United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY, UNITED STATES DISTRICT JUDGE
February 8, 2018, this Court dismissed the remaining counts
in the superseding indictment with prejudice on
constitutional speedy-trial grounds. See United States v.
Green, 12-CR-83S (1)(2)(3), 2018 WL 786185 (W.D.N.Y.
Feb. 8, 2018). The government moved for reconsideration on
February 12, 2018. (Docket No. 784.) By order filed on
February 13, 2018, this Court denied reconsideration and
indicated that this decision would follow. (Docket No. 787.)
Familiarity with this Court's prior decision and the
government's arguments for reconsideration is presumed.
October 31, 2017, Defendants Ernest Green, Rodshaun Black,
and Daniel Rodriguez, together with Amilcar Ramos, proceeded
to trial on a 9-count superseding indictment. (Docket Nos.
155, 625.) Counts 1 through 5 related to the robbery,
extortion, kidnapping, and murder of Jabril Harper
(“the Harper counts”). In Counts 1 and 2,
Defendants and Ramos were charged with Hobbs Act conspiracy
and Hobbs Act robbery and extortion, in violation of 18
U.S.C. §§ 1951 (a) and 2. In Count 3, Defendants
and Ramos were charged with kidnapping, in violation of 18
U.S.C. §§ 1201 (a)(1) and 2. In Count 4, Defendants
were charged with discharge of a firearm causing death, in
violation of 18 U.S.C. §§ 924 (j)(1) and 2. And in
Count 5, Defendants and Ramos were charged with the use,
brandish, and discharge of a firearm, in violation of 18
U.S.C. §§ 924 (c)(1)(A)(i), (ii), (iii) and 2.
6 through 9 of the superseding indictment related to the
robbery, extortion, and kidnapping of Morris Singer, and
charged only Green and Black (“the Singer
counts”). In Counts 6 and 7, Green and Black were
charged with Hobbs Act conspiracy and Hobbs Act robbery and
extortion, in violation of 18 U.S.C. §§ 1951 (a)
and 2. In Count 8, Green and Black were charged with
kidnapping, in violation of 18 U.S.C. §§ 1201
(a)(1) and 2. In Count 9, Green and Black were charged with
the possession and brandish of a firearm, in violation of 18
U.S.C. §§ 924 (c)(1)(A)(i), (ii) and 2.
January 17, 2018, after more than 11 weeks of trial, the jury
returned a partial verdict under Rule 31(b) of the Federal
Rules of Criminal Procedure, after deliberating for seven
days. (Docket Nos. 740, 743.) It acquitted Green and Black on
the Singer counts and acquitted Ramos on all counts against
him. (Id.) After further deliberations the following
day, the jury remained hung on the Harper counts against
Green, Black, and Rodriguez. (Docket No. 741.) This Court
therefore declared a mistrial without objection.
on February 8, 2018, this Court granted Green's motion to
dismiss the superseding indictment on constitutional
speedy-trial grounds (joined by Black and Rodriguez), which
Green had previously filed on the eve of trial. (Docket Nos.
605, 607, 615, 780.) In short, this Court found that
Defendants' 68-month pretrial detention was principally
chargeable to the government and severely prejudiced
Defendants, particularly because they spent their pretrial
detention under oppressive conditions and under threat of the
death penalty, such that their Sixth Amendment rights to a
speedy trial were violated. Green, 2018 WL 786185, at *7-*11.
This Court therefore dismissed the indictment with prejudice
as required. Id. Four days later, the government
moved for reconsideration. (Docket No. 784.)
a district judge may modify pre-trial rulings and
interlocutory orders at any time before final judgment. See
In re United States, 733 F.2d 10, 13 (2d Cir. 1984).
Reconsideration of a prior decision is generally justified in
any one of the following three circumstances: (1) an
intervening change in controlling law; (2) new evidence; or
(3) the need to correct a clear error of law or to prevent
manifest injustice. See Virgin Atl. Airways, Ltd. v.
Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d
Cir.1992); see also Shrader v. CSZ Trans., Inc., 70
F.3d 255, 257 (2d Cir. 1995) (“reconsideration will
generally be denied unless the moving party can point to
controlling decisions or data that the court
overlooked-matters, in other words, that might reasonably be
expected to alter the conclusion reached by the
court”); Amerisure Ins. Co. v. Laserage Tech.
Corp., No. 96-CV-6313, 1998 WL 310750, *1 (W.D.N.Y. Feb.
12, 1998) (citing United States v. Adegbite, 877
F.2d 174, 178 (2d Cir. 1989)).
decision whether to grant or deny a motion to reconsider lies
in the court's discretion. See McCarthy v.
Manson, 714 F.2d 234, 237 (2d Cir. 1983). Parties
bringing motions to reconsider “should evaluate whether
what may seem to be a clear error of law is in fact simply a
point of disagreement between the Court and the
litigant.” Duane v. Spaulding and Rogers Mfg.
Inc., No. 92-CV-305, 1994 WL 494651, *1 (N.D.N.Y. Aug.
10, 1994) (quoting McDowell Oil Serv. v. Interstate Fire
and Cas., 817 F.Supp. 538, 541 (M.D.Pa. 1993)). Motions
for reconsideration are not to be used as a means to reargue
matters already disposed of by prior rulings or to put
forward additional arguments that could have been raised
before the decision. See Duane, 1994 WL 494651 at
*1. After all, a “motion for reconsideration is not a
device intended to give an unhappy litigant one additional
chance to sway the judge.” Nossek v. Bd. of Ed. of
Duanesburg Cent. Sch. Dist., No. 94-CV-219, 1994 WL
688298, *1 (N.D.N.Y. Nov. 10, 1994).
against these well-settled standards, the government wholly
fails to state a valid ground for reconsideration: it does
not assert an intervening change in controlling law; it does
not cite new evidence; it does not allege a need to correct a
clear error of law; and it does not meaningfully assert the
need to prevent manifest injustice, though that is the stated
basis for its motion. See Motion for Reconsideration, Docket
No. 784, p. 5.
the government's motion is a transparent attempt to
obtain a “do over.” That is, it seeks to
re-litigate Defendants' speedy-trial motion, a classic
try for a second bite at the apple. In doing so, the
government complains that it was denied the opportunity to be
fully heard on the motion, claiming that “[t]he Court
never granted the government permission for a
sur-reply” and “[t]he reason Black's
counsel's declaration was unrebutted was because it was
raised in a reply brief, to which, the Court afforded the
government no opportunity to respond.” See Motion for
Reconsideration, pp. 3, 10, 17. The government also faults
this Court for resolving the speedy-trial motion
“without the benefit of a pre-trial hearing.” See
Motion for Reconsideration, p. 3. What the government
conveniently ignores, however, is that it neither moved to
file a sur-reply nor ever requested a hearing.
thrust of the government's complaint is that it was
denied the opportunity to fully respond to the
Defendants' allegations concerning the death-penalty
aspect of this case. That is not accurate. The
government's handling of the death-penalty proceedings
and the possible need for a hearing were both raised in
Green's speedy-trial motion and Black's joinder
motion. (Docket Nos. 605, 607.) Defendants detailed the
government's mishandling of the death-penalty issue and
requested a hearing if the government sought to challenge
their account. (Id.) But the government elected not
to do so. Instead, it took the position that its handling of
the death-penalty proceedings was “immaterial” to
resolution of the motion and that there was no evidence that
the Attorney General's decision on the death penalty