The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
Pending before the court is defendant John VanHoesen's motion for dismissal or a new trial under FED. R. CRIM. P. 33. (Dkt. No. 812.) For the reasons that follow the motion is denied.
On July 26, 2007, VanHoesen was indicted for committing various federal drug crimes. (See Dkt. Nos. 191, 209.) Prior to trial, VanHoesen indicated to the court that he wanted to defend his case pro se, in lieu of being represented by his third court appointed counsel, Mr. Cimino. (See Dkt. No. 736.) After extensively questioning and cautioning VanHoesen on this course of action, the court granted VanHoesen's request to proceed with trial pro se, though it designated Mr. Cimino as standby counsel. Id. After a jury trial, VanHoesen was convicted on one count of conspiracy to possess with intent to distribute 50 grams or more of crack; one count of possession with intent to distribute crack, and two counts of possession with intent to distribute 5 grams or more of crack. (See Dkt. No. 769.)
Subsequently, VanHoesen filed the current motion under FED. R. CRIM. P. 33, requesting "dismissal or a new trial on all counts" on grounds that his Sixth and Fourteenth Amendment rights were violated by his assigned counsel, the court and the prosecution. (See Dkt. No. 812.)
FED. R. CRIM. P. 33 directs a trial court to grant a new trial "if the interest of justice so requires." "The rule by its terms gives the trial court broad discretion ... to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (internal quotation marks and citation omitted). "The ultimate test is whether letting a guilty verdict stand would be a manifest injustice.... There must be a real concern that an innocent person may have been convicted." United States v. Canova, 412 F.3d 331, 349 (2d Cir. 2005) (internal quotation marks and citations omitted). "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." Ferguson, 246 F.3d at 134 (internal quotation marks and citation omitted).
A. Ineffective Assistance of Counsel
Initially, the court addresses VanHoesen's contention that Rule 33 relief is appropriate here because he was provided constitutionally ineffective assistance by assigned counsel prior to and after his election to proceed through trial pro se.
1. Prior to Election to Proceed Pro Se
The Sixth Amendment to the Constitution provides that defendants in criminal trials have a right to counsel. As the Amendment "envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results[,] ... the right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 685-86 (1984) (internal citation and quotation marks omitted).
Where, as here, a defendant was initially represented by assigned counsel, but subsequently elects to proceed pro se, he may allege ineffective assistance of counsel at least up to the point where he began to represent himself. See, e.g., Hance v. Zant, 696 F.2d 940, 950 (11th Cir. 1983), overruled on other grounds by Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985); Jelinek v. Costello, 247 F. Supp. 2d 212, 264 (E.D.N.Y. 2003). A convicted defendant claiming ineffective assistance of counsel must make two showings. "First, the defendant must show that counsel's representation fell below an objective standard of reasonableness" as measured by "prevailing professional norms." Strickland, 466 U.S. at 688. In assessing this factor "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. As for the second prong "the defendant must show that the deficient performance prejudiced the defense." Id. at 687. While prejudice is presumed in some circumstances - where counsel has a conflict of interest, for example - a defendant must normally "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Mindful of these principles, the court finds that VanHoesen has failed to establish that his assigned counsel was constitutionally ineffective prior to his election to proceed pro se. While VanHoesen claims he was improperly asked about his prior bad acts and crimes by Mr. Cimino, who was purportedly acting as a government agent, no evidence is presented to back up these paranoid allegations. (See Def. Mem. at ¶¶ 7, 9; Dkt. No. 812.) Indeed, it seems likely that Mr. Cimino's queries were merely a proper attempt to familiarize himself with VanHoesen's history, due to the fact that the government can introduce evidence of prior bad acts or crimes at trial under certain circumstances. See FED. R. EVID. 404(b); Cf. Cruz v. Greiner, No. 98 CIV. 7939(AJP), 1999 WL 1043961, at *15 n.5 (listing cases rejecting ineffective assistance of counsel claims where defense counsel elicited testimony as to prior bad acts or ...