The opinion of the court was delivered by: Gerard E. Lynch, District Judge
On December 23, 2004, Luis Melendez was found guilty by a jury, after a three-day trial, of possession of crack cocaine with intent to distribute, possession of a firearm in furtherance of a drug crime, and possession of a firearm after conviction on a felony offense. On December 28, Melendez timely moved, pro se, for a new trial and for the appointment of new counsel. After new counsel was appointed, the Court granted successor counsel an extension of time to file briefs in support of the motion, and on April 15, 2005, counsel filed papers seeking a new trial and other relief. The Government responded on August 1, 2005. For the following reasons, the motion will be denied.
The evidence at trial can be summarized as follows. On April 13, 2004, after Melendez was detained on an alleged violation of parole, three New York City police officers who were investigating his activities visited 1263 Commonwealth Avenue, which Melendez's parole officer had told them was his address. Upon arrival at the address, the officers met Melendez's girlfriend, Tusheeka Price, and their three-year-old son. Price consented both orally and in writing to a search of the apartment, and when asked if Melendez stayed at the apartment and where he kept his clothes, Price showed the officers to a hall closet.
The closet did indeed contain men's clothes. It also contained a small box that contained thirteen bullets, a receipt with Melendez's name on it, and a number of small plastic baggies. In a different closet, officers found a safe on the floor. The officers identified the odor of marijuana emanating from vents in the safe. Later, at the precinct, a narcotics-detecting dog reacted positively to the safe. Based on this evidence, on April 15, the officers and a federal agent obtained a federal search warrant to open the safe. When it was opened the next day, inside was found, among other things, 35 grams of crack cocaine, a loaded 9mm handgun, a loaded .38 caliber handgun, over 50 rounds of 9mm ammunition of various makes, razor blades, a scale and baggies, and a set of car keys. The car keys were found to operate a green Ford Expedition that belonged to Melendez.
In addition to the law enforcement witnesses who testified to these facts, the Government called Price, who testified under immunity. Price testified that Melendez was the father of her son, and that he visited her and her son and kept clothes at her apartment. She denied consenting to a search of her apartment, however, and testified that the safe belonged not to Melendez, but to a person named "Jimmy," a friend of her cousin's whom Price had met on the street and had dated, but whose last name, address, and phone number she did not know. The Government then confronted Price with testimony she had given before the Grand Jury, where she had testified that the safe belonged to Melendez, who had brought it to her house in January 2004.
There was also testimony about two additional prior inconsistent statements by Price. An NYPD detective testified that Price had told officers during the apartment search on April 13 that Melendez owned the safe, and signed a written statement to that effect. An investigator with the United States Attorney's Office testified that Price had confirmed outside the grand jury room that the safe belonged to Melendez; the investigator also denied that Price had been threatened or intimidated.*fn1
Melendez's counsel elicited various items of evidence in an effort to discredit the Government's case. The defense theory was that the keys to Melendez's car were not in the safe, where they could connect Melendez to the guns and drugs found there, but had been Price's set of keys, kept on a hook on a closet door. Price indeed testified, in response to defense questioning, that she kept a set of keys to Melendez's car on such a hook, and that the keys went missing after the search of the apartment. The police officers admitted that they had not listed the car keys on the voucher, search warrant return, and other paperwork connected to the search of the safe.
The defense also disputed Melendez's connection to Price's residence. For instance, counsel elicited testimony from Price that she, not Melendez, had brought his clothing to the apartment, moving it with her from her mother's house. She further testified that she had the clothing of three other men, including the elusive "Jimmy," in her apartment. Counsel also called a more current girlfriend of Melendez's (who described herself as Melendez's fiancee), who testified that Melendez slept with her nearly every night for the several months before his arrest in April 2004, and spoke to her on the phone from his godmother's house on the few nights they were apart.
In support of his motion to set aside the jury's verdict, Melendez challenges several aspects of his trial, including (1) the admission of Price's grand jury testimony; (2) the sufficiency of the evidence to support the verdict; (3) the effectiveness of trial counsel; and (4) the alleged suppression of favorable evidence by the Government.
