The opinion of the court was delivered by: Denise Cote, District Judge
Angelo DiPietro ("DiPietro") has filed a motion pursuant to Rule 33, Fed. R. Crim. P., for a new trial. DiPietro was one of six defendants convicted of racketeering charges, among other crimes, following a three-and-a-half-month trial. He was sentenced on June 30, 2006, principally to 210 months in prison, to be followed by 300 months in prison for a firearms offense in violation of 18 U.S.C. § 924(c).*fn1 For the following reasons, the motion is denied.
DiPietro's motion principally concerns his representation at trial by Martin Geduldig ("Geduldig"), who was appointed just weeks prior to trial from this district's CJA Panel to replace retained counsel Joseph A. Bondy ("Bondy"). Through a letter of September 9, 2005, Bondy notified the Court that DiPietro had just informed him that his family could not pay his fees for the trial in this matter, which was scheduled to begin on September 26, 2005.*fn2 Bondy had recently represented DiPietro at another criminal trial in this district, and funding that representation had exhausted the DiPietro family resources. Bondy requested that he be appointed pursuant to the Criminal Justice Act to represent DiPietro, although Bondy is not a member of this district's CJA Panel. The Court denied the application, but permitted Bondy to arrange for CJA counsel to be appointed to assist him in representing DiPietro so long as Bondy remained available as co-counsel until incoming CJA counsel had mastered the case. See United States v. Parker, 469 F.3d 57, 62 (2d Cir. 2006) (declining to appoint non-panel counsel as CJA counsel on appeal).
At a conference on September 13, Bondy explained that CJA panel attorney Geduldig was available to represent DiPietro at trial. Geduldig also represented that he was able to start the trial on September 26, since Bondy had assured him that he would work with him to get him "up to speed." Bondy represented that he would remain available to Geduldig and DiPietro until Geduldig was ready to represent DiPietro without him. At that time he would ask to be formally relieved.
Geduldig was appointed at the September 13 conference to represent DiPietro. The Court also allowed Geduldig to hire a paralegal in order to assist him in getting ready for trial. Geduldig immediately hired an attorney, who agreed to act as a paralegal and to be compensated as such. The paralegal's appointment was extended twice, until October 31.
In a letter of September 21, Bondy asked to be excused from attending the trial until such time as Geduldig needed or requested his assistance. His application was addressed at the beginning of the trial, on September 26. At that time, Geduldig also applied to have Bondy excused. Geduldig confirmed that Bondy had indicated that he would come to court if Geduldig needed him. Geduldig represented that he felt fully capable of representing DiPietro in Bondy's absence and Bondy repeated that he would come to court at any point during the trial that Geduldig requested his presence. The Court addressed DiPietro as follows:
I had required, as you know, that Mr. Bondy remain a participant in all proceedings, including every moment of this trial, until we were comfortable that Mr. Geduldig had become thoroughly familiar with this case and could give you entirely adequate representation in Mr. Bondy's absence . . . . Mr. DiPietro, having heard everything that's being said, do you excuse Mr. Bondy from being present at trial every day?
DiPietro answered, "Yes, I do." In response to the question, "And you're confident that Mr. Geduldig is in a position now to represent you fully without Mr. Bondy here present in court?" DiPietro answered, "Yes, I do."
At the end of the court day on November 2, the Court inquired of Geduldig whether "we are at the point where I can officially relieve Mr. Bondy." Geduldig agreed. That same day, an Order was issued relieving Bondy as counsel, based on Geduldig's representation that he no longer needed Bondy's assistance "and based on [the] Court's observations", which confirmed that fact.
Federal Rule of Criminal Procedure 33 states that "[u]pon the defendant's motion," the district court "may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). The time limits for filing a Rule 33 motion are as follows:
(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. . . .
(2) Other grounds. Any 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 ...