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U.S. v. ROBINSON

January 22, 2004.

UNITED STATES OF AMERICA, -against- STEVEN ROBINSON, a/k/a Wise, Defendant


The opinion of the court was delivered by: LAWRENCE KAHN, District Judge

MEMORANDUM-DECISION AND ORDER

I. Background

On November 18, 2002, Defendant Steven Robinson ("Robinson") was found guilty by a jury of (i) conspiracy to distribute and possess with the intent to distribute more than one hundred kilograms of marijuana, in violation of 21 U.S.C. § 846; (ii) two counts of using a firearm in furtherance of the marijuana conspiracy, in violation of 18 U.S.C. § 924(c); and (iii) causing the death of another in the course of using a firearm, in violation of 18 U.S.C. § 924(j). Following that verdict, Robinson moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) or, in the alternative, for a new trial pursuant to Fed.R. Crim. P. 33. In a Memorandum-Decision and Order dated May 14, 2003, this Court granted Robinson's motion for a new trial as to count 4 (use of a firearm in furtherance of the marijuana conspiracy on October 11, 2000) and count 5 (causing the death of another in the course of using the firearm on October 11, 2000). See United States v. Robinson, 2003 WL 21095584 (N.D.N.Y. 2003). Presently before the Court is the Government's Motion for Reconsideration of that May 14, 2003 Memorandum-Decision and Order. For the reasons set forth below, the Government's motion is denied. Page 2

 II. Discussion

  (a) Standard of Review

  The Court may reconsider its prior decision in the same case if "there has been an intervening change in controlling law, there is new evidence, or a need is shown to correct a clear error of law or to prevent manifest injustice." U.S. v. Sanchez, 35 F.3d 673, 677 (2d Cir. 1994). The Government contends that in granting Robinson's motion for a new trial, the Court (1) abused its discretion in rejecting certain testimony, and (2) lacked jurisdiction to grant the motion at the time it was made.

  (b) Whether the Court Abused its Discretion

  The Government claims that the Court "usurped the jury's role" by rejecting the testimony of a particular witness in its decision to grant Robinson's motion for a new trial. Government's Memorandum at 2. In its May 14, 2003 Order, the Court found that Government witness Auckland Dubery's "dubious testimony [was] exceedingly weak support for the jury's finding of guilt." Robinson, at *4. The Court listed a number of reasons for its finding, including that: (1) Dubery's testimony was uncorroborated by the other witnesses present at the scene; (2) Dubery admitted to smoking three marijuana cigars in the six hours prior to the shooting; (3) immediately after the shooting, Dubery told police that he did not know who the shooter was; (4) a few days later, while Dubery was recovering in the hospital, Dubery again told a detective that he did not know who the shooter was; (5) Dubery changed his story and identified Robinson as the shooter only after his girlfriend, Rachel, discussed the potential benefits that he could receive in exchange for his identification of the shooter; and (6) Dubery's testimony was vague and left many holes.

  In granting Robinson's Rule 33 motion, the Court was well aware of the high standard that Page 3 must be met for such a motion to succeed. Rule 33 states that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33. In a recent decision, the Second Circuit explained how a court's review of a Rule 33 motion is governed:
The ultimate test on a Rule 33 motion is whether letting a verdict stand would be a manifest injustice. The trial court must be satisfied that competent, satisfactory and sufficient evidence in the record supports the jury verdict. The district court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation. There must be a real concern that an innocent person may have been convicted. Generally, the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise the Rule 33 authority sparingly and in the most extraordinary circumstances.
United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (internal quotation marks and citations omitted).

  The Court also considered the way in which this high standard has been applied specifically to the issue of witness credibility. When considering a Rule 33 motion, "the court may weigh the evidence and credibility of witnesses." United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000) (citation omitted). However, the Court must take care not to usurp the role of the jury. Ferguson, 246 F.3d at 133. "Because the courts generally must defer to the jury's resolution of conflicting evidence and assessment of witness credibility, `[i]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment.'" Id. at 133-34 (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)).

  In its May 14, 2003 decision, the Court, while recognizing that the grant of a new trial is extraordinary and that the Court should only exercise its discretion to set aside a verdict in those rare occasions when the prosecution has clearly failed to meet its burden of proving guilt beyond a reasonable doubt, still found that judicial intervention was necessary in this case to prevent a manifest injustice. The Government does not claim that there has been a change in controlling law or that new evidence has come to light. Rather, the Government simply rehashes the facts of the Page 4 case and disagrees with the Court's analysis of those facts. The Court found that the evidence against Robinson on counts 4 and 5 was far too flimsy to support a conviction and that, given the very real concern that an innocent person may have been convicted, a new trial was compelled under the circumstances. The Government has not shown this decision to be clear error.

  (c) Jurisdiction

  The Government also contends that Robinson's motion for a new trial was untimely and that the Court lacked jurisdiction to grant Robinson a second extension of time within which to file his post-trial motions. As stated above, the jury rendered a guilty verdict on November 18, 2002. On November 26, 2002, the Court granted a request by Robinson for an extension of time until December 19, 2002 to file his post-trial motions. In a letter dated December 18, 2002, Robinson requested a second extension of time until January 3, 2003 to file his post-trial motions, which the Court granted on December 20 with the Government's consent. The Government now claims that the Court was without jurisdiction to grant this December 20, 2002 extension of time and that the Court must reconsider, and deny, Robinson's motion for a new trial due to the motion's untimeliness and the Court's resulting lack of jurisdiction to entertain it.

  Fed.R.Crim.P. 33(b) states that "[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period." Fed.R.Crim.P. 45(b) provides that "[t]he court may not extend the time to take any action under Rules 29, 33, 34, and 35, except as stated in those ...


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