United States District Court, D. South Dakota
ORDER DENYING MOTION FOR NEW TRIAL
JEFFREY L. VIKEN, Chief Judge.
On May 17, 2013, a jury found defendant William Clifford guilty of one count of simple assault in violation of 18 U.S.C. § 113(a)(5) and one count of assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6). (Docket 72). Mr. Clifford moved the court for a new trial pursuant to Fed. R. Crim. P. 33. (Docket 103). The government resists the motion. (Docket 110). On April 30, 2014, the court held an evidentiary hearing on the motion. (Docket 127). For the reasons set forth below, the court denies Mr. Clifford's motion for a new trial.
On October 23, 2012, Mr. Clifford and King Martinez were indicted for aiding and abetting each other in an assault with a dangerous weapon using shod feet in violation of 18 U.S.C. §§ 113(a)(3), 1153 and 2. A second count charged assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6), 1153 and 2. (Docket 1). The defendants were charged with assaulting Kealey Twiss ("Ms. Twiss") on or about October 16, 2012. Id.
A jury trial commenced on May 14, 2013, and concluded on May 17, 2013. (Docket 74). The jury found Mr. Martinez not guilty of both principal offenses and the lesser included offenses of simple assault and assault by striking, beating or wounding. (Docket 73). The jury found Mr. Clifford not guilty of assault with a dangerous weapon but guilty of simple assault and assault resulting in serious bodily injury. (Docket 72).
On July 10, 2013, Mr. Clifford, pro se, filed an ex parte motion for a new attorney and new trial. (Docket 78). On July 15, 2013, Magistrate Judge Veronica L. Duffy granted Mr. Clifford's motion to dismiss his court-appointed attorney, Ellery Grey, and appointed attorney Murl Woods to represent the defendant. (Dockets 80, 81 & 82).
Mr. Clifford asserts he is entitled to a new trial on the basis of newly discovered evidence and ineffective assistance of counsel at trial. (Docket 103). Mr. Clifford claims trial counsel was ineffective because Mr. Grey (1) failed to investigate and prepare a defense; and (2) engaged in improper conduct during the course of trial. Id . at pp. 3-7. Mr. Clifford argues the motion was filed in good faith and, because of excusable neglect, his new trial motion should be considered as timely filed even though the date of filing the motion was beyond the fourteen days required under Fed. R. Crim. P. 33. Id . at pp. 7-9. While the government resists defendant's motion for a new trial, it does not do so on the basis of untimeliness. (Docket 110).
Fed. R. Crim. P. 33(a) gives the district court authority to vacate a judgment and grant a new trial in the interest of justice. The decision to grant or deny a Rule 33 motion "is within the sound discretion of the [district] court." United States v. Campos , 306 F.3d 577, 579 (8th Cir. 2002). The court's discretion is both broad and limited. Id . It is broad to the extent the court "can weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict." Id . (citation and internal quotation marks omitted). Additionally, "the court need not view the evidence most favorably to the verdict." United States v. Worman , 622 F.3d 969, 977 (8th Cir. 2010); United States v. Lacey , 219 F.3d 779, 783-84 (8th Cir. 2000) (In determining whether to grant a Rule 33 motion, "the court need not view the evidence in the light most favorable to the government, but may instead weigh the evidence and evaluate for itself the credibility of the witnesses."). The court's discretion is limited to the extent the court must allow the jury's verdict to stand unless it determines a miscarriage of justice will occur. Worman , 622 F.3d at 977.
TIMELINESS OF MOTION
A motion for new trial based "on newly discovered evidence must be filed within 3 years after the verdict...." Fed. R. Crim. P. 33(b)(1). A motion for new trial based on any other reason "must be filed within 14 days after the verdict...." Fed. R. Crim. P. 33(b)(2). A motion for new trial is procedurally barred if not asserted within the 14-day limit of Fed. R. Crim. P. 33 unless the court finds excusable neglect. Fed. R. Crim. P. 45(b)(1)(B).
"Under [Rule] 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). There are four factors the court should consider to determine whether a late filing is the result of 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." Id . (referencing Stutson v. United States , 516 U.S. 193, 196-98 (1996) (internal brackets omitted). The ultimate determination of whether a neglectful act is excusable "is... an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership , 507 U.S. 380, 395 (1993).
Factors in this case which support a finding of excusable neglect include:
1. The verdict was entered on May 17, 2013. (Docket 72).
2. The sentencing scheduling order was entered on May 23, 2013, setting sentencing for September 27, 2013. (Docket 77).
3. On July 10, 2013, Mr. Clifford, pro se, filed an ex parte motion seeking a new attorney and new trial. (Docket 78).
4. On July 15, 2013, Judge Duffy conducted a hearing on Mr. Clifford's request for new counsel. (Docket 80). Judge Duffy granted Mr. Clifford's motion. Id.
5. On July 16, 2013, Judge Duffy appointed Attorney Woods to represent Mr. Clifford. (Docket 82). The United States was ordered to "re-provide" discovery to Ms. Woods. Id.
6. On August 5, 2013, Attorney Woods filed an ex parte motion for preparation of the trial transcripts. (Docket 84).
7. On September 19, 2013, Attorney Woods filed a motion for continuance because the trial transcripts would not be completed by the September 27, 2013, sentencing date. (Docket 86). Ms. Woods requested a continuance as the transcripts were needed "to prepare any possible post-trial motions...." Id . at p. 2.
8. That same day, September 19, 2013, the court granted the motion for continuance and rescheduled sentencing for ...