United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court is defendant Kristina Thomas' motion for an order vacating her conviction, granting her a new trial, and granting her request for bail pending sentencing. (Dkt. No. 64) For the following reasons, defendant's motion is denied in its entirety.
BACKGROUND AND RELEVANT FACTS
On August 16, 2011 defendant was charged, in a two-count indictment, with bank fraud (in violation of 18 U.S.C. §1344(2)) and aggravated identity theft (in violation of 18 U.S.C. §1028A(a)(1) and (2)). (Dkt. No. 1) In sum, the Government alleged that while defendant was employed in the mailroom at HSBC bank, she obtained the personal information of a third party and opened fraudulent accounts in this individual's name. The Government contended that defendant then made purchases with this account, and caused or allowed others to make similar purchases or cash checks also using the fraudulent accounts.
The matter was referred to Magistrate Judge Hugh B. Scott for supervision of pre-trial proceedings pursuant to Section 636(b)(1)(A) of Title 28 of the United States Code. Defendant was arraigned on these charges on October 31, 2011. At that time, attorney J. Carr, who had previously been assigned to represent defendant, asked to be relieved as counsel. On November 1, 2011, Magistrate Judge Scott appointed attorney Samuel P. Davis to represent defendant.
The Government filed a motion to set a trial date on May 4, 2012. (Dkt. No. 17) The Court held a status conference on May 9, 2012 at which time defendant requested, and was granted, a three week adjournment to explore a plea disposition. Another status conference and meeting to set a trial date was held on May 29, 2012. At that time, the Court scheduled jury selection for August 21, 2012, with proof to begin the next day. A final pre-trial order was issued, which included deadlines for the parties to file pre-trial submissions. (Dkt. No. 19) The final pre-trial conference was scheduled for August 16, 2012.
The Government filed its pre-trial submissions in early August in accordance with the Court's Order. On August 12, 2012, one week prior to jury selection, defense counsel filed a motion to adjourn the trial. (Dkt. No. 28) Therein, Davis stated that he was having difficulty communicating with his client and preparing for trial because defendant was living in Georgia. The Government opposed the request. (Dkt. No. 30) On August 15, 2012 the Court issued a text order denying the motion to adjourn the trial. (Dkt. No. 31) The Court stated that defense counsel had three months prior notice of the trial date, which represents ample time for counsel to prepare and defendant to return from Georgia. The final pre-trial conference was held on August 16, 2012. Davis and defendant were both present for the pre-trial conference. The next day, Davis filed a second motion to adjourn the trial. (Dkt. No. 33) The Court granted a brief adjournment until August 24, 2012, and advised that any further requests for an adjournment would be denied.
On August 23, 2012, again one day before jury selection, Davis filed a third motion to adjourn the trial. (Dkt. No. 42) Counsel stated that he "had not had the benefit of time to formulate strategies", that he needed to conduct a field investigation, and that proceeding with trial as scheduled "would wax counsel ineffective for the purpose of providing defendant with adequate representation at trial." Id. That same day, the Court issued a detailed text order denying the motion to adjourn. The Court stated, inter alia, that this was an uncomplicated fraud case which, at the time, was over two years old. Davis, who had been appointed to the case in November of 2011 and had notice of the trial date for three months, had ample time to gather evidence, conduct investigations, and ensure that witnesses or investigators were available.
On Friday, August 24, 2012, prior to the start of jury selection, Davis asked the Court for permission to allow attorney Anthony Pendergrass, an experienced criminal defense attorney, to assist as co-counsel during jury selection. The Court's docket entry from the proceeding that day states that defendant was in agreement with the arrangement. The Court granted the request, but instructed that Pendergrass would not be permitted to seek fees pursuant to the Criminal Justice Act. The Court then proceeded with jury selection, during which time defendant had the benefit of both Davis and Pendergrass acting as counsel.
That same day, at the conclusion of jury selection, defendant informed the Court that she wished to change her plea. Defense counsel and counsel for the Government represented to the Court that they were prepared to go forward with the plea at that time. However, the Court determined that, out of an abundance of caution and in order to give defendant ample time to consider the plea agreement and her decision to change her plea, the plea proceeding would be adjourned until the following Monday.
The parties returned to Court on Monday, August 27, 2012, at which time defendant informed the Court that she would not accept the plea offer and instead wished to proceed to trial. The Court then commenced with the trial. After preliminary instructions were given to jurors, Davis requested the Court's permission to allow Pendergrass to assist as co-counsel for the remainder of the trial. The Court noted that the request was unusual, but allowed Pendergrass to proceed as co-counsel.
During the trial, the Government called four witnesses who testified regarding defendant's participation in the check and credit card fraud schemes. Three of those witnesses were co-participants in the crime. The Government also called two HSBC Bank employees, as well as Lynda Johnson, the individual whose name and personal information was used to obtain the fraudulent credit card and checks. Clint Homer, an inspector for the United States Postal Inspection Service who investigated the fraudulent credit card and convenience check scheme, also testified. The testimony provided by the Government witnesses was credible, detailed, and corroborative.
At the conclusion of the Government's case, defendant made a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29. The Court denied defendant's motion. Following summations by counsel, the jury charge and a period of deliberation, the jury convicted defendant of both counts charged in the indictment on August 29, 2012. A schedule was established for sentencing and submission of sentencing papers. Defendant was then remanded to the custody of the United States Marshals Service pending sentencing.
Prior to the scheduled sentencing date, the Court received a number of letters from defendant complaining that Davis was ineffective during and after the trial. Defendant represented to the Court that Davis met with her only once since her conviction and failed to return her phone calls. The Court held a status conference on November 30, 2012, during which time the Court questioned defendant about her correspondence and relationship with Davis. Defendant represented to the Court that her relationship with Davis had broken down completely and that she could no longer continue to work with him. The Court relieved Davis from the case and appointed attorney Cheryl Meyers-Buth to represent defendant pursuant to the Criminal Justice Act.
The Court then granted a number of adjournments to allow Buth to meet with defendant and become familiar with the case. On August 2, 2013 Buth filed the instant motion requesting that the Court vacate defendant's conviction and grant defendant a new trial. The significant delay in filing the Rule 33 motion occurred because it took an extended period of time for Buth to receive the trial transcript and Davis' case file. The motion was made soon after Buth had an opportunity to review the complete record. Defendant argues that serious errors were made during trial which resulted in a ...