At the threshold, the Court must consider whether the motion, or some portion of it, is untimely. At the time defendant's motion was filed and briefed, the Federal Rules of Criminal Procedure provided that post-trial motions for a judgment of acquittal notwithstanding a guilty verdict or for a new trial (on grounds other than newly-discovered evidence) had to be brought within seven days after the verdict, "or within any other time the court sets during the 7-day period." Fed. R. Crim. P. 29(c)(1) (2005) (emphasis added); see also Rule 33(b)(2) (substantially the same). That the rules meant what they said was further emphasized by Rule 45(b)(2), which provided that despite the trial court's general power to extend time limits, "the court may not extend the time to take any action under Rules 29 [and] 33 . . . except as stated in those rules."
Despite some loose talk in earlier appellate opinions, it is now settled that these time limits were not jurisdictional. Eberhart v. United States, 126 S.Ct. 403, 404-05 (2005) (per curiam). Thus, for example, the untimeliness objection could be forfeited if not raised by the Government in a timely manner. See United States v. Robinson, 430 F.3d 537, 541-42 (2d Cir. 2005). However, though not jurisdictional, the time limits were "inflexible," and were to be strictly applied if a party properly raised them. Eberhart, 126 S.Ct. at 407.
While the strict time limits on post-trial motions served the commendable purposes of preventing undue delay, the rules worked a somewhat irrational hardship in some unusual circumstances. For example, as illustrated in Robinson, if, as a result of extreme weather conditions or illness, an attorney was unable to file a motion on the last day of a properly-extended period to file post-trial motions, the routine remedy of granting a modest extension would be precluded, and the motions could not be filed. Of course, as the Court of Appeals emphasized in United States v. Canova, the defendant would not be left without remedy: He could still file a direct appeal or seek to vacate his conviction pursuant to 28 U.S.C. § 2255. 412 F.3d 331, 345 n.15. But these remedies are more cumbersome, and impose additional burdens on the courts and on defendants.
These burdens were rendered further arbitrary by the fact that however strict the time limits were in theory, they could easily be evaded. As the Canova court noted, while a court was without power to grant a second extension of the time to file post-trial motions, an alert defense counsel could avoid the rule by making an immediate oral motion, as soon as the jury's verdict was recorded, for a new trial and a judgment of acquittal, and asking the court to set an extended time period, not for making the motion, but for briefing it. The defendant could then seek and receive further extensions of the briefing period as needed, since the motion was long since timely made. Id. at 347. This elevation of form over substance rendered the rule utterly without effect, except as to defendants whose lawyers were unaware of the trick.
As a result of such considerations, the Federal Rules were amended, effective December 1, 2005, to eliminate the former restriction on the power to grant successive extensions of the time limits. Thus, the present language of Rules 29(c)(1) and 33(b)(2) simply provides for a seven-day time limit for the filing or renewing of a motion, omitting the language concerning extensions, and Rule 45 no longer exempts these time limits from the court's general power to extend time limits on a motion made "before the originally prescribed or previously extended time expires." Rule 45(b)(1)(A).
Application of the former rules to the present case presents additional complexities. As noted, Melendez made a pro se motion for a new trial within the 7-day time limit set by Rule 33. At that time, he was still represented by trial counsel; however, he made clear in the motion that he was dissatisfied with that attorney's performance, and sought appointment of a new lawyer. That appointment was not granted until January 14, 2005, some two weeks after the 7-day time limit had expired. New counsel needed additional time to consider whether to pursue the motion filed by Melendez or to develop alternative grounds for relief. Accordingly, the Court granted new counsel 60 days to decide whether to withdraw defendant's pro se motion and/or file additional motions.
Moreover, Melendez's pro se motion contained assertions that a cautious advocate might consider ill-advised, leading counsel, when the Court questioned whether counsel intended to pursue the issues raised by Melendez pro se, to seek to withdraw the pro se motion in favor of a fuller or different motion to be made later. Thus, in an order issued on February 24, 2005, in response to that request and to a request for a further extension of time for counsel to file additional motions, the Court deemed defendant's pro se motion withdrawn, but pointed out that the previously-set deadline for the filing of motions was March 15, 2005, and that there was some doubt as to the Court's power to grant a further extension.*fn2
By letter dated March 14, 2005, counsel for Melendez advised the Court that his investigation had unearthed a number of grounds for further motions, and was continuing. He therefore sought still more time to brief the motion already filed, and to make additional motions. Finding that it was "unquestionabl[y] in the interest of justice to grant defendant's request for additional time," and noting (1) that at least some of the issues counsel sought to raise had been timely presented to the Court in the pro se motion, (2) that there was even then authority that the Court could grant an extension of time for briefing a Rule 33 motion that was timely made,*fn3 and (3) that the law was uncertain as to the Court's power to extend the deadline for filing new motions, the Court entered an Order on March 15 that vacated the prior order deeming the pro se motion withdrawn, extended the time for briefing that motion until April 15, 2005, authorized Melendez to file new motions until that date "to the extent the Court has power to grant such an extension," and invited the parties to brief the timeliness issues, including whether a brief that raised issues not asserted in Melendez's pro se motion in effect constituted a new motion or simply further briefing of the old.
