his trial counsel was ineffective, and that ineffective assistance of counsel satisfies excusable neglect. The government asserts that Long's counsel was not ineffective, he cannot satisfy excusable neglect, and his motion for a new trial should be denied.
Federal Rule of Criminal Procedure 33 requires 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." Fed. R. Crim. P. 33(b)(2). "Under Fed. R. Crim. P. 45(b)(1)(B), a court may extend the deadline for the filing of a new trial motion after the time expires if the movant failed to act because of excusable neglect." United States v. Boesen, 599 F.3d 874, 879 (8th Cir. 2010). Rule 45 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).
The Eighth Circuit Court of Appeals has stated that the following four factors must be considered by the court to determine whether it should extend the time period to file a motion for new trial based on excusable neglect:
(1) "the danger of prejudice to the [opposing party]"; (2) "the length of the delay and its potential impact on judicial proceedings"; (3) "the reason for the delay, including whether it was within the reasonable control of the movant"; and, (4) "whether the movant acted in good faith." Boesen, 599 F.3d at 879 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). The excusable neglect factors "do not bear equal weight as the reason for delay is generally a key factor in the analysis." Kurka v. Iowa Cnty., Ia., 628 F.3d 953, 959 (8th Cir. 2010) (citation omitted).
The government has stated that it will sustain serious prejudice if the court grants the motion for a new trial because a new trial would require the complaining abuse victim, AP, and TE (a Rule 413 witness), to again relive their experiences and further challenge their memories. The government also notes that the abuse allegations in the indictment occurred in 2009, but trial did not occur until 2011 because Long moved for numerous continuances and for a competency evaluation, so the delay and prejudice are severe.
The court acknowledges that the majority of the delay in this case is due to Long's own requests. It is likely that the government would be harmed if the court granted defendant's motion because of the substantial gap in time from trial until now because the witnesses' memories will have faded, and there will be a hardship placed upon the victims to relive their injuries. See Boesen, 599 F.3d at 879 (finding that it was not error for the district court to find prejudice to the government because the delay could cause witnesses to "become unavailable" or for their memories to fade). The court finds that this factor weighs slightly in favor of denying defendant's request for an extension of time to file a motion for a new trial based on excusable neglect.
In this case, the delay from trial until Long's untimely filing of his motion for a new trial was approximately six months. The amount of time between the deadline to file the motion for a new trial and the actual date of ...