United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court is defendant Kenneth Graham's motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure and the Fifth and Sixth Amendments of the United States Constitution. For the following reasons, defendant's motion is denied in its entirety.
BACKGROUND AND RELEVANT FACTS
Defendant Kenneth Graham was charged, in a Superseding Indictment, with: (1) sex trafficking by force, fraud or coercion in violation of 18 U.S.C. §1591(a); (2) sex trafficking of a minor by force, fraud or coercion in violation of 18 U.S.C. §§§1591(a), 1591(b)(1) and 1591(b)(2); and (3) sex trafficking of a minor in violation of 18 U.S.C. §§1951(a) and 1951(b)(2). (Dkt. No. 7) In sum, it was alleged that defendant recruited, enticed, caused, forced, and/or coerced the three victims to engage in acts of prostitution for his own financial gain. Victim 1 was an adult, while Victims 2 and 3 were minors at the time of the alleged offenses.
Defendant retained attorney Michael Deal to represent him. The matter was referred to Magistrate Judge Hugh B. Scott for handling of all pre-trial proceedings. Defendant was arraigned on the Superseding Indictment and entered a plea of not guilty. Following a detention hearing on September 14, 2012, defendant was remanded pending trial.
On November 21, 2012, during an appearance before Magistrate Judge Scott, defendant waived the filing of any pre-trial motions, refused any further exclusions of Speedy Trial Act time and demanded an immediate trial. Deal stated that although he had advised defendant of certain issues that could be raised during pre-trial motions, such as the suppression of a cell phone confiscated at the time of the arrest, defendant did not want any pre-trial motions to be filed. Magistrate Judge Scott held a colloquy with defendant to confirm his wishes. The Magistrate Judge warned defendant that the decision to waive pretrial motion practice may affect him adversely and that he may be giving up certain rights, such as the right to contest the use of specific evidence at trial. Defendant indicated that he understood this. Defendant reiterated his desire to forego any pre-trial motion practice and instead schedule an immediate trial. Defendant stated that he "thought about [not filing motions] for a long time" and that the decision to waive pre-trial motion practice was his "final decision". (Dkt. No. 76)
The matter was then referred to this Court, and a jury trial was scheduled to commence on January 8, 2013. The Court conducted pre-trial conferences with counsel for defendant and the Government on January 3, 2013 and January 7, 2013. A number of evidentiary issues were discussed during the pre-trial conferences, including the relevancy and application of Rule 412 of the Federal Rules of Evidence. Rule 412 addresses the prohibition of evidence regarding a victim's past sexual behavior or predisposition in criminal sex offense cases, except in very limited circumstances.
On January 8, 2013, the Government filed a motion in limine, pursuant to Rule 412, seeking to prohibit defendant from introducing any evidence of the victims' sexual behavior or predisposition, including acts of prostitution, which occurred prior to or subsequent to the time period covered by the Superseding Indictment. Defendant filed a response in opposition to the Government's motion. On January 9, 2013, prior to the start of trial proof, this Court issued an oral decision granting the Government's motion. Specifically, the Court ruled that defendant would be prohibited from introducing or eliciting evidence or testimony concerning the victims' sexual behavior, including acts of prostitution, prior to or subsequent to the time periods charged in the Superseding Indictment. In addition, the parties would be permitted to introduce evidence and elicit testimony of sexual behavior and prostitution by victims, including sexual relations with defendant, during the time periods charged in the Superseding Indictment, and this evidence or testimony would not serve to open the door to questioning of the victims regarding prior or subsequent sexual behavior or prostitution.
On January 17, 2013, following a seven day jury trial, defendant was convicted of all three counts set forth in the Superseding Indictment. Sentencing was scheduled for May 22, 2013. On May 13, 2013, Deal filed a motion for adjournment of defendant's sentencing and appointment of new counsel. The motion indicated that in preparing for sentencing, defendant asked Deal to make a claim that could "only be characterized as one of ineffective assistance of counsel." Deal informed the Court that, as a result of his client's recent assertions, there was now a direct conflict of interest such that he could not continue to adequately represent defendant. On May 28, 2013, this Court relieved Deal and appointed attorney Robert Convissar to represent defendant. After a number of extensions of time to allow new counsel to obtain transcripts and review the record, the instant motion for a new trial was filed.
Defendant argues that he chose to forego all pre-trial motions and proceed to an immediate trial based upon representations by Deal that the charges against him were defensible. Specifically, defendant claims that Deal advised him that they could introduce evidence of the victim witnesses' prior sexual activities and histories as prostitutes and that this evidence would serve as a defense to allegations that defendant engaged in sex trafficking by force, fraud or coercion. Defendant claims he was told by Deal that, by using this type of evidence, there was a strong probability of acquittal as to two of the counts. He further claims that Deal advised him that while the remaining count "may be a problem", it carried a 10-year maximum prison sentence only. Defendant asserts that, prior to trial, the Government offered him a plea disposition that would have likely resulted in a prison sentence of approximately 10-12 years. Defendant claims that because Deal erroneously advised him that the victims' prior sexual conduct would result in a credible defense and because Deal failed to make a timely motion regarding the admissibility of this evidence, he decided not to accept this plea offer. Defendant now faces a potential life sentence.
Defendant further claims that immediately following his conviction, he asked Deal to attempt to secure a new trial. Defendant alleges that Deal advised him that the only remedy was an appeal to the Second Circuit Court of Appeals. Defendant claims that as soon as he learned of the existence of Rules 29 and 33 of the Federal Rules of Criminal Procedure, he sought to have Deal removed as his counsel.
Procedural Posture and Timeliness of ...