The Government now advances the timeliness issue in opposition to Melendez's motion, thus posing the following issues: (1) Is the question of timeliness governed by the law applicable at the time the extensions were sought, under which the Court was not permitted to grant an out-of-time extension, or by the law applicable today, under which a court can grant such extensions freely? (2) Even under the former law, did the Government do anything that could be construed as waiver or forfeiture of the issue? (3) Assuming that the issue is to be decided under the former law, and that the Government preserved the timeliness objection, did the withdrawal of the pro se motion terminate Melendez's right to seek further extensions of the briefing period, and if so, did the Court's later vacation of the order withdrawing the motion restore that right nunc pro tunc? (4) Assuming the answer to the previous question is yes, and that, as suggested by the Second Circuit in Canova, an oral motion on unspecified grounds would have preserved the ability to grant repeated extensions to raise any issues at all, would the fact that the pro se motion was based on specified issues prevent defendant from taking advantage of the "extended briefing" loophole to raise entirely new issues not suggested by the original motion?
Since the cases that clarify the meaning of the former time limit rules (Eberhart, Canova, and Robinson) were not decided until after the parties briefed the present motion -- and indeed, until the very eve of the obsolescence of the rules they interpret -- the parties understandably have not addressed these issues in any detail.
However, the Court need not unravel the nuances of these former time limits, which have gone to a deserved resting place in the dustbin of history. It is now established that, even if strictly applicable, the time limits did not deprive this Court of jurisdiction to grant out-of-time extensions. Thus, since the issue is not jurisdictional, the Court may first consider the merits of Melendez's objections, and then rule on the timeliness issue if necessary. As the Court ultimately concludes that the arguments in Melendez's motion are substantively without merit, it need not address the complex questions presented by the Government's timeliness objection.
II. Admission of Price's Grand Jury Testimony
A new trial may be granted where the admission of evidence was erroneous, unless its admission was "unimportant in relation to everything else the jury considered on the issue in question," that is, harmless. United States v. Germosen, 139 F.3d 120, 127 (2d Cir. 1998) (quotation marks omitted). Melendez claims that the Court made such an evidentiary error by admitting Price's grand jury testimony as substantive evidence.
It is undisputed that the Government was permitted to impeach Price's testimony by confronting her with her prior inconsistent statements. Fed. R. Evid. 607 (witness's credibility "may be attacked by any party, including the party calling the witness"). Melendez argues, however, that it was error, under the Federal Rules of Evidence, the Due Process Clause of the Fifth Amendment, and the Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, 541 U.S. 36 (2004), to admit Price's grand jury testimony as substantive evidence. This argument is meritless.
First, the admission of the testimony as substantive evidence is expressly permitted by Rule 801(d)(1)(A), which excludes from the definition of hearsay (and thereby renders admissible) an out-of-court statement made by a witness who "testifies at the trial or hearing and is subject to cross-examination concerning the statement," where the statement is "inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding."
All of the conditions set by the Rule were clearly met by Price's grand jury testimony. Price testified at trial, and was subject to cross-examination about the statement if the defense had chosen to inquire. The grand jury testimony, in which Price stated that the safe belonged to Melendez, was flatly inconsistent with her trial testimony, in which she attributed ownership of the safe to the mysterious "Jimmy." The prior testimony before the Grand Jury was, of course, given under oath, as Price admitted at trial. Melendez does not dispute that a grand jury inquiry is a "proceeding" within the meaning of the rule. See United States v. Marchand, 564 F.2d 983, 998-99 (2d Cir. 1977) ...