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United States v. Ray

United States District Court, D. South Dakota, Western Division

February 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TREVOR SCOTT RAY, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         Following a three-day jury trial, on June 19, 2015, a jury returned its verdict finding Defendant Trevor Scott Ray guilty of count I of the indictment charging conspiracy to distribute a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers or salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; count II charging distribution of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers or salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and count III charging possession with intent to distribute a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers or salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 2. (Docket 60). The court sentenced Mr. Ray to the custody of the United States Bureau of Prisons for a term of 180 months on each count, to run concurrently. (Docket 111 at p. 2). Mr. Ray appealed the conviction and sentence to the United States Court of Appeals for the Eighth Circuit. (Docket 112). The Eighth Circuit affirmed the conviction and sentence. (Docket 122; see also United States v. Treavor Scott Ray, 690 Fed.Appx. 438 (8th Cir. 2017) (unpublished)).

         Mr. Ray filed a motion for new trial. (Docket 124). Defendant cites Fed. R. Crim. P. 33 as the basis for his motion. Id. at p. 1. Mr. Ray asserts three grounds for relief. Those are summarized as follows:

1. The government engaged in outrageous misconduct;
2. Counsel had conflicts of interest which prevented them from representing the defendant; and
3. Defendant was denied counsel in violation of the Sixth Amendment.

Id. at pp. 2-7.

         FED. R. CRIM. P. 33

         Rule 33 governs a new trial motion. “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). Except when a motion is premised on newly discovered evidence, a new trial motion “must be filed within 14 days after the verdict or a finding of guilty.” Fed. R. Crim. P. 33(b)(1). “Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2).

         “In order to merit a new trial, (1) the newly discovered evidence must have been unknown or unavailable to the defendant at the time of trial; (2) the defendant must have been duly diligent in attempting to uncover it; (3) the newly discovered evidence must be material; and (4) the newly discovered evidence probably will result in an acquittal upon retrial.” United States v. Stroud, 673 F.3d 854, 863 (8th Cir. 2012) (referencing United States v. Rubashkin, 655 F.3d 849, 857 (8th Cir. 2011) (citing United States v. Baker, 479 F.3d 574, 577 (8th Cir. 2007))). “[T]he standard in our circuit for a Rule 33 motion is clear and binding. The rule requires that the newly discovered evidence ‘probably will result in an acquittal.' ” Rubashkin, 655 F.3d at 858 (citing Baker, 479 F.3d at 577).

         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.

         ANALYSIS

         Each of Mr. Ray's claims of newly discovered evidence will be separately evaluated.

         1. THE GOVERNMENT ENGAGED IN OUTRAGEOUS CONDUCT

         Defendant alleges the government interfered with his attorney-client relationship and collaborated with his attorney. (Docket 124 at p. 2). Mr. Ray claims the collaboration was intended to build a case against him in exchange for not developing a case against Bill Rensch, the brother of one of the attorneys in a law firm Mr. Ray used for his personal business. Id. Mr. Ray alleges the conduct of the government violated his rights under the Fifth and Sixth Amendments.[1] Id.

         The newly discovered evidence claimed by Mr. Ray is as follows:

1. Bill Rensch owned and operated City Wide Auto (“CWA”), a used car dealership in Rapid City, South Dakota. Id. at p. 2 ¶ 1.
2. Bill Rensch is the brother of Tim Rensch, an attorney in the Rensch Law Firm in Rapid City. Id.
3. Attorney John Rusch was one of the attorneys in the Rensch Law Firm. Id.
4. At some point in time prior to working at CWA, Mr. Ray asked Attorney Rusch to help him set up a business corporation as a car business or dealership.[2] Id. at p. 2 ¶ 3.
5. After speaking with Attorney Rensch, Attorney Rusch referred Mr. Ray to Bill Rensch, suggesting they go into ...

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